Tuesday, September 30, 2014
AALS Recruitment Conference Advice
Before I sign off, I thought I'd put out a request on behalf of my fellow job market candidates for advice about the upcoming hiring conference. I've come across a number of helpful posts from a few years ago, but didn't find as much from the immediate past, and I think it would be particularly interesting to hear from anyone who was on the market in one of the recent down years. But of course all tips are welcome!
Here are a few helpful posts with interview tips from Lyrissa Lidsky (2011), Tim Zinnecker (2011), and Daniel Solove (2005). And here's a collection of teaching market advice posted on Prawfsblawg back in 2005.
Thanks again to the Prawfs team for giving me the opportunity to guest-blog, and best of luck to everyone going on the market this year!
Balance of video
This piece in Sunday's Times offers a different perspective on the race to equip police officers with body cameras--they are law enforcement's response to increasingly ubiquitous amateur citizen videos, which the piece describes as "hav[ing] become part of the fabric of urban democracy." This turns the narrative somewhat on its head. Supporters of the right to record (including me) have generally argued that the citizen's right is essential in response to increasing police-controlled recording (through dash cams, street cameras, recorded station-house interviews, and other surveillance). As I put it once, citizen recording produces "a balance of power in which all sides can record most police-public encounters occurring on the street and in the stationhouse. Big Brother is watching the people, but the people are watching him."
But articles such as this one suggest that police see that balance as having shifted too far towards the public. Body cams--the latest technology--now are seen as a way for the government to restore that balance.
Monday, September 29, 2014
JOTWELL: Wasserman on Redish & Aronoff on judicial retention
I have the new Courts Law essay, reviewing Martin Redish (Northwestern) and Jennifer Aronoff's The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism. They argue that judicial life tenure is required as a matter of Due Process, where any other form of retention risks judges being influenced in their decisionmaking by concerns of how to keep their seats on the bench. I have taught for years that retention is the bigger deal than selection in terms of judicial independence (something my daughter also decided to ask about at dinner last night); they finally made the argument.
The Professor As Node
It's hard not to notice a shift this fall(?) among the lawblog world to Twitter. Though the cool kids are already up on something called "Ello," the rest of us, having only recently figured out how to create a "split post" on a blog are now trying to limit ourselves to 140 characters through imaginative vowel-deletion.
When I entered full-time teaching, the big, symposium-worthy question was whether blogging "counted" as scholarship. At that time and today, I thought that question somewhat off point -- it didn't and doesn't matter whether blogging is scholarship or counts as scholarship. The only real question was whether blogging was a worthwhile activity for a scholar and teacher. That is to say, is blogging what our students are borrowing money to have us do? Because Twitter posts are necessarily less detailed and thus, at least individually, seem to lack the usual scholarly weight, they perhaps more obviously raise the question of appropriateness as an activity for those whose lives are funded by the future repayment obligations of others.
I've come to the opinion that Tweeting, "LinkedIn-ing", and blogging -- along with other forms of online networking -- are exactly what our students are paying us to do.
Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"
The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2014.
The conference seeks to address the following topics:
- Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
- The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
- Legal obligations and accommodations of religious health care organizations
- Protection (or not) of health professional conscience
- Health care decision-making for minors with religious parents
- Religious objection v. discriminatory behavior
- Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
- “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
- Abortion policy, including clinic protests and protections, and its relationship to religion
- Embryonic stem cell policy and its relationship to religion
- End-of-life care, including assisted suicide, and its relationship to religion
- Complicity as both a legal and religious concept
- Comparative analysis, e.g., between professions, health care practices, countries, etc.
Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.
For a full conference description, including the call for abstracts and registration information, please visit our website.
As September turns to October, our thanks to our September visitors--Seema, Irina, Richard, and Jennifer--for helping kick-off the new school year.
For the new month, we welcome a slate of returning GuestPrawfs: Mark Kende (Drake), Geoffrey Rapp (Toledo), Marcia McCormick (Saint Louis), Zak Kramer (Arizona State), Orin Kerr (GW), and David Orentlicher (Indiana-Indianapolis).
Sunday, September 28, 2014
ASU Aspiring Law Professors Conference
Yesterday I attended the sixth annual Aspiring Law Professors Conference at Arizona State University. I thought I would share a little about my experience for those who might want to attend in future years. Overall, I found the conference to be very helpful to me as someone who is on the market this year, and I really appreciated the enthusiasm and generosity of Dean Doug Sylvester and all the professors who attended. They are doing all of us aspirants a great service by spending their free time on a Saturday trying to prepare us as effectively as possible for the process that lies ahead. (I haven't attempted to reproduce most of the specific advice that we received, but a quick Google search reveals that past conferences were recapped in further detail by permanent Prawfs bloggers here and here.)
The day began with a keynote address by my Pepperdine colleague, Paul Caron, titled Law School Rankings, Faculty Scholarship, and the Missing Ingredient. The address started by asking a question Paul had previously raised with a co-author in What Law Schools Can Learn from Billy Beane and the Oakland Athletics, namely how we can better measure faculty contributions to a law school’s success. Paul went on to argue that, while existing rankings based on faculty scholarship are undoubtedly important, more metrics need to be developed to assess other aspects of a professor’s value to the institution, particularly with regard to the student experience (the “missing ingredient” in existing rankings).
Saturday, September 27, 2014
Intellectual Property Infringement as Vandalism (Part 4)
While, as discussed previously, a number of people advocate for intellectual property to receive the same level of protection as property, few would openly say that it should receive more. In the discussions about intellectual property as property, the latter is generally viewed as a ceiling in that category. One would therefore expect at first blush that when it comes to sanctions, intellectual property infringement would at most be punished at the same level as property violations. Our paper shows that intellectual property infringement bears the most resemblance to vandalism and trespass. In the realm of sanctions, however, not only are the statutory criminal and civil sanctions generally higher for intellectual property infringement than those for vandalism, they are also higher than for downright property theft.
One of the ways to make a comparison is to imagine a hypothetical good of a certain value and examine how it would be treated under intellectual property versus property law. As will become apparent, this exercise is not without its problems and perils, but it is informative nonetheless. Let us assume that an individual distributes a song illegally to 1,001 other individuals. The song would normally cost $1 to download legally. Had all 1,001 individuals who thus obtained illegal copies bought the song in a legitimate fashion, its owner would have earned $1,001. That being said, in this type of situation, undoubtedly not all 1,001 people would have actually bought the good, so the harm to the song owner is lower than that. Furthermore, one could argue that this distribution may constitute a proximate cause for future redistributions, which would bring about greater harm. The extent of this redistribution and of the role that the initial distributor played in their causation are difficult to predict, as is the number of people who would or would not have bought a given song. As a matter of approximation, let us therefore proceed with the figure of $1,001 for the harm (the high end) but with no regard for subsequent harm involving redistribution. Indeed, that is the figure that copyright law would use to evaluate the gravity of the offense. Whether the action was taken for profit or not, a person guilty of this violation could go to prison for up to a year and be fined up to $100,000. If that individual distributed the song to 2,501 people (thus causing a potential harm of $2,501), she would face a maximum sentence of five years if it was done for profit or three years if it was not. She could also be fined up to $250,000.
Friday, September 26, 2014
Thursday, September 25, 2014
"Conscience and Community: Understanding the Freedom of Religion"
Here's a short piece I did for the Cornerstone blog, which is a project of the Berkley Center's Religious Freedom Project. A taste:
“Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets—and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” “Religion” is famously difficult (some would say “impossible”) to define and the distinction between “religion,” on the one hand, and “culture,” “tradition,” “identity,” and “politics” is much more contested than clear. The idea that it is only, or even primarily, an “individual experience” is relatively new on the scene. In any event, it seems clear that “religion” involves more than—even if it certainly does involve—the commitments, values, beliefs, professions, and practices of particular persons. It also involves—and it is exercised both by and through—communities, families, associations, societies, authorities, and institutions. . . .
The piece is consonant, in places, with Paul's book, which -- as was noted here -- John Inazu has recently and very thoughtfully reviewed.
Karima Bennoune Wins Dayton Prize
Congratulations to UC Davis Prof Karima Bennoune whose book Your Fatwa Does Not Apply Here: Untold Stories from the Fight Against Muslim Extremism (Norton) won the Dayton Literary Peace Prize. As one of the judges put it:
In Your Fatwa Does Not Apply Here, Karima Bennoune walks a tightrope between, on the one hand, the tragic consequences of Islamist fundamentalism and, on the other, the West’s inability to imagine Muslims as anything more than terrorists or passive victims. Her solution is to tell us the stories that disturb both of these stereotypes, vividly presenting us the experiences of individuals from a vast array of identities and social positions — as women, as journalists, as educators, as makers of and keepers of cultural tradition. She conjures what those of us living inside the Western media bubble have never seen before: a dizzingly diverse Muslim culture (that is no more cohesive than, say, that global cohort labeled “Christians”) represented by a bevy of activists from across the globe determined to realize their personal and communal desire beyond fundamentalist strictures.
Her TED talk When People of Muslim Heritage Challenge Fundamentalism has had more than a million views.
Suboptimal Human Rights Decisionmaking
In a forthcoming paper, I explore ways in which human rights violations may result from suboptimal decisionmaking rather than utility-maximizing conduct by state leaders. Most strategies to influence the human rights practices of a country involve efforts to alter its expected utility calculation, either by introducing material incentives so that compliance is more attractive or by changing underlying preferences so that human rights concerns are seen as more intrinsically valuable. These are known in the literature as coercion and persuasion respectively. Drawing on social science research that demonstrates how individuals often fail to maximize their expected utility, my paper argues that at least some human rights violations likely result from such suboptimal decisionmaking. And if that is correct, then the human rights community may be missing out on opportunities to improve compliance that do not require altering a state’s expected utility calculation through coercion or persuasion, but instead work within a state’s existing incentive structure.
For this blog post, I thought I’d describe the three specific causes of suboptimal decisionmaking that I discuss in the paper and invite suggestions on other lines of research to explore. As I discuss in the paper, there are methodological obstacles to applying behavioral research, which is generally based on studies of individuals in laboratories, to real-world state conduct, which involves decisionmaking by groups consisting of experienced elites who might not make the same mistakes that participants in artificial experiments do. I chose the three causes of suboptimality that I did in part because there is a substantial international relations literature that has already attempted to make that translation, and in part because they seemed likely to contribute to the types of flawed decisions that would result in human rights violations. But of course the behavioral literature is quite vast, and I may have missed some other promising avenue.
Self-Defense Against Firearm Suicide
If you're interested in mental illness, guns, or suicide prevention, check out my new article on SSRN:
Putting Arms at Arm's Length: Precommitment Against Suicide
Here's the abstract and link: "Nearly 20,000 Americans each year commit suicide using a gun. Many would survive if it were more difficult to obtain the gun. The proposal here is not gun control, but self control. Specifically, this article proposes allowing individuals to confidentially put their names into the existing federal background check system and thereby to prevent their own future firearm purchases. Empowering people to restrict their own access to guns has the potential to save many lives, is supported by other self-binding regimes, and poses no serious constitutional concerns." http://ssrn.com/abstract=2500291
How to Save the World Without Being Happy or Virtuous?
It was not surprising that an op-ed in the Harvard Law Record recommending that fledgling graduates of schools like Harvard "save the world by working in biglaw" would provoke some attention and reactions. Paul Caron has links to that op-ed and some responses that ran in the Crimson. At Above the Law, the more or less inimitable Elie Mystal has a forceful if not especially cogent response as well. I am somewhat more sympathetic to the initial piece, although that does not constitute a complete endorsement.
Mystal's response is somewhat illustrative of what I think is the rather confused reaction that met the piece. That piece argued--without factoring in whatever social utility is provided directly by working in a big law firm itself--that working in BigLaw is the "greatest utility maximizing option" these students have, because they could simply donate 25 percent of their income to worthy causes, and that the good done by this would outweigh the good done by working directly and less remuneratively in lower-paying public service jobs.
Mystal made two arguments. First, and quite rightly, he pointed out that is is unlikely in the extreme that "any Biglaw associate, anywhere, who is going to give away 25% of their post-tax salary." True enough! But he makes his first error here, writing style aside. The question posed by the op-ed writer is not whether current BigLaw types would donate a quarter of their income to worthy causes; it is whether the kinds of people who normally work in public interest law would donate a quarter of their suddenly vastly expanded salary to such causes. There are perfectly good reasons to think that this too is unlikely. Just because you want to do public interest work and are sufficiently dedicated to doing so to take a lower-paying job, that doesn't mean you are going to give away a quarter of a large salary if you actually get that salary. I assume at least some of those people would, naturally enough, buy condos, pay down their debt faster, take vacations and/or gather the beginnings of a nice wine cellar, lease high-end luxury hybrid SUVs, and so on. Nevertheless, one would think on Mystal's logic, or that offered by other critics of the op-ed, that if the kinds of people who do public interest law took BigLaw jobs for the express purpose of dedicating more of their income to charitable giving, those people would be more likely to do so.
Ah, but would they be happy? Would they be fulfilled? Would they be decent people? That's the second point of Mystal's rebuttal, more or less, and it is a theme that runs through the Law Record rebuttals as well. Thus, one writer acknowledges, "I love my work and being engaged with causes I care about makes me happier. This does not reduce or demean the impact of the work I am involved in. For those who have the all the choices of employment at their fingertips, we should all graduate into employments we love. With all the choices in the world, I also hope we’ll choose well – taking seriously the power society has handed us because of our degrees and profession." And Mystal, presumably having done some research or reporting on this question, talks a bunch about how "people who actually care about the public interest...think." One friend made what I thought was a better, more subtle version of this argument, suggesting that it matters that people do intrinsically virtuous things, regardless of the net social benefit to others.
My reading of the initial op-ed is that its basic answer to these lawyers is, "But why should I care about you?"...
Inazu, "Institutions in Context"
John Inazu has a new review up on SSRN of my book First Amendment Institutions. (Incidentally, it makes a fine Rosh Hashanah present.) It is supportive of the general institutional project but carefully critical of some important aspects of its implementation in the book. I am grateful to John for reading it, which places him in a small select club, and for his thoughtful remarks. Here's the abstract:
This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates. In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to First Amendment doctrine that can meaningfully distinguish between them? I turn first to pressures internal to Horwitz’s institutional categories by focusing on two of his core examples: universities and churches. I then examine Horwitz’s chapter of associations and suggest broader implications than he acknowledges. I conclude by offering a different way to parse Horwitz’s argument: embracing his institutional distinctiveness within the time-honored public-private distinction that he rejects.
Wednesday, September 24, 2014
The Reluctant Dissenter
On Monday, the Ninth Circuit issued a 6-5 en banc decision granting habeas relief for a Miranda violation. The case, Sessoms v. Grounds, has garnered attention in part because Chief Judge Kozinski wrote an opinion “regretfully dissenting” from the court’s judgment. Remarkably, Kozinski voted to deny habeas relief, even though he was “glad” that his own view of the law lost. Kozinski's reluctant dissent provides a window into how judges struggle with the sometimes conflicting demands of law and justice.
Tuesday, September 23, 2014
The Washington Redskins, the Lanham Act, and Article III
As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.
Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)
Teaching current events
Interesting piece in the Chronicle of Higher Ed. At my school, one of the categories on student evals is how we work current events into the discussion. I have used things from Ferguson in Evidence, notably in discussing character evidence and other acts. And I think the controversy around the non-hiring of Steven Salaita at Illinois may lend itself to some discussions of promissory estoppel (there have been some interesting on-line debates about whether he might have a good P/E/ claim). But I think that is as far as a law school class can go with current events, at least before things play out legally and outside of a small, niche seminar.
On a related note, we are working to start a program of monthly faculty talks/panels to discuss ongoing and current events with students and student organizations. Something different than a series of "teach-ins," it will be more a chance for faculty to share their work and to engage with students on hot topics.
Relative Standing in the Seventh Circuit
In Association of American Physicians and Surgeons, Inc. v. Koskinan, the Seventh Circuit recently found no standing where plaintiffs challenged the IRS’s failure to collect an Affordable Care Act tax. Koskinen may prove to be a bellwether for future cases involving challenges to executive inaction. But what's most interesting about Koskinen is that it cited last year's Supreme Court decision in Lexmark as a reason to argue in terms of relativity—that is, in terms of whether the plaintiffs before the Court were the best ones available--even though that inquiry seemed irrelevant as a doctrinal matter. The takeaway is that relativistic reasoning often lies just under the surface of current standing doctrine.
Monday, September 22, 2014
Last Tuesday, Florida State University College of Law hosted a memorial service for Dan. Here is the program from the event, which included some very touching remarks from several colleagues from FSU and elsewhere, as well as one former and one current student. There is video of the event; I will provide the link as soon as I can.
Addressing the Unmet Need for Civil Legal Representation--and the Legal Employment Market
It’s my privilege to hang out with present and future health care providers almost every day through teaching at the Texas Tech University Health Sciences Center's brand new Public Health School and being an adjunct faculty member at our terrific medical school and on the advisory board of our awesome nursing school. One of the issues that always surprises them is how little access most individuals have to legal services as compared to medical services. We are used to hearing the bad about access to health care—and there is still plenty of bad—but unless a person faces criminal charges, brought by the government, there is no right to legal representation for those who cannot afford it and very few public or private sources of insurance.
The primary source of federal funding for individuals involved with a civil dispute—child custody, divorce, land-lord tenant, employment, the Legal Services Corporation (LSC), estimates that 80% of “low income Americans who need civil legal assistance to do not receive any, in part because legal aid offices in this country are so stretched that they routinely turn away qualified prospective clients.” See report, Documenting the Justice Gap in America. Individual states also have some subsidized civil aid programs. Although the current president is about as sympathetic to LSC as any in recent history, demands for help still far outstrip demand.
Risa Kauffman of Columbia Law School reported to a U.N. Human Rights Committee examining how the U.S. complies with the an international covenant on civil and political rights reported that: "In the United States, millions of people are forced to go it alone when they're facing a crisis….It's a human rights crisis, and the United States is really losing ground with the rest of the world."
And if anyone is wondering why, given this size of this unmet need and given the existing federal investment in student loans for legal education and the downturn in legal employment opportunities, there hasn’t been federal action to increase staffing at LSC and other organizations—that’s a good question.
If, however, your first reaction here is to laugh and tell a lawyer joke, browse through these state reports, complied by the National Legal Aid & Defender Association and usually commissioned by state courts and chief judges, documenting the unmet need for civil representation in our 50 states. The National Legal Aid and Defender Association has helpfully put together a 50 state survey of reports. The ABA has a Standing Committee on the Delivery of Legal Services that considers access as well as other issues.
Stone on sex discrimination and professional sports
The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.
Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.