Category: the law

replenishing returns

This Hour Has 22 Minutes takes a look at copyright and file sharing, and blank cassettes, and blank video tapes, and blank paper:

It’s too bad they didn’t bring up probably the oldest and most common form of legal media sharing – libraries – but no worries, The Philadelphia Story covered that one decades ago.

Update: For anyone who doesn’t want to click on the link, here’s the video. You’ll have to manually go to the 6:49 mark; the link jumps there automatically but for some reason the embed code won’t let me do that.

keynesianism within one country

I still have only a rudimentary understanding of the Canadian political system, but one thing that’s stood out in my news reading in this time of public budget crises is the fact that Canadian provinces are allowed to run deficits. As far as I know, every U.S. state has to balance its budget. There must be limits to the provincial deficits or potentially the situation could get out of hand, but I don’t know how those are determined (assuming that they exist).

Long-term questions aside, I suspect that, in the short term, the ability to run a deficit gives the provinces the flexibility to avoid the furloughs and closures faced by the public sectors in many of the states.

e-government is great

I received my juror questionnaire last Thursday night, quite some time after it was forwarded from the U.S. I thought I’d have to rush it back to make sure it got processed in time, but it turned out I could complete it online. So I did. And only two business days later, I now see that I have been excused from service.

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Categorized as the law

leaving one’s peers

The federal courts want me; the summons must have gone out just as I left California. I hope having moved to Canada is a good enough excuse to not have to serve on a jury in Los Angeles, but we’ll see. I can’t imagine missing class and having to fly back – that would throw everything off.

It’s too bad, in a way. I’ve never had a federal summons and indeed I’ve never had to go into a courthouse at all. Every time I’ve been summoned at the local level, I’ve been excused over the phone. I know jury duty is usually something people grumble about, but I’d like to do it at least once, if it’s in a near enough place. And the federal summons looks so much more – serious isn’t quite the word, and neither is solemn, but the consequences for missing it without approval are much tougher and you’re considered “on call” during your time period.

They pull from surrounding counties, since there are only a few districts; had I been in California, it would have been about a 70 mile commute each day. There’s a checkbox for if you’re requesting an excuse because you live over 80 miles away. It’s about 1400 miles to here.

a history of bribery

Aside from visualizing the criminal complaint against him a few weeks ago, I’ve been waiting to see what Rod Blagojevich is actually going to be indicted for before blogging about the case. But if the indictment is postponed, I’ll probably pick it up sooner rather than later.

Meanwhile, with corruption so much in the news, I’ve begun reading John Noonan’s history of the concept of bribery, appropriately entitled Bribes, parts of which I read a few years ago while researching 19th century corruption in graduate school. In pursuit of the idea, Noonan ranges from the ancient world, to medieval Europe, to early modern Britain, to the United States, to bribery on an international scale in the late 20th century (the book came out in the mid-1980s).

Is it really possible to follow a single concept of bribery through so many places and times? Noonan argues yes, provided the concept is properly abstracted:

The core concept of a bribe is an inducement improperly influencing the performance of a public function meant to be gratuitously exercised. The core turns out to be remarkably constant if its elements are taken with enough abstractness. The concrete constituent elements–what counts as “an inducement,” what counts as “improperly influencing,” what counts as “a public function,” what functions are “meant to be gratuitously exercised”–change with the culture. The concept of a bribe contracts or expands with conventions, laws, practices. Relativized, it does not disappear. The idea is used in postexilic Jerusalem, late Republican Rome, imperial Ravenna, seventh-century Yorkshire, thirteenth-century Paris, seventeenth-century London, eighteenth-century Calcutta, nineteenth-century Washington, twentieth-century Tokyo. Cross-culturally compared in these very varied settings, the abstract central concept–with no forcing of the evidence–recurs.

Noonan also provides a helpful framework for understanding the different standards of bribery that may prevail at any one time in a given context:

Bribery is a legal concept, hence the law determines what counts as bribery in a particular society. This is easy to say but legal definitions turn out to be only superficially helpful. Is the law the edict issued by the prince and the statute written on the books or is the law that which is actually enforced? If one takes the proclaimed rule as the measure, one chooses a standard that is often demonstrably unreal. If one answers that the law is that which is actually enforced, then one is led to ask: How many trials must take place before a law is enforced? Is prosecution enough for enforcement or must conviction follow? Is conviction enough or must serious punishment be imposed? Is there enforcement if only small offenders but not large ones are seriously sanctioned? Actual enforcement is not a clear and simple measure.

Probing the various meanings of any law on bribery leads to perception of a tension between it and the morals of any community. Typically, the morals in practice are less demanding than the law on the books and the morals in public expression are more exigent than the law enforced. Often a society has at least four definitions of a bribe–that of the more advanced moralists; that of the law as written; that of the law as in any degree enforced; that of common practice. If one is to say that an act of bribery has been committed, one should know which standard one is using. The great advantage of the concrete materials drawn on here–trials, confessions, letters, poems–is that one can see what bribery means in these contexts; one can conclude with some assurance as to which standard was in play and what a bribe meant for a particular prosecutor or poet, politician or publicist in a particular society.

This is particularly relevant to the Blagojevich case, where the “morals in public expression” were expressed quite literally in the form of the arrests and the ensuing press conference, while the standard of the law as enforced has yet to be determined. Additionally, I’ve seen the question come up in a number of places of whether there’s a meaningful distinction between what Blagojevich is alleged to have done and more conventional practices of deal-making or logrolling, with some arguing that both types of activities are a kind of bribery, and others arguing that there’s a real difference between trading support for public activities for support for other public activities and trading support for public activities for personal, private enrichment. I’m more in agreement with the latter group, but in any case the difference of opinion suggests that there are different standards in play here.

I’ll be posting more on Bribes as I work my way through the book.

the visual display of qualitative information

If you really want to know what it’s in the criminal complaint filed against Rod Blagojevich, you can read it. But in this 2.0 world, why read when you can visualize? Bill Allison at the Sunlight Foundation’s Real Time Investigations blog uploaded the complaint (via) to a site called Many Eyes, which is the kind of site I wish I’d already known about, and which offers a number of ways to visualize text.

(Unfortunately, wordpress strips out the code that makes it possible to embed these images at their full size and functionality, so I’ve re-sized these images to be larger than what the embed codes were giving me. If you click through, you’ll be able to do all sorts of things, like re-arrange the displays, search for particular words and phrases, count or highlight specific occurrences, and even zoom in on the word tree.)

Let’s start with a Wordle:

blagojevich-complaint-wordle

That gives you an idea of the most important topics/people in the complaint, but it’s more of a bird’s eye perspective. If you want more precision, albeit at the cost of some visual elegance, you could look at a couple of tag clouds:

Here’s a cloud formed on the basis of single words:

blagojevich-complaint-one-word

And here’s a two-word tag cloud:

blagojevich-complaint-two-word

The two-word format does a better job capturing many of the subjects – not just the proper names, but also senate candidate, financial advisor, planning board, campaign contributions, and so on – as well as the alleged activities – Blagojevich spoke, Blagojevich talked, attempted extortion, phone calls. But it also has some pairings that are simply the result of the stylistic conventions of a criminal complaint. For example, the phrase “2008 rod,” which has 53 occurrences, isn’t a phrase in the usual sense – it’s the result of writing out the date of an alleged action (in 2008), followed by Blagojevich’s first name: “…the morning of November 12, 2008, Rod Blagojevich talked to Fundraiser A…”

Finally, the most innovative and analytically interesting visualization is the word tree. Want to know how the Senate candidates appear in the text?:

blagojevich-senate-candidate

Judging by the number of occurrences, Senate candidate 3, who appears to have been identified, is looking pretty good.

Incidentally: a cursory search for profanity doesn’t turn up nearly as much as you’d expect from the news coverage.

stand out

This remarkable story comes towards the end of Bob Herbert’s recent column about Obama’s convention speech:

P.T. Cochran would agree. Mr. Cochran, 88, a retired appraiser for the city of Detroit, recalled a day in 1944 when he and a fellow student at Wilberforce University, a black school in Ohio, went into the town of Xenia to see a movie. The ticket taker told them the theater was closed.

“We knew it wasn’t closed,” said Mr. Cochran. “They just didn’t want to let us in. So we stood there, watching to see if they would let anyone else in.”

The ticket taker refused to admit anyone as long as the two friends were standing outside. They stood there for six hours. Then they called the school and let other friends know what they were doing. The students at Wilberforce alerted white students at nearby Antioch College.

Students from both schools turned out in force — more than 100 of them — to support Mr. Cochran and his friend. “They all stood there with us, to back us up,” said Mr. Cochran. At that point, his voice broke, and he wept softly at the memory from 64 years ago.

“We stayed there until the theater closed that night,” said Mr. Cochran. “And then we came back the next day, which was Sunday, and stood there until 2 or 3 in the afternoon, when they finally decided to let us in.

“I’ll never forget what those kids did for us.”

ballot cards

I was going to review a book about (the idea of) work today, but I’m still reading it. So instead I’ll write a little about card check, which I’ve been trying to learn more about. As I understand it (and correct me if I am misunderstanding things), current law says that workers gain union recognition if a secret ballot election results in a majority vote in favor of unionization. Under a card check system workers would gain union recognition if a majority sign cards authorizing the formation of a union. Sometimes employers recognize unions on the basis of card check, but they can choose not to and require an election.

Labor groups and most Democrats in Congress favor card check, which would be given the same legal force as an election if Congress passes and the President signs into law the Employee Free Choice Act (EFCA); employers favor keeping the current secret-ballot requirements. Each side argues that the other’s position allows the other to unfairly influence the outcome of the process: employers can engage in anti-unionization tactics over the months before an election is held; union organizers can approach workers multiple times over a period of months until they get enough cards signed.

I’m generally pro-unionization, and given a choice between only the two options of card check and secret ballot under current conditions, I would favor card check. As it happens, I don’t think the choice is quite that restricted: I believe that the EFCA allows employees to choose either card check or an election.* (I’m going by wikipedia here, so again, correct me if I’m wrong.) Nevertheless, though I know there’s plenty of evidence that the current election system is deeply flawed, I’m still not very comfortable with the idea of not using a secret ballot at all.**

Which is why I was interested to see this piece in Slate by William B. Gould IV, who was chairman of the National Labor Relations Board under the Clinton administration. Gould writes that the “Democrats’ view [in favor of the EFCA] is preferable to the status quo,” but doesn’t think that the Democrats will be able to get the 60 votes needed to overcome a Republican filibuster. Instead, he suggests the following compromise, which keeps the secret ballot but reforms the elections process:

Secret ballots to resolve union representation rights are the way to go, and Obama should meet the Republicans halfway by saying so—and then add this all-important coda: Elections should continue only if the law ensures that voting is conducted expeditiously—for instance, within one or two weeks of the filing of a union’s petition seeking recognition. This is the case in Canada, whereas in the United States, the resolution of union drives currently takes months and sometimes years. Quick elections are the key to meaningful reform because delay is the principal way in which labor law stacks the deck against employees. It allows employers to engage in one-sided anti-union campaigns of intimidation and coercion, with little possibility for remedy.

This seems like a good idea to me, but I can’t help thinking it’s probably not the first time it’s been proposed. Which leaves me with some questions: has it already been considered and rejected? If so, why? And would the Republicans filibuster it anyway?

In the meantime, outside of Congress, the Bush administration appears to be getting ready to take action against card check (via TPM) among government contractors:

The executive order would require large government contractors to use secret-ballot elections for union organizing or risk losing government contracts, say people familiar with the order. Though companies typically prefer secret ballots, some are willing to accept card checks to avoid a fight.

Will someone stand up for employer free choice?

 
 
*I wonder how this decision is made: do they hold an election about holding an election?

**There’s probably an interesting history to be written about the rise of the secret ballot and its diffusion into nonpolitical contexts. Do shareholder elections use the secret ballot?

history: older than it looks

If you’re reading this blog, you probably have already seen Rick Perlstein’s posts on Box 722. If you haven’t, they’re fascinating and you should go read them. I was struck by this statement in the second post:

One thing to observe: over and over again, the Chicago Southwest Siders protesting open housing repeat a variant of the resident on 71st Street who averred that Congress “cannot legislate morals or love.” The reason this is fascinating was that this was one of Barry Goldwater’s constant refrains on the campaign trail in 1964 for why he didn’t vote for the civil rghts act. Like most everywhere else, not many people on the Southwest Side of Chicago voted for Barry Goldwater. But clearly they heard what they had to say, and took it to heart, and repeated it verbatim two years later. It’s a fascinating lesson in the mysterious ways political messages take hold.

But while the letter-writers might have been influenced by Goldwater, the message itself has a longer history. My guess is that the general claim that it’s not possible to legislate morality could be traced to some dead political theorist; in the context of segregation it shows up in the majority opinion in Plessy vs. Ferguson:

The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals…. Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.

[Quoted in Charles Payne, “”The Whole United States Is Southern!”: Brown v. Board and the Mystification of Race”, which is worth reading, here.]