Friday, May 25, 2018

Junior Faculty Law and STEM Forum - Call for Papers

The Northwestern, Penn and Stanford Law Schools are pleased to announce that the Second Annual Junior Faculty Forum will be held at the Northwestern Pritzker School of Law in Chicago on September 28-29, 2018. The Forum is dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).

Additional information under the fold.

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Posted by Sarah Lawsky on May 25, 2018 at 02:59 PM | Permalink | Comments (0)

Thursday, May 24, 2018

Who Stopped Hiring?

In 2011, 155 entry-level law professors were hired. In 2018, 76 entry-level law professors were hired. Who stopped hiring?

The answer is perhaps not surprising: lower-ranked law schools. In the top 30 (very loosely defined to include many more than 30 law schools), hiring remained steady. In the lower-ranked law schools, hiring dropped off significantly.

Hires by Ranking.20180524
Hires by Ranking.20180524

The key jumps to look at are 2012 to 2013, and then again 2013 to 2014.

Here's another way to look at it: in 2011, schools in the top 30 and above represented 23% of the law schools overall, and did 30% of the hiring. In 2018, those same schools did 45% of the hiring. (And some years it was even starker: in 2016, those schools did 53% of the hiring.)

Schools Grouped Hiring.20180524

My list of law schools with ranking categories (which I drew loosely from the US News rankings this year, keeping in mind that the US news rankings are very stable over time) is available here. I'm sure one can quibble around the edges that a particular school should be higher or lower ranked, but moving a school or two shouldn't change the overall result above.

Posted by Sarah Lawsky on May 24, 2018 at 05:23 PM in Entry Level Hiring Report | Permalink | Comments (0)

Universality as judicial impatience and control

Universal injunctions reflect judicial impatience and a desire of the court issuing the injunction to maintain control over a set of legal issues. Seeing disputes likely to recur, courts use the injunction to resolve all issues for all parties, rather than allowing other doctrines, designed to handle duplicative litigation, to do their work. And the reason is that those other doctrines may take awhile to reach a conclusion (that the issuing court believes is correct) and may leave control in the hands of another court.

In my forthcoming article, I argue that it is impatience with precedent. The Seventh Circuit recognizes Santa Clara will want to maintain its federal funding despite sanctuary policies, just as Chicago does. Rather than letting the process of precedent play out--having the district court or Ninth Circuit decide the issues in the separate action, perhaps using the Seventh Circuit decision as precedent; allowing courts of appeals to work through authority; allowing SCOTUS to resolve--the Seventh Circuit uses the injunction to get the singular result at once. This is both faster, because the process of building to consensus or resolution of precedent can take awhile. And it leaves the first court in control, rather than allowing another court to perhaps reject the first court's precedent.

This dispute over the contempt citation reflects impatience and a desire for control over a different limit on duplicative litigation--preclusion. The key to this case is the district court's conclusion that individual FLSA plaintiffs (and their attorneys) are in privity with the United States with respect to the validity of the overtime regulations, a dubious proposition (and, if I had to predict, the basis on which the Fifth Circuit will reverse the contempt order). But accepting that there is privity, the proper space for that analysis is issue preclusion--for Chipotle to argue in the District of New Jersey that the first court's decision as to the invalidity of the regulations has preclusive effect on the individual lawsuits. But this takes control from the first court, since "[d]eciding whether and how prior litigation has preclusive effect is usually the bailiwick of the second court."   By proceeding via injunction, the first court retains authority to decide all related issues under the guise of enforcing its injunction.

Posted by Howard Wasserman on May 24, 2018 at 07:26 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 23, 2018

Irony can be pretty ironic

Does anyone recognize the tragic irony that the Milwaukee Police Department released this (and got this response from the Milwaukee Bucks) on the same day the NFL announced this.

Posted by Howard Wasserman on May 23, 2018 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (4)

2018 Hiring Report - Subject Areas Over Time

Jeremy Bearer-Friend commented: "I wonder whether there are certain patterns over time for entry-level hiring by area of law. For example, whether tax hiring is constant even when total number of hires dips, or whether civ pro is generally 20% of the hires each year, etc. Some categories may be more consistently coded over time so this could be tricky to do but thought worth asking!"

I went through and cleaned up the data a little so that the categories were consistently coded over time and then did a cross-year comparison of hiring areas. Results follow. Note that these are the results for U.S., tenure track hires only--the same group on which I usually run the data aggregation.

Each year, candidates can list between zero and four subject areas in which they work. (In 2011 they were allowed to list a maximum of three; in all other years, a maximum of four.) 

First, I looked at all subject areas ("All Areas") that candidates listed in a given year. For example, if Candidate A listed "Tax, Con Law, Civ Pro" (interesting candidate!), then this person would be responsible for three entries in the below compilation. As you can see, Crim and Civ Pro lead the pack each year. Other 1L subjects are also very popular. (Click for bigger graphics.)

All Subject Areas Count.20180523
All Subject Areas Count.20180523
All Subject Areas Count.20180523

I did not see any areas where the raw number of hires stayed fixed across time, though the percentage of hires did seem to remain roughly steady.

Second, I looked at just Area 1 -- that is, the subject area that the candidate listed first. So, for example, Candidate A, our "Tax, Con Law, Civ Pro" candidate, would be responsible for only one entry on in this compilation: Tax. This might represent the person's main area of interest. The results were similar here. (Click for bigger graphics.)

Area 1 Count.20180523
Area 1 Count.20180523
Area 1 Count.20180523

Below the fold, a list of every subject area listed in any year. And for those of you who really want to play around with this, here is a link to the raw data, cleaned up a little. It is yearning for more pivot charts.

Continue reading "2018 Hiring Report - Subject Areas Over Time"

Posted by Sarah Lawsky on May 23, 2018 at 07:22 PM in Entry Level Hiring Report | Permalink | Comments (5)

Contempt and the universal injunction

Last month, I wrote about a case in which a district court in Texas enforced a universal injunction barring enforcement of the Obama Labor Department's overtime regulations (issued in a case against DOL) by holding in contempt private attorneys who brought a private action claiming that Chipotle violated those regs. The law firms have appealed the contempt order to the Fifth Circuit, calling it an "extraordinary and concededly unprecedented use of the contempt power to dictate the legal arguments that a stranger to that court may advance in another federal court." The firms question the conclusion that DOL can be in privity with millions of individuals merely because they would make the same legal arguments.

Tellingly, however, the plaintiffs accept the power to issue universal injunctions. Their challenge is to the logical conclusion that every universal injunction "against the federal government would apparently be binding, in personam, against each of the tens or even hundreds of millions of Americans that the relevant arm of the government purports to serve."

Posted by Howard Wasserman on May 23, 2018 at 07:03 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Trumps' Twitter blocking violates First Amendment

District court decision here. Eugene Volokh comments. I agree with the First Amendment analysis. While a public official can speak on his own, the dispute here is over an interactive part of Twitter and who gets to engage on those features.

After the jump, I consider several procedural points.

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Posted by Howard Wasserman on May 23, 2018 at 06:37 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Prospective Enforcement of the Right to Effective Assistance of Counsel

This post is part of a series (see here, here, and here) exploring how prejudice rules affect the implementation of criminal procedure rights. Here I focus on the prejudice rules that the Supreme Court has woven into the constitutional definition of effective assistance of counsel. Specifically, I’ll take a look at how those rules impede prospective remedies that aim to fix broken indigent defense systems—which remain all too common across the country—before those systems predictably result in ineffective representation during plea negotiations or trial.

The prejudice rules for effective assistance of counsel claims are somewhat complex. The rule applicable to the vast majority of ineffective assistance claims comes from Strickland, which held that such claims require proof that the attorney’s performance was constitutionally deficient, as well as prejudice, which means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” To be sure, Strickland acknowledged that “prejudice is presumed” and so need not be separately proven “[i]n certain Sixth Amendment contexts,” as when there is (1) “[a]ctual or constructive denial of the assistance of counsel altogether,” (2) “state interference with counsel’s assistance,” or (3) “an actual conflict of interest” that “adversely affected [the] lawyer’s performance.” But in Cronic, a companion case to Strickland, the Court rejected a constructive denial of counsel claim under rather extreme circumstances, and remanded so that the lower court could apply Strickland. Cronic thus implied—and the Court’s later decisions have expressly confirmed—that “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims.”

Neither Strickland, Cronic, nor any other Supreme Court decision has considered whether and under what circumstances a prospective, systemic ineffective assistance of counsel claim might be viable. (Strickland and Cronic, like most cases about ineffective assistance, involved post-trial defendants seeking habeas or appellate relief.) Yet the prejudice rules they produced have profoundly diminished not only the availability of postconviction right to counsel remedies—an effect the Court apparently intended, to preserve the finality of criminal judgments—but the prospects for prospective relief as well. Why? Because Strickland and Cronic opted to classify prejudice as a restriction on the scope of the Sixth Amendment right, naturally inviting its application in every remedial context involving alleged ineffective assistance, rather than as a harmless error rule, which has a narrower reach tied primarily to postconviction remedies.

To provide just one recent example, consider the District Court of Utah’s decision in Cox v. Utah. (For valuable resources about systemic ineffective assistance litigation in other jurisdictions, see the Sixth Amendment Center’s website or chapter three of the National Right to Counsel Committee’s 2009 report entitled Justice Denied.) There, two defendants in separately pending criminal cases brought a class action suit, on behalf of criminal defendants represented by public defenders in Washington County, against the state of Utah and related parties. They alleged that their right to effective assistance was “in imminent danger of being violated because the indigent defense program in Washington County lacks ‘sufficient funding, . . . workload limits, adequate contracting standards,” and other basic safeguards. The court dismissed the action, using Cronic and Strickland as its analytical framework.

With respect to constructive denial of counsel under Cronic, the court held that the plaintiffs had to meet a “hefty burden” of showing “widespread and systemic” attorney ineffectiveness. And it concluded that they had not met this burden—despite the complaint’s allegations that, among other things, “Utah is 48th out of 50 states in funding” for indigent defense and that one plaintiff’s public defender “has a workload of 350 cases, 80 percent of which are felonies.” After all, the court reasoned, these allegations were merely “reminiscent of the types of allegations made in . . . Cronic” that the Supreme Court had deemed insufficient to warrant an exception to the usual Strickland standard.

And under Strickland itself, the lawsuit was a nonstarter. As the court explained, “Strickland requires proof of actual prejudice,” but “neither [plaintiff] has been convicted or sentenced,” and so “procedurally, neither can state a claim for ineffective assistance.”

That said, some courts have developed creative workarounds to deal with the obstacles posed by the Strickland/Cronic prejudice framework. In Kuren v. Luzerne County, for instance, the Pennsylvania Supreme Court recently recognized a “cause of action whereby a class of indigent defendants may seek relief for a widespread, systematic and constructive denial of counsel when alleged deficiencies in funding and resources provided by the county deny indigent defendants their constitutional right to counsel.” In explaining why it did not regard Strickland as an impediment, the court reasoned that “[v]iolations of the right to counsel can occur in many different ways, and remedies for such violations are not limited solely to circumstances where prejudice can be proven. Only the remedy of a new trial requires a showing of prejudice.” Although I applaud this courageous ruling, it is not hard to see why Cox and many other cases (including the lower court’s decision that was reversed in Kuren) have endorsed the contrary position that the Strickland and Cronic prejudice rules are applicable, and ordinarily fatal, in prospective Sixth Amendment actions. And now that the Department of Justice probably will not continue submitting amicus briefs supporting indigent criminal defendants seeking pretrial relief against failing public defense delivery systems (as the Obama DOJ did in Kuren and several other cases), the path to success for such suits is likely to remain perilous.

Posted by Justin Murray on May 23, 2018 at 05:54 PM | Permalink | Comments (5)

SCOTUS takes employer side in class arbitration decision

Yesterday I went on the air with Larry Mantle of Airtalk, NPR to discuss Epic Systems Corp. v. Lewis.  I tried to channel the 4 Justices in the dissent with whom I agree. Justice Ginsburg read her dissent from the bench - calling Congress to amend either the FAA or the NLRA to clarify the tension they present between enforcing arbitration agreements and the protected rights of employees to engage in concerted activity. Though Justice Gorsuch unsurprisingly begins his decision saying that there can be disagreement on the policy but the law is clear, I agree with the dissent on both the law and policy. Nothing in the language of the FAA suggests that the NLRA, passed a decade after the FAA cannot grant employees to band together in arbitration when it concerns the terms and conditions of their employment. The FAA legislative history, as well as the language that eventually was enacted, further suggests that Congress did not intend to limit the rights of laborers. As Justice Ginsburg writes, joined by Kagan, Sotomayor and Breyer, the majority is "egregiously wrong". [in the Atlantic yesterday, a similar point: 

Gorsuch accused Ginsburg, author of the dissent, and the other three moderate liberals—Breyer, Sotomayor, and Kagan—of improperly consulting their own policy preferences, refusing to harmonize two easily reconcilable federal statutes, and illicitly smuggling extra-legal commentary—legislative history—into judicial decisions. But this was purest rhetorical Pecksniffery. Gorsuch himself quite cheerfully invoked a pro-arbitration policy preference; did no more to harmonize the two statutes than did the dissents; and ignored actual history, and the text of the NLRA, in favor of a spurious extra-legal non-textual narrative of the FAA.]

The battle isn't over - Justice Ginsburg in the end of her opinion tries to salvage at least discrimination arbitration, since Epic was about wage and hour: : “It would be grossly exorbitant to read the FAA to devastate Title VII of the Civil Rights Act of 1964”.  You can listen to my discussion with Larry Mantle on AirTalk here.

Posted by Orly Lobel on May 23, 2018 at 05:41 PM | Permalink | Comments (0)

On Diversifying Academic Panels and Conferences

This is an evergreen issue, but in response to a tweet by the twitter feed of the Feminist Law Professors blog, Mike Dorf has put up some thoughts on the question of diversity on academic panels and conferences, including but not limited to gender and racial diversity. I was involved in planning one conference this year, and am involved each year in planning the list of speakers and attendees for the Annual Law and Religion Roundtable (although the lion's share of this hard work is done by my friend and co-organizer Nelson Tebbe, and most of the rest of the work is done by our other co-organizer and friend, Rick Garnett). I've also helped plan a few other panels and conferences here and there, and have advised the Alabama Law Review on its symposium planning. I'd like to offer some thoughts of my own here.

As a preface, I should add a note by way of confession, since the tweet that sparked Mike's post suggested that men should refuse to appear on a panel if there is not at least one woman on the panel. I'm not sure that plea, if one agrees with it, should stop at gender, and a person interested in gender, race, class, and intersectionality might ask why the suggestion stopped there. Still, I must confess that I just appeared on a conference panel on which there were five men and one woman, who was "only" the moderator. (She happened to be the most impressive person on the panel, for what it's worth.) I found it striking and surprising. I will note, though, that panelists often don't know what the composition of a panel will be until rather late in the process, when they've already made a commitment to appear. I'm not rejecting the suggestion of the tweet, and in such situations one should at least write to the planners and urge them to see whether something can be done about it; better yet, one could ask or insist in the first place, upon accepting, that there be at least one woman (or what have you, including insisting that the panel is not all like-minded on the issue) on one's panel. But the timing and logistics are a complicating factor. I will note, in fairness to the planners of that conference, that the mix of men and women on the overall list of conference speakers was quite strong. I will also note that in past years, I've put up one or two posts (which I couldn't find, alas, but commenters who do are welcome to put up the links) examining the gender composition of panels at the AALS annual conference. Many were reasonably balanced. A number, often associated with particular sections, were composed of only one man or only one woman. A few, to my great surprise, were all men or all women. The AALS usually advises program planners to seek various balances, including gender balances, but the advice apparently doesn't always take, and I don't know whether it does any follow-up or not when it looks at the proposed speaker list and finds serious imbalances. 

Here are my thoughts, for whatever they're worth. 

Posted by Paul Horwitz on May 23, 2018 at 11:56 AM in Paul Horwitz | Permalink | Comments (4)

Antony Page appoined dean at FIU

I am delighted that Antony Page (Indiana-Indianapolis/McKinney School of Law) is the new dean at FIU. Antony had been Vice Dean at IU for the past six years. His job here is going to be continuing recruiting great students while helping get the word out about what we are doing here.

The FIU press release is below.

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Posted by Howard Wasserman on May 23, 2018 at 10:01 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, May 22, 2018

Redefining Strickland Prejudice after Weaver v. Massachusetts

At the Harvard Law Review Blog, Eve Brensike Primus and I posted a short piece about the Sixth Amendment right to effective assistance of counsel under Strickland v. Washington focusing, in particular, on some interesting things the Supreme Court had to say about Strickland's prejudice requirement last term in Weaver v. Massachusetts. I've copied the intro below. For the entire post, click here.

"Obtaining postconviction relief based on a defense attorney’s ineffective trial performance is notoriously difficult, but the U.S. Supreme Court may have just made it a little easier. In this post, we explain how the Supreme Court’s decision last term in Weaver v. Massachusetts offers a little-noticed but potentially powerful new way for criminal defendants to show they were prejudiced by their attorneys’ ineffectiveness. After Weaver, criminal defendants should argue, and courts should recognize, that an attorney’s deficient performance is prejudicial when counsel’s errors rendered the trial process fundamentally unfair—even if those errors did not have a probable effect on the trial outcome."

Posted by Justin Murray on May 22, 2018 at 12:08 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (3)

Online JDs and legal education: might law schools disrupt themselves?

I confess I'm not a particular fan of the term "disruption" as used today, which seems to float everywhere by everyone who seeks to impress an audience when discussing technology (or, perhaps, when pitching it to investors or buyers). I use the term here some deliberate irony. Online legal education is growing, primary among master's degrees. But a recent proposal from the American Bar Association would offer greater opportunities for some online educational components in the traditional JD program. The Council moved ahead with plans to permit up to one-third of credits, and up to 10 credits in the first year, offered online.

So, with the advent and expansion of online legal education, might law schools actually disrupt... themselves? I thought I'd muse about what that might look like.

Continue reading "Online JDs and legal education: might law schools disrupt themselves?"

Posted by Derek Muller on May 22, 2018 at 11:58 AM in Life of Law Schools, Teaching Law | Permalink | Comments (2)

Monday, May 21, 2018

Entry Level Hiring 2018 - PhDs and Clinical Hires

In the comments below, Orin Kerr raises two interesting questions. First, "One interesting question to see would be percent of hires over time that have a doctorate degree. "

Here, I've broken out the degrees by law doctorates (not counting JDs, of course) and other doctorates. In recent years the Yale PhD has come on the scene, thus increasing the law doctorates. (Click for larger image.)

There are indeed a higher percentage of PhDs, both law and otherwise, over the last two years. It will be interesting over the next few years to see whether this is a trend.

Percent PhDs.20180521

Orin also asks: "Am I right that these numbers are for all tenure-track hiring, whether for clinical positions or for non-clinical positions? I ask that because I have a vague impression of a trend toward making entry-level clinical positions tenure-track instead of non-tenure track. If that trend is happening -- a big if, of course --I wonder how that may be changing the tenure-track numbers you find." Below I've broken out the clinical tenure track hires over the years. There doesn't seem to me to be a notable change in this percentage in the last few years.

Clinical Percent.20180521

Posted by Sarah Lawsky on May 21, 2018 at 10:48 PM in Entry Level Hiring Report | Permalink | Comments (3)

JOTWELL: Steinman on Davis and Whytock on human rights litigation in state court

The new Courts Law essay comes from section co-editor Adam Steinman (Alabama), reviewing Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018), which considers how human rights violations can be litigated and redressed in state court.

Posted by Howard Wasserman on May 21, 2018 at 11:54 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Spring Self-Reported Entry Level Hiring Report 2018

Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2018. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes one hire requested not to be included in the spreadsheet at the date of this posting, although the person will eventually be included in the spreadsheet.)

Continue reading "Spring Self-Reported Entry Level Hiring Report 2018"

Posted by Sarah Lawsky on May 21, 2018 at 10:43 AM in Entry Level Hiring Report | Permalink | Comments (4)

Sunday, May 20, 2018

Second Thoughts on the “First View” Principle

The Justices often intone that theirs is “a court of review, not of first view,” but last Monday’s decisions illustrate the complexities underlying that maxim. In one case, the Court applied the "first view" principle without discussion. In another, it explained its choice not to follow the principle. And, in a third case, the justices divided over whether to follow the principle. These decisions illustrate that the “first view” principle is more discretionary than it often appears—and that the Court could do more to explain what guides its choices in this area

In particular, Monday’s opinions suggest that a Catch-22 has arisen. When one party raises a new position, the opposing party is apparently placed in a bind. If the opposing party responds on the merits, the fact that the issue is “fully briefed” could counsel in favor of entertaining it. But if the opposing party declines to address the new position, then the Court might entertain it precisely because the opposing party “explicitly chose not to grapple with it.” Either way, the opposing party’s reaction can be cited as a reason to rule on the new position, notwithstanding the “first view” principle.

Continue reading "Second Thoughts on the “First View” Principle"

Posted by Richard M. Re on May 20, 2018 at 09:00 AM | Permalink | Comments (7)

Friday, May 18, 2018

Talent Still Wants to be Free - Economist Opines and New Bills

Posted by Orly Lobel on May 18, 2018 at 11:39 AM | Permalink | Comments (3)

Loose Language in Murphy versus Deep Structure in McCulloch

Over the last couple of days, there has been an interesting pop-up symposium between Daniel Hemel, Ilya Somin, Brian Galle, and Jeffrey Schmitt over the true meaning of Murphy v. NCAA. Daniel (in the latest round) argues that the best reading of Murphy's definition of acceptable federal preemption excludes all "direct" federal prohibitions on state taxation and regulation. Brian Galle agrees, Ilya and I disagree, and Jeffrey has perhaps the best bottom line: "Murphy v. NCAA is Poorly Written and should be Narrowly Applied."

When I am confronted by loose language in a new precedent, my inclination is to sand off the rough edges and try to squeeze the new decision into the pattern of old cases in a way that conforms to common sense. Loose language in Murphy notwithstanding, Murphy should not be read to repudiate Congress' longstanding power to preempt state taxes and regulations, because that federal power of preemption rests on the same principle justifying state autonomy doctrine -- the principle that Congress does not need to commandeer state officials' services precisely because Congress can preempt state law. After the jump, I explain how a broad congressional power to preempt has, since McCulloch v, Maryland, been linked to a constitutional prohibition on Congress' commandeering state officials' services. Moreover, this tie between the pro-preemption and anti-commandeering rules makes sense. Put simply, the feds can create an alternative bureaucracy to regulate where the state bureaucrats refuse to implement federal law, but the feds cannot create an alternative citizenry to deregulate where state lawmakers refuse to waive state laws. Holdout problems, therefore, make preemption necessary (and, therefore, proper) and commandeering of state officials' services, unnecessary (and, therefore, improper).

Continue reading "Loose Language in Murphy versus Deep Structure in McCulloch"

Posted by Rick Hills on May 18, 2018 at 08:00 AM | Permalink | Comments (0)

Thursday, May 17, 2018

Open Letter from Jewish Law Professors Protesting the Treatment of Professor Katherine Franke

Katherine Franke (Columbia) was detained and denied entry by Israeli authorities earlier this month. The incident sparked a number of open letters objecting to her treatment. The letter, after the break, is from (some) Jewish law professors.

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Posted by Howard Wasserman on May 17, 2018 at 04:45 PM in Howard Wasserman, Teaching Law | Permalink | Comments (15)

The sensational hype over lawless law school admissions

There's been a lot of hype about the proposal to end of the requirement that law schools use the LSAT in admissions. Some sources (here unlinked) fret about standardless admissions in law schools and a race to the bottom.

There are many reasons to doubt this. But I wanted to take a few (?) paragraphs to look at the recent past of the LSAT and the transition we may be experiencing.

Continue reading "The sensational hype over lawless law school admissions"

Posted by Derek Muller on May 17, 2018 at 11:40 AM in Life of Law Schools | Permalink | Comments (4)

Introduction to Judicial Bullshit

My article, Supreme Judicial Bullshit, was just published by the Arizona State Law Journal (vol.50, p.141). Here is the adapted introduction (footnotes omitted):

According to one commentator, unlike certain political discourse, “law is the very opposite of bullshit.” To her, law is “a highly systematized structure of meaning used to evaluate the merit and relevance of facts and arguments. In that same capacity, it’s also a way of regulating which statements are valid understandings of reality or legal text and which are beyond the pale.” Yet, as I will suggest, there is no shortage of judicial bullshit.

You might think that judges, especially those with life tenure, could dispense with bullshit. There are many reasons, however, why judges bullshit, some of them quite strategic. It’s not easy for judges to resolve contentious issues that have flummoxed lawyers and ethicists for decades. Bullshit can help judges appear to address profound questions without actually staking out provocative positions. Indeed, judicial bullshit may sometimes provide the best path forward.

Judicial bullshit is often easiest to spot when judges wax philosophical; hence many of the clearest exemplars come from bioethics cases. Consider, for example, these two sentences from the U.S. Supreme Court’s joint opinion in Planned Parenthood v. Casey, which reaffirmed the fundamental constitutional right to abortion: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” If you teach constitutional law or health law, you’ve probably read this passage many times. But have you ever stopped to figure out what it means? It seems to express a lofty commitment to personal liberty, indirectly associating abortion rights with the most fundamental aspects of our humanity.

On closer reading, however, the passage makes little sense. It claims that the most important aspect of liberty is the “right to define [a] concept.” But a right to define a concept, while a kind of liberty, is certainly not “at the heart of liberty.” Governments rarely seek to limit people’s rights to define concepts. Inside your own head, you can define concepts however you’d like. Liberty is more centrally concerned not with our freedom to define concepts but with the sorts of actions we are permitted to take without interference from others. If Casey were merely about rights to define concepts, it would be of greater interest to metaphysicians than actual physicians.

And what does it mean to have a right to define one’s own concept of the mystery of human life? People are far more likely to debate the mystery of human life than the concept of the mystery of human life. Perhaps the Justices meant that we should be free to reach our own conclusions about the mysteries of life, but it would have been much more straightforward just to say that. And again, the passage concerns liberties associated with freedom of thought rather than the liberties of bodily autonomy that are at the heart of the abortion debate.

Lastly, it’s not clear precisely what “these matters” refers to in the second sentence. Presumably, these matters are existence, meaning, and the universe and not rights to define concepts of these things. Still, beliefs about existence, meaning, and the universe aren’t the sorts of things typically thought to “define” attributes of personhood. Attributes of personhood are usually qualities that entitle people to basic rights. For example, perhaps abilities to feel pain, be self-aware, or form complex desires constitute attributes of personhood. But how can beliefs about existence, meaning, or the universe (or beliefs about rights to define such concepts) constitute attributes of personhood? Surely humans with no beliefs about these things still have rights to life.

“So what,” you might say, “if the Justices would fail their Philosophy 101 exams?” Maybe the quoted passage isn’t meant to be picked apart for putative philosophical content; maybe it’s only meant to set the ambience for the joint opinion. But that’s precisely my point. The joint opinion is cloaked in philosophical language, but the authors often seem unconcerned with the truth or falsity of their statements in just the way, as we will see, philosopher Harry Frankfurt famously characterized bullshit. The joint opinion references lofty ideas without wrestling in any careful way with those ideas.

Continue reading "Introduction to Judicial Bullshit"

Posted by Adam Kolber on May 17, 2018 at 01:57 AM | Permalink | Comments (28)

Wednesday, May 16, 2018

Murphy v. NCAA’s Escape from Baseline Hell

Justice Alito’s opinion in Murphy v. NCAA is not elegant. But it does the trick: With the good ol’ “Direct”/“Indirect” distinction and sheer judicial fiat, SCOTUS managed to extricate itself from baseline hell, an infernal location in which the Court tends to find itself w.r.t. Printz’s distinction between “negative” preempting prohibitions and “affirmative” commandeering mandates.

Being a frequent tourist in baseline hell, I will say a word after the jump about why SCOTUS might have finally found that hellish environment intolerable and therefore ditched the “affirmative”/“negative” distinction w.r.t. state autonomy. I will also argue that the SCOTUS’s new “direct”/“indirect” distinction is best understood as leaving old-fashioned preemption unscathed, contrary to a suggestion by Daniel Hemel. (And, I might add, a good thing too — again, contrary to an excellent follow-up post by Hemel, who likes the taxation consequences of state autonomy just a tad too much, even for a decentralziation-loving guy like myself. But that’s a topic for another post). (BTW, for a typically interesting response to Hemel, see Brian Galle’s post).

Finally, I will suggest that the “direct”/“indirect” distinction might confer on states a new immunity from federal laws that try to prohibit states from conferring benefits like university seats and drivers’ licenses on state residents. 8 U.S.C. §1621 is one such law, forbidding states from conferring any “grant, contract, loan, professional license, or commercial license” on unlawfully present aliens. If my analysis of Murphy is correct, then this federal effort to prevent unlawfully present aliens from getting drivers’ licenses and the like is probably unconstitutional.

Continue reading "Murphy v. NCAA’s Escape from Baseline Hell"

Posted by Rick Hills on May 16, 2018 at 07:11 PM | Permalink | Comments (7)

Wrapping Up "Punishment and Moral Risk" Discussion

My thanks to Stephen Galoob, Mary Sigler, Chad Flanders, Chelsea Rosenthal, and Emad Atiq for a thoroughly interesting informal symposium on Punishment and Moral Risk. Each piece had a distinct voice and perspective on the topic.

In my next post, I'll talk about some bullshit.

For the record, here are links to the response pieces and my further replies:  Emad Atiq (reply), Chad Flanders (reply), Mary Sigler (reply), Stephen Galoob (reply), and Chelsea Rosenthal (reply).

Posted by Adam Kolber on May 16, 2018 at 01:15 PM | Permalink | Comments (0)

New Constitutional Law Jot: "#Resistance, With Candor"

Jotwell, of which I am a co-editor of the Constitutional Law section, specializes in calling attention to new articles we "like lots." I liked Sandy Levinson and Mark Graber's recent article, The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order, lots. And here is my "jot" discussing that article, titled #Resistance, With Candor

Liking an article lots is not the same thing as agreeing with it completely or not having serious questions and potential objections to it. In the jot, I set out Levinson and Graber's recommendations for courts dealing with actions of this administration and their reasons for those recommendations (which are virtue-based!--I'm happy to see so many people are now interested in aretaic questions in law), commend them for the candor of those recommendations, and raise broader questions about what their approach means and how it would be applied. An obvious question is how we can distinguish acceptably "Publian" presidents from unacceptably "anti-Publian" presidents. But I am more interested in another question, which I have said and continue to think deserves more attention: What's the goal or end game? Here's an excerpt from the jot:

Another important question, one I have noted here before, is what the precise goal of extraordinary skepticism toward anti-Publian presidents in general, and Trump in particular, should be. Should it be one of total resistance? Or should it be to nudge such a president into a more “Publian” mode—to “normalize” that president—and then return to the standard, deferential approach to routine executive action? . . . 

This question deserves more attention than it has received. It matters greatly—both to law and judges, and to politics—whether the goal of resistance to Trump is total resistance, or simply ensuring that his administration is not tyrannical, arbitrary, or chaotic. Levinson and Graber argue that there is an important distinction between “bad” presidents and anti-Publian ones. If our general assumption is that constitutional law and politics make “merely” bad policies a matter for political debate, then our choice of goal matters for both healthy politics and the legitimacy of the legal and judicial #Resistance. . . . [A] resistance needs a clear goal and stopping point. It should be able to distinguish between fighting ordinary bad policies by ordinary means, and using extraordinary measures to counter extraordinary “breakdowns” in political and constitutional norms. Similarly, an argument for extraordinary legal responses to anti-Publian presidents demands a clear goal for courts. Rendering an anti-Publian president more Publian seems like an appropriate goal, and suggests that when judges succeed in doing so, they should revert to more ordinary forms of judicial review. There is room for disagreement about this. But discussion is essential.

There's more, of course, including an application to the travel ban case and some thoughts about so-called constitutional "settlements." It's long for a jot--of course; I wrote it--but short by legal academic standards. Enjoy! 

Posted by Paul Horwitz on May 16, 2018 at 09:04 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, May 15, 2018

Reply to Atiq's "What Unconditional Credence in Individual Desert Claims Does Retributivism Require?"

In Emad Atiq's response to my Punishment and Moral Risk, he states that he finds "negative retributivism" especially plausible and describes it as follows: "Punishing a person who does not deserve to be punished is morally impermissible." In the first sentence of his response, he writes, "Adam Kolber suggests that negative retributivism requires impossibly high degrees of credence in individual desert claims for punishment to be morally permissible." He goes on to argue that negative retributivism avoids my critique.

As a preliminary but important matter, I simply don't believe that negative retributivism falls under my critique in the first place. I write, for example, "I will focus on a pure deontological form of retributivism that takes desert to ordinarily provide a sufficient reason to punish without reliance on other possible goals of punishment like deterrence, incapacitation, and rehabilitation." Later in the paper, I have a section called "traditional hybrid theories" that explicitly discusses "limiting retributivism" which is the same or a close cousin to the "negative retributivism" Atiq favors. Atiq doesn't address this portion of my paper at all (and the arguments there are meant to be suggestive and not exhaustive in any event).

The reason I don't address Atiq's form of negative retributivism in my central argument about justification is that negative retributivism does not purport to justify punishment. As Atiq recognizes, it is simply a constraint on punishment. So the negative retributivist needn't assent to all nine of the propositions I discuss. For example, she might deny that "those who commit serious wrongs deserve to be punished (or to suffer) in response." After all, she merely views desert as a limitation on punishment, not something that necessarily provides an obligation or even a reason to punish (and the proposition probably implies at least a reason to punish).

Indeed, a person could be a serious consequentialist with the exception that she views negative retributivism as a limit on punishment. In my paper, I argue that consequentialism is less subject to my epistemic challenge than traditional forms of retributivism. Negative retributivism could require even less punishment than pure consequentialism; so it is on firmer justificatory ground than the retributivists I focus on. I do say things in the paper that might apply to negative retributivists, but it all depends on what their underlying justification of punishment is not their limitation on punishment.

In a footnote, Atiq writes that he takes negative retributivism to be among the views I target, even though "[t]he view that Kolber treats as paradigmatically retributivist is one that treats desert as a sufficient condition for punishment, not just a necessary condition." Still, he writes, "[w]hat I say in defense of negative retributivism applies with full force in the case of this alternative position, so long as it is consistent with ends like crime prevention being treated as valuable and as pro tanto reasons to punish (subject to the desert constraint). The "so long as" condition makes Atiq's version of negative retributivism sound a lot like consequentialism. So the short answer is, I think the portion of my paper Atiq focuses on has limited application to the retributivist view he finds most plausible. 

Continue reading "Reply to Atiq's "What Unconditional Credence in Individual Desert Claims Does Retributivism Require?""

Posted by Adam Kolber on May 15, 2018 at 04:22 PM | Permalink | Comments (4)