Archive for February, 2007

To Parent or Not to Parent: Is a Cost-Benefit Analysis Reprehensible?

Posted in Taboo Subjects, The Law on February 15th, 2007

I am enrolled in a course entitled Thinking About Taboo Subjects:

This course will consider how to think, write and speak about issues that tend to be taboo on university campuses. These include gender, racial, ethnic, cultural and religious differences; rape and child molestation, torture; eugenics; abortion; capital punishment; race specific affirmative action; misuses of the holocaust and holocaust denial; colonialism; cultural relativity; religious sensitivities; and other subjects to be directed by the class. The object of the class will be to consider how to do scholarship on such subjects. Experts and advocates will appear periodically as guests.

The reading this week includes an article entitled “Thinking the unthinkable, sacred values and taboo cognitions”. In essentally says that we have sacred values – such as family and loyalty, and secular values, such as money, entertainment, etc. One forced to make a trade-off between two sacred values (a tragic trade-off) is judged far less harshly than those who deliberate for a long time when deciding between a secular and a sacred value (a taboo trade-off) So, for example, a hospital administrator who ponders over saving a boy’s life to save his hospital $1M is causes moral outrage, while people look more sympathetically at the administrator forced to decide between two boys. It matters not that the money could save lives, the immediate two values cannot be mismatched and still be acceptable.

This reminded me of a the outrage that some people have over some people choosing not to have children, and even over those who weigh out the pros and cons of parenting.

Indeed, one who makes a decision between so-called “selfish” values and childbearing might be inclined not to have children. A while back I posted an article on my childfree news blog; a statistical study had found that parents are more depressed than those without children.

‘‘We believe the costs associated with the role overshadow those benefits,’’ said Robin Simon, co-author of the study published in December in the journal published by the American Sociological Association. ‘‘We romanticize parenthood. It’s difficult and it is expensive.’’

This is in addition to findings that parents die sooner, eat more, and earn less, have smaller brains (during pregnancy) have less money. Add to that the fact that the above was just the latest in a long line of studies showing that the childless are happier [1] [2] [3] , and the childless may indeed feel quite smug about the superiority of their choice. Parents are quick to respond, horrified that concerns over happiness [4] and money should ever enter into the equation. Indeed, we have elevated the question of parenting to sacred status such that questioning whether it is “worth it” is taboo.

Quite illustrative is the fury sparked by the article Kids: Bad investments, big returns. As is made obvious by the title, the ultimate conclusion is that it is still “worth it” for many people because “it’s like an ongoing, lifelong investment in happiness,” and humans are not “economic creatures.” Of course, this is necessary way to wrap up an article that could otherwise be offensive to many, and its very conclusion is belied by the many studies that show children do not make people happier.

And yet the taboo is so strong, even this treacly, lets-all-have-kids article provoked a number of harsh responses. The readers stated that the author did not deserve to have kids because “I cannot believe in this day and age that people actually sit down and figure how much it’s going to cost them to have a family.” But even while readers stated “If you need to do a cost-benefit analysis on having children, then you shouldn’t be having them” they missed the irony of their own cost-benefit calculations. One states that her “13-year-old son who has given me endless hours of joy and is a constant source of pride”, another that in twenty years “I will be receiving kisses from my future grandchildren, which my dear, are priceless.”

To be fair, a few do seem to criticize cost-benefit analysis without this hypocritical bent. But they are in the minority; most extoll the rewards of parenting in the same breath. And it may well be that a ‘happiness’ cost-benefit calculus is somehow less offensive than a monetary one. After all, no sacred value is being traded in for it, at least according to most assumptions.

People who spend money on plasma TVs and gambling are all buying their own kind of enjoyment; indeed one would imagine that those who would like to save money by not having children are spending it instead on other things that make them happy. If that is the case, are we judging not the calculus itself but what makes you happy? Is someone who is made happy by traveling “bad” and someone made happy by their children “good”? Is someone who is made happy by children as a “status enhancing social resource,” somehow superior to someone who is made happy by her three dogs rescued from a pound? Is why children make you happy, or the kind of alternative you choose then dispositive, and if so, are these judges on the right track, but oversimplifying the choices people make?

The argument must depend, then, on the establishment of the choice to have children as a sacred value. Is this assigning the status of potential family such weight? Is it because it is seen as biological destiny? It could well be that childfreedom is not seen as a negative choice – to not choose to do something, but instead as a positive step to prevent something that would otherwise naturally occur. Without these perspectives, it would be difficult to see why the choice not to work in a soup kitchen or adopt a homeless pet would be given such comparable deference. Assuming for the sake of this argument that having children is always a positive good for the world, the choice not to have them is only one of many positive steps that people avoid every day, without criticism.

The taboo must lie in seeing childrearing as an obligation each and every one of us has, and the choice not to have them as shunning potential family. Only then can we explain why the readers reacted with such furor over the mere deliberation in the author’s choice.

CFTA v. Schor – Crying formalism isn’t enough.

Posted in Administrative Law on February 9th, 2007

Warning – Admin tirade, boring to anyone not taking it. OK, and to most who are.
The question today was whether we prefer the formalism of Brennan’s dissent in Commodity Futures Trading Commission v. Schor or the pragmatism of O’Conner’s majority opinion. It was posed by Dean Kagan (who is obviously my instructor) on the second week of class, so of course my hesitation cost me the opportunity to launch this tirade in class. Another student presented an idea so closely related my own would have seemed redundant. But it was not, so here goes.

Neither. There is a need for adherence to bright-line rules in congressional delegation of judicial functions to administrative agencies. There is a very real risk that massive delegation will erode the jurisdiction of the Article III courts, and without A3 protection, there is a lessening of the judicial independence so carefully crafted into lifetime tenure (and the related prohibition on salary reduction)

But I do disagree with where Brennan draws that line. He would (ignoring the possibility that the original claim is a private right as well) prevent ancillary jurisdiction over related common law claims within administrative agencies. Yet in the case at hand, the parties retain their right to litigate in an Article III court – they waived it when they dismissed their circuit court action and brought it within the CFTA.

Whatever formalistic rules are needed to preserve judicial independence, they are not implicated by voluntary submission of cases to an administrative agency.

The free market model might apply here. If administrative agencies do lose their independence, and if this impacts their ability to fairly resolve a case, parties will simply not consent to their jurisdiction. Not only is the appellate review procedure a guarantee against arbitrary or unfair decisions, but this choice as well will force administrative agencies to retain the independent, fair, and consistent standards we are trying to ensure. We are instilling a competition model into a system where the courts themselves are grateful for it, since (as the O’Conner functionalist perspective points out) they are not equipped to litigate the sheer number of cases generated by statutory-enacted rights.

Oddly enough, this approach is dismissed even by the court opinion, which insists that the institutional concerns make waiver of the parties not determinative. This would be true if the structure encouraged courts to dismiss cases pending in a parallel proceeding within an agency, or if somehow non-consenting parties could end up in agency litigation. But it is not implicated by the scheme I advocate – in which such choice is a mandatory part of any scheme. While a pragmatic approach may counsel against allowing parties to litigate where they choose, allowing mandatory litigation of certain public rights, statutory claims would effectively ensure the efficacy, since most parties would indeed consent – they would otherwise bear the costs of two litigations. An agency structure which provided lower access fees would also serve the pragmatic function of preventing clogging the courts. (Of course this only works if the fees charged in courts are fair and properly waivable, otherwise there might be due process concerns that subject the poor to agency litigations by the circumstances, trouble if this structure undermines the improvements encouraged by the free market model.

We allow parties to submit their claims to arbitration, to mediation, to hammer out deals in conference rooms of law offices. They can litigate in state courts (sometimes without said consent) which do not have the mandatory life tenure, etc provisions either. Indeed, any remaining structural problem would lie only in the fact that the forum consented to here happens to be an administrative agency. This seems a slim basis on which to deny the parties the right to settle claims in an alternate forum.

This supports one suspicion – that O’Conner was more concerned with the rights of courts than she is the rights of citizens. This is further underscored by the mode of analysis which factors in the degree to which the legislature is trying to undermine the judiciary in determining the constitutionality of the delegation. Since the separation of powers principle that is being addressed has to do with the rights of citizens, any structural analysis should have that final end in sight. The way in which judiciary power is stripped is only a concern insofar as it will effect the rights of the people. Although Brennan is correct in that undermining an independent judiciary – when looking at the big picture – does have those effects, it is not quite as automatic as the court’s opinion suggests.
So yes, keep the big picture in sight – establish principals that prevents the whittling down of the jurisdiction of Article III courts by focusing only on the immediate goal of expediency. But the wisdom of formalism doesn’t end when you establish that there should be a bright-line rule, it lies in where you place them. Brennan’s dissent gives short shrift to constructing a rule as narrow as necessary to protect litigants from the majoritarian control and lack of independence that Article III was so carefully constructed to avoid.

Note to McCain – RTFM!!

Posted in cyberlaw, In the news, The Law on February 8th, 2007

Senator to propose surveillance of illegal images

It also covers obscene images of minors including ones in a “drawing, cartoon, sculpture, or painting.” (The language warns that it is not necessary “that the minor depicted actually exist.”)

OK, I’m only a law student, but this immediately triggered a WTF? reaction since SCOTUS has recently held that you cannot ban cartoons or rendered images. Indeed, the first amendment requires a showing of ‘actual harm’ to a child in order to overcome the free speech protections. SCOTUS held that that actual harm exists not in viewing the images,but in the taking of them – at the outside, the potential psychological harm to the child that the image is ‘out there’.

Indeed this has presented evidentiary difficulties that nearly require production of the child in the image. Prosecutors have struggled to otherwise prove that it was a real image -with software and FBI experts’ declaration that an image is real and not rendered recently held insufficient. Of course, Thomas’ concurrence in the original holding postulated that the severe evidentiary burden, if it imposed too high a bar to prosecution, could be sufficient a cause to ban fake images. And while the recent problems may lean that way, a statement in one concurrence does not really provide McCain with legs for this bill.

What is he basing this law on? Does he really think that the recent decisions will cause SCOTUS to overturn its holding? Or is he just not paying attention to what the First Amendment jurisprudence? One would think the job of Senators includes RTFM, or at least getting their staff to do so. One would think that if this case was re-testing the holding, this would be articulated somewhere in the platform, in the article. Instead, it seems oblivious to the existence of the precedent.

Supreme Court strikes down ban on ‘virtual child porn’.

FYI – I’m actually behind Thomas’ concurrence. I would go so far as to say that the holding presents an evidentiary hurdle so high that it justifies a ban on virtual child porn. But it troubles me that the senators don’t seem to be paying attention.

The Mooninite “Hoax Device”: What is the law?

Posted in In the news, The Law on February 2nd, 2007

I was curious how placing LEDs as part of a viral marketing campaign could constitute a felony.  So I used my magic-power as law student and looked it up:

§ 102A1/2.  Possession of Hoax Device.

(a) Whoever possesses, transports, uses or places or causes another to knowingly or unknowingly possess, transport, use or place any hoax device or hoax substance with the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons shall be punished by imprisonment in a house of correction for not more than two and one-half years or by imprisonment in the state prison for not more than five years or by a fine of not more than $5,000, or by both such fine and imprisonment.

(b) For the purposes of this section, the term “hoax device” shall mean any device that would cause a person reasonably to believe that such device is an infernal machine. For the purposes of this section, the term “infernal machine” shall mean any device for endangering life or doing unusual damage to property, or both, by fire or explosion, whether or not contrived to ignite or explode automatically. For the purposes of this section, the words “hoax substance” shall mean any substance that would cause a person reasonably to believe that such substance is a harmful chemical or biological agent, a poison, a harmful radioactive substance or any other substance for causing serious bodily injury, endangering life or doing unusual damage to property, or both.
. . .
(d) The court shall, after a conviction, conduct a hearing to ascertain the extent of costs incurred, damages and financial loss suffered by local, county or state public safety agencies and the amount of property damage caused as a result of the violation of this section. A person found guilty of violating this section shall, in all cases, upon conviction, in addition to any other punishment, be ordered to make restitution to the local, county or state government for any costs incurred, damages and financial loss sustained as a result of the commission of the offense. Restitution shall be imposed in addition to incarceration or fine; however, the court shall consider the defendant’s present and future ability to pay in its determinations regarding a fine. In determining the amount, time and method of payment of restitution, the court shall consider the financial resources of the defendant and the burden restitution will impose on the defendant. ALM GL ch. 266, § 102A1/2

Breaking it down: a court would need to find that the device was placed “with the intent to cause anxiety, unrest, fear or personal discomfort .”  I’m beginning to understand why the defendants were talking about hair after their court appearance, and why the judge thought the charges were ridiculous.  There is no way that the prosecutors can prove that intent – the mens rea is completely absent.

Furthermore, the definition of hoax device as one that “would cause a person reasonably to believe that such device is an infernal machine” indicates yet another gaping hole in the case.  The blogosphere is buzzing with commentators pointing out that a Lite Bright would not have a threatening appearance to reasonable people, that the police overreacted. However, with intent completely gone, I doubt a court will find on this issue.  Would you want to be the judge (in a post-9/11 world) who tells the police they overreacted?

Furthermore, even if they do have a view of the statute or actions that might imply intent, why are they going after two artists and not Turner Broadcasting?  If the intent behind the items was to cause fear, then why would those who placed the items, for pay, have any less intent then those who hired them to do so?  The statute’s language, by including anyone who “causes another to knowingly or unknowingly possess, transport, use or place” would seem to include these parties as well.  Is it that the prosecution does not want to face the BigLaw attorneys that Turner would hire; that such attorneys would not only get the case dismissed as to all parties, but might even retaliate with a malicious prosecution lawsuit in civil court?  They have already stated publicly that jurisdiction is not an issue, and that they intend to file a civil suit against Turner.