Tuesday, August 19, 2014
Reforming the Ferguson Police Department
This Slate piece discusses the potential use of 42 U.S.C. § 14141 against the Ferguson Police Department in the wake of recent events. That section authorizes DOJ to investigate and bring civil litigation against a "pattern or practice" by law enforcement organizations that violates the Constitution; DOJ can seek an injunction or consent decree or, more likely, enter into a Memorandum of Agreement about reforms to be made by the agency.
Section 14141 was seen as a big step when it was enacted as part of the Violent Crime Control and Law Enforcement Act of 1993, a way to make-up for the perceived under-use of criminal civil rights prosecutions under § 242. Actual practice has been disappointing to many commentators, as Rachel Harmon (U VA) and Kami Chavis Simmons (Wake Forest) have discussed. In particular, they note that the focus of investigations has been on smaller cities, such as Pittsburgh, rather than large cities such as New York and Chicago (although the Slate article discusses an agreement--not sure if it was a consent decree or MOA--with Los Angeles that has been found effective). Certainly, this is the type of high-profile situation that would overcome federal inertia and prompt a response.
One problem is whether there can be a finding of a "pattern or practice" in Ferguson. Certainly the past week has demonstrated some potential misconduct and abuse of power by individual officers. And the department as a whole has handled the entire fallout badly (for example, of 78 people arrested last night, 75 were for failing to disperse when ordered, which brings us back to the problem of how police do (and are allowed) to respond to lawful assembly and protest whenever they also can point to the slightest risk of violence). And the militarized response certainly reflects department policies and practices, although typical of what many police departments are now doing. But there is a nice question whether awful response in a single situation, even one as high-profile as this, is sufficient to warrant federal intervention or whether it necessarily indicates broader problems.
The best hope may be that DOJ goes to Ferguson in a cooperative stance, looking not to pursue litigation, but to convince the department to accept an MOA, particularly in light of the awful optics of the past week. When my current dean headed the Civil Rights Division, he favored this approach, believing it created buy-in from the local government without an adversarial posture or the need to establish pattern or practice.
JOTWELL: Understanding Prophylactic Supreme Court Decisions
William Baude at JOTWELL has a review of my colleague John Stinneford's article, The Illusory Eight Amendment. Baude writes, "It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford's recent article . . . . " Professor Stinneford's article critiques Miranda v. Arizona, and contends, contrary to popular wisdom, that it did not truly create a prophylactic rule to prevent compelled confessions. Indeed, Professor Stinneford notes that "the Supreme Court in Miranda did not particularly care what the term 'compelled' means," and because of the Court's failure to address this issue directly, "many of the practices disliked by the Miranda court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession." Both Stinneford's perceptive article and Baude's review explore the implications of this analysis.
Summary judgment and the infield fly rule
No, not together, sadly.
The final version of An Empirical Analysis of the Infield Fly Rule is now on-line at the Journal of Legal Metrics/Journal of Law (the book will be out in a month or so). The article presents the results of a four-year study of all infield fly calls in Major League Baseball. I am extending the study for the 2014 and 2015 seasons, as well as trying to apply some advanced baseball metrics to measure the effect of the rule (or, more precisely, what the effect might be if we did not have the rule and infielders were free to intentionally not catch the ball in search of cost-benefit advantages).
And, completely unrelatedly, Mixed Signals on Summary Judgment is now posted to SSRN, and hopefully coming to a law review near you. Here is the abstract:
This essay examines three cases from the Supreme Court’s October Term 2013 that addressed the standards for summary judgment. In one, the Court affirmed summary judgment against a civil rights plaintiff; in two others the Court rejected the grant of summary judgment against civil rights plaintiffs, arguably for the first time in quite awhile, but in procedurally confounding ways. The essay unpacks the substance and procedure of all three decisions, and considers their likely effect and what signals they send to lower courts and litigants about the proper approach to summary judgment.
Monday, August 18, 2014
Can Standing Immunize Surveillance Programs From Judicial Review?
One of the abiding issues in standing doctrine is whether federal courts should care when legal violations seem to produce no viable plaintiffs. This issue has been particularly salient in debates about secret government surveillance. In recent weeks, yet another surveillance program has started to come into view, and commentators are again wondering whether anyone can challenge the program in court. What’s perhaps most interesting about this latest round of the controversy is that both sides can plausibly rely on the Court’s most recent decision on the issue.
Dean Frank Wu on Rethinking Law School
There has not been, in the recollection of anyone now living, a similar set of challenges for law schools. As with all such situations, however, leaders must spot the issues. We are in danger. We should not deny that.
I welcome the opportunity. We must cooperate -- bench, bar, teachers, students -- to take apart the system and put it back together again better.
Among other things, Dean Wu suggests that legal education should be re-worked to look and function more like medical education (a point that others, including my former colleague, Vincent Rougeau, now dean at Boston College, have also made).
I think that Dean Wu is right to underscore and emphasize what he calls the "maldistribution of lawyers" and also the "cost structure of legal education" and the crisis of "student loan debt." I do regret, though, what seemed to me to be his endorsement of a criticism that, in my view, is (for the most part) a straw man. After noting that the "century-old case method is transitioning towards skills training," he says "[t]he analysis of appellate decisions remains integral to the first year courses, but it would amount to an incomplete education at best" and contends critically that "some law school graduates" -- unlike medical-school graduates -- have engaged in "book learning alone."
The "transition" Dean Wu describes is clearly underway, but it seems to me that it has been for decades (and it has involved adding lots of enriching things -- not only skills training and clinical work -- to the "century old case method"). It's been a long time, I think, since anyone thought "the analysis of appellate decisions" alone could make for a "complete" legal education or since more than a handful of law-school graduates were trained through "book learning alone." The "law schools teach nothing of practical relevance or worth" charge is out there, I realize, but I continue to think it is significantly overstated. (And, to be clear, to say this is not to say anything about the extent to which "skills training" should be emphasized or incorporated more than it is at present.)
JOTWELL: Walker on the effect of teaching procedure
The new Courts Law essay comes from Janet Walker (York--Osgoode Hall) reviewing A Community of Procedure Scholars: Teaching Procedure in the Legal Academy, a piece by authors from four different systems (including Elizabeth Thornburg of SMU) comparing how civil procedure is taught in their law schools and the effect that has on procedure scholarship and procedural systems.
To the man who taught me the infield fly rule
I originally planned to post this last month, but obvious events made it feel inappropriate.
My father, Lawrence Wasserman, passed away July 10, at age 85. A friend once told me that losing a parent is when you really become an adult; I kind of believe that. Dan, being Dan, was one of the first people to reach out and extend condolences from afar--in fact, it was one of our last text exchanges. To tie this back to an earlier post, I just ended shloshim, the 30-day period of mourning in the Jewish faith, so this seemed a good time to write.
Judging Similarity (Part 1)
This post is by GuestPrawf Irina Manta.
I thought I would kick things off by talking a bit about the empirical intellectual property work in which I have been and continue to be engaged. Empirical work in this subject matter has been increasing in popularity in recent years after some pioneers like Barton Beebe and other scholars led the way. The relationship between social science and IP issues has fascinated me for years, so it is a much welcome trend in my eyes. Most recently, I collaborated on my own first project in that area with co-authors Shyam Balganesh and Tess Wilkinson-Ryan. The paper that resulted, Judging Similarity, will appear in the Iowa Law Review later this year, and I would like to offer a sneak peek here into some of the issues we examined.
The test for copyright infringement asks in part that fact-finders determine whether the original work and the allegedly infringing work are “substantially similar” to one another. Put differently, fact-finders—usually jurors—have to decide whether a “reasonable observer” would believe that the similarities between two works were of such a high degree as to involve wrongful appropriation. Further, fact-finders have to establish that actual copying took place, and similarity often plays a role to meet that prong as well when there is no admission of copying. While different circuits each have their own version of the copyright infringement test, they all require a showing of substantial similarity in some form or another. I expressed the concern in my earlier article “Reasonable Copyright”, 53 Boston College Law Review 1303 (2012), that the seemingly simple matter of determining similarity may create an inquiry that is particularly open to numerous cognitive biases. These biases, I argued, would distort the judicial process in a way that would likely generally benefit plaintiffs. My empirical work with Shyam and Tess allowed me to test some of these earlier intuitions I generated.
The first issue in the context of substantial similarity is that by the time the question of similarity reaches a jury, its members have already heard a great deal of evidence about the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and, on occasion, the market effects of the defendant’s copying. Although the similarity finding is meant to involve no more than a comparison of the two works to assess whether they are sufficiently similar to render the copying problematic (i.e., improper), that judgment may be affected by the availability of this other evidence. The fact-finder is required to answer the question of substantial similarity through a mere comparison of the two works, which will often involve actively ignoring instinctively relevant and highly salient information. Copyright law thus seems to assume that the inquiry into substantial similarity can serve as a simple comparison of the two works, even in the face of extensive factual evidence that bears directly on the dispute in question. The fact-finder is presumed to be able to cabin and exclude from the analysis all of the evidence with which the court has been presented in the lead-up to the issue of substantial similarity.
Sunday, August 17, 2014
Kar on Contract Theory: The Sequel ... And Putting Spectacles on the View from Nowhere?
Robin Bradley Kar has now posted the sequel to Contract as Empowerment: A New Theory of Contract. The second piece is Contract as Empowerment II: Harmonizing the Case Law. I did a quick review of the first piece in an earlier post.
I need to say first that the length and depth of this post is a reflection of the quality of Rob's work. I heartily recommend both articles, taken together, as an incredibly ambitious, if not promising (no pun intended), approach, particularly for those of us (like me) who were so significantly unsatisfied with seeing either the doctrine or the practice of entering into contracts as wholly explained by rational actor economics. So like most reviews, this is perhaps not as much about what Rob is arguing as much as a chance for me to pontificate. In short, don't take my characterizations as gospel; if you have any interest, download the articles while they're hot!
The context here is the longstanding philosophical debate about why and how courts go about using the resources of state power to resolve matters that originate wholly in private ordering. Over the last thirty or so years, those inclined to answer that question have tended to see the rationale for state involvement on two philosophical poles, one consequential and one deontological. From my standpoint, Rob's work (likely in contrast to my own) is firmly within that debate, in that he is searching for a philosophical resolution - one that harmonizes both explanation (i.e. what does contract law do?) and understanding (i.e. what does contract law mean?). Spoiler alert (yawn!): I don't think that kind of complete harmonization is possible, although I tip my hat to Rob's rigor in linking philosophical justification and discrete portions of the doctrine, such as consideration, expectation damages, interpretation, performance, and so on.
Does Ferguson show that Fischel's Homevoter Hypothesis undermines minority power?
One of the oddest aspects of the racial strife in Ferguson, MO is that the state government is providing more racially representative leadership than the municipality. Although Ferguson's population is two-thirds black, its municipal leadership is overwhelmingly white. The (black) chief of the state highway patrol turns out to enjoy more popularity with Ferguson's own (white) municipal police chief.
The idea that state government would protect the interests of a local majority of African-American residents from their own municipal government seems bizarre in light of Southern history. Southern white supremacists seeking to "redeem" government from black power during the 1890s and early 1900s stripped municipalities of power, concentrating decision-making at the state level, in order to prevent local majorities of black voters from controlling taxation of real property. (For a description of the white supremacists' "general hostility to home rule" in Alabama, see Knight v. Alabama, 458 F.Supp.2d 1273, 1284-85 (N.D.Ala.2004)). Moreover, the research of the late Elinor Ostrom and her colleagues in Indiana U.'s Workshop on Political Theory from the early 1970s suggested that black voters in small municipalities within St. Louis County trust their police forces more than black residents in the central city.
Why, then, has not Ferguson's local voters taken control of their own municipal government, electing a mayor and council that creates a police force that the majority can trust? The question has relevance beyond Ferguson's particular situation: The whole point of jurisdictional fragmentation of counties among many small local governments is to give voice to groups that otherwise would be drowned out at the county and state level. If small local governments like Ferguson cannot represent the preferences of two-thirds of their residents, then what good are they? At least one commentator has used Ferguson as a fable of the follies of local decentralization. To academics for myself who have a fondness for decentralization as a vehicle for protecting local voters' power, Ferguson presents a troubling data point. Is there any explanation for how localism seems to have gone awry in Ferguson?
Saturday, August 16, 2014
Why do big cities strangle themselves with zoning? (And will voting with your feet solve the problem?)
Mayor de Blasio is trying to create 200,000 new units of affordable housing in New York City over the next decade. An essential element of his strategy is to increase floor-area ratios (FARs) in return for developers’ leasing some percentage of the new units for rents below market rates. The entire strategy depends on the mayor’s persuading City Council to “up-zone” land – that is, increase the densities permissible under the NYC Zoning Resolution.
The obvious obstacle to this plan is that New Yorkers – like everyone else – tend to oppose new construction in their neighborhood. The wagons are already circling: Just blocks away from where I live, the neighbors are rallying against a couple of new towers with affordable units, ostensibly because they are too close to the new Brooklyn Bridge Park. But these neighbors’ politics ought to favor de Blasio’s plan, right? After all, de Blasio is standing up for affordable housing, a left-liberal goal, and the NIMBY neighbors are liberal brownstone types who allegedly support such goals. So de Blasio and his housing team (including NYU Law’s own Vicki Been, de Blasio’s new housing chief) ought to be able to talk the NIMBY folks out of their opposition, right?
Wrong. It is not just that neighbors’ fear for their condo down payment tend to trump their liberal sympathies for the poor. As David Schleicher and I argue in City Replanning, the less obvious obstacle is that the political economy of NYC’s legislative process tends to favor NIMBY ism, by placing neighbors from different parts of NYC into a collective action quandary. Even if each neighborhood were willing to take their fair share of affordable housing, there is no mechanism for inter-neighborhood bargains assuring that every other neighborhood will be equally accommodating to new construction. Moreover, the parcel-by-parcel bargaining typical of NYC land-use politics so raises the opacity and uncertainty of re-zoning that many developers will be driven out of the market.
After the jump, I’ll explain why contrary to vote-with-your-feet optimists like Ilya Somin, competition from other cities for NYC’s residents is not a great remedy for the NIMBY problem. Instead, David and I suggest a paradox: Command-and-control, centralized, comprehensive planning is actually libertarian. By getting rid of parcel-by-parcel bargaining and reassuring each neighborhood that they will not be left holding the affordable housing bag when they relent in their NIMBYism, the comprehensive plan can diminish the ferocity of the NIMBYs.
UPDATE: Ilya has a response to my post here. I agree wholeheartedly with his statement that foot-voting "makes the situation [of restrictive zoning] significantly better than it would be otherwise." But I think that Ilya errs in stating that "NYC and many other cities with restrictive zoning policies already have 'comprehensive' land use planning." In fact, New York courts (like courts in most states) have long construed the statutory requirement that zoning be "consistent with a comprehensive plan" to mean nothing more than that zoning amendments have a rational basis -- a test that places no practical limit on ad hoc deal-making.
Friday, August 15, 2014
First Amendment repealed in Ferguson, MO
Ronald K.L. Collins suggests (hopes?) we are about to enter a New York Times v. Sullivan moment in response to events in Ferguson, MO--broad free speech principles forged from public and media outrage and exposure of racial abuse by police and government officials. I am less sanguine, because I do not see either the government or individual officers being held to account or sanctioned in any way (legally or politically) for the massive restrictions on free expression that have been imposed in the last week. Collins may be correct that this may present an opportunity for the "admirably defiant spirit" of New York Times to "find its way back into the hearts and minds" of the public and for the public to demand that local government show greater respect for First Amendment rights. But these these events are not going to end with a resounding judicial affirmation of the First Amendment that will impose those obligations on government or sanction it for its past disregard.
Courts almost certainly will accept the government's assertions of public safety concerns and recent memories of rioting as justifying officers responding to seemingly peaceful, if angry, protests with riot gear and rubber bullets--these events illustrate Timothy Zick's thesis that public spaces are no longer for collective speech by large groups (My favorite detail: Police ordering people to return to their homes, then saying "Your right to assembly is not being denied"--oh, if you so say). The Eighth Circuit has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording. There is no evidence the city or county itself ordered officers to target people filming police--at best, municipal policy is silent. The federal government has already backed the local power play by declaring a no-fly zone over Ferguson, thus preventing television helicopters from recording activity from the air. DOJ has promised to conduct an investigation to see that justice is done, but that seems more about the original shooting; otherwise, DOJ assistance has been with "crowd control" and urging citizens not to "antagonize" police. But that "antagonism" has, in large part, consisted of attempting to assemble and protest and to video police massively over-reacting to those attempts--so DOJ's advice is for people not to do the things they should have a constitutional right to do. And like southern officials 50 years ago, Ferguson and St. Louis County officials do not seem affected or shamed by public outrage over their conduct, do not seem to acknowledge having done anything wrong, and do not seem inclined to make any changes on their own accord.
Again, the public takeaway from this may be a reaffirmation of free speech ideals. But is that enough without some official declaration and application of those ideals?
Update: According to this story, things played out much differently Thursday night, under the leadership of Missouri Highway Patrol Captain Ronald S. Johnson, a Ferguson native. There was no massive militarized police response to demonstrators and people were allowed to march and gather. And police officers were ordered to remove their gas masks. Missouri Governor Jay Nixon "vowed that officers would take a different approach to handling the massive crowds that have taken to Ferguson’s streets each night." (For those of you who teach Evidence, this would be an example of an inadmissible subsequent remedial measure).
Introduction: Irina Manta
The following is by Irina Manta, who will be guest-blogging with us for the rest of August and all of September.
My last exchange with Dan was on the topic of my guest-blogging here, and I hope to honor his memory by contributing to the wonderful community that he started and ran in the form of PrawfsBlawg. I will mainly be talking about my work in the area of intellectual property over the next month and look forward to the exchanges that will follow. My faculty profile is available here.
Thursday, August 14, 2014
Lubet on Academics, Law, and Politics
Steve Lubet published an op-ed in the Chicago Tribune today regarding the recent controversial non-hiring at Illinois. Seems to me he got it just about right.
The link will lead you (I believe) to a pay wall; the Tribune's editors have graciously allowed us to reprint - which you can find below the fold.
UPDATE: I have opened the comments. My concern originally was the fact that this is about the bounds of civil discourse (apart from the legitimately debatable issues of academic freedom and law), and because all the comments get e-mailed to me even when unmoderated, I didn't want to be a potential adjudicator of civil discourse. There's even a legitimate debate about what constitutes civil discourse, which is the part of Steve's essay that resonated with me. But there IS a line, albeit not always clear where it is, and I agree with Steve that this person crossed it. With that reservation now express, go to it.
Wednesday, August 13, 2014
Social and Legal Prejudice in Runyon v. United States
Runyon v. United States is a pending capital case in which the defendant has filed for cert and the United States sought eleven extensions of time before filing its brief in opposition earlier this month. As Amy Howe observed on SCOTUSBlog, the government’s highly unusual series of extensions delayed the Court’s consideration for almost a year.
Runyon is notable in part because it involves the interaction of prejudice in two senses—social and legal. In other words, Runyon asks whether prejudice in the sense of legal injury resulted from the government’s use of prejudice in the sense of social stereotypes.
Death Penalty Update
Dan Markel's last post here addressed the decision in Jones v. Chappell, in which US District Court Judge Cormac Carney declared the death penalty unconstitutional by reason of delay. He would probably have had a field day with the recent developments in the case.
A day after the decision, I started a petition on Change.org, calling on Gov. Brown and Attorney General Harris not to appeal the decision. It started as a small plea on Facebook, and without any pushing or prompting from me found its way to the Daily Kos and to the Daily Journal. By the time I submitted the petition, it was 2,198 signatures strong.
There are still 12 days left for the Attorney General to appeal the decision, and as I explained here, if her office does not do so, it doesn't mean the death penalty in California is effectively abolished, but it would be a great start of a series of legal and political moves that could spell its demise. I'm beginning to think that the death penalty can't be executed; rather, it has to die a slow death from a chronic disease (delays, costs, malfunctions)--much like the vast majority of the inmates on death row.
I think everyone understands this, even if they don't like it, and that includes death penalty proponents, who seem to be freaking out about the prospect of $130 million annually in savings and folks being put in general population serving life without parole (which they do anyway, just without the expenditure.) And it seems that death row supporters in California are beginning to freak out at the not-unlikely possibility that the Attorney General is going to leave this decision alone. First was this post on Crime and Consequences, inviting district attorneys to risk their jobs and eat up their lives by appealing a decision their boss might not appeal against her officer's discretion (really?). But then, the decision was actually appealed. Yesterday. Not by the Attorney General. By a private citizen by the name of Robert Justice.
Don't believe it? Here's the notice of appeal.
Conversion from Bluebook to Chicago Manual of Style
I was advised that there will be a book incorporating the Kelsen conference papers, so I just spent the better part of a full workday converting this essay from Bluebook to Chicago Manual of Style, using the publisher's template for headings, footnotes, references, and so on.
It's been a long time since I used the Chicago Manual. As with all languages, it takes a while to get fluent. But if you don't work a lot with court cases, statutes, and the other usual stuff of legal writing, it actually makes more sense, contains more information, and results in a shorter piece. The big pains in the patoot are that you have to show beginning and end pages for journal articles as well as publisher information for books. For law review articles, you can get the page ranges pretty quickly by clicking the "print/download" button on Hein Online, and Amazon is pretty good about publisher information, although it doesn't list the city of the publisher.
Normal people would have a research assistant do this but (a) I don't have one, (b) I probably wouldn't trust him or her to be as anal about it as I am anyway, and (c) I get a kind of sick pleasure out of it.
I am now available for consultation on these weighty matters as a service to the community.
Reviving the Research Canons: What Every Law Prof Needs to Have Read
Mike Madison has a really nice piece out entitled "Lost Classics of Intellectual Property Law." In it, he chides legal scholarship for failing to pay enough attention to older pieces that have come before and have laid the foundation for the discipline. His essay seeks to address this problem by setting out those "classics" that need to read, understood, and cited to provide "better and more consistent acknowledgement of earlier work." The article is actually a compilation of his earlier blog posts, including a 2007 self-described "rant" against the failure of IP scholars to understand the background literature in their field. Talking about presentations at a working-papers conference, Madison said: "By far the biggest flaw in presentations and papers by junior IP scholars (and sometimes by more senior IP scholars) was and is their evident ignorance of earlier work. And not just or even work published within the last year or last five years; I’m thinking of the fact that a lot of foundational work published ten years ago or earlier remains significant today."
The new essay called to mind a project we had at Prawfs eight (!) years ago called the "Research Canons" project. The effort was similar to Madison's -- to compile lists of the foundational works in the legal sub-fields for use by scholars in the area, particularly junior ones. At the completion of our two-month run, thanks to help from a lot of folks, we ended up with entries for 42 subject areas. We had 220 comments and links from 18 fellow bloggers supporting the endeavor. You can find a list of the subject areas, with links to the individual posts, here.
At the end of the Canons run, I expressed hope that the canons could serve as a continuing resource. However, I also recognized that "[a] weakness of blogs posts is that they seem to have a short shelf-life: once a post is more than a day old, it can be forgotten." I don't know whether folks continue to check out the Canons, but I suspect that they have been largely forgotten. So it seems like a good time to revive the project, eight years down the road, and think again about those books, articles, and chapters that are canonical -- that everyone in the discipline should have read.
So this post is intended as an announcement for the project and a request for feedback. What's the best way to proceed? I'm planning on having individual posts for individual subjects, as before. But this time, I'm thinking of asking for the following:
- Classic Canons. The pieces that form the foundation for the discipline.
- Forgotten Canons. The pieces that have not gotten the attention they deserve.
- New Canons. The pieces from the last decade that deserve canonical status.
Let me know what you think of the project, whether the old one was helpful, and what we can do this time to make it better.
Even football coaches are banning laptops
Tuesday, August 12, 2014
They in Their Humanity
In The Prince, Machiavelli describes the pleasure he derives from studying. “When evening has come, I return to my house and go into my study. At the door…I enter the ancient courts of ancient men…There I am not ashamed to speak with them and to ask them the reason for their actions; and they in their humanity reply to me. And for the space of four hours I feel no boredom, I forget every pain, I do not fear poverty, death does not frighten me. I deliver myself entirely to them.”
I had cause to think a lot about this, one of my favorite quotes, recently. An underrated pleasure of academic life, it seems to me, is getting "into our study," and the form of conversation it brings with it. It's a way in which to connect (albeit at a geeky level) with folks that (on a personal level) I might know quite well, or not at all. Some of these connections go beyond the rather impersonal academic interrogation implicit in asking the reasons behind another's work, and become the more personal collaborations in which ideas are directly exchanged, and the process of learning and growing becomes accelerated and fun. In the internet age, these connections are often made, and maintained, online as much as in person, but are not the less personal for that.
In a couple of short pieces, appropriately inspired by a short Prawfsblawg piece he posted, and my comments upon it, I was lucky enough to collaborate with Dan Markel. Through that process, I got to know him a little better than I did before. He was ticked off at some weird conditions a judge had demanded a defendant satisfy to be released on bail. I was taken with his righteous indignation, and then by his fastidious argument-checking. I enjoyed meeting his family and friends online, and catching up at conferences, and reading and re-reading his work, both finished and unfinished. I learned a lot from Dan, and still study and still learn.
Leiter on FAR forms
Brian Leiter offers six thoughts/pieces of advice on completing FAR forms. I agree with all six of his points, especially these two: 1) In listing courses, "be who you are, and not someone else," and do not try to game the system, and 2) Do not use the Comments, especially for something vacuous, like "I'm committed to being an excellent classroom teacher."
Robin Williams in Context
Robin Williams’ apparent suicide is tragic, but should not be surprising. An American is more likely to die from suicide than from a car accident. 38,285 people committed suicide in 2011, the most recent year for which data are available.
Many of these deaths were preventable. The suicidal impulse is very often fleeting. Ninety percent of individuals who survive a suicide attempt go on to die of something other than suicide. Reducing access to lethal means like firearms has been proven to prevent suicide. I have a law review article currently under submission that would allow for a new way to self-restrict firearm access. It may not have helped Williams, but it has the potential to help many others.
If you are thinking about hurting yourself, call 1-800-273-TALK (8255).
Jurisdictional elements and merits
Here is a Ninth Circuit decision properly analyzing jurisdictionality in a Lanham Act case. The court held that the requirement that a trademark be "use[d] in commerce" is an element of the trademark claim and does not go to the court's jurisdiction over the claim. Relying on Arbaugh, the court held that the substantive provisions of the Lanham Act do not contain jurisdictional language and the actual jurisdictional grants for trademark cases (§ 1331 and 15 U.S.C. § 1121(a), along with 28 U.S.C. § 1338, which the court did not mention) do not use this language. Thus, "use in commerce" goes to the merits, not jurisdiction. This is spot-on analysis and the court made relatively light work of the arguments.
The court did not discuss it in these terms, but this case demonstrates the confusion created by so-called jurisdictional elements. The "use in commerce" element hooks the Lanham Act into Congress' Commerce power--Congress lacks the power (the jurisdiction) under that clause to regulate trademarks not used in interstate commerce. The "jurisdiction" here is Congress' prescriptive or legislative jurisdiction, its authority to prescribe legal rules to regulate real-world conduct. An internal limitation on congressional legislative power--like an external limitation such as the First Amendment ministerial exemption--constitutionally limits the scope of the legal rule and thus the rights granted and duties imposed under that rule.
But jurisdictional elements write that prescriptive-jurisdictional limitation into the statute, and the statutory claim, itself. Rather than absence of "use in commerce" rendering the statute unconstitutional as applied (as with a minister's ADA claim against a church), the failure of the jurisdictional element means the statute by its terms does not "reach" the conduct at issue. A Lanham Act plaintiff must prove "use in commerce" just as it must prove "reproduction, counterfeit, copy, or colorable imitation of a registered mark;" both go to whether there is an existing legal rule imposing liability on these defendants on the real-world facts at issue and thus whether the plaintiff's infringement claim has merit. In that regard, a jurisdictional element functions the same as an ordinary element of a statute. The jurisdictional element is there for a different reason than an ordinary element, but its role is the same--it controls the "reach" of the statute, which is uniformly understood as a merits concern. And it has nothing to do with whether the court has adjudicative jurisdiction to hear and resolve a claim because it is "arising under" that statute.
Welcome Permaprawf Sarah Lawsky
All of us at Prawfsblawg are delighted to welcome our frequent and current guest-blogger, Sarah Lawsky, as a full, permanent blogger here at Prawfsblawg. We've come to know well and appreciate her contributions on this blog, which include many of our most popular, avidly read items, on matters such as hiring, along with surely our best data-crunching. Sarah will continue with these popular features, as well as, like all of us here, writing on any issue that grabs her interest. Sarah is a Professor of Law and Senior Associate Dean for Academic Affairs at UC-Irvine's law school and a noted expert in tax law. Welcome to the family, Sarah!
Monday, August 11, 2014
Hiring Posts - Update
The hiring threads will continue.
Ongoing, I am compiling a list of hiring committees and areas of interest. Please submit that information if you have not already, either in the comments in that post or via email to me (as described in the post).
An approximate schedule of other posts follows, based off the dates of the first FAR submission (Thursday, August 21) and the AALS conference (October 16-18).
Thursday, August 28: Law School Hiring, Thread One (reporting interview requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Thursday, August 28: Clearinghouse for Questions (last year's thread here).
Wednesday, October 22: Law School Hiring, Thread Two (reporting callback requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Wednesday, November 12: VAP thread (last year's thread here).
Late February/early March: Begin entry level hiring report data collection.
The Supreme Court Needs to Pick Up The PACER
The Supreme Court is in recess, so it seems like a good time to raise a boring but important point of judicial administration: the need for public access to court filings.
I think that everyone whose work involves the Court—and there are a lot of us—has at one time or another struggled to understand why the Court doesn’t have a system like PACER. For those who don’t know, PACER has for many years allowed the public to access filings made in the federal district courts and courts of appeals. True, PACER is imperfect in many ways, including because it charges fees for most services. Still, PACER is clearly much better than nothing. Yet no such system exists in the highest court in the land.
Tips for New Law Teachers
If you are teaching law for the first time, you may be interested in this list of tips for new law professors. Best of luck!
Fair Use and News Reporting
The US Court of Appeals for the Ninth Circuit has stated that "[w]aving the news reporting flag is not a get out of jail free card in the copyright arena." In Swatch Group Mgmt. Services v. Bloomberg L.P., __ F.3d __, 2014 WL 2219162 (2014), however, the Second Circuit took a charitable view of such flag waving and interpreted fair use broadly to protect a news organization's dissemination of a highly newsworthy recording. The Second Circuit's broad interpretation of fair use to accommodate news reporting is especially noteworthy in an era in which news organizations are often faced with difficult questions about whether they may legally reproduce "user-generated content."
In Swatch Group Management Services v. Bloomberg, Swatch Group sued for copyright infringement because Bloomberg disseminated a sound recording of a conference call between Swatch and investment analysts to discuss the company's earnings report. Swatch did not admit the press to the conference call, but Bloomberg nonetheless obtained and disseminated a recording of the call to its paid subscribers. A district court granted summary judgment for Bloomberg on fair use grounds, and the Second Circuit affirmed.
Informal survey time (I raised this on some listservs last week and wanted to try a different audience):
If you were to make a short list of five (5) of the most important free speech opinions (majority, concurrence, or dissent), what would they be? I want to drop a footnote in the intro of an article, so I welcome input. I am looking for both rhetorical and practical power, as well as rhetorical and practical effect in the development of modern, speech-protective free speech jurisprudence. Note that since I am focusing on the development of the broad free speech protection we have in the U.S., I am primarily looking for opinions that sided with the speech claimant.
My tentative list (in no particular order): 1) Holmes dissent in Abrams; 2) Brandeis concurrence in Whitney; 3) Barnette; 4) Sullivan; 5) Cohen v. California (I originally had Texas v. Johnson or Reno v. ACLU here, but people convinced me that Cohen is more significant).
Have at it.
Epstein and Bagenstos on Title II
I have been reading a great deal this summer on and around the Hobby Lobby case and its longer-term implications. I want to spotlight, in particular, two articles in the most recent issue of the Stanford Law Review, which features a symposium on the fiftieth anniversary of the Civil Rights Act of 1964.
The first is by Sam Bagenstos. Titled "The Unrelenting Libertarian Challenge to Public Accommodations Law," its abstract reads:
There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in places of public accommodation, was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Essay begins by discussing the controversy in the Reconstruction and civil rights eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the controversy was discussed in the earlier era in terms of civil versus social rights, and in the later era in terms of property, contract, and association, the same fundamental concerns motivated objections to public accommodations laws in both periods. The Essay then turns to the current controversy. It begins by discussing Rand Paul’s 2010 comments questioning whether public accommodations laws are consistent with libertarian principles as well as the harsh response those comments drew from prominent libertarian commentators. It shows that Paul’s libertarian opponents disagreed with him only on pragmatic—not principled—grounds. The Essay then turns to an analysis of Boy Scouts of America v. Dale and of recent developments that promise to undermine the expressive-commercial distinction that has kept Dale from threatening the core of public accommodations law.
The second is by Richard Epstein, titled "Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right." Epstein's abstract reads:
On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to suppress the free entry of firms that would otherwise target minority customers in competitive markets.
The subsequent expansion of Title II’s nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.
The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.
Both articles are excellent and, as their authors recognize, highly relevant to the issues raised and presaged by Hobby Lobby. I do question the framing. I don't think all questioning of the expansion of the number and reach of public accommodation laws, or all views that hold that there must be some room within those laws for religious accommodation, can be described--or labeled, and having been labeled, dismissed--as libertarian. For various reasons, however, some sincere and some more strategic, those who reject this framing, and whose accommodationist leanings in this area are distinctly a minority view at present, have either held back or not fully thought through their own views. I think the time in which they could hold back has passed. If they don't want the entire discussion to be framed in terms of libertarianism vs. anti-libertarianism, they are going to have to speak up. When they do, they will have to engage with both of these fine articles.
Sunday, August 10, 2014
Kar on Contract Theory ... And A Question About "Unified" Theories of Law (Contract, at Least)
My friend Rob Kar (Illinois, left) has posted an article (the first in a series), Contract as Empowerment, a major take on contract theory that has this morning rightly earned "Download of the Week" status from Larry Solum. Rather than re-post the abstract (available from either of the above links), I'm going to excerpt Rob's own blackletter capsule of the theory:
Contract as Empowerment: All other things being equal, contract law rules should be set up to empower people to use promises as tools to meet a range of human needs and interests by inducing others to action. The law should therefore enforce contracts when two basic conditions are met: first, when a particular party has entered into a particular contract with the specific purpose of inducing another to act; and, second, when meeting this purpose depends on granting another contracting party the legal authority to demand compliance. All other things being equal, the law should not—on the other hand—enforce promises in other circumstances.
As I'm still weaning myself here from the last month's awfulness, I confess that what came to mind as I read Rob's introduction was Dan Markel's observation to me that I was often "orthogonal" to existing issues. In that spirit, then, let me be orthogonal to Rob's project, not for a minute taking away from its scholarly creativity, lucidity, thoroughness, and, as discussed below, its admirable persistence in pursuit of theory in the face of a countervailing sense of theoretical nihilism or, as Bob Scott put it at our "Contract as Promise" symposium a few years back, "lazy thinking masquerading as theory." (I really should include an emoji right there.)