Professor Spooner's Blog

Darwin would have us all believe that we live by "survival of the fittest," and put our resources into looking out for #1. But new research shows that humans receive pleasure from being generous, which then incentives us to continue giving. As this article in the Wall Street Journal explains, scientists used fMRI to measure which parts of the brain "lit up" when people gave to others. Turns out when test subjects donated money to a "worthy" cause, the midbrain lit up, which is the same part of the brain that controls our pleasure responses to food and sex. Even when forced to give, test subjects felt good about it.  Turns out it feels good to do good.

This may be bad news for Deontologists, who want us to give because of a moral duty, not because it makes us feel good. Good thing there was no fMRI machine in Kant's day.

This may be old news for many of you who are active in philanthropy or community service. It also reminds us to be kind, as I imagine doing so creates the same pleasure sensation in our brain. I want to share this article recounting George Saunders' commencement speech about kindness. It is a beautiful message about how to live, and that the only thing you will really regret is the failure to be kind. My children go to an elementary school that has a school motto of "Kindness Matters." Except that it is more than a motto, it is really a mission statement. The kids are reminded all the time of why kindness matters, and the faculty and administration try to live it. When I compare my kids' experiences in school with those in other towns and schools, I can anecdotally say that kindness matters has made a difference. Not everyone is nice all the time, but there is a general sense that you will be rewarded if you are kind. Now we know that there is science to back that up.

So, do good, and feel good about it.

Yesterday the Supreme Court (finally) decided Fisher v. University of Texas, the case involving a challenge to that school's affirmative action program. Essentially, the Court punted, kicking the case back to the lower appellate court for reconsideration. Although at first glance the case seems like a meatless decision, the Court's language will make it much harder for affirmative action plans to survive constitutional scrutiny.

The Court did several things in a relatively short opinion. First, it reaffirmed, albeit in a half-hearted way ("we take those decisions as given"), the key precedents found in Bakke and Grutter. Essentially those cases said that diversity in the classroom is a compelling government interest that justifies the use of racial preferences. So as of now, that holding remains.

Second, the Court held that the lower court had applied too loose of a standard in determining whether the University of Texas's plan was constitutional. Texas has what is referred to as a "Top Ten Percent Rule" whereby the top 10% of every high school class is admitted automatically. It is undisputed that the Top Ten Percent Rule created racial diversity for Texas, but the school claimed it was not sufficient to create the "critical mass" of diversity that leads to educational benefits. So in reviewing the remaining applicants, race was one factor in a holistic review. That holistic review was created to mirror the one used by University of Michigan's Law School, which was approved by the Supremes in Grutter. The question in Fisher is whether the school can use racially conscious reviews of applicants if its race-neutral policies created diversity.

The Supreme Court didn't answer that question, although it looks like the answer will ultimately be probably not. What the Court did instead was explain that strict scrutiny, the standard of review for any racial distinction in any area, really means strict scrutiny. Strict scrutiny is a two party test: there must be a compelling government interest (met here) and the government action must be narrowly tailored to achieve that interest. The lower court had given the school the benefit of the doubt; held that as long as the school's good faith assessment is that more diversity is required, that meets the narrowly tailored requirement. The Court corrected the lower court, holding that the University of Texas must show that the racially conscious review is necessary to achieve the compelling government interest. That means presenting evidence to prove that it cannot achieve the educational benefits of diversity without affirmative action.

Having read the briefs, heard the oral arguments, and now read the opinion of the Court, I think it is going to be difficult for the University of Texas to present evidence to convince a reviewing court that its affirmative action plan is necessary. The Top Ten Percent Rule appears to work, and the University's efforts to quantify a "critical mass" were almost laughable. The problem is that defining a critical mass gets into the minutiae of everyday life at a university: how many African-Americans must be in each classroom for that particular class to have the advantages of diversity? What if none of the Hispanic students sign up for poetry classes? Does that mean more Hispanics (that love poetry) must be admitted? Think about this in the context of your own education, and you see why the Fifth Circuit said this determination is too hard, and we should just trust the schools.

The Court either wanted to make this so hard that it is rarely used, or just wanted to remind us all that strict scrutiny means strict scrutiny.  The Court stated, "Strict scrutiny must not be strict in theory but feeble in fact."  Fisher is a triumph for law professors like me that spend hours pounding standard of review into our students' heads. All those blank stares, and all that wonder at why I ask so many test questions about strict scrutiny, were answered yesterday.

Both sides in this case claimed victory. I think the opinion is more of a victory for the opponents of affirmative action, despite not being a broad proclamation that affirmative action is unconstitutional. For the proponents of affirmative action, the opinion was more of a "disaster averted," as David A. Strauss, a law professor at the University of Chicago, stated in the New York Times.  It is going to be more difficult for universities to use race in admissions. Only time, and perhaps a few trials, will tell whether it will be impossible.

Here is the opinion.

Yesterday the Supreme Court issued a decision in Maryland v. King, a case many of my LA245 students wrote about last semester. The decision is unique, not only because of the important Fourth Amendment issue it presented, but also because the decision created a strange divide among Justices resulting in the liberal Justices joining the more conservative Scalia's Dissent. You may recall the King case was about whether the police can take a DNA sample from someone upon arrest. It is already well established that it is constitutional to take a DNA sample upon conviction. This case takes the intrusion much farther, asking whether the police are allowed to take a DNA swab test at booking, along with fingerprints and mug shots.

The short answer is yes, the police may routinely take DNA samples from defendants upon arrest. In a highly criticized decision, with a strange combination of Justices joining, the Court ruled that anyone arrested for a "serious" crime can be subject to a DNA test upon booking.

The reason for allowing DNA tests offered by the majority was to use DNA to identify the suspect in custody.  Of course, as the Dissent points out, what the DNA is really used for is investigating cold cases. That is a noble cause, Scalia states, but not important enough to justify the intrusion on our rights. While the Court's majority decision reads as if it is "no big deal" to extend police authority to take DNA, as if it is akin to fingerprints, Scalia's Dissent points out that the decision goes farther than ever before in intruding upon our Fourth Amendment rights. The new rule is subject to all sorts of abuse, given the lack of definition of a "serious" crime.

This decision is extremely disturbing to me. If you do any reading about the criminal justice system, you learn quickly how easy it is to be arrested, sometimes for crimes you didn't commit. This is particularly true if you are a young black male. Even if your arrest is thrown out of court for lack of probable cause, by then it is too late: your DNA has been taken and been entered into a National database. I am all for solving cold cases, but what is the harm in waiting for the defendant to be convicted?

Sometimes business students wonder why we are learning about constitutional law, which seems like it is all about individual rights. Although we do focus on individual rights, the constitution is important for businesses too. This Supreme Court has been particularly interested in business issues, and by all accounts has ruled in business's favor in most cases. A recent study showed that this court is the most pro-business since World War II.

The Court's decisions regarding businesses range from Citizens United, which granted First Amendment rights to corporations, to Wal-Mart, which made it more difficult to certify a class action lawsuit. In Wal-Mart, the Court threw out a class of women that had sued Wal-Mart for gender discrimination, essentially ruling that they didn't have enough in common to bring their claims together. This year, the Court reaffirmed Wal-Mart in a case involving Comcast subscribers. A group of subscribers wanted to ban together in a class action against the cable company, asking for $875 million in damages. The Court ruled that the plaintiffs could bring the claim individually, but didn't have enough in common to sue together.

Why does the ability to bring a class action matter? The individual plaintiff can only win so much in damages against Comcast, so plaintiff lawyer's can't take on all the litigation expenses. Therefore, the Court's limits on class actions are a boon to large consumer product or service companies, who will likely see far fewer lawsuits. Critics of the Court's decisions argue that the limits on class action will mean complete lack of access to the judicial system for most consumers.

The media and politicians pay a lot of attention to the political leanings of potential justices. This Court shows that perhaps what the media should be paying attention to is how pro-business the judge has been.

I am currently boring my husband by obsessing over a recent insider trading case brought against a partner at KPMG. Many of you probably have heard of KPMG, a large audit firm with a strong reputation. Scott London was a 29-year veteran of the company, and was a senior partner. Despite all this success, he had admitted to providing insider information about several of his clients to a friend he met at a golf club. Over many years this friend, jewelry dealer Bryan Shaw, traded on those insider tips and made over a million dollars in profit. Shaw gave London an expensive watch and stacks of cash over the years. The curious part about the scheme is that it appears that there was no arrangement for kickbacks in place when London starting giving Shaw tips. Indeed, London has told authorities that he felt bad about financial problems that Shaw was having, so he passed along tips to his golf buddy.

He also gave Shaw some really bad advice. When Shaw was concerned about being caught, London reassured him that the SEC doesn't care about "small fish" like him. He also told Shaw that the punishment for insider trading is essentially a slap on the wrist. Apparently London hadn't read the newspaper lately, given all the multiple year sentences recently handed out.

Shaw paid London back for the bad advice by cooperating with the government and turning in his "friend."

It all sounds so stupid, but London was a partner at a good audit firm, and presumably was well educated. In other words, could he have been that stupid? What was his motive? Why would he put his success at risk to make a golf buddy happy? Someone please suggest a feasible answer, and save my husband from my constant speculation.