I've selected a song.
I also learned a valuable lesson about reheating egg-drop soup: It doesn't really work. Apparently, it maintains its gelatinous refrigerated form, having emulsified from the egg proteins. Which means that heating it up in the microwave will only over-cook the egg and make it gross. I ate it anyway.
In other news, I have more sympathy for the wall street protesters now that I've thought about it a little more. Wall Street really did get a pretty sweet deal with that bailout. Democrats look like hypocrites when they criticize trickle-down economic theory from one side of their mouth and yell "too big to fail!" from the other. I'm sure the two situations are distinguishable, but there's at least a superficial irony. Maybe society does depend on a clear income delineation between winners and losers.
If that's so, then we should stop worrying about creating jobs and instead invest everything into education, because it seems like that only thing that ever improves society is an increase in resources, which only comes about through research, discovery, development, and innovation. Then again, the countries with the best test scores from their students aren't exactly setting the world on fire (What does scandinavia produce, anyway?).
Friday, October 7, 2011
Sunday, September 25, 2011
Response to Douthat on the Death Penalty
In today's New York Times, Ross Douthat argues that we should focus controversy over Troy Davis on the broken mechanics of the justice system, rather than simply giving up on the death penalty and its underlying problems. According to Douthat, the problem with the death penalty is not that it is immoral, but that it is imperfectly implemented, and our response to its imperfections should be to tweak. Non-death penalty offenders would benefit from reforms as well, in amounts that far exceed the harm caused by a few erroneous executions.
The argument is not novel, and it has an intuitive appeal. Wouldn't it be nice if we could have a justice system we trusted with "life and death," rather than resign ourselves to failure? It would indeed be nice, but its not realistic and its not worth the cost.
In 1972, the Supreme Court in Furman v. Georgia struck down the death penalty based on fears it was applied inconsistently, with racial bias, and was inhumane. These concerns are the same as those raised today by the Troy Davis execution. In response to this death penalty moratorium, many states took Douthat's advice and enacted reforms to their death penalty systems to try to make them less arbitrary and inconsistent. In particular, Georgia enacted a series of objective guidelines for enhancing a sentence to the death penalty. The Supreme Court four years later, in Gregg v. Georgia, decided it would give Douthat's approach a try.
Since 1976, the Supreme Court has engaged in the business of setting guidelines and limitations on what sorts of death penalty systems could pass muster. The Court has prohibited application of the death penalty to minors, the mentally retarded, or non-homicide offenders. However, despite the best intentions (sometimes) of lawmakers, jurors, and judges, the Court's experiment in regulating and reforming the death penalty has failed. Its application continues to be tainted by racial prejudice, inadequate assistance of underpaid court-appointed counsel, politically-motivated elected judges, and congressional emasculation of the federal appellate process. These problems cannot be fixed merely by writing op-eds about the problem.
The death penalty was re-instated in 1976 out of a naive hope that the death penalty could be reformed. Since then, its problems have only amplified. 35 years is long enough to recognize that our underfunded justice system will not be reformed by placing faith in the majority's compassion for its least popular citizens. If Douthat wants to pass laws reforming the justice system into one worthy of meting out capital punishment, then I might be persuaded to vote for it. But until then, let's put down the shovel.
The argument is not novel, and it has an intuitive appeal. Wouldn't it be nice if we could have a justice system we trusted with "life and death," rather than resign ourselves to failure? It would indeed be nice, but its not realistic and its not worth the cost.
In 1972, the Supreme Court in Furman v. Georgia struck down the death penalty based on fears it was applied inconsistently, with racial bias, and was inhumane. These concerns are the same as those raised today by the Troy Davis execution. In response to this death penalty moratorium, many states took Douthat's advice and enacted reforms to their death penalty systems to try to make them less arbitrary and inconsistent. In particular, Georgia enacted a series of objective guidelines for enhancing a sentence to the death penalty. The Supreme Court four years later, in Gregg v. Georgia, decided it would give Douthat's approach a try.
Since 1976, the Supreme Court has engaged in the business of setting guidelines and limitations on what sorts of death penalty systems could pass muster. The Court has prohibited application of the death penalty to minors, the mentally retarded, or non-homicide offenders. However, despite the best intentions (sometimes) of lawmakers, jurors, and judges, the Court's experiment in regulating and reforming the death penalty has failed. Its application continues to be tainted by racial prejudice, inadequate assistance of underpaid court-appointed counsel, politically-motivated elected judges, and congressional emasculation of the federal appellate process. These problems cannot be fixed merely by writing op-eds about the problem.
The death penalty was re-instated in 1976 out of a naive hope that the death penalty could be reformed. Since then, its problems have only amplified. 35 years is long enough to recognize that our underfunded justice system will not be reformed by placing faith in the majority's compassion for its least popular citizens. If Douthat wants to pass laws reforming the justice system into one worthy of meting out capital punishment, then I might be persuaded to vote for it. But until then, let's put down the shovel.
Saturday, September 24, 2011
US Savings Ass'n v. Timbers of Inwood Forest Associates
Preliminarily, I find it interesting that Scalia uses legislative history at one point to justify claiming that "value of such creditor's interest" in § 506(a) means the "value of the collateral." Scalia is one of the most ardent opponents of legislative history that one could find. Within the same opinion, in fact, he says, "If it is at all relevant, the legislative history tends to subvert rather than support petitioner's thesis." The only explanation I can offer for this rare instance of hypocrisy is that it is qualified by "if at all relevant," and it is 1988, perhaps before Scalia has fully embraced his "death to legislative history" schtick.
As for the case, the issue presented is whether the Bankruptcy Code's protections for secured creditors include post-petition interest. The justification for post-petition interest is that, but for the automatic stay against foreclosure actions, the secured creditor would have been able to invest foreclosure proceeds. By denying the right to foreclosure, the automatic stay deprives the secured creditor of its interest in the investment value of its collateral. On the other hand, there are textual problems with interpreting the Code in this manner. The phrase "interest in property" ordinarily means a property interest, which is not the same as a right to foreclose. There are numerous other instances in the Code where the property interest is described as a prepetition claim, and interest payments are discussed in other contexts, implying that Congress knew how to provide interest payments in this situation if it wanted to be explicit in its intent.
I am reminded of the Rash case, where, once again, Scalia writes about valuation of collateral. In Rash, the Court valued collateral based on its retail replacement costs, not on the price it would fetch in a foreclosure sale. Perhaps this outcome is required for the sake of consistency with Timbers. Interesting that the professor did not bring up Timbers in our discussion of Rash, though perhaps he did and I just wasn't paying attention. Anyway, this significance of both Timbers and Rash appears to be that the Court views a secured creditor's interest in collateral as if it were already in the creditor's possession, and adequate protection of this possessory interest only requires protection of its prepetition market retail value.
Its easy to see why this approach rankles so many commentators and provides controversy for the classroom. The ability to sell property in the market is only one of the rights that accompany property interest. What about the right to use the property? To invest it? By depriving secured creditors of this aspect of their property rights, the Court puts secured creditors in a worse position than they would be in if there had been no automatic stay, which is supposedly one of the fundamental principles behind absolute priority in a Chapter 11 reorganization. (This does not take into account price reductions inherent in foreclosure sales.)
Textual support in the Code for Scalia's interpretation:
Preliminarily, I find it interesting that Scalia uses legislative history at one point to justify claiming that "value of such creditor's interest" in § 506(a) means the "value of the collateral." Scalia is one of the most ardent opponents of legislative history that one could find. Within the same opinion, in fact, he says, "If it is at all relevant, the legislative history tends to subvert rather than support petitioner's thesis." The only explanation I can offer for this rare instance of hypocrisy is that it is qualified by "if at all relevant," and it is 1988, perhaps before Scalia has fully embraced his "death to legislative history" schtick.
As for the case, the issue presented is whether the Bankruptcy Code's protections for secured creditors include post-petition interest. The justification for post-petition interest is that, but for the automatic stay against foreclosure actions, the secured creditor would have been able to invest foreclosure proceeds. By denying the right to foreclosure, the automatic stay deprives the secured creditor of its interest in the investment value of its collateral. On the other hand, there are textual problems with interpreting the Code in this manner. The phrase "interest in property" ordinarily means a property interest, which is not the same as a right to foreclose. There are numerous other instances in the Code where the property interest is described as a prepetition claim, and interest payments are discussed in other contexts, implying that Congress knew how to provide interest payments in this situation if it wanted to be explicit in its intent.
I am reminded of the Rash case, where, once again, Scalia writes about valuation of collateral. In Rash, the Court valued collateral based on its retail replacement costs, not on the price it would fetch in a foreclosure sale. Perhaps this outcome is required for the sake of consistency with Timbers. Interesting that the professor did not bring up Timbers in our discussion of Rash, though perhaps he did and I just wasn't paying attention. Anyway, this significance of both Timbers and Rash appears to be that the Court views a secured creditor's interest in collateral as if it were already in the creditor's possession, and adequate protection of this possessory interest only requires protection of its prepetition market retail value.
Its easy to see why this approach rankles so many commentators and provides controversy for the classroom. The ability to sell property in the market is only one of the rights that accompany property interest. What about the right to use the property? To invest it? By depriving secured creditors of this aspect of their property rights, the Court puts secured creditors in a worse position than they would be in if there had been no automatic stay, which is supposedly one of the fundamental principles behind absolute priority in a Chapter 11 reorganization. (This does not take into account price reductions inherent in foreclosure sales.)
Textual support in the Code for Scalia's interpretation:
- §506(b) provides postpetition interest only for an oversecured creditor. Thus, adequate protection in §361 would conflict with §506(b) if it required interest payments for undersecured creditors. Further, 506a provides creditors only with security in the value of the estate's interest in the collateral. I think (Scalia doesn't discuss this) the estate's interest is not in a foreclosure value, nor could the estate's interest referred to here include the investment proceeds of the collateral, because the estate's use of the collateral is "products of the property of the estate," which is property of the estate specifically reserved for distribution among the creditors. An undersecured deficiency claim must be shared pro-rata with the other general creditors of the estate.
- §552(a) says that a prepetition security interest does not reach property of the estate acquired postpetition. But there is an exception only if the security agreement specifically calls for "proceeds, product, offspring, rents, or profits" of the collateral. Thus, 552a seems only to grant postpetition interest if the interest comes in a form anticipated by the parties prepetition in the security agreement.
- 362d1 and d2 would be inconsistent with one another if postpetition interest were allowed, because an undersecured creditor would technically never have adequate protection, so why would it matter, in 362d2, that the collateral was not necessary for the reorganization? (I'm a little shaky on this argument.)
Friday, September 23, 2011
Liquidated damages and sharing the pain
It is sometimes fruitful to peel an onion. It is also sometimes vegetate-able. With this aphorismic pun in mind, let's peel the onion of penalties.
One thing I learned two years ago and have been reminded of recently is that liquidated damages clauses are unenforceable unless they are an approximation of actual damages in a setting in which precise damage determinations are difficult to determine. So, for example, if I contract to sell you my apple for $1, a court will not enforce a provision in the contract that says I must pay you $5,000,000 if I do not have an apple to give you in exchange for your $1. Intuitively, this seems like a reasonable doctrine--I've only caused the harm of inconveniencing you in having to find another apple dealer, so its unfair that I should have to overcompensate you for this inconvenience.
But this doctrine has troubling implications. Does my promise to pay super-high damages count for nothing? We were both free to enter into this unfair contract; isn't this just the free market at work? Don't we have the fundamental freedom, as Americans, to enter into whatever contract we want? One could argue that the $5,000,000 apple example is an unfair contract, so we shouldn't be able to enter into such blatantly unfair agreements. But what's unfair about it? Both parties are aware of the consequences and are under no duress or fraudulent influence when they agree to the contract. If someone wants to promise to do something stupid, who are we to stop him/her or judge it as unfair?
The real value of liquidated damages comes in when performance under the contract has idiosyncratic value to one of the parties, above and beyond the market value of such performance. For example, if I want to recreate a special meal for an anniversary celebration, then the damage caused by the fishmonger selling the last lobster, which i had reserved and paid for in advance, thereby ruining my special dinner, will be much greater than a refund of the lobster. In fact, I would accept nothing less than $100,000 in exchange for that special lobster dinner on that one special night. So why shouldn't I be free to make a contract with the fishmonger that he has to pay me $100k if he doesn't provide the lobster on time? Or would this fall under the category of approximating a difficult-to-determine set of damages? What's interesting to me about this topic is how it pertains to credit card penalties and debit card overdraft fees. Financial institutions make money, in part, by charging higher interest and imposing fees on those who are just one day late in making a payment or who go $1 under the account balance. This is not a damages remedy; rather, it is a business model. To be continued...
One thing I learned two years ago and have been reminded of recently is that liquidated damages clauses are unenforceable unless they are an approximation of actual damages in a setting in which precise damage determinations are difficult to determine. So, for example, if I contract to sell you my apple for $1, a court will not enforce a provision in the contract that says I must pay you $5,000,000 if I do not have an apple to give you in exchange for your $1. Intuitively, this seems like a reasonable doctrine--I've only caused the harm of inconveniencing you in having to find another apple dealer, so its unfair that I should have to overcompensate you for this inconvenience.
But this doctrine has troubling implications. Does my promise to pay super-high damages count for nothing? We were both free to enter into this unfair contract; isn't this just the free market at work? Don't we have the fundamental freedom, as Americans, to enter into whatever contract we want? One could argue that the $5,000,000 apple example is an unfair contract, so we shouldn't be able to enter into such blatantly unfair agreements. But what's unfair about it? Both parties are aware of the consequences and are under no duress or fraudulent influence when they agree to the contract. If someone wants to promise to do something stupid, who are we to stop him/her or judge it as unfair?
The real value of liquidated damages comes in when performance under the contract has idiosyncratic value to one of the parties, above and beyond the market value of such performance. For example, if I want to recreate a special meal for an anniversary celebration, then the damage caused by the fishmonger selling the last lobster, which i had reserved and paid for in advance, thereby ruining my special dinner, will be much greater than a refund of the lobster. In fact, I would accept nothing less than $100,000 in exchange for that special lobster dinner on that one special night. So why shouldn't I be free to make a contract with the fishmonger that he has to pay me $100k if he doesn't provide the lobster on time? Or would this fall under the category of approximating a difficult-to-determine set of damages? What's interesting to me about this topic is how it pertains to credit card penalties and debit card overdraft fees. Financial institutions make money, in part, by charging higher interest and imposing fees on those who are just one day late in making a payment or who go $1 under the account balance. This is not a damages remedy; rather, it is a business model. To be continued...
Wednesday, December 22, 2010
Not a 1L anymore
Now that I have finished my 3rd semester, it is time for some reflections on what I have learned. Its strange, I have already written 3,000 words today for a final exam, but I don't feel like this counts as typing words. I suppose its not so strange.
Administrative law was a study in psychology. Many express frustration with the slow pace of congress. Congress is designed to move slowly. There are endless procedures and obstacles in the path of any bill. It seems that the threat of unemployment is the only force powerful enough to get congressmen to agree with each other long enough to pass something through the immense gridlock of procedure. Administrative law is not really about procedures. It doesn't really matter whether there are enough votes, filibusters, or notice and comments. At the end of the day, if the head of the agency wants something to happen, then it will happen. In a sense, administrative law is run by dictators; it is the efficient, smooth, well-oiled machine that the general public thinks congress should be.
As such, the study of administrative law is the study of dictators. Human psychology plays a large role. Why does statutory language get interpreted based on the statute's purpose in the hands of some, whereas in the hands of other, the language is plumbed for its literal, textual meaning? Why are certain industries able to garner influence in agencies more than others? What constrains the actions of these dictators? What do they fear? All of these questions are far more significant than the process by which new rules are subject to comment, or what regulations are subject to OIRA review. This is where the human drama happens. This is where the different branches of government engage in Mortal Kombat!
Corporate law is akin to Constitutional law. This result is not at all what I was anticipating when I signed up for the course. I thought that there would be a lot of math, and a lot of greedy corporations having to battle SEC regulations. This is not the case, at least not in the introductory course I took. Instead, I learned that a corporation is like a country. It has a constitution, elected officials, and delegated administrators, all of whom share a separation of powers and owe different duties and obligations to one another. This is just like a bill of rights in constitutional law, in which those in power must set boundaries on just how much they can get away with before a court will declare them to be stepping on their brethren's toes. Its a made up fantasy world with its own set of rules and laws--a lot like World of Warcraft, actually.
8th Amendment law is a mess. I was confused about the death penalty before I took the class; now I know where I stand, even though there is much about my newfound position that I do not understand. But in a way, that is good, because its revealed some inconsistencies in my own psyche. For example, I can now tell you a million reasons why the death penalty, as administered in the US, is deeply flawed. It is an unfair, racist system that arbitrarily, incorrectly, and unnecessarily imposes death as a way of ironically asserting justice over those who arbitrarily, incorrectly, and unnecessarily impose death on others. Yet, at the same time, there are people who I instinctively feel should be executed. I remember feeling like it was perfectly normal and natural that Saddam Hussein should be put to death. The Chesire killer in Connecticut is another news story that makes me think that execution must be the natural consequence of someone who thinks its acceptable to behave as they did. The execution of mass murderers hardly strikes me as "cruel and unusual," since they are only receiving a fraction of the death they caused in the world. This is what I feel in my gut. And yet, I know in my head that execution is barbaric. That it is retribution. That it is hypocritical. And that criminals are more than just the crimes they committed. There are extreme cases where I feel the death penalty is warranted, and there are extreme cases in which I feel the death penalty is abhorrent. How do I reconcile these two extremes? What do they mean for those cases in the middle that seem both necessary and abhorrent? I have more questions than answers when it comes to the death penalty, and yet I feel like I have greater understanding.
Administrative law was a study in psychology. Many express frustration with the slow pace of congress. Congress is designed to move slowly. There are endless procedures and obstacles in the path of any bill. It seems that the threat of unemployment is the only force powerful enough to get congressmen to agree with each other long enough to pass something through the immense gridlock of procedure. Administrative law is not really about procedures. It doesn't really matter whether there are enough votes, filibusters, or notice and comments. At the end of the day, if the head of the agency wants something to happen, then it will happen. In a sense, administrative law is run by dictators; it is the efficient, smooth, well-oiled machine that the general public thinks congress should be.
As such, the study of administrative law is the study of dictators. Human psychology plays a large role. Why does statutory language get interpreted based on the statute's purpose in the hands of some, whereas in the hands of other, the language is plumbed for its literal, textual meaning? Why are certain industries able to garner influence in agencies more than others? What constrains the actions of these dictators? What do they fear? All of these questions are far more significant than the process by which new rules are subject to comment, or what regulations are subject to OIRA review. This is where the human drama happens. This is where the different branches of government engage in Mortal Kombat!
Corporate law is akin to Constitutional law. This result is not at all what I was anticipating when I signed up for the course. I thought that there would be a lot of math, and a lot of greedy corporations having to battle SEC regulations. This is not the case, at least not in the introductory course I took. Instead, I learned that a corporation is like a country. It has a constitution, elected officials, and delegated administrators, all of whom share a separation of powers and owe different duties and obligations to one another. This is just like a bill of rights in constitutional law, in which those in power must set boundaries on just how much they can get away with before a court will declare them to be stepping on their brethren's toes. Its a made up fantasy world with its own set of rules and laws--a lot like World of Warcraft, actually.
8th Amendment law is a mess. I was confused about the death penalty before I took the class; now I know where I stand, even though there is much about my newfound position that I do not understand. But in a way, that is good, because its revealed some inconsistencies in my own psyche. For example, I can now tell you a million reasons why the death penalty, as administered in the US, is deeply flawed. It is an unfair, racist system that arbitrarily, incorrectly, and unnecessarily imposes death as a way of ironically asserting justice over those who arbitrarily, incorrectly, and unnecessarily impose death on others. Yet, at the same time, there are people who I instinctively feel should be executed. I remember feeling like it was perfectly normal and natural that Saddam Hussein should be put to death. The Chesire killer in Connecticut is another news story that makes me think that execution must be the natural consequence of someone who thinks its acceptable to behave as they did. The execution of mass murderers hardly strikes me as "cruel and unusual," since they are only receiving a fraction of the death they caused in the world. This is what I feel in my gut. And yet, I know in my head that execution is barbaric. That it is retribution. That it is hypocritical. And that criminals are more than just the crimes they committed. There are extreme cases where I feel the death penalty is warranted, and there are extreme cases in which I feel the death penalty is abhorrent. How do I reconcile these two extremes? What do they mean for those cases in the middle that seem both necessary and abhorrent? I have more questions than answers when it comes to the death penalty, and yet I feel like I have greater understanding.
Friday, November 12, 2010
The Right to Competent Counsel
Been a while since my last post. I'm sorry. 2L year now. Same as the first. A little bit wiser, but a little bit worse.
In Strickland v. Washington, the supreme court held that in order for a death sentence to be reversed on account of inadequate counsel, the defendant must show 1) defense counsel's legal strategy at sentencing was unreasonable and 2) the defendant suffered some prejudice as a result of this unreasonable strategy.
The first prong seems self-explanatory, but I recall the professor saying that the court will accept any strategy, as long as the attorney claims to have had a plan at the time.
In Strickland v. Washington, the supreme court held that in order for a death sentence to be reversed on account of inadequate counsel, the defendant must show 1) defense counsel's legal strategy at sentencing was unreasonable and 2) the defendant suffered some prejudice as a result of this unreasonable strategy.
The first prong seems self-explanatory, but I recall the professor saying that the court will accept any strategy, as long as the attorney claims to have had a plan at the time.
Wednesday, April 14, 2010
Meeting with a Professor
Wow, what an amazing person.
First of all, we addressed the motivation problem. Because I am indecisive, I do not always have a personal interest in finding the best arguments to defend my positions, as many of the professors seem to expect. But there is anther option--self-improvement. When I sit down to review a case or understand some doctrine, its not because I care about the case/parties/doctrine. Rather, its because I care about myself, and about making the most of a unique intellectual opportunity. Don't sell yourself short. Understanding the arguments and issues in a case or statute makes me a better lawyer. It means that I will be getting more out of a class, getting more for my money. And in turn, that will allow me to be more effective in the future at whatever I choose to do with my degree. Even if I never become a criminal lawyer, I still will become a more critical thinker if I engage with the rationale for a law instead of just obsessing over the best outline or proper statement of the black letter rule. And even if I am not going to be called on, that does not mean I can not be engaged in the lecture. I should be keeping a running commentary in the notes, tough not to the exclusion of paying attention to what is going on. This is an opportunity to develop thoughts and opinions. Remember how good it felt to realize that I don't support the Castle Doctrine?
Next, we talked about self-discovery and getting off the set path laid for you by society to pursue your own interests. There is room for success in any area of the law, and the courses you take will not necessarily box you in or out of a career. As long as you get a first job, there is room for movement within the field. The professor had a goal of not crying after her third day of her clerkship, and the memory and fear of failure led her to exceed the judge's expectations by the end of the year. Sharply pointed questioning, and the anticipation that every single argument you make will be rebutted leads to a thoroughness of preparation that requires a response to every concern.
First of all, we addressed the motivation problem. Because I am indecisive, I do not always have a personal interest in finding the best arguments to defend my positions, as many of the professors seem to expect. But there is anther option--self-improvement. When I sit down to review a case or understand some doctrine, its not because I care about the case/parties/doctrine. Rather, its because I care about myself, and about making the most of a unique intellectual opportunity. Don't sell yourself short. Understanding the arguments and issues in a case or statute makes me a better lawyer. It means that I will be getting more out of a class, getting more for my money. And in turn, that will allow me to be more effective in the future at whatever I choose to do with my degree. Even if I never become a criminal lawyer, I still will become a more critical thinker if I engage with the rationale for a law instead of just obsessing over the best outline or proper statement of the black letter rule. And even if I am not going to be called on, that does not mean I can not be engaged in the lecture. I should be keeping a running commentary in the notes, tough not to the exclusion of paying attention to what is going on. This is an opportunity to develop thoughts and opinions. Remember how good it felt to realize that I don't support the Castle Doctrine?
Next, we talked about self-discovery and getting off the set path laid for you by society to pursue your own interests. There is room for success in any area of the law, and the courses you take will not necessarily box you in or out of a career. As long as you get a first job, there is room for movement within the field. The professor had a goal of not crying after her third day of her clerkship, and the memory and fear of failure led her to exceed the judge's expectations by the end of the year. Sharply pointed questioning, and the anticipation that every single argument you make will be rebutted leads to a thoroughness of preparation that requires a response to every concern.
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