An Afternoon in the Law

Today I attended the 2010 John Marshall Harlan '20 Lecture in Constitutional Adjudication at the Woodrow Wilson School for Public and International Affairs on Princeton University's inspiring campus. The speaker was the Chief Justice of the Supreme Court of New Jersey, the Honorable Stuart Rabner. Chief Justice Rabner, like Justice Harlan before him, graduated from Princeton.

Ten minutes before the program was to begin, I involuntarily networked with a man who crossed several seats to get the business going. He was good at the networking wheeze, and before long I had volunteered nearly everything I knew about myself except my social security number. I am proud of the fact that I am uncomfortable networking. Like Bacon's Nature, I do not reveal my secrets, but rather only respond to a line of questioning. Alas, my guy was up to the task, and extracted secrets. Presently and mercifully we were brought to order.

The Chief Justice was introduced to the capacity crowd in Dodds Auditorium by a professor from the Woodrow Wilson school, who recited, apparently without omission, the Chief Justice's embarrassingly long list of absurdly impressive academic achievements. The audience learned too that the Chief Justice's father survived a Soviet work camp. And that the Chief Justice was a Princeton University tour guide while making his way through the institution, trailing clouds of glory. The Chief Justice is a remarkably amiable and intelligent man, and spoke extemporaneously for close to a half hour about New Jersey's constitutional history. He spoke too of the structure of the state's court system, which was overhauled in 1947 and which was used as the model for both the Alaskan and Hawaiian court systems.

The Chief Justice spoke at some length and specificity about a few of the programs the New Jersey courts have initiated. For example, the courts have a program whereby lawyers in the state volunteer to mediate between mortgagees and mortgagors, in an effort to avoid foreclosure proceedings. The courts have also instituted a program (now operating in four counties; soon to be five) where returning veterans who end up in criminal court, in appropriate cases, are diverted onto a counseling track and are assigned a military mentor. This program was inspired by the notion that returning veterans sometimes have trouble assimilating back into society, and that, in those cases, society should make an extra effort to aid that assimilation.

The Chief Justice ended his remarks by stressing how important he considers it that the state's courts extend to all parties procedural due process. Pointing out that because there is always at least one party unhappy with a court's decision, it is imperative that the judicial process be viewed as fair and impartial.

After the Chief Justice's main remarks, he joined the Provost of Princeton University, Christopher L. Eisberger, in those giant leather chairs such people always repair to when the question and answer session begins. The Provost, a graduate of Princeton and the University of Chicago's Law School, and an author of a book on the appointment process of Supreme Court Justices, asked the Chief Justice several of his own questions before eventually asking for questions from the audience. The mundane questions asked by the Provost yielded more interesting answers, mainly because the Provost understood that asking interesting questions to a sitting Chief Justice, who after all must remain circumspect with an eye toward future cases, means you get anodyne answers back. The Princeton students who asked questions of this sort, and who must have been unaccustomed to not getting interesting answers back, stood fast at the microphone after the Chief Justice stopped his devitalizing answers, retreating to their seats only after the Chief Justice blinked at them several times.

Here are some interesting differences between New Jersey constitutional rights and federal constitutional rights, which the Chief Justice cited in the course of his answers. Remember of course that the federal rights set a floor which state constitutional text and interpretation are free to exceed in the direction of greater individual rights:

1) Folks in New Jersey have a reasonable expectation of privacy in the trash they put out on the curb. Under the federal Constitution, that's not so.

2) With respect to a search of a house, for example, a consent must be knowing and voluntary under the federal Constitution. In New Jersey, homeowners/dwellers have the additional protection that the police must inform them they have a right to refuse such a search

3) In New Jersey, a passenger in a car that is stopped and searched, and who is found during that search to possess a gun, for example, has standing to challenge the grounds for the search. Under the federal Constitution, the passenger would not normally have sufficient possessory interest (i.e. does not own the car) to have standing to challenge such a search.

One question elicited the Chief Justice's advice to the students in the audience who are headed to law school. The Chief Justice did not mention that the legal job market is poor, much less suggest an alternate career path on that account. He was talking to Princeton students, after all, who, it was clear from the unspoken assumptions implicit in both the question and answer, were headed to top law schools. The Chief Justice advised the future law students to use their summers to try out firms both big and small, and not to go to law school with too certain an idea of what you want to do. This last bit of advice, in retrospect, and for reasons not contemplated by the Chief Justice, is comically relevant to me.

The questions from the audience exhausted, the Provost reserved for himself the last question of the afternoon. And, apparently unable to help himself, asked the Chief Justice a manifestly interesting question: Does the Chief Justice have a view on trying terrorist suspects in the civilian court system. The Chief Justice declined to offer a view on prospective cases, saying only that such trials have yielded results in the past. Then the Provost offered his own view on the question, which, whether or not correct, was entirely unsurprising.

It was a good afternoon in the law.

Should Everyone Be “Special”?

One of my favorite films in recent years is Disney Pixar’s The Incredibles. The movie tells the story of a family of “Supers” (heroes), who have gone into hiding to escape public scrutiny for tort claims arising out of saving people who “did not want to be saved.” (An interesting thought itself.)

My particular interest in the film centers on the antagonist of the story. A self-declared/self-made “Super” named Syndrome. Syndrome was born without super powers, yet he was driven to become a Super anyway. As a child, his obsession with the Supers led him to attempt to help the protagonist, Mr. Incredible, catch a villain. The results were disastrous. The young Syndrome appeared on the scene as “Incredi-boy,” complete with his own outfit and technology that made up for his lack of innate super powers. Because of his interference, the villain they were after got away, and Mr. Incredible sent the young would-be helper packing. Years later, this child grew to be a bitter and determined man who was driven to perfect his technological aids with one purpose. His aspiration was to destroy all true Supers and sell his products to the masses, “so that when everyone is special, no one is.”



This scene, to me, is a key moment in the film. Syndrome is proclaiming his indictment of outcome-based measures of performance. He fails to recognize his own unique talent and giftedness with technology, and instead focuses only on what he is not – innately “Super.” His desire to strip the world of all who have such gifting and replace it with his form of power is problematic for an obvious reason. People who do have such a unique set of talents should not be punished. A theme throughout the film is the depression the Supers experience as a result of suppressing who they truly are. Less obvious, though, is the somewhat ironic problem brought about by Syndrome's plan. His desire to equalize the population (everyone will be Super, therefore no one will be) actually works to diminish his own gifting. He is, in effect, saying that there is only one way to be special. Being Super, whether by nature or machine, is his only metric for success.

The fact is that we are all uniquely gifted in some way. His own talents are evident when one considers the vast island kingdom he has managed to establish through his ingenuity. Instead of seeing himself as uniquely talented, he only sees what he is not. Comparing ourselves to others and wondering why we aren’t this or that doesn’t help us become our best, it only discourages us that we are not like another. I suppose my thought-kernel for the afternoon is to focus less on what I am not and more on what I am.

Balancing on the Edge of the Merits

I have posted a draft of my newest article - Striking an Efficient Balance: Making Sense of Antitrust Standing in Class Action Certification Motions - on SSRN.

My thesis is that a district court judge considering a motion for class certification in an antitrust class must preserve the bargaining relationship of both the putative plaintiff class and the defendant(s) through an analysis of both the Article III and antitrust standing doctrines. In the article, I demonstrate the adverse impact an imprudently certified class will have on the consuming public as a whole. I propose that by considering the antitrust standing (and thus antitrust injury) of a putative plaintiff class at the certification stage of the litigation, efficient conduct – and thereby consumer welfare – will be achieved.

The trouble is that ascertaining antitrust standing can be quite complicated, almost always invoking issues typically reserved for the merits of a case. This is problematic, because a district court judge is bound by the Supreme Court's admonishment to avoid "inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974).

I welcome any comments on the piece.

Hardball in the Preparation Market

It's a cage match. Behemoth Barbri and wiry newcomer Themis are mano a mano in the market for Pennsylvania bar review courses. Earlier this week, I saw an e-mail from a Themis rep calling out Barbri's rep for talking trash. I do love competition.

The price for the Themis course is $1395. Would you like New Jersey with that? Themis will throw in New Jersey prep for $100. You may want to add a state essay review for $795 for a total cost of $2280. Compare Barbri's price at $2850. It took some clicking around to even find the price on BarBri's site.

I confess I'm not over my own bar exam prep experience. I resented Barbri's monopoly. Even more, I was horrified by my own perfectly inelastic demand for its product.

Liberal Tendencies: Nature or Nurture?

My friend Buce at Underbelly had this to say about Sorting in the Academy.

Big Soup

Another child of the capitalist system has grown up to darken the horizon. It's Big Soup.

The Campbell Soup Company is serious about causing you to buy soup. And 'causing' seems to be the right word. Ilan Brat, in a piece titled The Emotional Quotient of Soup Shopping, published in the Marketplace section of today's Wall Street Journal, tells the story of the Campbell Soup Company's two-year-long project to cause you to buy more soup.

It turns out that there are squads of folks dedicated to finding out how you feel about soup. And it turns out that they can't simply rely on the method that suggests itself: asking you how you feel about soup. How come? Campbell CEO Doug Conant notes, ruefully one suspects, that when folks are asked why they eat soup or why they don't, they "say they don't think of it." That seems to be good news. It's unclear what exactly a world would look like in which all of us had sound and articulable reasons for why we do or don't eat soup, but it seems like it would be worse than this one.

There are other challenges for the soup investigators. For example, they can't get reliable information from folks about which soup labels are memorable, which are effective, and which aren't. Not that they haven't tried. But when they conducted interviews for the purpose, the interviews "didn't fully capture their [the interviewees] unconscious responses." That also seems to be good news for those of us not in the Campbell Soup Company's executive suites. If there is one thing we can yet have a reasonable expectation of privacy about, it would be impressions we don't know we have, but do.

What's a soup company to do? Apparently, use neuromarketing techniques to ferret out consumers' hidden impressions. Neuromarketing techniques have their limitations (more good news). For example, researchers can measure emotional responses in subjects, but not what the underlying emotions are. Also, the generally small sample sizes convenient for neuromarketing testing means oulier data can be mistaken for the norm. Be that as it may, here's how Campbell has used neuromarketing techniques:

"Researchers interviewed about 40 people at their homes and later in grocery stores. The team [of researchers] also clipped small video cameras to the testers [the folks corralled for the interviews and the study] at eye level and had them later watch tape of themselves shopping for soup. Special vests captured skin-moisture levels, heart rate, depth and pace of breathing, and posture [while the testers faced the grocery shelves filled with soup cans]. Sensors tracked eye movements and pupil width."

The upshot of this research? The Campbell folks think they can "boost sales by triggering more emotional responses in stores and prompting more people to focus on more soups."

And they came up with this: aside from the three iconic labels, rendered that way by Andy Warhol (chicken noodle; tomato; and cream of mushroom), new labels will feature steam rising from the "larger, more vibrant pictures of soup", which now will be contained in "modern, white bowls." Also, the spoon that heretofore held up the soup in the foreground of the labels, having been condemned as "unemotional", will go away.

I suppose this is all all right, or in any case, the way things are. But I confess a hope that at least some of the testers faced up to the shelves while hooked up to the electronics and got amorous thoughts about past lovers. That way, and mindful of the inability of the technology to detect particular emotions, researchers may have attributed really strong emotional responses, erroneously, to a bisque label or some such.

With Friends Like These...

This weekend's Wall Street Journal features a story on the state of assisted suicide in Switzerland. Specifically, the story discusses a particular player in the assisted suicide tourism market in that country, Dignitas, and dilates on the possiblity that its founder, Ludwig A. Minelli, may, by his relative extremism, cause a backlash among the generally tolerant Swiss against following the logic of free choice over ending one's life all the way to where it natually goes.

It seems that many causes and movements come to grief for the exertions of their most radical advocates. William F. Buckley, Jr., who wrote a sympathetic historical novel on the life of Joe McCarthy, was of the opinion that McCarthy, by seeing a communist nearly every place but the mirror, undermined the legitimate effort of discovering and turning out the actual communists history has shown were in place throughout the government in the 1950's.

And then there is Global Warming. The East Anglia emails (featuring Penn State professor Michael Mann; Go State!) and the unfounded prediction for the geologically imminent melting of the Himilayan ice sheets, has gone a long way toward establishing the American public's contemptuous serenity in the face of unrelenting doom talk. There have been protestations that the core science that establishes the fact of anthropogenic Global Warming (sometime recently reflagged as Climate Change; presumably as a hedge in case the practicioners of the science get the overall direction wrong) is an uncontroversial thing. We are told that the alarmist predictions and the ethically questionable behavior have been in the service of bringing us round to the realities of our peril. The end, that is, justified those means. But an unsurprising thing happened on the way to the success of that program: the architects of it failed to fool all of the people all of the time. And lost trust and legitimacy is not regained by chastising the folks from whom it is needed by telling us there would be no need to lie to us if we weren't so stupid and foolishly unconcerned.

The sort of folks who devote themselves entirely to a cause are not well suited to reminding themselves that incremental advances are a better outcome than risking the utter rejection of their cause that often comes with appearing unhinged. This is unsurprising. If, to take the example of Global Warming, a person really believes the earth will soon suffer cataclysmic damage if radical changes are not immediately adopted, it surely would seem foolish to that person that he should observe ethical guidelines not drafted with an existential threat in mind.

But surely that person would object to another adopting her own existential cause and so turning her pre-justified methods loose on him (think Torquemada, et. al. or Al Qaeda, with existential here taking on its most profound meaning). So the defense of one's methods comes down to an assertion of the correctness of one's cause. And with respect to that, history bows its weary head.