Doctrine and Predictability of Result

“[D]octrine was in a shambles and predictability of result at a minimum.” Dukeminier, Property, 7th, at 1073, quoting 57 Or. L. Rev. 203, 209.

One encounters the assumption of a connection between clear doctrine and predictability everywhere.  But has it been proved, or studied?  It doesn’t seem intuitive.  We don’t read White House press releases to predict what the President is going to do.  We read newspaper articles and works of political science that are based on many more sources.  So why would we suppose that a clear statement from a court press release (that is, a judicial opinion) is a useful predictor of anything?

Predictability would seem to have to do with information about the judiciary qua institution, who’s in it, the forces acting upon them, the views of peers, the media, the subtle pressure of interest groups, zeitgeist, the judges’ ambitions and fears, the way daddy treated them during adolescence, and the like, not merely the judiciary’s own self-serving statements about how it will behave in future.

And the same goes with people, too, doesn’t it?  You’re always the last to know when you’re  in love.

The Law School Crisis Is a Keynesian Crisis

Dear Dean Chemerinsky,

I enjoyed your Op-Ed with Carrie Menkel-Meadow in the Times today and agree with its conclusion that the crisis in law school enrollments doesn’t call for reform to legal education.  But I think there’s a better economic argument for why that is the case.

Everyone agrees that the drop in enrollments is driven by a drop in demand for lawyers.  If that drop in demand had come about because some competitor to law schools were producing better lawyers, then it would be reasonable to think that law schools need to improve their product in order to compete.  But here’s the thing: law schools as a group have no competitors.  The only way to become a lawyer is to go to law school.  And, in aggregate, employers who need to hire lawyers have to hire the lawyers law schools produce, regardless of quality.  They have nowhere else to turn.

So the drop in demand for legal services simply isn’t driven by a lack of competitiveness; it’s got nothing to do with the quality of legal education.  It’s got a lot to do instead with the weak economy and with a lack of commitment on the part of the government to ensuring access to justice for all Americans.  If medicine were not heavily subsidized by the government, medical schools would be in the same pickle as law schools.  You would have MDs working at Starbucks while trauma patients bleed to death in the streets.  Instead, today we have JDs working at Starbucks while desperate homeowners try to defend against foreclosure pro se.

The solution to the problem is for law schools to go to Washington and demand more subsidization of legal services for regular Americans.  The enrollments crisis is a Keynesian crisis.  Unemployment due to lack of demand.  As in all such crises the solution is not to blame the worker (or, in this case, the law school).  Instead, the solution is government stimulus; a stimulus that in the case of the legal market can bring about more justice in addition to saving law schools from themselves.

Best,
Ramsi

In Milton Keynes

                                                           But go with speed,
And what thy stores contain, bring forth and pour
Abundance, fit to honor and receive
Our Heav’nly stranger; well we may afford
Our givers thir own gifts, and large bestow
From large bestow’d, where Nature multiplies
Her fertile growth, and by disburd’ning grows
More fruitful, which instructs us not to spare.

Paradise Lost : V : 313-20.

Pay for Delay

I have been following the debate in the pages of Antitrust between two groups of distinguished economists about “pay for delay”, which is when a branded drug maker pays a generic drug maker to delay entry into the market.   The question is how much pay for delay do you need before you can conclude that the payment is anticompetitive and should therefore be treated as a violation of antitrust or competition laws? Continue reading “Pay for Delay”

Public Reason

Hughes notes at Paradise Lost : IV : 389: “public reason: reason of state, a perversion of the Ciceronian principle . . . that the good of the people is the supreme law . . . Henry Parker approved its use by Parliament and condemned the Royalists for too frequent appeals to it.”

Milton writes:

And should I at your harmless innocence
Melt, as I do, yet public reason just,
Honor and Empire with revenge enlarg’d,
By conquering this new World, compels me now
To do what else though damn’d I should abhor.

Reminds me of 9/11, executive power, and the invasion of Iraq.