Sunday, September 25, 2016
Submitting to online journals
Saturday, September 24, 2016
JOTWELL: Erbsen on Gilles on arbitration and doctrine
The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law (U. Ill. L. Rev.), exploring how the use of private dispute resolution, especially arbitration, affects the evolution of legal doctrine.
Thursday, September 22, 2016
Learning Outcomes as the New Strategic Planning
As any law school seeking to comply with the standards of the American Bar Association's Council on Legal Education knows Standards 30, 302, 314, and 315 have been revised to require law schools to adopt learning outcomes and then to evaluate their curriculum for compliance. Whether or not this process will actually improve legal education is not a topic on today's table. But it is a process with a vocabulary and best practices and an increasingly number of law school specific sources of information. By now, most people know about a still exceptionally helpful book, Student Learning Outcomes and Law School Assessment by Professors Lori E. Shaw and Victoria L. VanZandt. The purpose of this post is to suggest that regular Google searches are likely to turn up more law school specific sources of information.
Likely to be a "go to" for many schools is the new Law School Assessment Blog by Vice Dean Larry Cunningham at St. Johns University School of Law. Not only does the blog contain information to translate what can sometimes be impenetrable educational jargon into plain English, it also provides some very easy to adapt models for evaluating a curriculum in terms of it's compliance with the learning outcomes a law school has set for itself.
The next phase of this process will be to develop strategic plans based on these assessments. As this article by Hanover consulting explains, the process is somewhat different than traditional law school strategic plans that consistent of aspirational statements across the spectrum of law school activities with very little specific focus on outcomes assessment in the curriculum. These plans are still relevant and important, but they are not what's needed to comply with the new ABA standards.
The current project is to develop plans more narrowly focused on curriculum and the results of the assessments that each individual law school are now conducting. Time will tell the extent to which either learning outcomes or these plans will improve the the law school experience for students, but regardless of outcome, we will all be creating these plans and it is certainly helpful to have emerging sources of information.
Accessing Title IV $$: 90/10 or 85/15... does it matter?
The U.S. Department of Education takes a pretty hands-off approach to deciding which colleges are entitled to receive student financial aid under Title IV of the Higher Education Act. Generally, institutions must merely be licensed by the state in which they operate, accredited by a federally recognized accrediting agency, the institution's former students may not exceed certain default rates on existing Title IV loans, and, as I previously pointed out, they also cannot have filed for bankruptcy. For-profit education companies must satisfy some additional requirements, including the gainful employment rules and the 90/10 rule. This post is about the 90/10 rule.
The 90/10 rule allows for-profit institutions of higher education to derive up to 90 percent of their revenue from Title IV's loan and grant programs. The purpose of this limit is to use students' willingness to have some "skin in the game" as a proxy for that school's quality, thus obviating the need for the federal government to separately consider the school's quality. However, the way the regulations are written, VA and other military tuition assistance benefits are not included in the 90 percent calculation. One result is that for-profit colleges have aggressively recruited veterans. To the extent the 90/10 rule could have been an effective proxy for institutional quality, this loophole virtually ensures that it is not. Because of this loophole, in 2014, more than 130 for-profit colleges were almost completely taxpayer subsidized and hundreds more were close to hitting the 90 percent cap. If nothing else, this loophole should be eliminated.
DeVry Education Group, one of the nation's largest, for-profit college chains, recently announced that it would "voluntarily limit the amount of revenue that each of its six Title IV institutions derive from federal funding to 85 percent." In addition, it promised to stop using the military benefits loophole, and count military tuition assistance benefits, such as benefits under the G.I. Bill, in that 85 percent figure. My response below the fold.
Wednesday, September 21, 2016
Election Day and law schools
The following comes from Beau Tremitiere, a 3L at Northwestern-Pritzker School of Law, the EIC of the Law Review, and the organizer of the Election RAVE Campaign. Administrators, faculty, and/or students interested in finding out more can contact Beau at (firstname.lastname@example.org). Thanks to Friend-of-Prawfs Jim Pfander for passing this along.
A Lawyer Reads an Ad ... Or Are Parsers People?
You see this all the time, and it's usually less nuanced than this (there's been an example on a billboard you see from the eastbound Mass Pike near Fenway Park): an airline claims it has the "most non-stops" out of a particular city.
What bugs me is that EVERY flight is a non-stop, so it's a stupid claim when phrased that way. All they are saying is that they have the most flights.
This one is a little more nuanced because it has invoked layovers. That makes more sense, but what Jet Blue has to be saying is not that it has the most non-stops, because they are all non-stops; rather, of all the airlines flying out of Boston, Jet Blue's travelers have the highest percentage of reaching their final destination without a layover. But that still doesn't really mean the most non-stops out of Boston.
I posit this entire thought process as an example of the lawyerly mind gone berserk. Normal human beings don't do this.
State v. Dharun Ravi: Invading the Sexual Privacy of LGBTQ Persons
*This post is based on a contribution to the Boston University Law Review symposium on Danielle Citron's Hate Crimes in Cyberspace.
Invading the sexual privacy of LGBTQ persons is particularly devastating. In a world characterized by homophobia, exposing someone as gay, publicizing his or her sexual activities to others, and transforming him or her into a sexual object means that LGBTQ victims of sexual privacy invasions face stigma and discrimination.
Cyberharassment devastates its victims. Anxiety, panic attacks, and fear are common effects; post-traumatic stress disorder, anorexia and bulimia, and clinical depression are common diagnoses. Targets of online hate and abuse have gone into hiding, changed schools, and quit jobs to prevent further abuse. Some lives are devastated in adolescence and are never able to recover. Some lives come to tragic, premature ends. According to one study, almost three-quarters of cyberharassment reports come from women. Nearly half of all lesbian, gay, bisexual, and transgender (LGBT) youth experience cyberharassment each year, and LGBT teens are three times more likely than heterosexual teens to be harassed online and twice as likely to receive threatening or harassing text messages. As a gendered and sexualized phenomenon, cyberharassment plays a role in the continued subjugation of women and members of the LGBT community.
For sexual minorities, institutional discrimination amplifies cyberharassment’s horrors. This is not to say that heterosexual victims are crying wolf; to the contrary, cyberabuse is an equal opportunity offender. But LGBTQ victims face three additional hurdles. First, the personal psychological effects of cyberharassment are likely worse when victims live in jurisdictions with laws that discriminate against them. And despite some notable advances, anti-gay discrimination is still more the norm than exception. Second, when patterns of cyberharassment also involve “outing” the victim as gay, rampant discrimination and lost opportunity can follow. And third, for those LGBT and questioning youth who, by virtue of their families’ geographic and cultural isolation, lack local LGBT friends and role models, cyberharassment transforms the internet, ostensibly a door to a wider digital world of opportunity, into a danger zone. This enhances a no-where-to-turn sense of hopelessness that, although experienced by many victims of cyberharassment, is felt by none more acutely than LGBT youth.
Institutional discrimination faced by LGBT victims of cyberharassment metastasizes psychological effects because, as Mark Hatzenbuehler has shown, institutional discrimination enhances all mood, anxiety, and psychological disorders. In a 2010 study, Hatzenbuehler found that institutional discrimination can have a statistically significant negative effect on the mental health of LGB persons: lesbians, gay men, and bisexual individuals who lived in states that banned gay couples from marrying experienced mood, anxiety, and psychiatric disorders at higher rates than LGB persons living in equality states. It makes sense, then, that LGBT victims of bullying and harassment rival only homeless LGBT youth in the frequency and severity of psychological injury in the community.
As a means of “outing” gay persons, cyberharassment also triggers an onslaught of potential discrimination in employment, housing, and the provision of health care. “Outing,” or the revelation of another’s identity, is a frequent element of cyberharassment targeting members of the LGBT community. It is a central reason why antigay cyberharassment is an invasion of an LGBT person’s privacy. Though emotionally harmful, the closet may be a necessary evil in a discriminatory world: in 29 states, you can be fired, denied a home, and denied public accommodation just for being gay. Consider the story of Mark C., one of the many LGBT victims of cyberharassment with whom I have spoken in the course of my research.
Many LGBT youth, in particular, also experience acute effects of cyberharassment because of their unique dependence on online social networks. Often faced with geographic isolation from fellow LGBT individuals, gay youth rely on online social networks to replace non-existent face-to-face communities because they allow roughly anonymous virtual interaction with like-minded individuals. Therefore, these adolescents are not only frequent internet users, but also completely reliant on the virtual community they create for social support, information about their sexuality, and answers to any questions they have about being gay. Empirical data bears this out. As early as 2001, more than eighty-five percent of LGB adolescents reported that the internet had been the most “important resource for them to connect with LGB peers.” Destruction of that online social support network through cyberharassment is, therefore, particularly harmful because it turns what might have been a gay student’s safe space into a danger zone. Gay and lesbian adolescents’ dependence on online media makes them more susceptible to those who would use it as a sword against them.
None of this is to say that cyberharassment does not devastate all its victims. But while it is clear that cyberharassment is a modern weapon used to subjugate sexual minorities, it also makes institutional discrimination worse. Cyberharassment turns second-class citizens into third-class denizens by ballooning psychological harms and triggering discrimination in employment, housing, and the provision of benefits. And it takes away a virtual world of great opportunity from those who need it most.
Tyler Clementi may not have been a victim of cyberharassment. But he was "outed" by his roommate's invasion of his privacy. That Mr. Ravi acted with such disregard for Tyler's humanity makes this story reek of injustice. The criminal law, as written by New Jersey's legislature, may not have been the best tool for addressing the problem. In my next post, I will discuss a few options--beyond the criminal law--for making the internet safer for us all.
"Like Pulling Teeth": Lessons for law schools from the 1980s dental school crisis
Eric Chiappinelli (Texas Tech) recently posted a new article on SSRN that analyzes the dental school crisis of the 1980s to draw lessons for currently struggling law schools. It is a very interesting article. Highlights and my thoughts after the jump.
Tuesday, September 20, 2016
Nonconsensual Pornography and the "Gay Bachelor"
Logo TV, an LGBTQ-themed television network, is running a sort-of reality show called "Finding Prince Charming." I hear it's absolutely terrible. It looks a lot like ABC's "The Bachelor," except Logo's version is about gay men. Its star is a statuesque man named Robert Sepulveda Jr., a model, interior designer, and, apparently, a former escort. Because Mr. Sepulveda is on television trying to become famous, a celebrity gossip website thought it was "newsworthy" to publish explicit photos of him from his escort days without his consent. The photos have now been "unpublished." As far as we can tell, Mr. Sepulveda used those photos during his days as an escort. He didn't publish them online for everyone to see. Posting graphic or explicit photos of another without his or her consent is called "nonconsensual pornography" (NCP), more commonly known as "revenge porn." And it is a crime in 35 jurisdictions and counting.
Most NCP victims are women. But gay men are frequent victims, as well. Lokies Khan, a gay Singaporean man, had a sex tape posted online without consent. Speaking on the YouTube channel, Dear Straight People, Mr. Khan said he felt "violated," "scared," and undermined by the incident: “Things that I post on Instagram are things that are within my control, are things I want people to see, [that] I’m comfortable with people to look at. But these gifs of me on Tumblr are not within my control. I did not give consent. I did not know it was there.”
In my own research, I have spoken to more than 20 gay male victims of NCP. It usually happens in one of two contexts:
- As with many cases of NCP, generally, ex-boyfriends sometimes post nude or graphic images of their former partners on Craigslist, pornography websites, or use them to impersonate victims on social networking sites.
- Some gay male NCP victims participate in gay social networking apps. Those apps require their users to post a profile photograph, but social norms on the platforms often make sharing more intimate photos a de facto requirement of participation.
One person I spoke to was a victim of NCP at the hands of a photographer who enticed the victim with promises of free professional headshots for casting calls. Many victims felt "vulnerable"; others felt angry about a person stealing their photographs. Almost all of them found different ways to express how NCP is a devastating erosion of trust.
Victims sent intimate photos to their former partners when they were apart, as kind of a modern day love letter. And many victims were indignant when their friends, acquaintances, or online commenters blamed them for taking and sending the not-suitable-for-work photos in the first place. On gay social networking apps, in particular, a background trust exists. As one man said to me, "We're all gay on here. We're all part of the same tribe, looking for community and companionship in a tough world. You are expected to share photos, with your face and your body. If you don't, people don't talk to you. To have that thrown back in your face is really devastating."
NCP can destroy its victims, as Danielle Citron and Mary Anne Franks have described at multiple points in their work. The fact that photos may be "unpublished" does not make the situation any better. The original publisher may have changed his mind, but the photos, once available online, could have been downloaded, uploaded, and reposted thousands of time. Nor is it a publisher's First Amendment right to publish anything he wants about others. Even celebrities enjoy a right to privacy, which, in fact, fosters more, better, and diverse speech.
Despite having his private photos published online, Robert Sepulveda may be doing fine; he hasn't, as far as we know, experienced the kind of professional, personal, physical, and emotional abuse faced by many NCP victims. But he has been the subject of repeated ridicule online for his past as an escort. The attacks have been a combination of different types of shaming (those who both look down on male escorts and those who think he is a poor role model for the LGBTQ community). Whatever we think about escorting or "sex work" or his absolutely excruciating show, no one deserves to have his or her privacy invaded by transforming them into the subject of the prurient interests of others without consent.
Monday, September 19, 2016
Aargh, avast yee, ATS plaintiffs
Today is International Talk Like a Pirate Day. Unfortunately, I did not find that out until late today. Because this morning in Fed Courts, I taught the Alien Tort Statute and Sosa, which identified piracy as one of the acts that could be the basis for an ATS claim. The confluence would have been perfect. And, like Thanksgivukkah, the opportunity will not come around again for years.
The Next Personal Jurisdiction Issue for the Supreme Court
In the past couple years, the Supreme Court has decided a spate of personal jurisdiction cases. Most of the cases turned out more or less as expected; the Court clarified some issues and filled in some gaps, but did not significantly change the law. In Daimler A.G. v. Bauman, however, the Court did something unexpected: it put an end to so-called "general jurisdiction." Before Bauman, large corporations doing business throughout the country (e.g., Walmart) could be sued in just about any state. After Bauman, a plaintiff wishing to sue a large, nationwide corporation was basically limited to 2 or 3 states: (1) the state in which the company's maintained its principal place of business, (2) the state in which the company was incorporated (if different from state of its ppb) and (3) the state where the company established contacts that caused the harm (if different from the state of ppb and state of incorporation).
When the court abolished general jurisdiction, it delivered a big blow to the plaintiffs bar. Plaintiffs' lawyers had gotten used to filing suits in the most favorable forums in the country--often called "judicial hellholes" by defendants mired in litigation there. After Bauman, plaintiffs' lawyers had to regroup and find a new way to shop for the best forums. Their new strategy, and the next personal jurisdiction issue that the Supreme Court will decide, is after the jump.
Supreme Court Fellows Program – Call for Applications
The Supreme Court Fellows Commission is accepting applications through November 4, 2016, for one-year fellowships to begin in August or September 2017. The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission. Fellows gain practical exposure to judicial administration, policy development, and education. In each of the four placements, the Fellow will be expected to produce a publishable paper and will have unique access to federal judges, and to officers and staff of the federal judiciary, in connection with the research project.
The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service. Fellows will receive compensation equivalent to the GS-13/1 grade and step of the government pay scale (currently $92,145) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary. Appointments are full-time and based in Washington, D.C. A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2017, and finalists will be contacted on selection decisions within one to two weeks after interviews.
Secret surveillance in Baltimore and Dayton (and elsewhere?)
I listen to a lot of podcasts. Some, like Alec Baldwin's "Here's the Thing," I listen to solely because I find them interesting. Others, like Planet Money, are both interesting and directly relevant to my teaching. I even assign them sometimes (like this one on debt collection). Radiolab is one of my general interest podcasts. For those who are unfamiliar, Radiolab describe themselves as "a show about curiosity." Their episodes often have a scientific edge to them, like their excellent episode about CRISPR.
This morning, I listened to an update called Eye in the Sky and thought that Prawfsblawg readers might be interested. As described by Radiolab, the story is about a man and his superpower: Ross McNutt can "zoom in on everyday life, then rewind and fast-forward to solve crimes in a shutter-flash." Ross McNutt's company, Persistent Surveillance Systems, has used high-flying aircraft to secretly record hundreds of hours of ordinary life in major U.S. cities, such as Dayton and Baltimore. The company reportedly uses a cluster of cameras mounted to its airplanes that allows it to snap a series of digital photographs over a 32-square-mile area. In a city like Dayton, that means that one plane can effectively monitor half the city at a time. Once a crime is reported, McNutt's company will scan backwards through their saved images until they reach the time the crime was committed and then can scan forward through the saved images to see where the alleged perpetrator goes. McNutt's company can then report that location to the police, who can make an arrest, if appropriate. This is just one of the technology's many features.
I'm not a constitutional scholar and so I present this merely as an interesting FYI. Or maybe its more appropriate to describe it as an ICYMI, since the story is not brand new. Nevertheless, I thought that folks might be interested in talking about the implications of this technology. At a community forum in Baltimore, apparently 25% of the ~70 people in attendance were very much in favor, 60% had questions or concerns, and 15% thought this technology represented something like an "existential threat to democracy, civil liberties and Constitutional rights." If it helps, the Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
State v. Dharun Ravi: A Culture of Homophobia
Dharun Ravi existed in and contributed to a suffocating culture of homophobia. It helped keep Tyler Clementi in the closet and devalued Tyler's life to the point where Mr. Ravi and his friends consciously or subconsciously felt that Tyler did not deserve a right to privacy. This is the context in which LGBTQ individuals (and many women and other marginalized groups) live: they are seen as "less than" and less deserving of equal rights. For many, it is easy to harass them, assault them, ignore their protests, and invade their privacy because their second-class status means they don't really exist as fully realized humans. The cavalier way in which Mr. Ravi and his friends approached invading Tyler's privacy contrasts with the particularly grave consequences of "outing": openly gay individuals face latent and overt discrimination in society that could make coming out terrifying and dangerous.
There were several pieces of evidence to show that Mr. Ravi himself was explicitly uncomfortable with gay people. When he heard that his roommate might be gay, he texted to a friend, "Fuck my life. He's gay" (8). He tweeted a sarcastic "yay" after seeing Tyler make out with another man on September 19 (12). His sent a dismissive tweet--"they're at it again"--on September 21. He was "shocked" at what he saw when he spied on Tyler on September 19 (20) and did not want to go back to the room afterward, suggesting he was creeped out or that there was something dirty about what Tyler did (20).
Mr. Ravi also participated in a particularly nasty homophobic exchange with a high school friend.
M.H.: hahahahha your gay roomie that. . . did you really see him make out with some guy lmao
DEFENDANT: Yeahh omg [M.W.] saw it too. He was older and creepy and def from the internet
M.H.: that's so nastyyy ew watch out he might come for you when you're sleeping! hahaha jk
DEFENDANT: Omg everyone keeps telling me that. I haven't seen him since then
M.H.: hahaha good luck with thatt
DEFENDANT: He just texted me asking when I was coming home omg.
M.H.: maybe his gay friend is in your Ed bed*
DEFENDANT: I set my computer to alert me if anyone is in it when I'm not there LOL
M.H.: really?? how lmao that's so cool
DEFENDANT: My webcam checks my bed hahaha. I got so creeped out after sunday
M.H.: hahaha that's so crazy
DEFENDANT: Yeah keep the gays away
M.H.: I saw a lesbian Asian couple today but they were like nerdy fobby asian and it was gross
DEFENDANT: Ewwww. When we were in ny we saw two guys making out on a stoop
M.H.: NY that's pretty normal though hahha one of my friends is this gay Asian guy who has his ear pierced lol I mean bellybutton pierced*
In addition to this evidence suggesting that Mr. Ravi looked down on gays and contributed to the culture of homophobia at Rutgers, there is even more evidence that Mr. Ravi knew that antigay stigma permeated his group of friends. His friends said they were "shocked" and that it was "scandalous" two men would make out with each other (11, 14). One called it "weird" (11). Everyone was gossiping and laughing about it (14). There were at least 6 people who were gossiping and whispering and pointing to the man with whom Tyler hooked up (26). One student tried to brag that being told Tyler was gay "should have fazed" her (18).
Perhaps most indicative of the fact that a culture of homophobia contributes to a devaluing of gays lives is that everyone thought what Tyler was doing in his dorm room was their business. Mr. Ravi's friends wanted to "grab a glimpse" (19). They were "curious" (14). Mr. Ravi thought nothing of purposely positioning his webcam to focus on Tyler's bed (10, 19) and tweeting out invitations to his friends to watch the sexual encounter (18, 20). And his only response to a friend asking if Mr. Ravi actually spied on Tyler was "LOL" (23).
By the end of this story, more than 18 people knew that Tyler was gay and that Mr. Ravi could spy on him. This number included Ravi's friends from high school (7-8, 21), a young woman across the hall (9), her boyfriend at another school (12), her roommate (13), a friend from class (13-14), friends of the young woman's roommate (14), other friends from college (17, 19), and the members of Mr. Ravi's ultimate frisbee team (20, 21). When Tyler found out that Mr. Ravi had been spying on him, it would be hard for him to deny that his secret was out. He decided to commit suicide shortly thereafter.
Mr. Ravi cannot be directly blamed for Tyler's suicide. But the homophobic context in which he acted and to which he contributed should be relevant when considering both the gravity of the invasion of privacy and Mr. Ravi's state of mind. Mr. Ravi remained willfully blind to the consequences of his actions.
Should willful ignorance of the effects of invading the sexual privacy of a closeted gay person should be enough for sentence enhancement? That is clearly not the way the New Jersey statute invalidated in Pomianek was written; that statute made the state of mind of the defendant irrelevant. But could a re-written statute include both intentional targeting and willful ignorance of the effects of such targeting? Antigay bias is not just using antigay rhetoric--"I hate gays" or "Gays deserve to die"--and then purposefully acting on those impulses. Antigay bias includes contributing to a culture of homophobia that devalues the lives of gay persons.
What do you think about an antibias sentence enhancement provision that gets triggered either when someone purposely acts to discriminate on someone's identity or when someone acts with reckless disregard for the discriminatory consequences of his or her actions?
Friday, September 16, 2016
The New Constitutional Right to Post-Conviction Habeas
For decades, the dominant working assumptions of the Supreme Court's post-conviction habeas corpus jurisprudence have been that (1) federal post-conviction remedies are generally a matter of legislative grace; and (2) as Justice Alito reiterated last Term in his concurrence in Foster v. Chatman, "[s]tates are under no obligation to permit collateral attacks on convictions that have become final, and if they allow such attacks, they are free to limit the circumstances in which claims may be relitigated." In a new paper we've just posted to SSRN, Carlos Vázquez and I argue that, in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court directly rejected the first assumption, and, in the process, indirectly but necessarily undermined the second.