Thursday, March 30, 2017
Twiqbal on life support?
On a Twiqbal question on the preliminary exam in Civ Pro, no fewer than three students wrote that the rules require more than a "threadbare resuscitation of the elements."
Wednesday, March 29, 2017
Checks and Balances From Across the Street
One of the primary purposes of the separation of powers is to constrain federal power in order better to protect individual liberty. Part of my book on decentralizing federal power examines whether locating so many important officials of the federal government in the same metropolitan area facilitates or undermines these ambitions to constrain. As I wrote in a recent essay, co-location “narrows” federal power, and that narrowing can complicate the Madisonian ambition to have “opposite and rival interests” controlling the different branches.
Let’s divide this up into epistemic and transaction costs dimensions. First, co-locating multiple branches of the federal government can undermine the motive (the Madisonian “ambition” in Federalist 51) to constrain another branch of government. Officials within the same metropolitan area across the branches tend to converge on issues as they are exposed to the same argument pools. Even when that convergence does not transpire as a substantive matter, the personal and professional networks that are constructed within the same metropolitan area and across the branches can generate convergence motivated by reputational concerns. This does not mean that every federal official in the same metropolitan area thinks the same way, regardless of partisan or ideological priors. It does mean that there are fewer constituencies with motivations to constrain than when federal power is decentralized. There are some examples of institutional design accounting for and trying to correct this. When Congress worries that its decision will be dominated by insider interests shaping the executive and legislative branches (e.g. in closing military bases after the Cold War), it will sometimes relocate many of its legislative deliberations outside of Washington.
Tuesday, March 28, 2017
Naming in Judicial Nominations
I participated in a fantastic symposium in October at the University of Wisconsin Law School on “Modern Federal Judicial Selection.” A nearly final draft of my essay for the Wisconsin Law Review from that symposium is available here. My essay addresses the tactical errors of the Obama Administration in acting largely cooperatively on judicial nominations during uncooperative political times. I want to use some of the ideas I introduced there and apply them to the Gorsuch hearings.
One of the arguments that I make is that judicial nominations are a unique opportunity for “naming.” By naming, I mean applying a label or frame to a particular jurisprudential perspective. Because the stakes in judicial nominations are large, nominations can serve as a political coordination device allowing stakeholders to discuss and reach agreement on a name. The attention generated by a nomination generates a political microphone allowing that nominee and the Administration that selected them to broadcast that frame more broadly.
Institutional Loyalties in Constitutional Law
My latest article, with Aziz Huq, is now available on SSRN. It is entitled “Institutional Loyalties in Constitutional Law.” Given what is happening in Washington in the first period of the Trump Administration, the question of when we want officials to be loyal to their institution and how to generate that loyalty is of immense importance. Here is the abstract:
In Federalist 51, James Madison offered what has become the canonical account of how the separation of powers would pit branch against branch for the greater good. The officials of an institution would and must act on behalf of their institution for the Constitution to function properly. In Madison’s account, ensuring the presence of the right amount of institutional loyalties would serve as a durable and plausible mechanism enforcing institutional boundaries and ensuring a stable constitutional order. But modern scholars take a more skeptical view of his theory. Faced with forces or figures that threaten basic institutions of the constitutional system, their energies have primarily been devoted to predicting that the Constitution will prove fragile because institutional loyalties are rare in practice, and, additionally, difficult to create as a matter of institutional design. This Article aims to re-establish institutional loyalty as an object of serious analysis for constitutional scholars and jurists. Its core thesis is that institutional loyalty can be identified, evaluated and generated as a central feature of contemporary American constitutional law. We provide a definition of institutional loyalty, and situate the concept in the American constitutional past and present. We further marshal evidence that institutional loyalty can be decisive to contemporary inter-branch dynamics, even if its effects are inconstant and often asymmetrical. We further argue that it is a mistake to view institutional loyalties as a constitutional end in themselves. It is true, as Madison predicted, that such loyalty can at times contribute to widely shared constitutional goals in some instances. But, contra Madison, we show that institutional loyalty can also undermine structural goals at other moments. Calibrating the appropriate mix of such loyalties across the branches therefore presents a considerable, if unavoidable, array of challenges. To that end, the Article offers a comprehensive taxonomy of causal mechanisms by which institutional loyalty can be generated within each of the three branches. Working branch-by-branch, we identify examples of institutional reforms capable of modifying institutional loyalty in ways that promote widely shared constitutional ends.
Monday, March 27, 2017
Monday Morning with Larry (Alexander)
This morning was fun. Classes were prepared, in-box was manageable, meetings were cancelled. So, I spent a few hours with a stack of papers that Larry Alexander had sent a little while back. I don't know how Larry manages to write so much so well, but he does. Check out, e.g., "Is Wrongful Discrimination Really Wrong?" (here); "Brexit and the Future of Liberal Democracy" (here); "Hard Incompatibilism, and the Rejection of Moral Responsibility: A Skeptical Look at an Optimistic Account" (here); and "Against Equality" (here).
Ornstein on election do-overs
In The Atlantic, Norm Ornstein proposes the creation of a mechanism for special presidential and vice-presidential election in "extraordinary circumstances," covering not only a terrorist attack or other catastrophic event, but also attacks on the electoral process itself, as well as "foreign interference in the election combined with a winning party’s involvement in or reinforcement of the interference." Ornstein's basic point is that if a cloud if illegitimacy hangs over the President and Vice President, everyone who might replace him within the line of succession sits under that same cloud. (This is the converse to the logic of having cabinet officers as primary successors--they enjoy what Akhil Amar calls "apostolic democratic legitimacy" should they be elevated to acting president, by virtue of having been appointed by the legitimate President. But if that President is not legitimate, then no one enjoys apostolic legitimacy).
Norm knows more about presidential succession than just about anyone alive. I had the privilege of working with him a bit on the Continuity of Government Commission, an effort he co-chaired in the years after 9/11 to alter the rules of presidential succession to respond to a mass-destruction event aimed at Washington (recall that Flight 93 was headed to the Capitol). Those efforts went nowhere, as the political urgency subsided. His point now is that a different political urgency has presented itself.
Separation of Powers From Across the Street
I have been writing about decentralizing federal power for a few years now, both as a tool of comparative constitutional design and as a topic of American constitutional design expanding how federal power would be exercised across the parts of the federal government and across American constitutional history. With Congress now debating related ideas, and Ross Douthat mentioning them briefly in The New York Times, I wanted to start to preview parts of my article and book on these issues. My plan is to work through what decentralizing federal power means for many different debates in constitutional design, starting with the separation of powers. My question is simple: can power ever truly be separated if it is across the street?
In the economic geography literature, as David Schleicher has so compellingly demonstrated, the scholarship largely focuses on co-location as inducing a form of economic convergence. Because of a variety of mechanisms, living and working near others makes us learn from them and otherwise become more like them. In the context of constitutional design, though, convergence can be complicated. Do we want convergence for every part of the federal government? Is it important that the place of federal power sometimes be singular as opposed to plural? Is the way to make Washington work to create more of them?
Will There Ever Be A Warren Court Moment for Progressives?
It has become a statement of conventional wisdom—even though it is one without extensive reliable empirical evidence—that the electoral base of the Republican Party cares more about judicial nominations than does the electoral base of the Democratic Party. Propositional citations for this include candidate for President George W. Bush referencing by name Justices Antonin Scalia and Clarence Thomas as his models for a Supreme Court Justice, and President Donald J. Trump suggesting that part of the reason he won was that conservative voters were concerned about the future of the Supreme Court. My article with Donald Braman from a few years ago suggests that Democratic Party voters are more loyal to the Supreme Court, and are less likely to turn against the Court in response to a Court decision they dislike. What could convince the electoral base of the Democratic Party to care about judicial nominations?
One of the mechanisms identified in the psychology literature is a “critical moment” that directs the attention of groups to an issue, and with a frame that causes them to reevaluate how they think about the issue. The conventional account has been that the Warren Court was the (prolonged) critical moment for conservative voters, a period that directed them to care about judicial nominations. We can even combine this with the endowment effect, and argue that conservative voters were particularly upset about the Warren Court because we are most alerted by critical moments that threaten to deliver a loss than those that promise to deliver a gain.
Will a Senate filibuster of the Neil Gorsuch nomination be a critical moment for the Democratic Party, causing their base to care about judicial nominations? The failed nomination of Merrick Garland could have been such a moment. Leaders within the legal and political establishment of the Democratic Party remain upset about how the Senate treated Garland. The polling evidence I have seen thus far, though, suggests that the salience of Garland’s nomination is not pervasive among the Democratic Party base. A Pew poll found that Republicans actually cared more about the Garland nomination than Democrats did.
Sunday, March 26, 2017
Welcome to Max Stearns and "Blindspot"
Max Stearns (Maryland) has joined the law professor blogosphere with Blindspot, which he describes here. Posts so far have covered the Gorsuch hearings, coffee, the TV show "Rectify" (whose final season I need to watch), and ideological blindspots of both political parties.
Definitely worth adding to your regular blog stops.
Thursday, March 23, 2017
JOTWELL: Campos on Glover on claims as property
The new Courts Law essay is from Sergio Campos, reviewing J. Maria Glover's A Regulatory Theory of Legal Claims (Vand. L. Rev.), which considers the implications of understanding legal claims as property.
Wednesday, March 22, 2017
Judging Judge Gorsuch on the Separation of Powers
Judge Gorsuch's views on the Chevron doctrine, which directs reviewing courts to defer to agency constructions of ambiguous statutes, have received a lot of attention, and for good reason: They are well-articulated, interesting, and controversial. "There's an elephant in the room with us today," Judge Gorsuch quipped in his concurring opinion in Gutierrez-Brizuela v. Lynch, and he seems ready to play the elephant hunter on behalf of the separation of powers.
The separation of powers, however, is much more than the Chevron standard of review. As my colleague Leah Litman points out at Take Care, Judge Gorsuch's views on agency structure are also a measure of his understanding of the separation of powers. For example, she asks, will Judge Gorsuch respect the existing conventions of agency independence? There's reason to think, Litman explains, that Gorsuch might increase presidential power on that score.
Also worth considering, I'd briefly add, are Judge Gorsuch's views on access to courts. Does the separation of powers mean, for instance, that standing doctrine should restrict regulatory beneficiaries' access to judicial review of administrative action? On the question of constitutional litigation's role in our polity in general, Gorsuch has been forthright. In "Liberals'N'Lawsuits," Gorsuch wrote that "overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary," while also noting "that constitutional lawsuits have secured critical civil-rights victories." He echoed the latter sentiment during his confirmation hearing, also adding that "[t]he problem lies on both sides of the aisle." It's safe to assume that the Supreme Court's pattern of tightening up access to courts would persist with a Justice Gorsuch on the bench.
Priming Public Opinion on the Federal Courts
I wanted to pull up a chair to the blog posts last month by Richard Primus and Rick Hills about the decreasing public regard for the federal courts reported in a recent poll. I do not question these results, but I want to explain them a little. If it is indeed true that these findings are unprecedented, my hypothesis would be that it is more of a change on the supply side of public opinion than the demand side of public opinion. Americans were always willing to distrust their federal courts, they just needed someone to prime them to do so.
Public support for the federal courts has always been taken as too durable and inevitable and not contextual and fragile enough by law professors. Just like public attitudes towards other issues, attitudes towards the federal courts can be primed by elite political actors perceived as otherwise sympathetic to one’s worldview. Donald Braman and I have written of our skepticism that the political science data always does demonstrate meaningful support for the federal courts because so much of that data has no prime or signal affixing practical stakes to judicial actions. There are many good empirical articles on this, led by this one by Tom S. Clark and Jonathan C. Kastellec, this one by Stephen P. Nicholson and Thomas G. Hansford, and this one by Stephen P. Nicholson. The gist is that citizens are particularly ill-informed about the federal courts, and thus particularly susceptible to change their sentiments based on cues from sources they trust, like elite co-partisans.
The results demonstrating so-called “diffuse support” for the Supreme Court are often (not always, it is important to note) therefore a manifestation of the presence of social desirability bias and the absence of a countervailing source cue. Many respondents think they should like the federal courts and think they should believe that courts should be powerful. When asked questions about their support for the federal courts, they will report deep support (although even this support has dropped recently). When an elite co-partisan steps in to prime them to think otherwise, then social desirability bias is overwhelmed by a reliable signal directing them how to think about federal courts.
Tuesday, March 21, 2017
Journalism, law, and asking questions
This piece, arguing that reporters undermine their checking function by asking complex, multi-part questions or burying a single question in a long lead-up, is spot-on. And the comparison to what we try to do in law school and law is apt. Effective cross-examination involves single, pointed questions. The same for effective questioning during oral argument--part of why Justice Breyer's questions are so incomprehensible and impossible to wade through is all the crap surrounding the question--which is usually just "respond to what I just rambled about for 3 transcript pages." It also what effective classroom teachers do, guiding the discussion with singular pointed and precise questions.
The result in journalism and law is the same: If the question is memorable because so beautifully and intricately phrased, the answer will not be memorable--because it will not have gotten a meaningful answer or even any answer, at the least not the one the questioner was hoping for.
Update: Needless to say, this also would make confirmation hearings far more bearable.
Whose money is it, anyway?
A manager's amendment to AHCA was submitted on Monday, containing several changes designed to get conservative and Freedom Caucus members on board. Under the new legislation, people will not be able to roll unused tax credits into health savings accounts. This change was made as a sop to anti-choice activists, who argued (as far as I can tell) that allowing tax credits to be placed in individual's HSAs would be for government funds to, potentially, be used for abortions. This is on top of a provision that prohibits tax credits from being used to purchase insurance plans that cover abortion.
But in Arizona Christian School Tuition Org. v. Winn, the Court rejected Establishment Clause taxpayer standing in a challenge to a state scheme of giving tax credits to individuals in the precise amount of their contributions to organizations that gave scholarships to students attending religious private schools. The linchpin of the Court's analysis was that the tax credit was not an expenditure of government funds, because the money never passed into government hands--it was money that the government never collected because it lowered that individual's tax bill (for whatever reason). There was no Flast standing to challenge what amounted to charitable expenditures by private individuals.
But doesn't it follow that these restrictions on the use of tax credits are imposing restrictions on the use of private funds (in a way that arguably constitutes an undue burden). The government is lowering the tax bill for individuals, but then limiting how that individual can spend their own money.
What am I missing?
One of the questions that the conservative legal movement faced several decades ago—like any opposition movement does at first—is whether to use exit, voice and/or loyalty to obtain power. Professional movements that operate in opposition face a unique version of this question. Credentials communicating technical merit are crucial in public discourse in evaluating the merits of professionals. Steven Teles’s fantastic book on the conservative legal movement puts the question as one of fight or flight: should conservative lawyers seek to generate credentials for their messages and messengers within the existing professional framework, or should they seek to create an alternative framework to credential their messages and messengers?
It is certainly the case that the flight option has been important to understanding the direction of the conservative legal movement. Organizations like the Olin Foundation and the Federalist Society attempted to create an alternative credentialing mechanism—but still very much operate within the existing structure of the legal profession. These organizations supported scholarship, for instance, that was not being supported as much or at all before, but it is still largely scholarship by law professors for law reviews.
One reason why the nomination of the Neil Gorsuch is interesting to me is how dramatically he represents the promise of the fight option. The fight option permits those in the minority within a profession—in this case conservatives within a liberal-dominated elite legal profession—to persuade opponents over the course of a career by building networks with many high-status ideological opponents. Gorsuch is the product of a private school in the Washington metropolitan area, Columbia, Oxford, Harvard law school, and then a relatively bipartisan Washington law firm (certainly one not as ideologically identified as other law firms). At each stop, he built relationships with prominent progressive voices. These friends and colleagues then vouched for him in prominent ways. Their support—contrary to ideological type, a rarity these days—has become a major means of legitimating the technical (as opposed to, say, ideological) excellence of Gorsuch. Many Trump Administration officials (including Vice President Mike Pence) and Gorsuch supporters have been citing the support of “even Democratic lawyers” as a means of proving Gorsuch’s technical legal aptitude. Gorsuch was introduced by former Obama Administration Acting Solicitor General Neal Katyal at today’s hearings, and was supported by many prominent progressive Supreme Court lawyers and law professors.
Monday, March 20, 2017
The Legal Academy Becomes More Like the Rest of the Academy, Part XVIIII
Via TaxProf Blog and the ABA Journal comes the news that the ABA's Council of the Section of Legal Education and Admissions to the Bar has proposed a rule change to the current ABA standard requiring that more than half of all credit hours offered by accredited law schools be taught by full-time, and hence generally "academic," faculty. The proposal would reduce the required number to one third. Some observations:
1) Interesting! We can expect some good healthy debate and controversy on this one, as well as a fair number of extremely flowery and high-minded statements.
2) None of the sources cited or linked to above offer a discussion of the reasons for the change. Perhaps there was lengthy and thoughtful policy discussion. It seems to me, however, that the reality is that whatever discussions took place were ultimately secondary to the pressure of events on the ground. This is a proposal driven by real or perceived economic necessity, and a desire to legitimate changes that either are already happening--or that might need to happen if law schools are to remain afloat while cutting to the bone. (Whether they should all remain afloat is a separate question.)
3) On the whole and as an initial matter, I favor the proposal. In a now-ancient book review of Brian Tamanaha's Failing Law Schools, I wrote approvingly of Tamanaha's proposal that we "pare down ABA accreditation requirements that force law schools into a single educational model," so that some schools can maintain the traditional and more "elite" model while others offer a "cheaper and more practically oriented model." Under this approach, "[s]tudents interested in the latter model [would] not be forced to pay for the former," in the sense of having to meet the requirements of, and thus pay for, the elite model whether they want to or not. I noted the high-minded statements that appeared then opposing such a change, and doubtless will reappear in the current discussion, but disagreed with them. For reasons of institutional diversity, among others, I favor the possibility of different models and am not much disturbed by the objection--I would call it a description, really, instead of an objection--that it would lead to a "two-tiered" system. Among other things, I wrote that the objections gave insufficient recognition to "the reality that we already have a two-tier system, albeit one whose pretenses of uniformity drive up the costs across the board." Nor was it clear to me why "a less academically driven legal education would be a 'second-rate' one," as the opponents of such a change argued. For many students and schools, it might be the better education.
I am still so minded. The usual tendency, at least until 2008 and still to a substantial extent, is for every school to want to be and look like Yale or Harvard, no matter how little sense that makes for particular schools in particular places. (I am reminded of Tom Wolfe's description of Yale architecture students puckishly drawing illustrations of the then-chic "Yale box" appearing on the moon, on the farm, and in other unusual and inapt places.) This is partly a function of law schools' absurd credentialism, lack of imagination, and hierarchy-reproducing tendencies when it comes to hiring and the highly limited backgrounds and cultures from which most law professors spring, and partly a function of their attention to US News rankings and general desire for elite status (for the schools and, just as important, for the faculty themselves). As I wrote then, whatever their deepest wishes, many law schools have already bowed to reality and departed from some of these norms. The proposed rule change gives them more liberty to do so, without requiring it. If some law schools adopt a more practice-driven approach and rely more on practitioners to achieve it, while others are or can afford to emulate the model of a few elite schools, so much the better for institutional diversity and student choice.
4) Schools that take advantage of this model and adopt a more adjunct/practitioner-oriented faculty model, with a smaller academic faculty core and a larger store of adjuncts, will still face the need to do what too few have done: to think creatively and comprehensively about how to turn this congeries of commuters into an actual law school community. They must think about ways to bring those commuters into the school more often, make them a larger part of the intellectual and daily life of the school rather than an afterthought, include them in faculty life and discussion and decision-making, and give them a sense of being members and stakeholders of the law school community. It's a difficult but necessary task to undertake. One assumes that there are various ways to achieve this, and they need not all look the same.
5) In at least some ways, what happens in the law schools follows what happens in the larger academy, but at a distance--sometimes a great distance. Thus, years after the standard graduate-school model of generating future faculty became the norm for most academic departments, in the past ten or more years law schools have drawn increasingly, when hiring, on fellows and fellowships, which are essentially an echo of or proxy for the graduate-school model. This model creates and seeks out a store of future faculty who are professionalized and acculturated as academics rather than practitioners or amateurs, and who have long since signaled their willingness to forego legal-professional status and income in favor of becoming academics. (We still see arguments that law faculty are foregoing what would otherwise be high-income jobs that would readily be accessible to them. That might be true at the outset of their legal careers, after they have graduated and clerked and perhaps spent a couple of years in practice. By the time they have devoted years to academic study and status, however, they have long since made it more difficult to move into the world of practice, for better and worse. This might justify lower salaries for academic law school faculty members, although that's a question for the market to answer, not for abstract and non-empirical arguments about what these individuals "could" do if they wished.) That makes them surer hiring bets, at least as "academic" faculty, for multiple reasons: they have already published, they already talk the talk of the academy, and they have already made clear their long-term intentions to remain faculty members rather than abandoning the academy for professional work or retiring from practice without contributing greatly to "academic" work.
This new proposal similarly recapitulates the larger changes that have been written about and debated so much in the wider academy: namely, the part-timing or adjunctification of the university. Some of the rea$on$ for doing so are no doubt the same, and we can expect some of the same arguments--very real ones, I should acknowledge--to arise here: arguments about the potential for abuse and mistreatment, lack of quality control, corporatization of the university, and so on. I think we should think of this as a partial recapitulation of what has happened elsewhere in the university. But we should not treat the two phenomena as identical, by any means. There is a difference between relying heavily on adjuncts with Ph.D's to teach, say, English Literature, and relying heavily on practicing physicians to provide clinical and practical education to medical students. An adjunct literature professor is generally just a literature professor without job protection; a practicing physician serving as a clinical professor of medicine has another job and set of skills that both maintain his or her independence and provide something distinctive of value to the medical school and its students. Law practitioner adjuncts are closer to the latter analogy than to the former. Not all of the arguments against the mass use of adjuncts elsewhere in the academy will fit in the law school context, and they should not just be parroted here thoughtlessly. But of course we should discuss and think through the implications of changing our model.
* * *
I should note that I am surely an "academic" faculty member, and some of what I say above is hardly in my own interests. I am happy to try to maintain my own salary and other perquisites, and--although slowed recently and to my own profound guilt by illness--I like being an "academic" academic, want to contribute to the academic and scholarly life of my school and the larger community, and think this life has intellectual value and the capacity to contribute to our intellectual tradition, although I resist making overblown arguments about its immediate or "real-world" value. (I am not averse to changing things up, however, and certainly think there ought to be room for rethinking how each faculty member shapes his or her career. Perhaps sabbaticals should be given more frequently but with the caveat that every other sabbatical must be spent volunteering or practicing as a lawyer; or perhaps the obligation to do something of the kind could be tied to the reduced course loads most of us enjoy. No matter how ethereal some of us have become in our work, we might find work as clerks or runners or junior assistants to state legislators; even spending every day for a year sitting in a courtroom and watching arraignments and pleas would be of some value in enriching our perspective.) I just don't think my own interests, or those of other "academic" legal faculty, are especially important factors or relevant to the analysis.
New Poll on the Supreme Court
C-SPAN and PBS have posted the results of their poll on the Supreme Court. Rather than just an update of old numbers about support for the Supreme Court (more on that in another post), this poll has some interesting new questions too.
- Donald Braman and I have written about the limitations of polling that asks questions about the Supreme Court without practical stakes of Court decisions attached to those questions. This poll does what almost every poll about the Supreme Court does: ask generic questions without stakes attached. There is a social desirability bias leading respondents to state that they follow what the government is doing and that it matters, but there are reasons to doubt whether people actually follow the Supreme Court. While asking a question about President Donald J. Trump and then telling respondents about his immigration actions might not change the results that much, asking a question about the Supreme Court and telling respondents about recent decisions could change results. Some examples from this poll: 65 percent of respondents report that “very often” or “somewhat often” they follow news stories about the Court. 90 percent say the Court has “an impact on my everyday life as a citizen.” These numbers seem hard to believe, particularly given other results within the poll (only 43 percent can identify a Justice).
- I wrote an essay for a symposium hosted by The Yale Law Journal to mark the fifth anniversary of Justice Sonia Sotomayor’s confirmation to the Supreme Court. I wrote about Justice Sotomayor as “The People’s Justice,” a Justice with the unique ability to—and desire to—communicate to a broader cross-section of the public. Based on her public appearances, others seemed to agree that Justice Sotomayor was doing this. In the three years since then, the “Notorious R.B.G.” has emerged as a major meme of public discussion about the Supreme Court. Justice Ginsburg now appears to be more well-known than Justice Sotomayor (and more well-known than Justice Clarence Thomas, always as well-known as any other member of the Court).