Sunday, June 03, 2012
Citology
As noted in various blogs around the b-sphere, including at Balkinization here and the Wall St. Journal here, the new Most Cited Law Review Articles study was just published in the Michigan Law Review. A few things are clear from the study: Mark Lemley is a rock star of our generation; it's easy to get cited if you write the Harvard Law Review Foreword...and so on and so forth, but didn't we all know this already? There is an interesting reflection in the article about the relationship between articles and books in legal scholarship. Some leading legal scholars such as Ronald Dworkin are not on the list because book citations are not counted. The authors of the study also note that sometimes, when one turns a couple of articles into a book, that can disperse the article's initial impact.
Maybe that's why I never turned The Renew Deal: The Fall of Regulation and the Rise of Governance into a book (it's not) and chose to write my post-tenure first book about innovation policy (Innovation's Edge: The Upside of Raids, Leaks, and Free-Riding, forthcoming Yale University Press 2013). I wrote The Renew Deal while a grad student and published it before going on the law teaching market (it wasn't my job talk piece which I published later). I feel deeply honored that it is second on the 2004 list of most cited, squeezed between Tribe, Koh, Ackerman, and Lemley.
One of the things (perhaps the top thing) we prawfs think about alot is the role of legal scholarship. It's hard to know while you are writing a piece how much impact it will have with the community of scholars you want to speak to. Per the new citology study, and again, unsurprisingly, articles in the Harvard Law Review tend to have a much greater chance of scholarly impact. Indeed, it is quite rare for any article outside the top five or so journals to get on the list. And yet, for me this hasn't been a measure (nor a goal) of an article's success. When I compare between my own articles (a within subject analysis), I must say I don't have a great grasp of which articles will become more central as time goes by. A couple of years after The Renew Deal came out in the Minnesota Law Review, I published another article I had begun writing as a grad student in the Harvard Law Review: The Paradox of “Extra-Legal” Activism: Critical Legal Consciousness and Transformative Politics. That article itself had an interesting path to publication, worth a separate blog entry, the short of it was that I had decided to not publish it cause I got a job and felt it was too personal (not that it reads that way, but that's how I felt about it once I started teaching and wanted to move on to new writing adventures), and only with the urging of a friend, Scott Cummings (UCLA), who kept asking me every time we met at a conference, "Orly, why aren't you publishing The Paradox?", I reluctantly pulled it up and half-heartedly sent it. Long story made short. Back to impact. Once I had returned to The Paradox, I believed it was actually quite interesting, and indeed, here in Israel, where I am spending a marvelous sabbatical this year at Tel-Aviv University, it is the article of mine that seems to have most taken off, taught in multiple syllabi, translated into Hebrew in several journals. But in the U.S., I don't think it had been widely read. Imagine my excitement, turned into disappointment and embarrassment (I am sharing this with you because I got over the embarrassment by now) when I saw one day that Justice Breyer cited The Paradox in a short article of his in a tribute issue in his honor. I imagined he had found my argument that we should reject skeptics who have turned away from the Supreme Court in struggles for social justice. I had imagined he loved my nuanced analysis of what is meant by those who write about co-optation. I had hoped he loved the seamless threads in which I link Brown v. Board to newer cases about gay rights, health care, gender politcs and disability discrimination. And here is what I found when I began reading. This was how my Harvard Law Review article was cited by a Supreme Court Justice:
I'm also grateful to the Annual Survey of American Law for dedicating this issue to me. For one thing, that fact suggests the Law School is interested in the Judicial Branch. And that is a good sign. I realize that journals, like judges, are often under attack. The New York Times reported that Chief Judge Jacobs of the Second Circuit recently said, “I haven't opened up a law review in years. No one speaks of them. No one relies upon them.” And there is evidence that law review articles have left terra firma to soar into outer space. Will the busy practitioner or judge want to read, in February's Harvard Law Review, “The Paradox of Extra-legal Activism: Critical Legal Consciousness and Transformative Politics” ?
I think he assumed the answer. I think he asked it rhetorically. In truth, I had feared the name of the article would deter readers, and would not be as catchy as The Renew Deal. I had asked Scott and the editors at the Harvard Law Review to think of alternative titles. But we all kept coming back to the original one. We thought, and I still think, it best reflects the article's. But perhaps a different title would have gotten it more American readership. In Hebrew it received the new and catchier title, "Is Law Dangerous?"
So dear readers, thoughts about citology, impact and the choice of projects and titles?
Posted by Orly Lobel on June 3, 2012 at 05:45 AM | Permalink | Comments (0) | TrackBack (0)
Saturday, June 02, 2012
Meditation for Law Profs?
Thanks, Dan, for the introduction. Giovanna Shay of Western New England signing on as a guest for June. Tomorrow I am heading off for my first all-day silent meditation retreat, part of an eight-week course in mindfulness that I am taking at the UMass Center for Mindfulness (on my own, not as a WNE prof). Serendipitously, the May issue of the Journal of Legal Education has a symposium on integrating mindfulness into law teaching. When I signed up for the mindfulness course, it was for my own personal benefit. However, after reading the JLE symposium, I am becoming increasingly curious about how to use mindfulness techniques to help law students reduce stress and develop resilience. JLE contributor Angela Harris describes a seminar designed to encourage lawyers to act as peace-makers, while David Zlotnick argues that mindfulness can improve trial advocacy. Certainly, promoting non-reactivity could only benefit the legal world--and the legal academy! I'm interested to know if others are integrating mindfulness into their pedagogy, whether through seminars, stand-alone retreats, or as a theme in a traditional course. I will report back on the silent retreat, although I will not post from it!
Posted by GiovannaShay on June 2, 2012 at 05:33 PM | Permalink | Comments (3) | TrackBack (0)
Signing Off and Brief Reflections on Blogging
I've really enjoyed my guest stint this month -- special thanks to Howard for facilitating my visit, and to Dan and the other Prawfs for having me.
The experience has left me with a new appreciation for the challenges of blogging. It's not quite like any other form of writing that I've done in the past. Something about the internet tends to facilitate misunderstandings, and so it seems to me that blogging requires a heightened precision of language. One of my personal techniques for overcoming writers' block when I'm working on scholarship is to pretend I'm a blogger on deadline -- "I have until 3pm to write four paragraphs on X." The thinking behind my technique has always been that pretending to blog is a way of getting something done, without necessarily making sure that it's perfect. I've found, though, that blogging in real life is produces quite the opposite tendency -- I want to make sure that every word is just right. I'll probably continue to use my pretend-blogging exercise when I'm trying to get something done, but with a new understanding that it's simply not a reflection of the way blogging really works in practice.
Blogging has also made me far more aware of the difference that anonymity/pseudonymity makes. Of course, this isn't at all a new debate. But with a few exceptions, I've noticed a marked disparity in the thoughtfulness, coherence, and overall quality of signed responses versus pseudonymous ones. Signing your name to a comment forces you to own your words, and, consequently, choose them more carefully. Requiring signed comments on any given blog would probably reduce the overall number of comments. Given the miniscule intellectual contribution of most pseudonymous comments, however, the reduction in quantity is a sacrifice that I personally would be willing to make in order to elevate the quality of the overall discourse.
Posted by Nancy Leong on June 2, 2012 at 11:43 AM | Permalink | Comments (3) | TrackBack (0)
Friday, June 01, 2012
Reprise: Mild Epiphanies While Re-reading The Reflective Practitioner
Well, I'm back. Since I left hung out here, Bill Henderson was gracious enough to ask me to join him at The Legal Whiteboard, which I hope you visit early and often (and subscribe to with your RSS feed reader).
One administrative note. I see there is a "Jeff" making exceedingly coherent and knowledgeable comments these days. If the "coherent and knowledgeable" wasn't already a dead giveaway, "Jeff" is not me.
With that I'm going to reprise a recent post from The Legal Whiteboard, all of which, per Markel rules, will be below the break because I've used up my three paragraphs. It piles on Brian Tamanaha's now well known views (summarized today in the New York Times). But you have to keep going to see a couple really astonishing pictures.
Continue reading "Reprise: Mild Epiphanies While Re-reading The Reflective Practitioner"
Posted by Jeff Lipshaw on June 1, 2012 at 04:54 PM | Permalink | Comments (0) | TrackBack (0)
Rotations
It's June 1 and you know what that means: Happy International Children's Day, and in Canada, at least in the past, it was National Day Against Homophobia! (Isn't Canada awesome?)
And here it's rotations day. Gratefully, we have a few new and returning voices to Prawfs. Joining us for the first time are Addie Rolnick (UNLV), Stew Young (Wyoming), Wendy Martinek (Binghamton Poli Sci); and Michael Higdon (UTenn). Returning for June are Gio Shay (WNEC); Jeff Lipshaw (Suffolk); and Kelly Anders (Creighton).
Many thanks to our wonderful cast of May visitors. Some of them will be signing off today and others might need a few more days to push out a few more lingering thoughts. We are grateful to you all for your contributions and look forward to your swift return here.
On that note, I'll soon be putting together the schedule for the July-December guests list. Please feel free to email me if you're a prawf or a rising prawf and would like to participate or know someone who does. Let me know your first and second choices for a month in which to visit please. Thanks!
Last, for those of you off to Hawaii soon for LSA, there will be a happy hour co-hosted by our Matt Bodie and Jonathan Simon and Faculty Lounge's Laura Appleman. More info to follow very soon.
Posted by Dan Markel on June 1, 2012 at 04:38 PM in Blogging | Permalink | Comments (2) | TrackBack (0)
Oracle v. Google - The Other Shoe Drops
For those of you following the Oracle v. Google case, as I predicted here, the court has ordered that the APIs that Google copied are not copyrightable - at least not in the form that they were used. The case is basically dismissed with no remedy to Oracle.
Posted by Michael Risch on June 1, 2012 at 03:24 PM in Information and Technology, Intellectual Property | Permalink | Comments (0) | TrackBack (0)
Judicial Deference to Congressional Judgments and the Voting Rights Act
The DC Circuit’s split decision in Shelby County v. Holder upholding the constitutionality of Section 5 of the Voting Rights Act has teed up what is presumably a good vehicle for the Court to return to that issue after its near-confrontation in Northwest Austin Mun. Util. Dist. No. 1 v. Holder in 2009. If the circuit court’s decision is any hint, any Supreme Court decision on the fate of Section 5 is going to turn heavily on how much deference it is willing to give Congress’s predictive judgments about the continued necessity for Section 5 generally, and for its discrimination between covered and non-covered jurisdictions.
The Court’s Enforcement Clause jurisprudence more generally has featured the Court considering whether Congress has identified a record of unconstitutional conduct relevant enough and serious enough to justify the remedial legislation at issue. Indeed, it was the practice of engaging in that review that at least ostensibly convinced Justice Scalia to abandon the congruence and proportionality test in Tennessee v. Lane, an abandonment he repeated a couple of months ago in Coleman v. Maryland Court of Appeals. In Shelby County Judge Tatel’s majority opinion relied heavily on deference to what described as Congress’s “predictive judgments” about the continuing need for Section 5 as currently tailored. Judge Williams' dissent was much less impressed with the deference argument. He argued that any such deference would be inappropriate for what he described as the relevant part of the congruence and proportionality inquiry: "whether Congress's remedy 'fits' the proven pattern of discrimination."
In a way, this disagreement reflects a basic component of deference inquiries. As scholars such as Neal Devins have noted for a while now, the deference question can only be analyzed in the context of the underlying doctrine governing judicial review of the challenged statute. In other words, deference may be called for, or not, in a given case based in part not on the abstract question whether the findings merit deference, but rather on the broader doctrinal implications of granting or withholding it. (My own thoughts about the deference question more generally can be found here.) If that's an accurate description of what courts do -- in particular what the Supreme Court does -- then there's good reason to think that the current Court, which has already expressed serious reservations about Section 5, may not give Congress's judgments much leeway here. This may be especially the case if a majority is suspicious -- as Judge Williams was, citing Justice Kennedy's concurrence in Georgia v. Ashcroft -- that Section 5 may not only exceed Congress's enforcement power but itself violate constitutional principles found in the Fourteenth, Fifteenth and Fifth Amendments. If a majority already has this suspicion, it is presumably going to be much less likely to defer to Congress's "predictive judgments" about the necessity of Section 5 to implement the Fourteenth and Fifteenth Amendments.
Posted by Bill Araiza on June 1, 2012 at 03:01 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack (0)
Exams and the Omniscient Narrator
I've written before (here and here) about the creative writing that goes into exam essay questions. I feel it is an unrecognized medium of short-fiction expression. This job of the exam writer is to create a scenario that is clear and understandable while also being nuanced enough to resemble real life. In my view, the best essay questions create real people with real problems.
One issue I think I haven't adequately addressed in my exams, however, is the role of the narrator. In my essays, the test taker is always given a role: a solo practitioner, an associate at a big firm, a clerk for a judge. With the exception of the clerk, the roles usually require the student to represent a particular client, usually prior to any litigation, and to give the client an honest and thoughtful evaluation of the legal ramifications for her/his/its situation. And it's usually implied that the information about the scenario comes from the client.
On one of my essay questions this year, I included information that the client would probably not have known about. I slipped into the "omniscent narrator" mode to provide a conversation between two of the officers at a company; the client was an employee who had no means of knowing about that conversation. I needed this conversation to raise a particular issue, or at least to make it clearly an issue. However, it was a departure from my past practice. I usually try to go with a limited narrator--one who only has access to information to which the client would have access. And in fact, a couple students raised the issue that the conversation would be great evidence, if in fact the client had some way of knowing about it and could present it in court.
So I'm wondering whether most law profs go with an omniscient narrator, to make the facts clear, or with a limited narrator, to more closely resemble the attorney's access to information? And has anyone ever gone with an unreliable narrator? They certainly exist in real life, but I think that'd be too confusing on a traditional doctrinal exam. But then again, if it were completely clear that the narrator was not to be trusted . . . .
Posted by Matt Bodie on June 1, 2012 at 10:49 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack (0)
Thursday, May 31, 2012
A Coasean Look at Commercial Skipping...
Readers may have seen that DISH has sued the networks for declaratory relief (and was promptly cross-sued) over some new digital video recorder (DVR) functionality. The full set of issues is complex, so I want to focus on a single issue: commercials skipping. The new DVR automatically removes commercials when playing back some recorded programs. Another company tried this many years ago, but was brow-beaten into submission by content owners. Not so for DISH. In this post, I will try to take a look at the dispute from a fresh angle.
Continue reading "A Coasean Look at Commercial Skipping..."
Posted by Michael Risch on May 31, 2012 at 08:05 PM in Information and Technology, Intellectual Property, Legal Theory, Television, Web/Tech | Permalink | Comments (4) | TrackBack (0)
Employees with Religious Attire and the "Back of the Bus"
As a fellow at the Pluralism Project, a Harvard-based research center that explores the state of religious liberty in the United States, I examined an employment discrimination case involving Kevin Harrington -- a native New Yorker of Irish descent who converted to Sikhism as a youth and who has worked for the New York Metropolitan Transportation Authority since the 1980's. Harrington started working for the MTA as a bus cleaner, and for the last two decades has been an MTA train operator. On 9/11, Harrington was able to reverse his Number 4 train, which was headed to the World Trade Center station, and safely discharge his passengers. For this, Harrington was honored by the MTA.
Shortly after 9/11, however, Harrington claimed that the MTA discriminated against him on the basis of his religion. Harrington specifically stated that the MTA informed him that he had two choices: that he could continue working as a train operator only if he wore a cap with MTA's logo, or that he could wear his religiously-mandated turban in the railyard, away from customers. The MTA then told Harrington that he could wear a turban as a train operator only if he attached an MTA logo to it. The MTA apparently explained that the logo was necessary to alert customers and passengers that the person at the helm of the train was indeed an MTA employee -- not, as some would say, a "runaway terrorist." Newsday ran an editorial arguing that "perhaps [the logo] will ward off any biased fears that outsiders have commandeered the system."
The MTA was eventually sued by the Department of Justice, the Center for Constitutional Rights, and the Sikh Coalition, on the theories that the employer's generally applicable uniform policy was being selectively enforced against Sikhs and Muslims, including Harrington, and that the out-of-customer-view option was impermissible under Title VII. A CCR attorney, for example, stated that the MTA engaged in "a calculated attempt" to hide certain workers "on the grounds that they 'look Muslim' and might alarm the public for that reason." Yesterday, the MTA settled the case, agreeing to permit employees to wear religious headgear without the logo and to pay $184,500 to eight current and former MTA employees.
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Posted by Dawinder "Dave" S. Sidhu on May 31, 2012 at 02:41 PM in Employment and Labor Law, Religion, Workplace Law | Permalink | Comments (1) | TrackBack (0)
Is Diversity for White People?
The recent cert grant in Fisher v. University of Texas has led to a great deal of speculation about the future of affirmative action. After Grutter v. University of Michigan, the diversity rationale remains the central hope of those who wish to maintain affirmative action in educational institutions. In previous posts and my recent scholarship, I have discussed the way that the diversity rationale -- and diversity thinking more generally -- leads to the commodification of non-whiteness. Driven by our intense social and legal preoccupation with diversity, society has come to view non-white racial identity as a commodity to be pursued, captured, possessed and used.
The commodification of racial identity that follows from the diversity rationale highlights the profound difference between the diversity and remedial rationales for affirmative action. At first blush, the rationale might not seem to matter a great deal in practice. Whether the Court ultimately adopted the diversity rationale sanctioned by Justice Powell's concurrence in Bakke, or whether it explicitly adopted a remedial rationale, the result on the ground would be similar: an applicant's identification as a racial minority would be taken into account as a positive factor in a holistic evaluation of the applicant. Yet when we look more closely, the rationales reveal dramatically different mindsets, with dramatically different social consequences.
Continue reading "Is Diversity for White People?"
Posted by Nancy Leong on May 31, 2012 at 10:04 AM in Constitutional thoughts | Permalink | Comments (7) | TrackBack (0)
Beiser's "The German Historicist Tradition"
I am slowly making my way through Frederick Beiser's magisterial The German Historicist Tradition, an immensely erudite treatment of several writers in 18th and 19th century Germany, including Chladenius, Herder, Droysen, Ranke, Dilthey, and, of course, Savigny. Historicism as a philosophical program was composed of several moving parts which included the legitimation of history as a science by "recognizing that everything in the human world -- culture, values, institutions, practices, rationality -- is made by history . . . ." (2); a focus on what Beiser calls "the individual," by which I take him to mean the particular -- "this or that determinate person, action, culture, or epoch . . . exists at a particular time and place" (4); and an emphasis on holism, the view that "society, state, culture, or epoch is not an aggregate or composite, which consists solely in its parts, each of which exists independent of the whole; rather it is an indivisible whole or unity, which determines the very identity of its parts, none of which can exist apart from it." (5) In the introduction, Beiser explains the struggles of history in the late medieval and early modern period to overcome its status as a lesser discipline -- an "appendentia artium" -- in the university hierarchy, the core disciplines being theology, law, and medicine, in that order. The coming of historicism was a late stage in history's vindication as an independently viable subject of intellectual inquiry.
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Posted by Marc DeGirolami on May 31, 2012 at 09:43 AM | Permalink | Comments (0) | TrackBack (0)
Suing the NFL: Where Labor Law meets Fed Courts
A couple of weeks ago I wrote about the federal defamation action brought against NFL Commissioner Roger Goodell by New Orleans Saints linebacker Jonathan Vilma over his one-year suspension for his alleged participation in the Saints "bounty" program. Two more interesting things in the case.
First, I have heard a few people suggest that the lawsuit is preempted by the NLRA and the new CBA, which gives Goodell broad power to investigate and punish player misconduct. The argument, I guess, is that in suing over Goodell's statements reporting his findings and punishment, Vilma is functionally challenging Goodell's exercise of that power. In other words, to determine the falsity of Goodell's statements requires a court to review the evidence that the league gathered about the bounty programa and to review the accuracy of Goodell's decision. Labor law people (are you out there, Matt?): Is that right? Can a legal claim arise from arbitrable conduct that violates some other right?
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Posted by Howard Wasserman on May 31, 2012 at 09:31 AM in Civil Procedure, Current Affairs, Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack (0)
Wednesday, May 30, 2012
America's First Patents
My post today is a pointer to my guest post at the Patently-O blog called America's First Patents. Here is the first paragraph:
My forthcoming Florida Law Review article, America’s First Patents, examines every available patent issued during the first 50 years of patenting in the United States. A full draft is accessible at this SSRN page. The article reaches three conclusions:
- Our patentable subject matter jurisprudence with respect to methods can, in part, blame its current unclarity on early decisions by a few important judges to import British law into the new patent system.
- Early patenting trends suggest that Congress has never intended new subject areas be limited until Congress explicitly allowed the new subject area.
- The machine-or-transformation test, which allows a method patent only if the process involves a machine or transforms matter, has no basis in historic patenting practices.
Posted by Michael Risch on May 30, 2012 at 05:46 PM in Intellectual Property | Permalink | Comments (0) | TrackBack (0)
The Shadow Crim Conference at Law and Society, Hawaii 2012
Next week is Law and Society in Hawaii. Aloha! Though I won't in the end be going, sadly, I wanted to share with readers information about the crimprof shadow conference that Carissa Hessick and I organized. There will be a happy hour for crimprofs at 5pm next Wednesday (June 6) in the Paradise Lounge at the Martini Bar. This will be a happy hour primarily for folks attending the crimprof shadow conference, but all are welcome. (A more general happy hour is in the works. Keep an eye on the blog.)
You can find below the information from the LSA program re: our little gathering on crim law and crim procedure.
Continue reading "The Shadow Crim Conference at Law and Society, Hawaii 2012"
Posted by Dan Markel on May 30, 2012 at 02:06 PM in Criminal Law, Food and Drink | Permalink | Comments (1) | TrackBack (0)
Standing on TILTs above NIMBY Politics
In my last post (based on this new paper), I argued that excessive big city zoning may be caused by the absence of party competition. Without parties that compete to present generalist party platforms, legislatures devolve into pork barrel universal log-rolling coalitions. In the case of land use, this means that legislators end up with the unilateral power to decide whether to grant zoning amendments in their districts, effectively turning a big city into a bunch of local suburban-style homeowner fiefdoms. Land use procedure cements this result by effectively requiring that amendments be considered one-by-one, rather than in a budget or package.
If a pro-growth coalition is elected, is there anything they can do to change this long slog towards a shrink-wrapped city? Yes! At least I think so. If the story is that, in the absence of party competition, procedure determines results, changing the procedure could produce a more pro-growth equilibrium, one that would outlast the life of a single official or coalition.
What types of procedural would work? My frequent co-author Rick Hills has blogged about one solution we've come up with -- "zoning budgets" -- so I want to talk about a different one: TILTs. The proposal is modeled on another area in which party competition does not structure voting and where the interest group alignment is pretty similar to land use: tariffs. Before 1934, trade policy was an Olsonian perfect storm. Import-competing firms groups had incentives to be involved in politics due to the concentrated nature of the benefit they got from increased tariffs, but import consumers did not, as increased tariffs hurt each consumer only a little (even though the net effect was surely negative). The result was heavy protectionism. When a pro-trade coalition was elected -- e.g. President Wilson and the 63rd Congress -- they would pass tariff reform, but the reductions would soon be eaten away over time due to the differential incentives to care about politics. The infamous Smoot-Hawley tariff was only the last in a series of protectionist tariffs passed between the Civil War and the Great Depression.
What broke our protectionist tariff policy was procedural reform. The Reciprocal Trade Agreements Act served to tie other country's tariffs to our own, giving exporters an incentive to fight import tariffs ("zoning budgets" is an analogue). And then a bunch of other reforms were introduced to placate trade losers. One of these is trade adjustment assistance (TAA), or job retraining for people who lose their jobs due to trade deals. At a pure policy level, TAA is difficult to justify. It is hard to see why people who lose their jobs for other reasons are not equally deserving of aid as those lose their jobs due to trade deals. But politically it makes sense. TAA is an acknowledgement that moving to free trade is Kaldor-Hicks efficient, but not Pareto efficient, and that the losers in trade deals have more incentive to be involved than the winners. Beliefs about trade are only weakly structured by party competition -- protectionism crosses party lines -- but TAA helps make deals that parties can't. TAA is effectively an automatic deal between the winners in trade (consumers) and the losers (import-competing firms and their employees), blunting the losers Olsonian incentives to stop generally-beneficial trade policy.
TILTs, or tax increment local transfers, would take this logic to land use politics. If a community board or city council person votes "yes" on a new zoning amendment that increased the space under the zoning envelope, residents inside their district would get a percentage of the "tax increment" created by the newly developable property for a number of years. The tax increment is just the new taxes generated by the increased property value -- the new value times the tax rate.
This is just a bribe to local landowners to stop protesting development so much. Notably, though, it is very different from our current system of buying land owners, which has developers signing "community benefits agreements" or paying impact fees. Those end up serving like taxes on development, increasing the cost of housing. TILTs would be payments from the general treasury to those harmed by new development, a "deal" between those who have little incentive to care about an individual project because they each get only a little benefit (that is, all city residents and particularly housing consumers) and those who care too much (local landowners.) That is, it would replicate the role competitive political parties would play if they existed in big cities.
It would also have other interesting properties. More after the jump.
Continue reading "Standing on TILTs above NIMBY Politics"
Posted by David Schleicher on May 30, 2012 at 12:56 PM | Permalink | Comments (0) | TrackBack (0)
"The First Amendment's Epistemological Problem"
I've posted a new paper, titled The First Amendment's Epistemological Problem, on SSRN. It's part of a forthcoming symposium in the Washington Law Review on Robert Post's excellent recent book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State. The article is largely descriptive, consolidating and examining a number of recent articles by leading First Amendment scholars, as well as Post's book, that each in their own way examine the relationship between the First Amendment and questions of truth, falsity, and the production of knowledge. It also uses that discussion as a launching-pad to discuss the relationship between the First Amendment, public discourse, and knowledge institutions, a subject I explore in greater detail in my forthcoming book, First Amendment Institutions. By way of self-examination and provocation of further discussion, the article concludes by asking why there has been a marked interest in institutionally oriented treatments of the First Amendment recently, in an age characterized by a fair degree of distrust of institutions in general.
The abstract follows. I should add in all humility that Dean Post will have a reply article in the Symposium addressing the various contributions, and his article has some sharp criticisms of my piece.
This Article is part of a symposium on Robert Post's valuable new book, Democracy, Expertise, and Academic Freedom: A Jurisprudence for the Modern State (2012). It uses the occasion to observe that in recent years, a number of leading First Amendment scholars have focused on the role of truth, falsity, and the production of knowledge in the First Amendment and public discourse. The same questions are also raised by several recent cases, including the Stolen Valor Act case, United States v. Alvarez. Taken together, they suggest a strong recent interest in the epistemological questions raised by First Amendment law and theory. Both the conclusions these scholars have drawn, and the very fact that they have converged on these questions, are worthy of consolidation and examination.
I argue in this Article that the First Amendment presents an ineluctable "epistemological problem:" it raises difficult questions about the status of true and false speech, who should make such determinations and how, and the relationship between the First Amendment and the institutions that produce knowledge and play an infrastructural role in public discourse. First Amendment doctrine alternates between a broad protectiveness of false as well as true speech and a relative lack of protection or concern for truth or falsity as such. First Amendment theory has largely moved away from epistemic justifications for free speech and toward other justifications, such as those based on democratic self-government, autonomy, or distrust of government; but that movement leaves underlying epistemological questions unanswered. Constitutional doctrines such as those protecting academic freedom recognize the important role played by some institutions in public discourse and knowledge production, but they are both undertheorized and in some tension with broader principles of First Amendment law.
The Article does three things. First, it collects and examines the recent treatments of scholars and judges who have examined the First Amendment's epistemological problem. Second, discusses the relationship between the First Amendment and the production of knowledge, especially by specialized institutions that play a prominent infrastructural role in public discourse, such as the university. It examines and praises Post's treatment of "democratic competence," "democratic legitimation," and knowledge institutions, but argues that we might avoid some tensions and enhance the production of knowledge within public discourse by taking a more direct institutionally oriented approach to these questions. Finally, it seeks to advance the discussion by asking why the First Amendment's epistemological problem has become a subject of recent and intense discussion, and why the institutional turn has become increasingly popular in an age of relative distrust of institutions in general.
Posted by Paul Horwitz on May 30, 2012 at 10:19 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)
Journals, still more
I appreciate all the responses to my earlier post on law reviews and peer review. But I confess I am still not clear what the role law reviews play in the legal academy. Judging from the responses to the peer review post, it seems to me that law reviews perform one main function: they provide credentials for students on law review, for those who publish in them, and, I guess, for law schools that publish them. Is that a fair assessment? Is there some other purpose? Do law professors read law review articles to prepare to teach new courses? To revisit the courses they teach? My recollection of the time when I practiced law (concededly quite a few years ago now), is that practitioners did not typically keep up with law reviews in general, though there were some specialized practice magazines and journals that I did follow with some regularity.
I guess what I’m trying to figure out is whether the role of law reviews is simply to provide an opportunity for publication, or if there was a consistent audience for them (other than other authors reading law reviews as part of writing their own articles).
Posted by ERD on May 30, 2012 at 09:09 AM | Permalink | Comments (8) | TrackBack (0)
Tuesday, May 29, 2012
Internal Executive Discussions as Due Process
On September 30, 2011, U.S. predator drone strikes in Yemen killed Anwar al-Awlaki, a U.S. citizen and Muslim cleric who was alleged to have broadly encouraged al-Qaeda attacks on the United States and worked directly with "underwear bomber" Umar Farouk Abdulmutallab on a plot to detonate a bomb on a commercial flight bound for Detroit. A memorandum prepared by the Office of Legal Counsel at the Department of Justice furnishing the legal justification for the killing of al-Awlaki has not been released. But legal affairs reporter extraordinaire Charlie Savage of the New York Times revealed, only a week after the strikes, that the OLC memo "concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him." In reaching this determination, the memo, among other things, considered -- and rejected -- objections that the killing would be inconsistent with the Fifth Amendment's due process requirement.
Following the strikes and Savage's important story, Attorney General Eric Holder shed light on the administration's legal support for the al-Awlaki killing. He said, now famously, that: "Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. 'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process."
Today, thanks again to the New York Times, in an article highlighted by Dan, we now have a greater sense as to the contents of this circumscribed concept of due process. Jo Becker and Scott Shane explain that, almost every week, government officials gather to review information and "nominate" to President Obama who should receive a drone strike. President Obama's counterterrorism adviser, John Brennan, states that the group goes through "a rigorous checklist: The infeasibility of capture, the certainty of the intelligence base, the imminence of the threat, all of these things." Becker and Shane write that President Obama has assumed final responsibility for this "process to designate terrorists for kill or capture, of which the capture part has become largely theoretical." They emphasize that "it is the president who has reserved to himself the final moral calculation." Importantly, Becker and Shane note that the OLC decided that "the Fifth Amendment’s guarantee of due process... could be satisfied by internal deliberations in the executive branch."
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Posted by Dawinder "Dave" S. Sidhu on May 29, 2012 at 05:37 PM in Constitutional thoughts | Permalink | Comments (8) | TrackBack (0)
Class (of One) Conflict
A fascinating set of opinions has been released by the Seventh Circuit in a case dealing with the so-called "class-of-one" theory of equal protection. Del Marcelle v. Brown County. The case deals with a plaintiff's claim that the defendant county failed to respond to his claims of harassment by a motorcycle gang (if true, the gang's conduct is pretty serious). The plaintiff claimed that county law enforcement refused to help, and, indeed, that some officers were in cahoots with the gang members.
The district court dismissed the claim, reasoning, based on cases such as DeShaney v. Winnebago County and Town of Castle Rock v. Gonzalez, that there was no due process right to police protection. On appeal, the 7th Circuit panel noted that the complaint could be read to allege a claim that the county violated the plaintiff's equal protection rights under the class-of-one theory first accepted in Village of Willowbrook v. Olech. Before deciding the case, the full court heard the case en banc. The result, announced on May 17, was extremely interesting.
First, a very quick primer on the class-of-one theory. Classic equal protection doctrine deals with groups -- discrimination based on race, sex, whether you rent your truck out for other's advertising or use it for you own, etc. But in Olech the Court, in a short per curiam opinion joined in by all the justices except Justice Breyer, announced that individuals who suffered irrational discrimination could bring equal protection claims, even if they didn't claim discrimination based on a group characteristic. Justice Breyer concurred, but, expressing the same concern that had occupied the lower court (coincidentally, the 7th Circuit, in an opinion written by Judge Posner), he argued that a class-of-one plaintiff should be required to prove not just irrational discrimination, but animus. He worried, as did Judge Posner, that to rule otherwise would open the door for a limitless variety of lawsuits where unhappy citizens complained that government didn't give them something that they gave someone else (or, more likely, that the government burdened the plaintiff when not imposing similar burdens on similarly situated people). It doesn't take much thought to realize how far this could go: if you're the lucky driver getting a speeding ticket when everyone else on the highway was also speeding, and if the policeman had no particular reason for singling you out, were you the victim of an equal protection violation?
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Posted by Bill Araiza on May 29, 2012 at 04:40 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack (0)
A few reading pointers for Tuesday morning
First, I want to point out an outstanding article I just read titled Election Law Behind a Veil of Ignorance. It's by Chad Flanders (SLU), a former co-author of mine. There's an early and differently titled draft up on SSRN. Admittedly it's outside my area of expertise, but I found its clarity and pointedness -- consisting in a gentle rebuke to/modification of Rick Hasen's celebrated revival of the Democracy Canon -- sharp and instructive. It's pretty short as law review articles go, and has lots to say about the relationship between statutory interpretation and democracy.
Next, this morning's Times was brimming with some excellent pieces. I guess they didn't want them buried over the long weekend!
First, there's a long piece on Obama's central role in approving the knock list for who gets targeted. The assessment is something along the lines of: wow, who knew Democrats could be so ruthless in the forward lean on terrorists. The most interesting piece of news (from my perspective) is the tidbit from Romney's foreign policy advisor who is critical of Obama for not revealing the legal memo that purportedly justified the targeting and killing of an American citizen abroad, Anwar al-Awlaki.
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Posted by Dan Markel on May 29, 2012 at 11:14 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (3) | TrackBack (0)
School of Rock
I had a unique experience last Friday, teaching some copyright law basics to music students at a local high school. The instructor invited me to present to the class in part because he wanted a better understanding of his own potential liability for arranging song for performances, and in part because he suspected his students were, by and large, frequently downloading music and movies without the permission of copyright owners, and he thought they should understand the legal implications of that behavior. The students were far more interested in the inconsistencies they perceived in the current copyright system. I'll discuss a few of those after the break.
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Posted by Jake Linford on May 29, 2012 at 09:00 AM in First Amendment, Information and Technology, Intellectual Property, Music, Teaching Law | Permalink | Comments (0) | TrackBack (0)
Monday, May 28, 2012
JOTWELL: Malveaux on Sullivan on pleading employment discrimination
The newest piece in the CourtsLaw sectionof JOTWELL comes from Suzette Malveaux (Catholic), reviewing Charles Sullivan's Plausiblty Pleading Employment Discrimination (published in William & Mary Law Review in 2011), which considers whether Twiqbal overruled Swierkiewicz v. Sorema and, if so, how plaintiffs can plead intentional employment discrimination.
Posted by Howard Wasserman on May 28, 2012 at 10:15 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (2) | TrackBack (0)
Get Me Rewrite
A "dummy headline" is the headline put up on a layout before the final headline. "Dummy" is also the name, in the Internet age, for anyone who puts up a dummy headline they might not want the world to see. See, for instance, the current (as of about 8 p.m. Central) headline on the New Republic's web site for what I assume is a Jeffrey Rosen piece they're about to post ("tk" means "to come"):
"tk rosen replies to his haters"
Posted by Paul Horwitz on May 28, 2012 at 09:02 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack (0)
Sgt. Pepper's Lonely Hearts Mad Men
I just found this, although the discussion has been going on for a couple of weeks. Yi! News is a relatively new group blog featuring a "blend of news coverage and original features in the fields of sports, music, politics, law, social media and whatever else is pertinent to today’s 20-something audience." It's main writers include several law students and a practicing lawyer.
Several weeks ago, a guest author, Emily Viviani, proposed a theory that the current (fifth) season of Mad Men has been thematically, lyrically, and structurally following Sgt. Pepper's Lonely Hearts Club Band. The first installment (covering Side One, for those of us who remember records having "sides") is here; the first three songs of Side Two are here, here, and here. Emily has not updated her discussion to link yesterday's episode, "The Other Woman", to "Good Morning, Good Morning," but I'm looking forward to it. Having just checked the lyrics, I think I see where she may go with it.
It's an interesting theory (confession: I've done the "Wizard of Oz"/"Dark Side of the Moon" thing), particularly given the time frame covered in the season (it started in June 1966, we are now sometime in January 1967, and Sgt. Pepper was released in June 1967). And one episode even revolved hevaily around Don not "getting" or recognizing the Beatles and ended with Don listening (without much enjoyment) to "Revolver," the 1966 album that marked the band's transition and led directly to Sgt. Pepper.
Emily's theory is that the final episode (linked to "A Day in the Life") will land on February 10, 1967, the day the 25th Amendment, a direct response to the Kennedy Assassination, was ratified. If so, it gives new meaning to the line "He blew his mind out in a car".
Could Matt Weiner really be doing this on purpose? If so, it is utterly brilliant.
Posted by Howard Wasserman on May 28, 2012 at 01:19 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack (0)
Law as Plinko
My last moments in the classroom this past semester were spent engaging in what is likely a familiar exercise for most law professors -- trying to inspire students and leave them with some parting words of wisdom, encouragement, and motivation. I look forward to these moments, and hope that my last-minute ramblings help bring together the general themes of the course and, more broadly, replenish their passion for the law to the extent that specific and more immediate parts of their experience -- such as Socratic conversations, lengthy readings, and concerns about the final examination -- have them questioning why they are in law school and are incurring debt in the process. To quote Michael Scott, I might as well tell my students on the last day of classes to "get as much done as you can... because, afterward, I'm going to have you all in tears."
This semester, I discussed what I attempted to accomplish in the course and apologized to the extent that I fell short of their expectations. I revealed to them what led me to study the law, and why I am continually fulfilled and humbled by my pursuit to understand the law and the law's role in society. In my constitutional law course, I read to my students Neal Katyal's comments after Hamdan, celebrating the rule of law and how it distinguishes us from other political communities. I also asked my students whether anyone has seen The Godfather. Predictably, all hands were raised. When I asked what the first line of the movie is, no hands went up. The first line is, "I believe in America." I explained candidly why I believe in America, and it is specifically because of the structure of the Constitution that they just (hopefully) learned about and also because they will be active participants in that structure, seeking to improve the law and society.
I also, in a rather light portion of my semester-ending remarks, share my fun theory of the law -- that the law is like Plinko. Yes, Plinko. An explanation follows:
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Posted by Dawinder "Dave" S. Sidhu on May 28, 2012 at 11:57 AM in Games, Legal Theory, Teaching Law, Television | Permalink | Comments (0) | TrackBack (0)
Another Party Heard From on Legal Education
Via links in some comments, here's an addendum to my discussion last week of practical- or client-centered legal education (which, as you recall from that post, didn't seem to get much love from the constituents on the Campos blog last week). It's a post by Dru Stevenson at the Circuit Splits blog, which I'm afraid I wasn't aware of, titled "Should Law Schools Focus on Lawyering Skills?" Stevenson argues the answer is no. A snippet or two:
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Posted by Paul Horwitz on May 28, 2012 at 09:06 AM in Paul Horwitz | Permalink | Comments (8) | TrackBack (0)
Sunday, May 27, 2012
Legal versus Medical Education and some blatant 'crowdsourcing'
In many posts on the state of legal education and the legal profession (on this blog and others) I've seen repeated references to medical education. While I imagine that there exist certain "apples and oranges" aspects to this comparison, it is intriguing. However, I am going to state something that I think might apply to a lot of people - that is, while I have a vague notion of what occurs in medical education (from TV and movies), I feel that I don't really know enough about it to make proper comparisons to legal education (something on which I have experience from both sides of the podium).
Therefore, my purpose here is to blatently 'crowdsource' this information. I have a few questions (ok, a lot of questions) posted below for folks who have experiences with medical education (preferably first-hand, but second-hand is ok too). In the best case scenario we might get some JD/MDs to weigh in on this matter.
If there is any interest, I'd be happy to share my comparative experiences as a new lawyer vs. political science PhD grad (and perhaps fellow guest prawfs blogger Bob Howard can chime in on this) - although there may not be a great market for that discussion ;-)
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Posted by Dingo_Pug on May 27, 2012 at 04:54 PM | Permalink | Comments (16) | TrackBack (0)
