Volume 76, Number 4 (May 2003)
- The Common Law’s Case Against Non-precedential Opinions
Article by Richard B. Cappalli
- Class and Status in American Law: Race, Interest, and the Anti-Transformation Cases
Article by Martha R. Mahoney
- Cookies and the Common Law: Are Internet Advertisers Trespassing on Our Computers?
Article by Michael R. Siebecker
- Compulsory Voting in America
Note by Sean Matsler
- Talent Agents, Personal Managers, and Their Conflicts in the New Hollywood
Note by David Zelenski
United States courts of appeals and a number of state appellate courts permit their judicial panels to designate certain decisions as unworthy of publication and as “non-precedential” even though an opinion has been written that justifies them. The designation is based on an assessment by the decisional panel that the resolution of the appealed issues has not added new law to the jurisdiction’s already existing body of law. Judge Richard Posner has described this criterion as “imprecise and nondirective.” An empirical study “casts serious doubt on whether the official criteria for publication of opinions provide a meaningful guide to the judges.” Once a decision-with-opinion receives the “non-precedential” label, it may not be used as authority in future cases by any of the jurisdiction’s courts, and lawyers are prohibited from citing it in their briefs and oral arguments. These opinions were once called “unpublished” and were distributed only to the parties to the appeal, but they are now widely available through online databases and through the Federal Appendix, a new West publication. This Article uses the noun “non-precedent” and the adjective “non-precedential” to refer to these opinions.
The selective publication policy evolved in the precomputer era when courts and judicial councils worried about their physical ability to publish hard copies of the ever-increasing number of court opinions, the costs to the legal community of acquiring and storing voluminous law reporters, and overwhelming law-finding devices.
There has been a recent resurgence of interest in class in legal scholarship. This development might have been predictable. Inequality in America has grown sharply over the past two decades. Working people face job tenure insecurity, massive shifts in work structures, and heavy debt. Indigent families have begun experiencing the termination of assistance from the state. Revelations of corporate wrongdoing highlight the power of wealth. But the new interest in class is not rooted primarily in concern with the conditions of low wage workers or the unemployed. Rather, it is a new twist on the topic of race. Out of social discomfort and legal challenges to affirmative action, judges and scholars are seeking a way to confront inequality without confronting race.
Class is important in its own right, but in the United States people usually do not talk much about it. The term is unfamiliar, packed with many different meanings, and uncomfortably radical. In law and popular discourse, the figure of the white working class person has appeared in recent years as the symbol for the need to end or change affirmative action. A searching examination of interest in white working people requires a closer look at class and the social construction of race. The concept of class seems tame only in comparison to the volatility of the discourse on race. It only remains tame if it is understood through a simplistic notion of individual status and divorced from conflict and from consciousness of shared interest among oppressed people – in other words, from groups and relationships of power.
Are Internet advertisers trespassing on our computers? The question arises due to the increasing reliance upon cookie technology by Internet advertising firms as the primary means to match online ads with the specific interests and characteristics of individual Internet users.
It seems that whenever we visit a Web site, we are barraged with an increasing number of blinking banner advertisements hocking products and services of every imaginable sort. More than sixty billion advertisements per month are carefully selected for us and sent to our computers by a single Internet advertising firm, DoubleClick, Inc. In order to increase the effectiveness of the ads, DoubleClick deposits small text files or “cookies” on our computers in addition to sending us the banner advertisements. Like most other Internet advertisers, DoubleClick uses cookie files to collect and maintain detailed consumer profiles that reflect the online practices, preferences and other personal characteristics of each individual who surfs the Web. Based on those detailed consumer profiles, DoubleClick places on the pages of affiliated sites various banner advertisements of client companies that target the specific interests of individuals who happen to visit any DoubleClick affiliated site. Since its inception, DoubleClick alone has placed billions of targeted banner advertisements for client companies on sites across the Internet and some estimate that those ads have been viewed by a majority of all Internet users. To date, DoubleClick has compiled perhaps as many as 100 million user profiles in its databases and, with more than 11,000 affiliated commercial Web sites, DoubleClick remains the largest Internet advertising firm in the world.
Persistently low voter turnout in the United States continues to disappoint lovers of democracy. When scarcely half of the population of eligible voters turns out for a presidential election once every four years – to say nothing of midterm congressional elections or local elections – it becomes difficult to defend American democracy as truly representative. Instead, the will of the active voters, who constitute a stark minority of the eligible voting population, ultimately determines the electoral outcome. This regrettable situation is not the essence of a participatory democracy.
Although low turnout might easily be blamed on an American electoral lethargy, it could also be understood as a failure of the American electoral structure to motivate voter turnout. Accepting that premise as fact, it becomes possible to treat declining voter turnout as an opportunity to reconsider what has until now been a staple of American democracy: voluntary voting.
Hollywood is an impersonal, uncaring, and unforgiving place, and artists need the sophisticated assistance of third parties to help them locate employment opportunities and to assist them in making career decisions. This is where talent agents and personal managers step in. Agents and managers represent artists, and their collective role in the entertainment industry is straightforward. According to agent Joel Dean, they “try to put [artists and producers] together to make a match . . . . It couldn’t be simpler.”
To be more specific, agents procure employment for talent. Their job is to get the artists they represent as much work as possible. Managers, on the other hand, shape artists’ careers. Their job is to serve their clients in an advisory capacity and to counsel them on the career options that have been made available to them through their agents. When looked at this way, things seem very black-and-white: Agents present artists with employment opportunities, and managers suggest which of those opportunities artists should accept.
Was Justice Scalia’s vote in the Boy Scouts case judicially straight? For years he has championed the view that a general conduct law not specifically directed at First Amendment interests does not implicate the First Amendment even if it happens to restrict First Amendment activity in some of its applications. Thus, when Oregon evenhandedly enforced its drug-control law against religious and nonreligious uses of peyote, Scalia maintained that the First Amendment was not implicated, and when Indiana evenhandedly enforced its public indecency law against expressive and nonexpressive public nudity, he took the same position. But in the Boy Scouts case, when New Jersey evenhandedly enforced its civil rights law against expressive as well as nonexpressive discrimination, Scalia not only thought that the law implicated the First Amendment, but he also provided the fifth vote to invalidate it as applied.
When the Court handed down its decision in Boy Scouts, one could fairly have wondered whether Scalia’s dissent was missing. Since the civil rights law at issue could have been characterized as a general law not directed at First Amendment interests, Scalia’s decision to join the majority opinion invalidating the law’s enforcement on First Amendment grounds appeared to conflict with the First Amendment philosophy he developed in Employment Division v. Smith, Barnes v. Glen Theatre, Inc., and similar cases. In what may be called his Smith jurisprudence, Scalia has maintained that, so far as the regulation of conduct is concerned, heightened judicial scrutiny should be reserved for circumstances in which a law specifically targets First Amendment interests for disfavored treatment. Otherwise, accommodation of those interests should ordinarily be left to the political process. Scalia did not seem to adhere to that philosophy in Boy Scouts.
Our law has no mind of its own. In times past, we have fancied law a product of the Deity, and we are still apt to depict it as something transcendent, or even broodingly omnipresent, if not divine. Some of our lawmakers maintain a tradition of donning garments befitting oracles when they utter their pronouncements. Needless to say, the reality is that rules flow out of the pens of mortal persons beneath the impressive robes, persons who must bend their mental efforts to many complex problems and tasks, all competing for their attention.
Half a century ago, the late Herbert Simon developed the theory of “bounded rationality” in connection with human decisionmaking. His insight was that the cognitive resources (like other resources) of human beings are finite and, accordingly, must be rationed. Whether consciously or unconsciously, we all have to make hard choices about how to allocate our intellectual energies. We cope with cognitive deficits, Simon and his students elaborated, in a variety of ways—for example, by searching selectively through the exponential ramifications of our analysis; by settling on decisions that we find sufficiently good, even if not necessarily best; and by developing mental short-cuts (dubbed heuristics) to simplify cognitive tasks, thereby allowing us to arrive at decisions in a more frugal manner.
It was often said of K’ung Fu-tse: “If the mat was not straight, the master would not sit.” This is surely an outlook with which many American lawyers, and those who deal with them, are familiar today. Though there is, of course, something to be said for keeping the mat straight, especially in an area as specific and particular as the law, the refusal to sit because of minor discrepancies can lead to tired legs and a bad temper. In the legal context, this means that certain “mat-straightening” practices can lead to inefficient procedure, incomprehensible or purposeless laws, and, at worst, miscarriages of justice.
The American legal system, descended as it is from Hebraic, Roman, and British law, is, in spite of the genius of its framers, at times hopelessly mired in the muck of mat-straightening when it should be concerned with simply sitting and getting down to the business of justice. This is due not so much to flaws in the basic structure of the law, but to the immense over-complexity that is largely (though certainly not solely) a phenomenon of the modern era. These days, it seems that the simple purpose of the law has been completely obscured by the practice of it. Fortunately, though much of Western legal scholarship has ignored or simply not recognized this trend toward unnecessary complexity, in the East, particularly in China, political and social philosophers have been dealing with this exact kind of excessive insistence on convolution and bureaucracy for thousands of years. They know it as Confucianism.