Author Archives: Michael Froomkin

Miami Votes

'Rumpole', he of the Justice Building Blog, describes his experiences voting in our primary/judges/etc election here in Miami today in DEMOCRACY IN ACTION,

Here is democracy in action- Miami style:

I parked and approached the polling site. There were several elderly women sitting on chairs surrounding the entrance. Upon seeing me, they immediately sprung into action, grabbed their walkers or canes and cards containing ads for various candidates and descended upon me.

Now I ve lived in Miami long enough to understand most Spanish, so I immediately recognized when an elderly woman loudly insulted the heritage and family members of Fidel Castro while thrusting a Rick Corona for Judge card into my hand. Another woman attempted to press a voting slate into my hand while complaining, I m pretty sure, of the Dolphins decision to release their kicker from last year and go with a rookie. She also doesn t like the 3-4 defense, which she made quite clear to me in Spanish while handing me a Harvey Ruvin for Clerk card.

Finally, as I almost entered the polling place I felt a distinct tug on the back of my Team USA Basketball shirt that I always wear when traveling. A woman thrust a slate of candidates into my hand and told me in no uncertain terms that I had to vote for them. My Spanish is not great, so I carefully inquired if I could vote for anyone else?
NO came the loud response. These were the people I must vote for. I waived over a polling marshal, whom I m pretty sure I recognized from the security screening at the REGJB. Therein ensued a loud argument in Creole and Spanish between the marshal and the woman.

I walked into the voting area adjusting my Team USA shirt and handed another elderly woman aren t their any retired men who work at polling stations? my election card and driver s license.

WHO ARE YOU ? she screamed at me in Spanish.
Well I certainly wasn t about to reveal my identity as the blogger at this point, so I said my real NAME.
NO. WHAT ARE YOU? My spanish isn t great so I had not correctly understood the first question. It has been a long time since anyone ever seriously asked me that question and it caught me by surprise.

American? I ventured.

NO. WHAT ARE YOU? She screamed again. She was shouting in Spanish loud enough to actually wake up the other poll workers.

A human being? I mumbled, although some who read my blog might disagree. Really I just want to vote.

Another poll worker came over and explained I needed to tell her if I was a Republican or Democrat. The crisis being settled, I signed my NAME, received a ticket, a large folder and a special pen and was sent to the voting booth.

So much for electronic voting. We are now back to the days of SATs and the like. It s the good old fill in the oval with the special pen.

After you vote you have to take your ballot to an optical screening machine. The one I used was one of the newer ones, which I could tell because the tape holding it together was still sticky. A polling official came over and took my ballot and (I kid you not) carefully looked at every choice I made.

“What are you doing?” I said.

She replied in Spanish that she was checking to make sure I voted correctly.

“I don't think you're allowed to do that” I said. And she scowled at me like I was a relative of Fidel Castro. Another official came over and I inquired if voting in the United States Of America was by secret ballot.

“Que?” was the response. I did not know the phrase “secret ballot” in Spanish, so I had to wait several minutes for another supervisor to come over, wherein I explained the situation. The three of them huddled for a few minutes, casting glances at me that I had not seen since I had tried to board a plane earlier in the morning. Eventually the supervisor and returned and explained to me (and I have not made any of this up) that If I really wanted to, I had the right to have the ballot put through the electronic screener without it being reviewed.

I opted for that decision, and someone pulled a starter cord and the high tech optical screener coughed to life and I put my ballot through and voted.

I love this country. And I really love my town. Who could think of moving anywhere else, when this kind of entertainment is available for free?

I voted too. It wasn't nearly as entertaining in my precinct.

Posted in Miami | 7 Comments

Imagine What He Could Have Done as a Lawyer

Via Feminist Law Profs, a piece of Digitized History (mislabeled “digital history,” which to me would be a history of online activities).

As FLP says, “Wow.”

Posted in Etc | Comments Off on Imagine What He Could Have Done as a Lawyer

Don’t Look Behind that Curtain!

Greenwald, AT&T thanks the Blue Dog Democrats with a lavish party. Worth reading.

Le plus ça change, le plus c'est la même chose

Posted in Politics: US | Comments Off on Don’t Look Behind that Curtain!

A Note About the Economy

I went down to my favorite furniture store, Woodworks, this weekend to get a couple extra shelves for one of the many, many bookcases I've bought from there over the years.

And I was chatting with one of the owners, or maybe he is the owner, I'm not sure, and I commented on the fact that the store seemed pretty busy despite the recession — I'd had to wait a while, while he wrote up the sale of a complicated, somewhat expensive, custom piece to an older couple. No, he said, business was down by a third over last year. And this is for a store that has good prices on decent quality stuff that tends to last.

Posted in Econ & Money | 2 Comments

Of Coase and Coercion

A note to myself, but you're invited to listen in and comment if you'd like. [Update: comments glitch fixed.]

If I were teaching a first year legal “toolbox” course, I'd certainly teach Coase as part of it. And I'd include something like this too: Unenumerated: The Coase Theorem is false: contracts depend on tort law.

The proof that the Coase Theorem is false is actually quite simple: the assumptions of the Theorem contradict each other. The assumption that transactions are voluntary contradicts the assumption that any prior allocation of rights is possible, including rights that allow one party to coerce another. In fact, for the Theorem to at all make sense, a very large and crucial set of prior rights allocations must be excluded — namely any that allow any party to coerce another.

But we can't generally solve externalities problems by bargaining under this revised assumption. Externalities cannot be neatly distinguished from coercive acts, as extending one of Coase's own examples illustrates. In this example we have a railroad with a train that, passing by a farmer's wheat field, gives off sparks, which may start a fire in the field. In Coase's account, the prior allocation of rights might give the railroad the right to give off sparks, in which case the farmer must either plant his wheat far enough away from the railroad (wasting land) or buy the right to be free from sparks from the railroad. The prior allocation might instead already give the farmer the right to be completely free from sparks, in which case the railroad can either buy the right to emit sparks from the farmer or install spark-suppressors. If these are the two possible prior allocations of rights, Coase concluded that the railroad and the farmer will in the absence of transaction costs bargain to the most economically efficient outcome: if it costs less for the railroad to reduce the sparks than for the farmer to keep an unplanted firebreak, bargaining will achieve this outcome, and if the reverse, bargaining will achieve the reverse outcome, regardless of whether the farmer initially had the right to be free from sparks. So far, so good — it seems, on the surface, that if bargaining is costless an efficient outcome will be achieved.

The problem is that these are not the only prior allocations possible. The Coase Theorem is supposed to work under any other allocation of prior rights. But it doesn't. It fails for a large and crucially important class of prior allocations: namely any that allow one party to coerce another.

But I don't teach a first year “toolbox” course. Indeed, we don't have such a course. (We have “Elements” which — I'm told — is about how to read lines of cases, something which is important but different.)

I do, however, teach a Jurisprudence course of my own devising. I do “Of Coase and Cattle” there. Should I add something like this? It would be a distraction from where I'm trying to go, but maybe a useful one.

Then again, if I really let myself get distracted, I'd soon be trying to explain why the solution to the problem here is Habermassian, not libertarian. And that would take me very far from where the course is currently designed to go. But maybe I should bite the bullet and take it there? But that would make it much more of a philosophy course, and much less of an analytic jurisprudence course, than I intend it to be.

Posted in Law School | 8 Comments

This Bugs Me

The Cardozo Law Review has a symposium volume, “Law and Event,” on the work of Alan Badiou.

I don't have time to read it.

Posted in Legal Philosophy | Comments Off on This Bugs Me