Friday, April 20, 2018

Gundy and Non-Delegation: Which of Several Non-Delegation Doctrines Should Apply to SORNA?

Marty Lederman recently asked me in a comment to an earlier post on Gorsuch’s concurrence in Dimaya how I thought Gundy v. United States should and would be decided. For those who are not hopeless Non-Delegation Doctrine dorks, SCOTUS recently granted cert in Gundy to hear argument on the question of whether SORNA (the federal Sex Offender Registry Law) violates the so-called “non-delegation doctrine” (NDD) by delegating to the Attorney General the decision about whether SORNA should apply retroactively to persons convicted of covered sex offenses prior to SORNA’s effective date.

In other words, Gundy is one of those exciting cases in which SCOTUS might actually revive a moribund constitutional doctrine that has been flitting ghost-like through the US reports since 1935, making a noise but not a difference in the outcomes of cases. Although the prospect of resurrecting the dead naturally draws a crowd, I think that revival of the NDD is unlikely. Despite Justice Gorsuch’s enthusiasm for it, the NDD writ large, as a general legislative duty to cabin executive power with an “intelligible principle,” is a non-starter. The problem is that the NDD contains no intelligible principle for determining when a statutory principle is intelligible. SCOTUS would have to be immune to irony to confer on itself unbridled judicial discretion to decide whether an agency has unbridled executive discretion. In its lack of intelligibility, one might say that the NDD is a doctrine that violates itself.

So revival of the NDD writ large seems unlikely to me. But what about the NDD writ small? After the jump, I will offer a few thoughts about whether SCOTUS might revive a mini-NDD based on the various non-delegation canons described by as Cass Sunstein ‘way back when. These canons include the ideas that (1) agencies do not get deference for their interpreting statutes to be retroactive and (2) prosecutors do not get any deference for their interpretations of criminal law (as Scalia asserted but did not really explain in his Crandon concurrence). SORNA delegates to the Attorney General the power to impose an arguably retroactive effect with an arguably criminal statute. Perhaps the SCOTUS can and should create a mini-NDD to deal with this specific sort of delegation.

Continue reading "Gundy and Non-Delegation: Which of Several Non-Delegation Doctrines Should Apply to SORNA?"

Posted by Rick Hills on April 20, 2018 at 01:29 AM | Permalink | Comments (1)

Thursday, April 19, 2018

Must the Law Be as All-or-Nothing as Leo Katz Claims?

In Leo Katz's characteristically excellent book Why the Law is so Perverse, he argues that the law is often all-or-nothing because many phenomena that appear to stretch along continua, like becoming a person or dying or giving consent, are better understood as discrete events. He does not go so far as to "defend the either/or character of legal doctrines," but he purports "to show why any efforts to change things are doomed" (p. 157). He claims that "most of the time either/or can’t be avoided, or more precisely, that if we tried to purge a doctrine of it, we would find that either/or has simply migrated to another part of the doctrine or has been replaced by some other, far more troublesome feature" (p. 157). In short, he writes, "we can only affect where a sharp discontinuity will occur, not whether it will occur at all" (p. 157). (Some of you may remember that Katz shared many of the insights in his book over the course of a week at the Volokh Conspiracy.)

In a recent article, I challenge several of Katz's arguments. I aim to show that many phenomena which appear to stretch along continua could indeed be treated as such by the law or at least treated in a less all-or-nothing manner than they are now. After the jump, I excerpt just one example where I argue that death need not be understood in the discrete terms Katz proposes.

Continue reading "Must the Law Be as All-or-Nothing as Leo Katz Claims?"

Posted by Adam Kolber on April 19, 2018 at 02:44 PM | Permalink | Comments (3)

Speeding cases

Last week I flagged Suja Thoma' JOTWELL review of the study by Miguel de Figeueirdo, Alexandra Lahav, and Peter Siegelman of the effect of the six-month list on judicial decisionmaking. Those authors criticize new regulations requiring immigration judges to clear a minimum number of cases to be evaluated as satisfactory. Based on their findings on the minimal-or-negative effects of the six-month list on the quality of judicial deisionmaking, they conclude that imposing such obligations on judges who lack life tenure will "cause their decisions to suffer even more."

I continue to wonder whether there are due process concerns with these regulations, by giving judges a personal or pecuniary interest in the case--if not in the outcome, then in the way in which it is litigated (which affects the outcome).

Posted by Howard Wasserman on April 19, 2018 at 07:00 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Is the Left’s Skepticism about Zoning’s Increasing Rents like the Right’s Skepticism about Global Warming?

SB 827, the California bill that would have preempted many local zoning restrictions near public transit, has just gone down to defeat. Part of that defeat was the result of opposition from advocates of affordable housing, many of whom remain skeptical that zoning’s limits on market-rate housing reduce the supply of affordable housing. These advocates reason that market-rate housing in high-demand cities does not benefit poorer households, because poorer households cannot afford it. Sometimes such advocates go further to argue that increasing the supply of new market-rate housing actually leads to gentrification, because such housing attracts wealthier residents who bid up rents. To paraphrase Field of Dreams, if you do not build it (i.e., new market-rate housing), they (i.e., wealthy households) will not come.

Is this anti-market theory of gentrification an accurate picture of reality? The debate, nicely captured by this article posted on YIMBYwiki, has recently become a fierce scrum of claim and counter-claim. On one hand, attributing rent increases to new market-rate housing might be like attributing rainstorms to umbrellas: On this view, high demand driven by jobs causes rents to increase, and new construction just follows along, mitigating rather than exacerbating rent increases. If new market-rate housing is not built, then more rich people will just place higher bids on existing units, accelerating gentrification. (The process by which new housing affects rents on existing housing is known as “filtering”: Vox has a typically wonky but clear explanation). On the other hand, if people like living next door to rich people, then market-rate housing could conceivably raise rents on nearby lots through a so-called “amenity effect.” And maybe demand for housing is highly segregated into different, non-competing markets such that rich people only bid on new units and will not bid up the prices on existing units when new market-rate housing is constrained by zoning.

As a guide for the perplexed amidst this cacaphony, I recommend a recent literature review by my colleagues, Vicki Been and Ingrid Ellen, which suggests that (1) increasing zoning restrictiveness seems to lead to higher rents (see pages 7-8 of their paper) and (2) existing housing tends to “filter” upwards if new construction is restricted by zoning, because rich buyers tend to shop among both new and existing units, bidding on formerly cheap bungalows and brownstones when Zoning eliminates new luxury units. The best view of the facts, in sum, seem to suggest that Left advocates of affordable housing should be enthusiastic about reducing zoning restrictions as part of the solution to our housing crisis.

Yet I am pessimistic about many activists’ being persuaded by the evidence. After the jump, some dour speculation that Left activists’ beliefs about housing markets might be similar to conservatives’ beliefs about climate change, resistant to data because of prior ideological commitments and the imperatives of recruiting political allies.

Continue reading "Is the Left’s Skepticism about Zoning’s Increasing Rents like the Right’s Skepticism about Global Warming?"

Posted by Rick Hills on April 19, 2018 at 04:32 AM | Permalink | Comments (7)

An even more unusual role

I have written before that Justice Thomas rarely assigns majority opinions, given seniority and the Court's ideological breakdown. Well, according to Slate's Mark Joseph Stern, Tuesday's opinion in Sessions v. Dimaya marked the first time in 25 years on the Court that Justice Ginsburg assigned a majority opinion, when Justice Gorsuch provided the fifth vote with the Ginsburg/Breyer/Sotomayor/Kagan block. That fifth vote, if it comes, usually comes from the Chief or Kennedy, both of whom are senior to RBG. In addition, Stern (citing Adam Feldman) says this was the sixth time a female justice assigned an opinion; the other five were by Justice O'Connor, who usually did not get to assign because she was in a majority with Chief Justice Rehnquist or Justice Stevens.

The assignment power remains an interesting future project. I have to figure out the different empirical routes that must be explored.

Posted by Howard Wasserman on April 19, 2018 at 12:35 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, April 18, 2018

Anika Singh Lemar on why, despite SB 827’s defeat, states might still enact laws preempting NIMBY local zoning

[Editor’s note: SB 827, state Senator Scott Wiener’s effort to attack NIMBY zoning that has driven California into an acute housing crisis, just died in the state senate. For those of us who believe that excessive zoning is strangling our cities and segregating our population into regions of wealth and poverty, this is a terrible defeat for good policy. But there’s a silver lining: Bad policy provides good opportunities for great law review articles that try to fix them. In this spirit of trying to take comfort in scholarship during dark zoning times, I am posting Anika Singh Lemar’s guest-post on her outstanding article analyzing why state-level interest groups lobby against excessive local zoning. While those lobbying efforts could not quite do the trick with SB 827, Anika’s post and article both suggest that the future is not necessarily grim. Here’s Anika’s post, below]:

In an article forthcoming in the North Carolina Law Review, I argue contemporary state-level efforts like SB 827 to liberalize zoning are the progeny of earlier state laws requiring local governments to approve LULUs. Small-scale renewable energy infrastructure, family day cares, group homes, and mobile homes are LULUs which, in a substantial number of states, enjoy protection from local zoning. Examining the state legislative history behind these protected LULUs, I argue that while NIMBYs have lots of political power on the local level, they can be beat at the state level by a coalition that, surprisingly, typically includes state employees.

Continue reading "Anika Singh Lemar on why, despite SB 827’s defeat, states might still enact laws preempting NIMBY local zoning "

Posted by Rick Hills on April 18, 2018 at 07:53 PM | Permalink | Comments (0)

Are Criminal Attempts Bumpy?

The law draws hard-to-justify lines around vague words. Those lines can lead to dramatically different consequences. In Smoothing Vague Laws, I argued that problems caused by legal vagueness can be eased in many instances by "smoothing" the law. If, for example, you have merely "prepared" to commit a crime, you have no criminal liability. When you cross the line from preparation to "attempt," however, you can have substantial liability--at least the mandatory minimum sentence for the attempt. If the attempt has no mandatory minimum, it's possible that a judge will sentence in a smooth fashion. But I suspect that judges don't think about sentencing in a smooth way. Though there should presumably be cases where a person gets a modest sentence for attempted murder or attempted rape because the crime falls right around the border between preparation and attempt, I suspect such sentences are rare because judges focus on the bumpy names of offenses rather than their often smooth underlying facts.

Doron Teichman takes issue with this discussion in his interesting recent article. Teichman argues that criminal law already uses inchoate crimes to adjust punishment to confidence in guilt in a relatively smooth fashion. For example (p. 776-777):

By adding or removing objective elements to a crime and by relaxing or enhancing the mental state associated with the crime, the state can make the prosecution’s case harder or easier to prove. . . . Furthermore, the punishment attached to these evidentiary crimes can be set lower than the punishment attached to the primary crime they aim to deal with to account for the added evidentiary uncertainty associated with them. The emerging picture is of a de facto evidentiary graded penal regime. Defendants whose guilt can be proven beyond a reasonable doubt are subject to the full punishment attached to the original crime, while defendants whose guilt is more difficult to prove are convicted of the lesser crime and are subject to a milder penalty.

There is much more to Teichman's argument, but pertinent to this post, he concludes that "contrary to Kolber’s assertion that the law of criminal attempts is bumpy because at one moment a defendant 'has no criminal liability whatsoever, and just a moment later, he has sufficient criminal liability to receive several years’ incarceration,' viewed in its entirety, attempt law turns out to be rather smooth."

I have four replies. First, some disagreement on these matters might be attributable to differences in expectations about smoothness and bumpiness and how one quantifies them. For example, I too have noted evidentiary smoothing possibilities, especially around plea bargaining (p.678-680; 874-75), while Teichman, for his part, acknowledges that attempt law can be somewhat bumpy in his n.204. So two observers looking at similar data may still draw different overall conclusions. Second, your view might depend on whether you focus on individuals versus the system as a whole. The combination of preparatory crimes and attempt law may create some evidentiary smoothing systemwide, as Teichman notes. But in any particular case, dramatically different results follow if jurors have reasonable doubts versus an iota passed that standard. Such situations may be relatively uncommon on a systemwide basis but can still be very bumpy for particular individuals (and are perhaps not so unusual in cases that actually go to trial). Third, many scholars distinguish two aspects of attempt. One is the amount of actus reus which may gradually increase as a crime progresses. The other is seriousness of intent (which may be evidenced by a defendant's statements) that doesn't necessarily change or change as much as the attempt progresses, especially when intent is very strong from the get-go. Does punishment vary with confidence in the mental state or in the expectation the acts would continue to completion? Is punishment somehow keyed to both even though they change at different rates? 

Finally, and most importantly, I have emphasized that when speaking carefully, we should identify smooth and bumpy relationships between a particular input and a particular output. If Teichman is right about matters of evidence, his conclusions about the smoothness of attempt are still too broad. Even if amount of punishment is smoothly related to confidence in guilt, there are other relationships that may or may not be smooth. Many seem to think that culpability gradually increases as one progresses along a criminal path (and perhaps harm caused as well if an attempt grows increasingly threatening over time). If they're right, punishment isn't simply about discounting expected future crimes based on our confidence they will be committed. If I'm 75% confident a defendant arrested for attempt was going to commit a crime that warrants 100 units of punishment, he wouldn't necessarily warrant 75 units now. After all, the person who does complete the offense likely engaged in additional bad acts with additional culpability that the defendant never committed, and that matters to some people. So whether or not the evidentiary relationship Teichman considers is smooth or bumpy, there are other pertinent relationships as well. (Special thanks to Doron Teichman for taking up the smooth/bumpy issue in his article which I highly recommend!)

Posted by Adam Kolber on April 18, 2018 at 02:32 PM | Permalink | Comments (6)

What is a heckler's veto?

Paul's post about reexamining the doctrine surrounding the heckler's veto, in response to some comments on this post, leads to an open question: What is a heckler's veto and what is the doctrine surrounding heckler's vetos?

The phrase "heckler's veto" appears only 12 times in the U.S. Supreme Court's database, often in dissents or in passing, including in two non-free-speech cases. None involves the paradigm cases, which I think are the following: 1) Police arresting or restricting a speaker because the people around him become violent and threaten to hurt the speaker or damage property (this is TerminielloFeiner, and the Nazis in Skokie); 2) Laws setting a legal standard that burdens a speaker because of actual or anticipated audience reaction (this is Forsyth County); and true no-platforming, in which a university denies or rescinds a speaker invitation or permit in response to threats of disruption. Close to the center are cases in which police or other authorities do nothing and allow the hecklers to attack or otherwise physically disrupt the speaker (there might be a DeShaney problem here, unless the speaker can show the failure to act was because of his speech). The point is that overnment must do something (or refrain from acting for a speech-discriminatory reason) to create the veto. The doctrine is clear--such vetoes are impermissible,* at least outside of narrow contexts (such as the community standards prong of obscenity or the "disruption" concern for student speech) or if there is a compelling interest in not having to spend hundreds of thousands of dollars on security.

[*] Although Feiner famously came out the other way, the prevailing view is that this no longer is good law.

The question--and there is no Supreme Court doctrine on this--remains if and when literal heckling, as a form of expression, becomes a heckler's veto without government action to halt the original speaker. Is it a heckler's veto if police or government officials do nothing and two speakers talk over one another until one gives up or is unable to proceed? We have to answer that question before we can figure out whether the heckler's veto doctrine must be reconsidered, because it is not obvious how that doctrine applies to these situations in the first place.

Posted by Howard Wasserman on April 18, 2018 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Tuesday, April 17, 2018

Is Gorsuch’s Dimaya concurrence the opening shot in a bid to revive the Non-Delegation Doctrine?

Eugene Volokh has noted that Justice Gorsuch’s concurrence in Sessions v. Dimaya looks like a “cross-over sensation,” because Gorsuch joined four liberal justices in ruling against the deportation of an immigrant. There is, however, a deeper signal buried in Gorsuch’s concurrence: By refusing to draw any distinction between civil and criminal cases insofar as VFV is concerned, Gorsuch seems to be reviving the non-delegation doctrine as a basis for striking down statutes. If the VFV doctrine applies, as Gorsuch says it does, “in civil cases affecting a person’s life, liberty, or property” and “criminal cases involving relatively modest penalties,” then it might also apply to any statute containing terms ambiguous enough to trigger Chevron.

Such an expansive version of VFV would fit with Gorsuch’s famously skeptical view of Chevron in his Gutierrez-Brizuela concurrence. So maybe the concurrence is best read as an opening bid to revise Chevron and/or the non-delegation doctrine, fulfilling his implied promise, in Eric Posner’s words, to “join Justice Thomas as one of only two justices to seriously oppose the administrative state in the last 50 years, at least.”

Just for the record, I do not think very much of Gorsuch’s attack on Chevron. It seems to rest on one of two equally odd views that (1) statutes should not have gaps to fill, or (2) only judges should fill them (i.e., “say what the law is”). (For an excellent analysis that spells out the weaknesses of such a position, see Asher Steinberg’s excellent post on the Yale JReg blog). As for the non-delegation doctrine, if constitutional doctrines could be void for being excessively vague, then the NDD would qualify — as, indeed, would the VFV doctrine itself. I do not see five votes for reviving a doctrine that paradoxically gives judges uncabined discretion to forbid agencies from exercising uncabined discretion.

Since the SCOTUS granted cert in Gundy, however, we will find out soon enough whether Gorsuch can persuade any of his colleagues to join him on his quixotic mission to expand dramatically the courts’ exclusive role in saying what the law is. If Dimaya is any indication, then Gorsuch might be trudging down a lonely path: Although Justice Thomas is supposed to be skeptical about the administrative state, Gorsuch could not get Thomas’s vote for the proposition that the Due Process clause requires civil statutes to be clear enough to give citizens notice of their contents.

Posted by Rick Hills on April 17, 2018 at 11:13 PM | Permalink | Comments (7)

What about Calpurnia, Tom, and Scout?

The legal dispute over Aaron Sorkin's in-the-works stage adaptation of "To Kill a Mockingbird" took another turn on Monday when Producer Scott Rudin (and his production company, Rudinplays) filed suit in the Southern District of New York against the Harper Lee Estate. This sent me running for the pleadings in this and the Estate's action in the Southern District of Alabama, thinking it might make a nice exam question for Civ Pro. It turns out the Estate filed an Original on March 13 and an Amended Complaint on April 6. What changed?

Paragraph 38 of the original pleading cites to a March 5, 2018 letter from the Executor to Rudin and alleges that the Estate informed Rudin that the play "derogates or departs from the spirit of the Novel and
that it alters five of the Novel’s characters--Atticus Finch, Calpurnia, Tom Robinson, Jem Finch, and Scout Finch." Paragraph 38 of the amended pleading cites to the same letter and alleges that the play "derogates or departs from the spirit of the Novel and that it alters several of the Novel’s characters, including Atticus Finch and Jem Finch."  So I guess the representation of Cal, Tom, and Scout is not problematic enough to warrant declaratory relief.

Posted by Howard Wasserman on April 17, 2018 at 10:51 PM | Permalink | Comments (0)

Foley on appointing a special master in the Cohen case

At the Election Law Blog, Ned Foley questions the potential appointment of a special master to review and determine privilege of the materials seized from Michael Cohen. He concludes:

Thus, it seems to me that there should be an extremely strong presumption in favor of using conventional procedures to handle the Cohen case. If those procedures would be good enough if the client involved were a major business figure (like Mark Zuckerberg), or a major sports or entertainment figure (like O.J. Simpson), then they should be good enough if the client is a business and entertainment figure who later becomes president (like Donald Trump).

I would add two things in support of Ned's conclusion. First, one reason this is a "politically charged case" is that the President has been relentlessly attacking the Department of Justice, including over the seizure of Cohen's documents.There is an unfortunate irony, and perverse incentive, that the President's attacks on the prosecution politically charge the case so as to require special procedures.

Second, DOJ uses filter teams, not a special master, when reviewing materials seized from congressional offices for possible Speech-or-Debate-protected materials. Such cases are at least as politically charged as this one, with the added bonus that they implicate the Separation of Powers when the executive investigates the legislature.

Posted by Howard Wasserman on April 17, 2018 at 02:41 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

A Further Defense of Criminal Justice Books...

One more reason to write a book as a law professor - you could win a Pulitzer.  Congratulations to Professor James Forman Jr. (Yale) for winning a Pulitzer Prize for his book "Locking Up Our Own: Crime and Punishment in Black America."  It is a terrific book and a well-deserved honor.

Posted by Andrew Guthrie Ferguson on April 17, 2018 at 09:38 AM | Permalink | Comments (2)

Monday, April 16, 2018

Pacing change, changing paces: when and how to reform legal education

Derek Muller's ruminations on legal education and the profession are always interesting and thought-provoking.  Today's post is no exception.  It is worth reading and noodling over, and more than once.  I certainly intend to do so.

Its normative claim, a tad hard to disentangle, but there in the middle and also at the end, is that reformers (radicals and moderates alike) may be pushing reform agendas with an urgency that is both counterproductive for our students and is insufficiently attentive to the historical evolution, steady and unsteady, in legal education.  Perhaps change, but no so fast.  And let us not through the baby out with the bathwater.

Yes indeed.  Much to say, but let me focus on just two aspects of this dense post:  The claim that we need to assess the efficacy of current curricular and administrative structures before undertaking big changes is clearly right; but slipping from that into the claim that there may well be little that is broken so as to warrant revision seems misguided.  To be sure, there are reformers who would practice a version of zero based budgeting -- reform tabula rasa.  Many folks on my twitter feed are of this variety; but few legal educators (and nearly no deans) are so inclined to recommend this, even as a thought experiment.  We would do well, as Derek and I agree, to look clear-headedly at the mechanisms that are very successful, measured in many ways, and leave well enough alone.  And this should be true at both the general level (take, for example, the welcome durability of the first-core core curriculum) and the granular level (say, the requirement of legal writing and of ethics).  Few dispute this, and those that do undertake a heavy burden of explaining why the road to sound education and professional success of our students lies in root-and-branch reform.

But where the recommendations of reform are grounded solidly in judgments about what a dynamic, technologically impacted profession expects out of law graduates in 2018, 2020, and 2030, as based on input from myriad stakeholders and on the basis of good evidence, then the complaint that such reform has, as the emperor says to Mozart, simply "too many notes," does not compel.  Students face a zero-sum world in law school, of that there cannot be any doubt, but the capacity to adjust to new modalities of pedagogy and modern structures of knowledge, including multidisciplinary knowledge and exposure to new subjects at the intersection of law, business, & technology is higher than I believe Derek imagines.  Moreover, even in a zero sum world, it might be worth giving up other curricular expectations here and there in order to make this more promising world into a reality.

As to the tangent about administrators in Derek's valuable post, I would say, sure, our role as administrators -- deans and all others -- is to facilitate student opportunity and reduce unnecessary friction.  At the same time, it is to enable opportunity and widen the lens of what a law student can and should do and what a modern professional ought to focus on in these precious three years.  So, less time for reporting requirements ok, but fewer opportunities to be exposed to, say, lunchtime programs, interesting externships, bar-academy collaborations?  No thank you.  Idle hands and heads are the devil's plaything, but we might see our commitment to our students facing big expense as entailing a bazaar of opportunities and an exhortation to profit from the bounty of interesting initiatives enabled by a serious rethink of our curriculum.


Posted by Dan Rodriguez on April 16, 2018 at 07:33 PM | Permalink | Comments (2)

Lynn Stout

Shocked and terribly sad to learn that Lynn Stout has died.  Stephen Bainbridge shares emails from the UCLA and Cornell deans here.  Lynn was an incredibly generous colleague who provided thoughtful commentary and much appreciated support to me and many other prawfs.  Her passing is a real blow to the corporate law community.  Fortunately, we still have her work, and I am grateful to hear that two new books are to be published.  If you would like a quick sense of one of her more broadly applicable works, you could review the 2012 Prawfs Book Club for "Cultivating Conscience."    

Posted by Matt Bodie on April 16, 2018 at 02:51 PM | Permalink | Comments (2)

Re-Examining Doctrine is a Good Thing (But Not an Answer); With Some Thoughts on L'Affaire Blackman

In a response to Howard's post below about the "Blackman incident," Mark Tushnet has a valuable comment, citing to recent work by Jeremy Waldron, arguing for a particular interpretation of heckler's veto doctrine. Waldron is not the only one re-examining heckler's veto doctrine these days. Howard has asked questions about it in a number of posts, and several recent papers have done the same thing. Several recent books are also re-examining these questions in light of current events concerning campus speech. (Or non-events, or "nothingburgers," as our degraded current language would put it. Some have argued that there is no campus free speech "crisis" or even much cause for concern. These two posts argue against that view, but also provide copious links to arguments that worries about campus speech are vastly overblown. I provide these links as much to give readers access to the arguments for that position as to give access to the arguments against it.)

While some of the comments following his post engage with him and with Howard, others, as I read them, are not kindly inclined toward the prescriptions some of those re-examinations suggest. This post is mostly about why I'm glad Mark and others are asking those questions, and why re-examining doctrine needn't lead to changes in that doctrine. But I begin with some general remarks about the Blackman incident and campus speech issues more generally.  

As a fairly traditional civil libertarian on speech issues, I tend to side more with the basic existing heckler's veto doctrine than with the suggestions that have been made for its modification or reform. More generally, I lament that the number of fairly traditional civil libertarians seems to have declined. I worry especially about the possibility that their current numbers are less likely to include university administrators, or at least administrators who not only agree with those traditional rules but are willing to enforce them, even if it means disciplining students. Many faculty and other observers of the university complain tirelessly these days about administrators who, in the competition for students and tuition dollars, spend more time trying to make students or prospective students happy with things like lazy rivers than pursuing and insisting on the pursuit of the traditional university mission. Or they complain about the consumerization or corporatization of the university. Because many of the latter type of critics are often on board with a number of student causes and protests, they less often connect the dots between those concerns and the possibility that administrators are less likely to enforce rules governing and protecting campus speech. Enforcing rules and disciplining students is unpopular and threatens damaging publicity. Administrators who want to avoid making a vocal group of students unhappy, or who want to avoid sustained publicity for some campus incident, will strain to avoid imposing discipline, and to move past some incident as quickly and/or quietly as possible.

Friends who are undoubtedly wiser than I am have described this as smart policy. But I think they're ultimately wrong, as a matter of both policy and respect. That includes not only respect for the academic mission but also respect for students--including the students who are protesting and who, under this vision, might be subject to discipline, with due process but up to and including suspension and expulsion. I don't doubt that some administrators support the students or the values they champion, abhor hateful speech, and are acting--or believe they are acting--for that reason. But some may be acting simply to avoid bad publicity or out of worry about the university's position in the marketplace for tuition-paying students. And others may believe they are acting for the right reasons, but those actions may be influenced by more worldly and financially driven concerns. Sincere people like to keep their jobs and avoid tsuris too. Letting students heckle or no-platform, or occupy offices and buildings, may seem like a way of showing respect for those students. But it also may be a form of condescension, one that waits them out without actually attending or responding to their views. Telling people they are wrong, or breaking the rules, and are subject to discipline sometimes involves taking them more seriously than simply letting them do as they wish does. (Arguing that there is no "free speech problem" on campus can also be a form of condescension, incidentally, although I wouldn't say that about every such argument. It may be that only a small number of students are pushing to radically remake the rules governing speech on campus. But they have genuine ideas and positions, and those positions will have real implications and substantial consequences if they are applied seriously. Arguing that these students' protests and demands are no big deal can be pretty close to treating them as a minor inconvenience or the province of a few students on the fringes, and not really listening to what they are actually arguing for.) As one of my favorite Onion stories notes, sometimes respect includes both listening to someone and responding with a simple "No."

One bright spot in Josh Blackman's recounting of the CUNY incident was that an administrator spoke up clearly to remind the students of the rules governing the event and insist that they be followed. One may certainly wish she had stuck around to make sure the warning stuck, but surely some credit is due. Arguments (as in this thread, with apologies for linking to Twitter) that there was no problem with the Blackman incident because the heckling was brief and Blackman was ultimately able to speak, even if accurate, are incomplete and even misleading without recognizing the possibility that this occurred precisely because the administrator told the students to let him speak or face disciplinary consequences. If no administrator had spoken, we don't know whether he would have been able to speak, or whether the heckling would have concluded indefinitely and with the intention or result of making it impossible for him to deliver his remarks. (After I began drafting this post, Erica Goldberg pointed this out in the comments to Howard's post as well.)  

This last sentence leads me back to Mark's comments. I am happy to give at least two cheers to Mark's straightforward willingness to revisit the heckler's veto doctrine, and the questions that this re-examination and similar efforts by others raise--even if they result in recommendations I don't agree with. It is equally important to note, however, that re-examining a case or doctrine doesn't have to end with a recommendation for change. Sometimes the re-examination may lead to the conclusion that the doctrine is right, or that proposed alternatives would be worse than the status quo. 

Continue reading "Re-Examining Doctrine is a Good Thing (But Not an Answer); With Some Thoughts on L'Affaire Blackman "

Posted by Paul Horwitz on April 16, 2018 at 12:50 PM in Paul Horwitz | Permalink | Comments (0)

Does the First Amendment Let Us Punish Pure Thought?

In my prior post, I noted a live question as to how, if at all, the First Amendment protects freedom of thought in cases (such as card counting) that might be deemed to lack expression. While the Supreme Court has talked a good show about freedom of thought, its precedents say little about how the Amendment would apply to a case implicating free thought but not expression.

The Seventh Circuit, however, has addressed the question more directly. In Doe v. City of Lafayette, Doe went to a public park, sat on a bench, and spent about fifteen to thirty minutes watching several children in their early- to mid-teens play in the park. Doe admitted having sexual thoughts about the children, including urges to expose himself or have sexual contact with them. But at least in part because of the high number of children present, his thoughts “weren’t realistic at the time” and “were just thoughts.” Doe was banned from entering the park and claimed that doing so violated his First Amendment rights.

While a three-judge panel agreed, the Seventh Circuit, sitting en banc, held otherwise. The en banc court said the ban was imposed because of Doe’s conduct (namely, going to the park) and only incidentally burdened his thoughts. So even this case doesn't perfectly get at the question of punishing pure thought. But interestingly, the Seventh Circuit speculated about how the First Amendment might operate independent of expression, stating in a footnote that if Doe’s pedophilic urges triggered First Amendment scrutiny, they would fall under an exception, just like child pornography does:

Even if we were to determine that Mr. Doe’s sexual urges somehow triggered First Amendment scrutiny, they would be excepted from First Amendment protection under the incitement and obscenity doctrines. Given the context in which the urges occurred and the action they precipitated, they were, in a very real sense, “directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action.” . . . Furthermore, Mr. Doe’s urges, if they triggered First Amendment scrutiny, would be characterized as a form of child pornography, the possession and distribution of which has been held unprotected by the Supreme Court.

Of course, the court quickly reiterated that because Doe’s conduct did not involve expression, “it is quite unrealistic even to talk about
these doctrines in this case.” The quoted comments are nevertheless puzzling for at least two reasons. First, the Seventh Circuit mistakenly asserts that if Doe’s urges triggered First Amendment scrutiny, they would constitute a form of unprotected child pornography. In Ashcroft v. Free Speech Coalition, the Supreme Court struck down federal legislation that banned so-called “virtual” child pornography that appears to depict minors but does not actually depict real people. Even if Doe had a vivid imagination, were he to accurately draw the images in his head on paper, they would presumably constitute protected virtual child pornography rather than unprotected actual child pornography.

Second, the en banc Seventh Circuit seems mistaken when it suggested more broadly that freedom of thought has categorical exceptions in the way that freedom of expression does, if we accept its own admission that “[a] government entity no doubt runs afoul of the First Amendment when it punishes an individual for pure thought.” The Seventh Circuit’s view that the First Amendment protects pure thought, in conjunction with its assertion that there are excepted categories of thought, suggests that we can punish people solely for thoughts that fall under an exception. If so, it would mean we could punish people merely for having thoughts that would be libelous if expressed but that are never actually expressed. We couldn’t punish people merely for having fantasies and urges to rape directed at adults (protected thoughts) but could punish people merely for fantasies and urges directed at children (unprotected thoughts). Perhaps the Seventh Circuit intended such exceptions to only apply to thought combined with action or believed that other constitutional provisions would come into play, but it never qualified its discussion, and it is not obvious how the Seventh Circuit would justify excepting some categories of thought from protection but not others.

In short, the Supreme Court has never resolved whether the First Amendment protects thought alone or only when intertwined with expression. The Seventh Circuit suggests that they must be intertwined, but its discussion seems internally inconsistent or at least counterintuitive. (Adapted from Two Views of First Amendment Thought Privacy, 18 U. Penn. J. Const. L. 1381 (2016) (citations omitted).)

Posted by Adam Kolber on April 16, 2018 at 11:01 AM | Permalink | Comments (15)

Legal Ed's Past

Last week, I suggested that there have been a lot of changes to legal education over the last century (and much of that has been much more recent). I wanted to offer a slightly contrarian perspective to the "Legal Ed's Future" series that Dean Dan Rodriguez so thoughtfully compiled. That is: Legal Ed's Past.

Each change I identified (depending on your math, around 38 of them, of varying degrees of significance, of course) came because of something. Something prompted "legal education," to the extent we can define it, to... well, do something. Respond to a perceived problem. Act.

Before moving too quickly (more on this adverb below) into the future, it might be worthwhile to consider changes from the past, and evaluating whether they are working effectively. While there is often a race to the next big change, there is, in my view, extraordinarily little (or, at least, we might agree, relatively little) critical evaluation of changes in the past. Taking the time to evaluate whether these changes are as effective as we believe them to be, or whether they are achieving our desired goals, is a worthwhile endeavor.

Continue reading "Legal Ed's Past"

Posted by Derek Muller on April 16, 2018 at 09:16 AM in Teaching Law | Permalink | Comments (1)

Sunday, April 15, 2018

Naruto lives

Naruto v. Slater, the so-called "Monkey Selfie" case, lives. The Ninth Circuit denied the Joint Motion to Dismiss the Appeal and Vacate the Judgment, filed after the parties settled. In denying the motion, the court relied on cases in which courts have declined to dismiss appeals following briefing and argument, particularly where the judges suspect a party settled to avoid adverse precedent. Oh, and Naruto was not party to the settlement. (H/T: A Civ Pro student who is interested in the case, since the Complaint is one of the models we use in class).

So now we will get to see if Naruto loses on the merits (as he should, because the scope of a statute is a merits issue) or on standing grounds (as the argument sounded the court was heading).

Posted by Howard Wasserman on April 15, 2018 at 10:28 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Saturday, April 14, 2018

If everyone is a Nazi . . .

Josh Blackman wrote at length about being the target of protests at CUNY Law when he went to do a Fed Soc lecture on free speech on campus. Josh's post includes photos of the gauntlet of signs he walked in the hallway, as well as events inside the room. After several minutes of organized interruptions (including one law student exclaiming "fuck the law") and a warning from school administrators, Josh was able to engage with some audience members and the protesters left the room, after which Blackman did Q&A with the remaining students for more than an hour.

The underlying premise of many protests and attempts at "no-platforming" begin from the premise that the appropriate First Amendment rule, whatever the First Amendment's scope otherwise, should be "no free speech for Nazis and white supremacists." Putting aside the other problems with such a rule, its core problem is that it seems inevitable that everyone becomes (or at least everyone who disagrees with you) becomes a Nazi and white supremacist who must be shut down. Many of the protest signs reflect this misunderstanding.

Continue reading "If everyone is a Nazi . . ."

Posted by Howard Wasserman on April 14, 2018 at 04:18 PM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (16)

Friday, April 13, 2018

In Defense of Criminal Justice Books

I really enjoyed Professor Carissa Hessick’s post in defense of law reviews as well as the resulting thoughtful commentary about the subject.  I don’t necessarily want to engage in that debate, but offer a related defense of books.

Scholars have always written books as well as traditional law review scholarship.  Some books are scholarly, some are not.  Some have price points that only libraries and family relations buy, and some are priced for ordinary readers (or those few people who still buy books).  Some are descriptive, or historical, or critical, or literary, and some are political and of cultural relevance.  I don’t want to generalize because there are over 300,000 books published in the US every year, and many in the legal academy have written, edited, contributed, or enjoyed different types of books.  

But, I do want to comment on a phenomenon in the criminal justice space.  About, how in 2017 books by law professors began driving the national conversation about criminal justice reform.  These books were scholarly and also impactful in terms of generating interest in the ideas they were addressing.  These books were reviewed by mainstream news outlets, and the resulting media coverage elevated both the scholars and their ideas.  While many of these ideas were also featured in law reviews articles, publication of the book provided a broader platform for scholarly ideas and impact.     

Here are a few books from 2017 (and I would encourage others to add to this list):

As in all things, one can debate the merits of different forms of scholarship, but I would argue that writing a book offers a form of expertise and legitimacy that while not superior to traditional scholarship has more currency to shape ideas.  In writing about criminal justice reform, the type of format has a distinct advantage in generating interest in the underlying ideas and sometimes changes in law, policy, or consciousness.   

The question for law professors is what are the costs and benefits of this form of scholarship.  Should the recent interest in books shape how professors prioritize their publication choices?  Should this phenomenon be resisted or encouraged by the legal academy?

Posted by Andrew Guthrie Ferguson on April 13, 2018 at 11:01 AM | Permalink | Comments (6)

The myth of the stagnant law school curriculum

I didn't want to jump too quickly into the legal ed discussion after 60-some posts over 5 weeks here at Prawfs. But Dean Dan Rodriguez highlighted a comment from ABA President Hilarie Bass today, and I thought I'd stew on that for moment (before returning to legal ed next week). The comment: "We are teaching in law schools the same way we have for 100 years."

Even if a paraphrase, it's consistent with several comments to that effect in the early posts of the Future Legal Ed posts. Instead, I confess I find laments among some that we’re living in a Langdellian environment of legal education largely incorrect and want to share a few brief thoughts on what legal education looks like today as opposed to a hundred years ago.

Continue reading "The myth of the stagnant law school curriculum"

Posted by Derek Muller on April 13, 2018 at 09:24 AM in Teaching Law | Permalink | Comments (1)

Thursday, April 12, 2018

Harvard Law School Program on Corporate Governance Fellowship Announcement

From the Harvard Law School Program on Corporate Governance and Financial Regulation: 

The Harvard Law School Program on Corporate Governance and Financial Regulation is pleased to announce the availability of positions of Post-Graduate Academic Fellows in the areas of corporate governance and law and finance. Qualified candidates who are interested in working with the Program as Post-Graduate Academic Fellows may apply at any time and the start date is flexible.

Candidates should be interested in spending two to three years at Harvard Law School (longer periods may be possible). Candidates should have a J.D., LL.M., or S.J.D. from a U.S. law school, or a Ph.D. in economics, finance, or related areas by the time they commence their fellowship. Candidates still pursuing an S.J.D. or Ph.D. are eligible so long as they will have completed their program’s coursework requirements by the time they start. During the term of their appointment, Post-Graduate Academic Fellows work on research and corporate governance activities of the Program, depending on their skills, interests, and Program needs. Fellows may also work on their own research and publishing in preparation for a career in academia or policy research. Former Fellows of the Program now teach in leading law schools in the U.S. and abroad.

Interested candidates should submit a CV, transcripts, writing sample, list of references, and cover letter to the coordinator of the Program, Ms. Jordan Figueroa, at The cover letter should describe the candidate’s experience, reasons for seeking the position, career plans, and the kinds of projects and activities in which he or she would like to be involved at the Program. The position includes Harvard University benefits and a competitive fellowship salary.

Posted by Sarah Lawsky on April 12, 2018 at 06:56 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Card Counting and the First Amendment

Neuroscientists continue to get better at reading our minds. (Technically they correlate observable brain data to our reported thoughts, but what else could mind reading be?) Here, for example, MIT researchers showcase a non-invasive method of assessing thought using neuromuscular impulses in our faces that activate when we think about particular words. It may someday help people with certain speech difficulties or serve an even broader audience in next generation Google Glass-type devices. We can get much more direct neural information if we connect electrode arrays directly to the brain though such approaches are obviously too invasive to have widespread general uses. The law has yet to wrestle much with government invasion of our minds through new brain technologies (query: can the government force you to use the MIT device above to unlock your smartphone?), but this may change in the future.

In Two Views of First Amendment Thought Privacy, I explored a hypothetical question that could be raised even today. Namely, could the government criminalize card counting at blackjack? Card counters keep track of public information (the other cards played at the table) and engage in some mental computations to turn the odds of winning in their favor. It is already a serious crime in many places to use a device to count cards, but could the state criminalize card counting that just uses your mind?

Basically everyone who plays blackjack engages in some mental computations just to decide whether to hit or stick. For the state to allow some mental computations but not others seems like what we might call "thought-content discrimination": the state picks certain methods of mental computation to permit and some to prohibit. When I asked law professors at several  faculty workshops whether the First Amendment would prohibit the state from criminalizing card counting, hands were split about evenly.

In the paper, I present the case that card counting might be protected by the First Amendment, though I don't purport to do more than show the argument's plausibility. I realize that it's an uphill battle because there is little case law testing what thought protections, if any, the Amendment has outside of contexts that also include expression. Hence the two views of First Amendment Thought Privacy: (1) The Amendment protects freedom of thought itself (what I call the independent view), or (2) it only protects freedom of thought when linked to expression (what I call the intertwined view). Existing case law does little to distinguish the two views but the answer may have implications for the privacy of card counting (where the activity is not obviously expressive) and implications more broadly for the future as brain-related technologies improve.

Posted by Adam Kolber on April 12, 2018 at 05:16 PM | Permalink | Comments (4)

Is Free Speech Becoming the Next Scare-Quote Domain?

Granted that the plural of anecdote is not "data." Still, I was interested, in reading this first-person account by Josh Blackman of the protests and heckling that greeted his recent visit to CUNY Law School, to see this picture of a tweet from what appears to be the Twitter account of CUNY's National Lawyers Guild chapter:



Note the use of scare-quotes around "free speech." I'm not precisely sure about why it was used here, although Blackman's account suggests that students assumed the speech would be provocation dressed up as free speech but really aimed at getting attention and reaction, in part because the announced subject of the talk was free speech on campus. (Provocation is also free speech, of course, and free speech-as-provocation on and off campus is at least as old as Paul Krassner and Abbie Hoffman) Actually, Blackman had intended to speak about originalism, he writes, but "the students were not able to find any other professors who were willing to participate in the event," and the subject of the talk was ultimately changed to free speech on campus. No faculty members could be found to participate in that event either, according to the story.

But I'm less interested in its origins or rationale than in its very appearance. It comes not long after I saw--which means it must have traveled some distance--a tweet by writer Amanda Marcotte, reading:

Students of law and religion are familiar with this phenomenon, of course, as the phrase "religious freedom" has, since 2014 and peaking around last year or the year before, become increasingly rendered in even more-or-less serious media accounts as "'religious freedom.'" This went as far as its scare-quoting in a statement by the Chairperson of the United States Commission on Civil Rights in a report titled Peaceful Coexistence. The point of this epidemic of punctuation, of course, was to contest particular definitions of or assumptions about the meaning of religious freedom, albeit only in one direction. Contestation is a fine and legitimate thing, and an interesting phenomenon to observe. Of course, it can be done more or less deeply or shallowly. Scare quotes fall decidedly in the latter category. It is simultaneously remarkable and unsurprising to see the phrase free speech start traveling down the scare-quote path. Although it does absolutely nothing to improve clarity, accuracy, understanding, discussion, or justice, I'm sure it will be noted with interest by social observers and greeted with delight by typographers who charge by the character.

Posted by Paul Horwitz on April 12, 2018 at 02:44 PM in Paul Horwitz | Permalink | Comments (0)

Want this job? Move five times in eight years

As usual, Professor Sarah Lawsky's tireless diligence here at Prawfs has yielded a treasure trove of information regarding entry-level hiring. Browsing this year's report, I can't help but notice the serial credentials that these impressive hires have: a fellowship (maybe two), an advanced degree (maybe two), a clerkship (maybe two), not to mention law firm, government, corporate, or public interest jobs wedged in between. (Most have some non-clerkship legal experience, and many have five or more years' experience.)

But, as I look at the litany of jobs, I can't help but wonder about a major barrier to entry into the legal academy: the flexibility to move several times in a short period of time early in one's career. Few of these hires stacked all their experiences in a single city. Many moved time after time after time for one- or two-year jobs, before heading off to grab the next credential.

I think about my own experience: South Bend to Saint Louis to Chicago to State College to Malibu (and it easily could have been more), one- and two-year stints along the way. Four children born in four different states. And others have far more experiences than I had. I was very fortunate to have an extraordinarily flexible spouse and the financial ability to handle these transitions (at least for as long as I needed to do so).

But it's also made me reflect that many do not have this flexibility. Those who secure a concentration of experiences in a single (usually very large) city; those who postpone family life; those with socioeconomic means to take low-paying clerkships and fellowships, and to move repeatedly; those with a mobile spouse or children not yet enmeshed in a social group--these are just a few of the groups that can enjoy what one might (uncharitably) call a kind of hazing: "Want this job? Move five times in eight years."

Candidly, I understand that there's a kind of arms race out there among schools and prospective law professors. The candidates get still more glowing credentials, and it becomes very easy to rely on those proxies (e.g., clerkships, advanced degrees, and fellowships). The market has grown ever tighter over the last decade, and with fewer openings comes tougher expectations. Candidates remain on the market for longer periods and cycle through additional fellowships. And that leads to candidates with ever-longer publication records, which in turn requires future prospective candidates to take the time (and a move or two) to improve their own publication records. (Indeed, some come to the market with tenure-worthy track records!)

I don't really have easy answers to this. Maybe today's entry-level law professors are simply better than they were a decade ago because of these many accomplishments. Maybe we can't de-escalate the arms race of credentials--and maybe the backlog of prospective law professors is not going away anytime soon. Maybe these proxies are simply a better way of measuring future quality (then again, maybe a clerkship is just a job). And existing publication records are, I think, better than guesses about future scholarly ability.

All the same, I wonder if the pendulum has swung too far to often demanding far too much of too many would-be law professors. And while I'm not sure what the right result is, or whether it's something law schools can even control, I do think we underestimate how much the present system may be shaping the market of prospective law professors, and perhaps in ways that are not only unanticipated but perhaps even undesirable. If that's the case, I hope it's something law schools (and hiring committees in particular) can begin thinking how to address.

Posted by Derek Muller on April 12, 2018 at 09:12 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (23)

Some Reasons to Randomize Cold Calling

After guest blogging at Prawfs once or twice per year for many years, it's now been almost 2.5 years since my last stint. I'm looking forward to blogging about some of my scholarship since then, but I begin with the evergreen topic of cold calling.

The best way to cold call depends on what you're trying to accomplish. If your goal is to get students to air more accurate or carefully considered answers, you might lean on methods that give students advance warning, such as a panel system where students know in advance when they are eligible to be called on. Panels likely create less anxiety for students in total but do not encourage broad student preparation for class.

To encourage broad student preparation, I will suggest, there are good reasons to select students at random rather than using other semi-arbitrary methods professors tend to use. First, doing so reduces the probability that a professor purposely or inadvertently favors (or disfavors, depending on your view) particular students. Second, even when a professor is as fair as possible, some students may have the mistaken impression that a professor is favoring/disfavoring certain students. A transparent method of random selection can fix the misimpression by making the cold calling process feel less personal. Finally, using traditional approaches to cold calling, a cold-called student is less likely to be called on again in the near future, possibly fighting against the goal of encouraging student preparation. 

If you were to randomize cold calling, how should you do it? It's important that the randomization method be quick so as not to distract the class and interfere with the flow of discussion. Here's the method I think I would use: At the beginning of the course (or once the roll is finalized), put the names of all enrollees into rows in a spreadsheet. Then append, say, four more copies of the names, so that if you have a class of 50 students, you'll have 250 names. Associate a random number with each instance of a name (e.g., use Excel's rand() function), and then sort the whole list based on the random number. Finally, number each name from 1-250 and, ideally, use multiple columns to get it all on one page that you distribute to students early in the course. Then, at the beginning of each class, select a single random number from 1-250 (say, using a free app on your smartphone) and write that number on the board. This number represents the place on the list where you will begin cold calling that day and will then proceed sequentially down the list. 

Aside from being quick and low hassle on a daily basis, this method has some additional advantages. First, unless you cold call very rapidly, most students will realize once the first number is selected that they are unlikely to be cold called on that particular day. Those students will have already prepared for class anyway (your key goal by hypothesis) and can now enjoy the class with lower levels of anxiety. Second, students who realize that they are likely to be called on will have extra incentive to pay attention and are unlikely to be day dreaming when called on--a moment in class that can be awkward for everyone and detract from the class's energy and focus. Finally,  those students who expect to be called on during a particular day will likely use brief pockets of time (e.g., right before class starts, during ten-minute breaks if you have one) to further refine their preparation. Such mini-preparation, though distracting if the whole class does it, can give the few students likely to be called on a chance to better articulate their thoughts and helps with our subsidiary goal of encouraging students to air more accurate and carefully-considered thoughts.

I have misgivings about cold calling and rely on it considerably less than my peers. I offer no general defense of cold calling by any means. But to the extent one uses it at all with the main goal of boosting class preparation, there are good reasons to randomize either across the whole class or within large panels.

Posted by Adam Kolber on April 12, 2018 at 07:43 AM | Permalink | Comments (6)

Wednesday, April 11, 2018

When Citizens Become the Product

With Mark Zuckerberg testifying on Capitol Hill this week, it seems worth raising the related issue about how police technologies turn citizens’ data into the product.  The old adage that all tech companies are really data companies and you are the product is now reemerging in our collective consciousness.   But data companies are not just targeting your Facebook feed; they are also targeting the public infrastructure of policing and city services. 

Imagine you are cash-strapped city facing a violent crime problem and a sophisticated Silicon Valley company offers you free analytical services to reduce crime, clean up your archaic computer systems, and improve city services.  As a mayor, do you turn it down?

Imagine you are an underfunded police department facing public rebuke for failing to take police accountability seriously and a company offers you free body cameras for your entire department.  As a police chief, do you turn it down? 

These questions do not lend themselves to easy answers even though they already have been answered.  In New Orleans, for six years Mayor Mitch Landrieu took Palantir’s free offer to pilot its social network analysis to reduce shootings, implementing the technology without much public oversight.  Police departments all across America have taken Axon’s offer of free police-worn body cameras, creating long-term contractual relationships for data storage and analytics.   

These examples reveal the temptation of the digital age – by trading data for services city governments are getting needed improvements seemingly for free.  But there is always a cost.  Here the cost runs to the citizen.  And, unlike with personal data where you can control whether you give up your photos to Facebook or perhaps delete your account with big data surveillance you cannot consent to the collection and have no voice in the decision.

Continue reading "When Citizens Become the Product"

Posted by Andrew Guthrie Ferguson on April 11, 2018 at 03:03 PM | Permalink | Comments (4)

Truth, Trust, and the First Amendment in the Digital Age

The University of Missouri Schools of Law and Journalism co-sponsored a symposium last week at the National Press Club in D.C. entitled Truth, Trust, and the First Amendment in the Digital Age. C-Span carried the symposium, including the keynote by the inestimably fabulous First Amendment attorney Floyd Abrams.

If you're interested, the panels and keynote are available to watch on C-Span at this LINK

Barbara Cochran of the School of Journalism moderated the journalism panel, which included remarks by:

Peter Baker, The New York Times
Dan Balz, The Washington Post
Major Garrett, CBS News
Hadas Gold, CNN
Clarence Page, Chicago Tribune
Chris Buskirk, American Greatness
Margaret Talev, Bloomberg News

I moderated the media law scholars and media lawyers panel, which included remarks by:

Amy Gajda, Tulane University School of Law
Ronnell Andersen Jones, University of Utah College of Law
Mary-Rose Papandrea, University of North Carolina School of Law
Charles Tobin, Ballard Spahr LLP
Sonja West, University of Georgia School of Law
Kurt Wimmer, Covington & Burling LLP



Posted by Lyrissa Lidsky on April 11, 2018 at 10:59 AM in Constitutional thoughts, Current Affairs, First Amendment, Lyrissa Lidsky, Symposium | Permalink | Comments (0)

Sole authors of casebooks and amicus briefs

One common comment about the legal academy is how odd the scholarly enterprise looks. To offer nothing particularly new... the journals usually aren't subject to blind peer review. Simultaneous submissions to multiple journals with expedite decisions is wholly foreign to most other academics. And, of course, most lengthy articles are drafted by a sole author. I think it's fair to say that there's been an uptick in co-authored pieces, whether because of an increase in interdisciplinary scholarship or the need for additional contributors in empirical work. But sole authors remain the norm.

The same cannot be said for much of the other work that legal academics do. Casebooks often have a few co-authors. Perhaps that's because the casebook is a large enterprise, or because it may include a variety of sub-topics that call for different expertise, or because one academic is on the way out and invites another academic on the way in to help transition.

And amicus briefs are sometimes signed by dozens, if not hundreds, of academics. Sometimes this might be a larger collaborative affair in short-fuse litigation, or sometimes it may (ed.: don't say it!) serve as virtue signalling to fellow academics who signed the brief (even if one believes everything within the brief!). (Let's face it: we've all been on listservs with a plea for signatures on an already-completed brief.)

While there is increased recognition of the value of co-authored law review articles, I'm not sure enough recognition has been given to the opposite in casebooks or amicus briefs--specifically, those with a sole author.

Two casebooks I regularly use are Professor George Fisher's Evidence and Professor Gary Lawson's Federal Administrative Law. The students, I think, can sense that there is an authentic personality in the text, because, perhaps, the author is able to speak with a single narrative voice, without piecemeal chapters or compromises among co-authors in communicating a point. Of course, I often use co-authored casebooks in other courses, but these two strike me as particularly rich. (A third I'd include in this category is the late Professor Richard Nagareda's first edition of The Law of Class Actions and Other Aggregate Litigation.) And, of course, I can only speak of the fields where I've spent time perusing casebooks.

I've also noticed a few recent sole author amicus briefs in the United States Supreme Court from law professors, which have struck me as unusually thoughtful (sometimes even persuasive!).

Professor Steve Sachs in Atlantic Marine Construction (in support of neither party, and earning discussion in Part II-C of the Court's opinion);

Professor Orin Kerr in Carpenter v. United States;

Professor Aditya Bamzai in Ortiz v. United States (in support of neither party, and yielding an opportunity to participate in oral argument);

Professor Richard Re in Hughes v. United States (in support of neither party, and earning significant discussion at oral argument); and

Professor Jenn Mascott in Lucia v. SEC.

(To name only a few!) This is not to say that only these amici have influenced the Court, of course (and on such matters I would heartily defer to sound analysis from the outstanding work of Adam Feldman!), but it is to say that sole authors have received some (and perhaps disproportionate) favorable attention lately. I wonder if we might not only underappreciate their contributions, but also see an increase in such work in the future. (It's also not to minimize the dual-authored amicus briefs, sometimes a pair of authors who've written on the subject before and file as amici--but I'll let someone else chronicle those efforts....)

Perhaps I have an overly romanticized notion of the sole-authored casebook and amicus brief. (Indeed, I imagine some of the named individuals might have much more reality-oriented views on the costs of such activities!) But, they strike me as interesting opportunities worth serious consideration.

So... any favorite sole-authored casebooks or amicus briefs? Or better explanations for these phenomena?

Posted by Derek Muller on April 11, 2018 at 09:11 AM in Article Spotlight, Books | Permalink | Comments (3)

Tuesday, April 10, 2018

Pope Francis on Tweeting, Posting, Surfing, . . . and Blogging?

Pope Francis has a new "Apostolic Exhortation" (for more on what that is, especially if you are a religion-beat journalist writing about the matter, go here) called "Rejoice and Be Glad" (Gaudete et exsultate).  It is discursive, and covers a lot of ground.  Among other things, the Pope talks about the challenges posed to joyfulness and "holiness" by some of our social-media and information-gathering technologies.   A bit:

“Blessed are the peacemakers, for they will be called children of God”

87. This Beatitude makes us think of the many endless situations of war in our world. Yet we ourselves are often a cause of conflict or at least of misunderstanding. For example, I may hear something about someone and I go off and repeat it. I may even embellish it the second time around and keep spreading it… And the more harm it does, the more satisfaction I seem to derive from it. The world of gossip, inhabited by negative and destructive people, does not bring peace. Such people are really the enemies of peace; in no way are they “blessed”.[73]

[73] Detraction and calumny are acts of terrorism: a bomb is thrown, it explodes and the attacker walks away calm and contented. This is completely different from the nobility of those who speak to others face to face, serenely and frankly, out of genuine concern for their good.


115. [We] can be caught up in networks of verbal violence through the internet and the various forums of digital communication. [L]imits can be overstepped, defamation and slander can become commonplace, and all ethical standards and respect for the good name of others can be abandoned. The result is a dangerous dichotomy, since things can be said there that would be unacceptable in public discourse, and people look to compensate for their own discontent by lashing out at others. . . .

116. Inner strength, as the work of grace, prevents us from becoming carried away by the violence that is so much a part of life today, because grace defuses vanity and makes possible meekness of heart. The saints do not waste energy complaining about the failings of others; they can hold their tongue before the faults of their brothers and sisters, and avoid the verbal violence that demeans and mistreats others. Saints hesitate to treat others harshly; they consider others better than themselves (cf. Phil 2:3).

I particularly liked this passage, which seems relevant both to parenting tweens and teenagers and teaching in today's colleges and universities:

167. The gift of discernment has become all the more necessary today, since contemporary life offers immense possibilities for action and distraction, and the world presents all of them as valid and good. All of us, but especially the young, are immersed in a culture of zapping. We can navigate simultaneously on two or more screens and interact at the same time with two or three virtual scenarios. Without the wisdom of discernment, we can easily become prey to every passing trend.

"A culture of zapping."  Is the Pope sub-tweeting David Lodge?

Posted by Rick Garnett on April 10, 2018 at 02:12 PM in Rick Garnett | Permalink | Comments (0)

Some Comments on Carissa's Post on Legal Scholarship and Non-Scholarship

My Prawfs colleague Carissa has been doing a superb job in both advancing and drawing attention to the issues she discusses in her most recent post. It is an issue of some interest to me as well, both because I've been blogging for over a decade (albeit less frequently) and dabble in Twitter (which, admittedly and as I've said too often, I find to be like wading in a muddy stream, with or without panning for or finding any gold nuggets). One of her main interlocutors, Eric Segall, has his own post up now on the Dorf on Law blog. I have (and will again crudely publicize) a forthcoming article on some of these subjects and an old, hopefully fun and foolishly candid, piece from back in the day when we were having similar debates about blogs and other forms of online activity by legal scholars in the early 2000s. I wasn't at the conference she refers to, so anything I say about that comes from twits about the conference posted on Twitter while it was occurring. I want to chime in with a few thoughts. I will write at undue length, as usual. But please don't count this as scholarship!

1: The first is the most obvious one and is suggested by what I wrote above: We have had this debate at least once before. More accurately, there have been debates and discussions about academics as public intellectuals for decades, and the legal academy debated the relationship between blogging and legal scholarship pretty fully about a decade ago. Of course we need not take that debate, or any debate, as settling matters, and we might have other things to say about Twitter and other bite-sized forms of writing than we did about blogs. Still, we needn't reinvent the wheel here. My partial sense of that debate is that the consensus that emerged was that blog posts can be a useful form of writing, that they can or should be recognized as a form of service (as op-eds and other public writings are), and that they should not be counted as scholarship for tenure purposes, even though some blog posts can be quite scholarly in nature, albeit without peer review and other disciplinary constraints. I think that's still the right consensus. And that had to do with blogs! Practices vary, but some of the blog posts discussed there were quite long and serious. Some foolish people still insist on long blog posts when they feel they have something to say and want to get the nuances and qualifications just right rather than make a splash. (Or, as in my case, when they write too quickly and haphazardly and don't take the time to refine and shorten the post.) If--and that's a big if, and one not reflected in the posts linked to above, but I gather something like this was said at the conference; again, please take that with a grain of salt, since I'm relying on contemporaneous tweeting--we were to include something like tweets or even tweet threads as activities that should get even partial recognition as scholarship, that would represent quite another step--a step down, I am quite sure. (Incidentally, when I have written long Twitter threads I have been criticized by other legal academics for using Twitter "wrong."* If that's the case, then it certainly should not count as scholarship, any more than we should count interesting faculty lounge discussions or chats over drinks at a conference as scholarship.) As far as either incentives or intrinsic scholarly quality are concerned, I see no compelling reason to revisit the consensus that emerged from the last conversation. Segall cites some bloggers who have written lengthy and serious blog posts. Accepting that characterization for purposes of argument, I note that the bloggers he mentions are also prolific and/or serious scholars. They don't appear to need special incentives to do the blog posts, or at least the existing incentives for doing so, such as notoriety or immediate impact, are sufficient. And not all blog posts come anywhere near meeting that standard. Most don't.  

2: I understand Carissa's "defense of law review articles" to be a general defense, not a strong defense of the status quo in legal scholarship. I was gobsmacked that a commenter defended non-blind review of submissions; I know of few academic defenders of such a practice, and rightly so. I think the quality of a piece should count, not the ostensible prestige of its placement. We could criticize many other aspects, not only of the law review system, but of the format of law review articles and the tricks and stratagems baked into current writing and submission practices by ambitious law professors, and I've done so here repeatedly. Insofar as Segall argues for giving greater consideration to shorter pieces that still constitute good scholarship, I agree. Some of my better pieces (in my view) have been shorter ones, including book reviews (as we do them in the legal academy, as opposed to the 3-page reviews common in other disciplines), often precisely because they aim at a narrower problem, dispense with unnecessary literature reviews (to be clear, not all literature reviews are unnecessary, although even the necessary ones could be done differently or better), and can be sharp invitations to newer or better discussion. Some of the reasons we count long pieces over short ones, or sometimes don't count short ones at all, elevate form (not even form, really, but length) over function. We could also argue about the value of turning more long pieces into full books or published monographs, although that too threatens to elevate form over function. The means of production in law tend to prefer articles over books, and the existence of a vast universe of law reviews means it is easier and cheaper to produce long articles without having to publish books. I think we undervalue books in the legal academy. But it is also possible that some other disciplines overvalue books and that some books in those fields would be better as long articles, if there were journals willing to publish them and books were not the sine qua non for tenure in those fields.  (Law is not the only discipline in which the tail sometimes wags the dog.) Perhaps the right balance lies in between. In any event, I took Carissa's defense not as an absolute but as a comparative defense--as a defense of full scholarship over bite-sized non-scholarly writing, at least for purposes of what we value and give credit for as scholarship in the legal academy. 

3: There are debates about the purpose of legal scholarship. I have my own views on this, but I've offered them elsewhere, and I'm not insistent on winning those debates or ruling "out of bounds" other forms or aims of legal scholarship, although I think they must not sacrifice certain scholarly values for the sake of, say, impact or persuasion. I do not think, however, that "national attention" or "speak[ing] relatively quickly about important current legal events" are genuine scholarly desiderata. Of course these achievements may have considerable value. That doesn't mean they have scholarly value or must be treated as "scholarship." Op-eds, tweets, and other short contributions that make big splashes very rarely are scholarship in any useful sense of the word. They generally do not seriously advance knowledge, require or demonstrate mastery of a difficult field or issue, carefully consider counter-arguments, acknowledge and describe the limits or frailties of their arguments, and so on. If they did, they would be much less likely to get attention; indeed, they would be less likely to get published by newspapers or online opinion-piece publishers in the first place. They generally get attention because they provoke or persuade, and the tools used to provoke or persuade are often rhetorical strategies not necessarily linked to, and sometimes in tension with, scholarly accomplishment or values. Some of the most attention-getting, widely followed legal academic writers in the public arena (I'm thinking especially of Twitter here) are highly questionable in the accuracy and quality of their arguments. (In a comment on Carissa's post, Orin Kerr suggests that doing both--writing an article and then presenting your ideas in a blog post or op-ed--can "combine analytical rigor with public engagement without sacrificing one for the other." That can be true, and Orin is a good example of someone who does so very well. But I'm less sanguine about this one-two combo. Many such "public engagements" aim at persuasion, and do so through rhetorical strategies that can be misleading about the arguments presented more fully in the scholarly article. I'm not arguing against such engagements. But I think scholars who engage in this activity--and I certainly have, in op-eds and other public writings--should either be very careful about what they say there, even at the cost of making it less likely to get published or garner attention, or avoid trading on their job titles and academic positions. There's nothing wrong with writing something as "Joe Blow" rather than "Joe Blow, the Gavin Harrison Professor of Law at Podunk Law School.") I am perfectly happy for debates about the value of public "engagement" and real-world impact to continue. But good scholarship is not a democracy or popularity poll. Its quality is judged from within the disciplinary community. Perhaps few people will read in full the piece by Ryan Williams that Segall mentions (in a fair and non-pejorative way). But some very serious scholars will read it carefully and take it very seriously, and may in the long run judge it to be excellent scholarship. (It has gotten good peer reactions already. I treat the fact of its being published by Harvard as basically irrelevant.) 

4: Some legal scholars end up frustrated with scholarship itself, or end up finding greater personal or intellectual rewards through other forms of activity. (Some of this, I think, is a function of our imperfect processes for hiring legal scholars, which sometimes focus heavily on credentials, or on general signs of intelligence or "brilliance," rather than sifting through the applicants to find those with a true scholarly vocation. Among other things, we do not require the long investment in a scholarly career that characterizes the path for scholars seeking certification in other fields, although we are moving closer to that model. Still, insofar as we don't, we have less evidence of vocation to go on, and the candidates themselves have made less of an investment in being scholars and may be less certain that that's what they want to spend the rest of their lives doing.) Some--I can think of at least a couple each at most elite law schools--become reasonably serious public intellectuals. I can think of one or two legal academics that I would characterize as having become not serious public intellectuals but, in effect, journalists or standard-issue opinion writers. Some of these individuals reach a point where they rarely if ever publish legal scholarship at all. They still write, and some write voluminously. They do not abandon writing altogether in favor of excellent teaching or service (which we might nonetheless value highly in an academic colleague in what is still also, and perhaps primarily for law schools, a teaching and training enterprise). Nor do they necessarily become people who retain their tenure but devote an absolute minimum of effort to scholarship, service, and tenure, a category of colleague generally labeled as "dead weight" within the academic profession. But they change writing genres. They don't engage in scholarship any more.

As general readers, we may value what they produce very highly. More particularly, what they produce may be valued very highly by the world outside the academy. They may garner significant book sales, go on the paid lecture circuit, get commissions from think tanks or advocacy groups, and get paid to write by various mainstream publications. In other words, they have considerable incentives and can reap considerable rewards as public intellectuals. I quite enjoy some of this work. But it is not at all clear to me why one needs to, or should, retain one's paid and tenured academic position to do it. There are plenty of people who aspire to an academic position precisely because they want to advance knowledge in a discipline through a method and form of writing that is expensive and difficult to produce (at its best, anyway), uncertain in its time horizons, unlikely to pay for itself if sold to the public, and aims at the longue duree rather than at short-term gain and rapid production. These are the people who need academic positions. 

If you have decided to devote yourself instead to other forms of writing, that's fine with me. It may be your true vocation and the greatest contribution you can make to the world. But if you've made that decision, perhaps you ought to cede your tenured position to someone who wants to pursue a life of scholarship, and devote yourself to this work. You will lose security of position, true. But the point of that security of position is to serve, protect, and contribute to the discipline, not to convenience the individual. There is no guarantee that David Brooks, Kevin Williamson, Ta-Nehisi Coates, or non-academic writers of serious general-interest books, will keep their current jobs or sell a lot of books. They're engaged in a chancy enterprise, albeit one that may turn out quite profitably. But that doesn't mean they should have sinecures at universities. My academic job allows me to blog; but my blog is hardly a good reason for me to have and keep that job, even if I were one day to say something useful in this space. You will also lose your title, which gives you the appearance of authority. But that appearance of authority is a function of the fact that you engage in scholarship, subject to all its duties and constraints and disciplinary judgments about its qualities. There is no sufficiently convincing reason why one should retain the title and the authority that comes along with it if one has abandoned the activity that is an essential element of that authority, and no reason why you can't find sufficient authority in what you write rather than from some academic job description in your author ID. Professional courtesy (or omertà), a desire not to offend, a healthy dose of self-interest, and the unimaginability for many scholars of giving up that job generally lead us to refrain from suggesting that not everyone should be, or remain, a tenured academic. But it's true. And there ought to be no shame, and may be much glory (not to mention honor, for the person who acts accordingly), in suggesting that people who have, or discover over time that they have, a non-scholarly vocation, ought to pursue it--and pursue it outside the academy.

I hope it is clear this is not aimed at Segall personally. I know he has a book coming out and I assume by this that he is still engaged in scholarship. I trust he takes teaching and service (in addition to the service of writing for Slate or what have you) seriously too. I am speaking more generally. Those who seek engagement and attention without also pursuing scholarship, who want to be general public intellectuals without remaining serious contributors to an academic discipline, may like having academic positions while they do so, but don't require them. And it's not clear they should have them. The cost of their not surrendering such positions is visited on would-be serious scholars who don't get jobs as academics or struggle as adjunct or contract faculty. They need and deserve those tenure-track positions more, so they can do the scholarly work for which such positions were intended. By all means give non-scholarly writing some credit, as service anyway. But that's all that's needed.    

* A short addendum for the sake of fairness. I can't recall whether this person in particular motivated the sentence asterisked, but one person who engaged in such a discussion with me on Twitter takes issue with my description of that discussion and believes I have mischaracterized it. I'm happy to note that disagreement. I'm also happy to note that 1) I have received similar reactions from others on Twitter, and I think the general observation holds; 2) I certainly had that general discussion somewhere in mind but can't recall whether what I had in mind was this individual's criticisms at the time or those of others; and 3) disputes about the meaning of statements limited to some 280 characters are likely to be legion, especially among law professors (myself included, no doubt), who are often willing or eager to challenge other people's readings and understandings, and seem to me to support my view that the consensus that emerged about giving not giving credit to blogging as "scholarship" should apply tenfold to Twitter.  



Posted by Paul Horwitz on April 10, 2018 at 10:34 AM in Paul Horwitz | Permalink | Comments (4)

Essential law review symposium issues

Thanks to Howard for allowing me to return to Prawfs! I write on election law, and I blog at Excess of Democracy, but they'll (mostly) be background issues for my stint here at Prawfs (I hope!). I want to start with some more general items, some of which I hope to be of particular interest to more junior faculty. First up: law review symposium issues.

When researching a new topic or refreshing my recollection on something old, I've probably become the last prawf to realize how valuable law review symposium issues are (a slightly different inquiry than Professor Carissa Byrne Hessick's thoughtful post on law review articles generally). Time and again, I've found that some outstanding symposium issues are chock full of terrific pieces, a kind of one-stop-shop for research rather than plodding through Westlaw or SSRN. Because most law reviews are general (admittedly, I also rely a lot on the peer-reviewed Election Law Journal!), symposium issues serve as a convenient place to browse a number of articles on a topic, which can serve as an incredible launching point for research.

I'll name three such issues I regularly rely upon, and I'll link to their tables of contents (Hein subscription may be required). Each of these have a terrific collection of pieces.

The Law of Presidential Elections: Issues in the Wake of Florida 2000, Florida State University Law Review, Vol. 29, Issue 2 (2002)

Baker v. Carr: A Commemorative Symposium, North Carolina Law Review, Vol. 80, Issue 4 (2002)

Congress in the Twenty-First Century, Boston University Law Review, Vol. 89, Issue 2 (2009)

 (As an added bonus, I snag print copies from the library and keep them in the middle of my office coffee table for handy reference.)

A couple of questions for the comments (or for Twitter):

First, what makes for an outstanding symposium issue (and not just an outstanding symposium--although perhaps the two have some relationship)? The issues above range from the extremely timely to the the half-century-old. The article lengths and types of contributors can vary widely, too.

Second, what are some of the symposium issues you find essential in your field? For those who have been writing for many years, it can be particularly helpful to direct newer colleagues toward such resources, as diverse as our areas of interest might be. (This, I hope, might supplement the classic 2006 post from Professor Matt Bodie, "Research Canons"--very much worth reading!)

Posted by Derek Muller on April 10, 2018 at 10:10 AM in Article Spotlight | Permalink | Comments (2)

Entry Level Hiring: The 2018 Report - Second Call for Information

This a reminder of the Entry Level Hiring Report.

If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on April 10, 2018 at 10:01 AM in Entry Level Hiring Report | Permalink | Comments (0)