Sprinkles v. Sprinkles

As usual, the lawyers will likely walk away with the frosting in this dispute over business names.

Hat tip: Charlie Brown

Advice for new lawyers

Good stuff from the WSJ, much of which translates pretty easily into economics land (or even sociology land).

I would emphasize the part about liking your job and the part about being careful to get realistic evaluations of your work as you move along the tenure track (or its analogue in government or the private sector). The part about having multiple cheerleaders is good too. Don't rely on one senior faculty member to pull you through a close tenure case. Make sure you've got a whole team.

Attorney general out of control

Having state attorney generals use rules designed to prevent fraud to conduct amateur science reviews with real penalties seems like a bad idea to me.

Is there no actual crime in Virginia for the attorney general to attend to?

Truth in labeling would be increased if the name of the attorney general position were changed to "media whore who wants to campaign for governor or senator while collecting a taxpayer funded salary".

Full disclosure: I have a graduate school friend who is a state attorney general (in a different state). My sense is that he behaves better than most.

Rule of Law, Austrian edition

An arduous tale of legal abuse by local officials in an Austrian town. But there is a happy ending!

Hat tip: Lars Skipper

Advancing the debate, or scoring points?

I am not quite sure what the point of these email FOIAs is other than to score points in the day-to-day mudslinging of the red and blue teams. The Mackinac Center's time would be better spent on making the substantive case against public sector labor unions.

At the same time, the ultimate responsibility here, which seems to be missed in all the outrage, lies with the legislators who drafted FOIA laws that can be abused for fishing expeditions like this one.

Hat tip: Sue Dynarski on Facebook

Justice department not so keen on free speech. Who knew?

They NYT on a former Penn State chemistry professor being persecuted by the Feds for passing out information on jury nullification.

The story neglects to mention that jury nullification has a long and distinguished history in the Anglo-Saxon legal tradition. I guess the NYT reporter does not want the feds persecuting him as well.

This is just pure and simple harassment of someone exercising his free speech rights. Shame on the justice department.

Living constitution

Laurence Tribe throws a very slow pitch, and Alex Tabarrok hits it out of the park.

Incest?

Lots of talk in the blogosphere about this Columbia professor. For example, U of Wisconsin law professor Ann Althouse has strong views on this one.

My thoughts are two, and different than the ones focused on elsewhere:

1. Whatever you think about whether this should be legal or not, this persecution seems to me a complete waste of taxpayer dollars. Essentially, taxpayers are subsidizing the political campaign of some local lawyer by paying for this high publicity, low usefulness persecution.

2. Why weren't both parties arrested? They are both adults.

Richard Epstein

Nick Gillespie from reason interviews law professor Richard Epstein.

There's not as much meat here as in Epstein's law school talk that I blogged about a few weeks ago, but it is still good fun.

Doing jury time

A thoughtful blogger recounts an experience on a jury in a criminal trial.

Interesting reading, though I must confess that the author's final, big picture paragraph seems to me completely unrelated to what comes before.

Via MR

Richard Epstein

Thanks to a friend on the law school faculty I was able to attend Thursday's lunch presentation at the law school by Richard Epstein as a guest. I read Epstein's Takings early on in graduate school and it had a big effect on my thinking about constitutional law and about the relationship between law and liberty more generally. Reading classical liberal legal theorists is an excellent complement to reading economics. They think about things differently and often in ways that add depth and insight to simple economic models.

Epstein spoke about a new book he is writing on constitutional interpretation. The bits I found most interesting were his contrast between libertarian and classical liberal views on legal theory. The parts that were most entertaining were his denunciations of various supreme court decisions he doesn't like. The best line of the hour was "I'm not crazy. I'm just controversial."

Even relative to other law professors, who as a group are very good at speaking without notes, Epstein's ability to construct well organized verbal arguments on the fly is impressive. Back in the day, when Dora Costa and I were running the U of Chicago student libertarian group, we had Epstein come and give a talk. He gave us a topic in advance. When he arrived, he asked how long he had to talk. We told him, and he gave a marvelous, well-organized, no notes lecture of *exactly* that duration. Those same skills were on display on Thursday.

I also learned that the law school has Zingerman's cater their lunches. Clearly, I need to be spending more time over there. All other seminar lunches will now pale by comparison (other than, perhaps, the ones I construct myself from goodies purchased at Morgan and York).

Markets for economists: expert witness edition

From my spam box today:

You can go to Expert Witness Bootcamp and learn to be an expert witness for only $1,890!

Actually, if it really qualified you to do this it would be a great bargain, as expert witnesses make a lot of money. In the tobacco lawsuits one hears tales of people making $8000 / day (i.e. $1,000 per hour) to work with the tobacco companies.

In labor economics, most of the expert witnessing centers on value of life and discrimination. Value of life refers to how much an individual should be compensated for lost earnings given their skill if they, for example, get killed or injured on the job. Discrimination cases often revolve around the definition of the appropriate labor market to which the firm's workforce should be compared when looking for differences in the fractions of particular groups.

I've only ever been contacted about being an expert witness once, and I turned it down. I prefer the other sorts of consulting I do - helping to design evaluations and commenting on draft reports - to dealing with lawyers.

On jury duty

I've been thinking about jury duty lately, in part because I narrowly avoided it earlier this week. The particular topic I've been considering is why this particular in-kind tax bothers me.

First, let me be clear that I am generally a fan of jury trials, my concern is with the institutions used to select jurors.

For non-US readers, the general set-up is that potential jurors are chosen at random, usually from voter registration rolls. In some jurisdictions it is pretty easy to get out of serving on occupational or hardship grounds. In others, like Ann Arbor, it is not, though Ann Arbor will let you essentially pick a date when you want to serve, within some time frame. Jurors are paid a very minimal amount and most employers do not pay for jury duty days - you have to take leave - though they are forbidden from otherwise punishing those who end up serving on juries. Montgomery County Maryland, where I did one day of jury service, rubs the low pay in your face by suggesting that you donate your tiny check to a charity of *their* choice. The length of service depends on whether or not the potential juror gets assigned to a trial and, if so, how long the trial lasts. Thus, the size of the in-kind tax has a very skewed distribution when measured in terms of number of days, as most trials are short but some are very long.

Four things bother me about the current regime. First, it is tied to voter registration. Second, the tax it imposes is random in size due to the different lengths of trials. Third, jurors are essentially slaves. Fourth, the system makes inefficient use of the available labor. Let me consider each issue in turn.

1. Why should people who register to vote be punished for doing so? This link should mainly deter people with high values of time from voting. Those people are likely to cast more informed votes.

2. Random taxes are a bad idea in general if, as one expects, people are risk-averse. One of the lessons of economics is that it is often good to convexify. Paying jurors their wage, rather than a low flat fee, and funding the payments out of general revenues, would spread the cost of jury duty more broadly. It would also make plain the true cost of jury trials, and so provide an incentive for using them only when the costs exceed the benefits. The use of coerced labor disguises the social costs of jury trials and so likely leads to their overuse.

3. One wonders if volunteer jurors would do a better job than coerced jurors. It would be worth funding some research on this if, indeed, the literature does not already offer up evidence on this point. We moved the military from slaves to mercenaries (i.e. from a draft to an all-volunteer force) partly for this reason.

4. The current system implicitly assumes that someone whose opportunity cost is $1000 is a ten times better juror than someone whose opportunity cost is $100. This seems unlikely. If it is not the case, then it is inefficient (in the economic sense of that term) to choose jurors without reference to their opportunity costs. Sensible institutions would obtain the desired level of juror quality at minimum cost, not without reference to cost, as in the current system.

Some possible policy changes:

1. Use SSNs to pick jurors rather than voter registration records.

2. Allow those selected for jury duty to pay a fee rather than giving up their time. The fees could be used to finance higher compensation for those who serve. I would happily have paid a couple of hundred dollars to avoid the risk of serving. In a sense, this is like the system of "substitutes" used under the union draft in the civil war.

3. Have all-volunteer juries. Some people probably really like doing this. Perhaps it could be something like the CCC or TFA where you sign up for a year or two, go through both screening and (gasp) training, and then serve on a number of juries. Having jurors with both training and experience might substantially improve the quality of the decisions, in addition to whatever improvements arise from using volunteers rather than slaves.

Finally, as an aside, why is the link between jury duty and voter registration never mentioned in discussions of lower voter turnout in the US? It would be interesting to see if cross-state variation in turnout is related to the leniency of the jury system (e.g. how easy it is to get out of serving).

Addendum: not one but two alert readers - thanks to Sasha and Julie - have pointed out that voter registration rolls are no longer used to select juries, it having been ruled unconsistitutional to do so about a decade ago. So, ignore the first policy recommendation. Most states, including Michigan (look under "how"), now apparently use driver's license lists, which should spread the burden reasonably well other than places like New York City.

Seminal issues in public finance

It turns out that if you set up a foundation whose mission is to distribute your own sperm to eager female recipients, the IRS will not grant your foundation tax exempt status.

A colleague adds that "the courts have ruled that one has no basis in one's, um, bodily fluids (comes up mostly in blood donor cases), so THAT component of any donation to a nonprofit sperm bank is extremely unlikely to qualify for a deduction under any circumstances."

Good to know.

Hat tip: Adam Cole

Obscenity

In New Zealand, obscenity is apparently defined based on survey responses.

That strikes me as superior to US Supreme Court Justice Potter Steward, who famously said:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Hat tip: Lars Skipper

Can states secede?

It always has seemed to me that the (sainted) Founders made a mistake by not including a formal exit provision in the constitution. Perhaps it seemed like a good idea at the time as a way to discourage exit or perhaps they assumed the possibility under some common law of contract in place at the time. In any case, their failure led to the great human disaster that was the Civil War.

Over at the Volokh conspiracy, there is a debate going on about whether the Civil War settled the legal question, including a link to a letter from Justice Scalia indicating that he thinks it did. Should wars settle legal questions? We don't assume that other choices made in the 1860s settled constitutional questions?

Moreover, the fact that the South was wrong on the question of slavery does not imply that they were wrong on the question of a right to secession. These are (completely) different issues.

The constitution, though we have mostly put this fact in the memory hole, was a contract between states, not a contract to set up a state. It was originally much more like the EU (or some hybrid of the EU and NATO) than we think about it today.

I worry sometimes, as some political scientists have, about the similar absence of an explicit exit mechanism in the laws that underlie the EU.

Limitations

Today is the last day of Michigan's (poorly timed in the late middle of the fall semester) open enrollment period for benefits. I am, of course, dealing with it on the last day.

The entertaining bit, though, is this from the description of Michigan's prepaid legal plan:

Coverage Exception

You cannot use legal plan services to file a lawsuit against the University of Michigan.

Yeah, that's probably a good idea!

Randy Barnett's libertarian wish list

Though labeled as a "Bill of Federalism" (as in "Bill of Rights") these suggested 10 constitutional amendments go well beyond federalism, narrowly defined.

The proposed amendments are quite a mixed bag:

Amendment 2 really just undoes the ahistorical reading of the commerce clause enshrined in Wickard v. Filburn. This ruling, indirectly a gift of FDR, essentially wrote all limits on federal activity out of the constitution. Reading this case in Mike McConnell's constitutional law class at Chicago, which I audited (but did all the readings for) as a graduate student was a real eye-opener for me. It was then that I realized that the court really just was making it up when they cared to and that, as the song goes, "all the crap I learned in high school" was just that.

Amendments 3 and 4 are very directly about federalism and seem to me to aim at restoring the balance between states and the federal government envisioned by the framers. No one very much seems to recall that the constitution was originally a contract among sovereign states and thus more like the EU in some ways than like the present US.

I am not sure that the empirical case for term limits, embodied in Amendment 7, has really been made. It might be better to enforce limits on the process of defining districts to make more of them competitive or to require instant runoff voting.

I think that Amendment 8's tying of the line-item budget veto to the state of the national debt is very clever, though the devel would be in the details here as the court and congress could conspire to undermine this via determinations of what is and what is not counted as public debt. Can borrowing escape this limit by being labeled a "trust fund"?

Overall, though, quite thought provoking.

I crossed paths with Randy a few times in graduate school when he was at UIC. My recollection is that he usually had two or three attractive female followers. Life is good as a libertarian law professor!

High school sports and the level playing field.

A new paper, forthcoming in the Texas Review of Entertainment and Sports Law, features the following abstract:

In states like Illinois, controversial enrollment multipliers have been implemented. Under Illinois' formula, a "non-boundaried" school will have its actual enrollment multiplied by 1.65 for determining the classification in the State's high school playoff system. This formula is not unique to Illinois; states nationwide have begun to evaluate ways at curbing the disproportionate amount of championships won by private schools. In some of these states, a multiplier system has been implemented while others have used separate playoff systems or drafted proposals limiting the boundaries from which private schools can draw their students.

This raises two interesting questions. First, why should the institutions of competition compensate for the size (or lack of a) school catchment area but not for, say, differences in quality of coach, quality of athletes living near the school, or effectiveness of the cheerleaders? Second, could this be challenged given that religion is a protected class and these multipliers have a disparate impact on Catholic and other religious schools?

Removing the competitive advantage associated with lack of a catchment area should increase coaching salaries by focusing competition on coaching quality. Anyone want to bet that coaches help set these rules?

Hat tip: Charlie Brown

On the relationship between guilt and punishment

The Smoking Gun shares mug shots of 18 women arrested on charges of prostitution in a "clean-up" by police in Tampa prior to the Super Bowl this Sunday. Smoking Gun obtains the pictures from the website of the local county sheriff, which apparently posts them as a matter of routine. My sense is that many other counties do this as well, with some also posting pictures of clients arrested for soliciting.

This seems deeply wrong to me. Particularly in the case of prostitution, where there may be no penalty other than a night in jail and another notch on the arrest record, the posting of the picture in a public space be a major component of the punishment for the "crime" (and leaving for another day the wisdom of making such voluntary transactions into crimes to begin with). And yet the punishment is done prior to the person having a trial or admitting guilt.

This ordering of punishment and conviction flies in the face of the legal principal that we all learn (from watching police procedurals) of "innocent until proven guilty". If that principal applied here, then the pictures would be posted after the determination of guilt, not before.

So, shame on the county sheriff of Hillsborough County Florida.