Tuesday, July 17, 2018

Alternative Facts from Court, the Anti-Vaccine Edition

In a very real sense, the anti-vaccine movement lives in an alternative reality. It’s a dark, frightening realitywhere there is a global conspiracy run by pharmaceutical companies that, apparently, controls most of the doctors, scientists, and health officials in the world, and every government. Where vaccines are poison and diseases are benign, and all that is bad in the world – or most of it – can be blamed on vaccines.

 

I want to use a recent FOIA stipulation to demonstrate how this is formed, how anti-vaccine  groups interpret reality to make it more sinister. This might also give some insight into the phenomenon of alternative facts more generally.

Continue reading "Alternative Facts from Court, the Anti-Vaccine Edition"

Posted by Dorit Reiss on July 17, 2018 at 09:13 AM in Culture, Current Affairs, Law and Politics | Permalink | Comments (0)

Monday, July 16, 2018

Colb on the presumption of innocence

This post by Sherry Colb is outstanding, helping to explain away a trap that I have fallen into in thinking about sexual-assault accusations, specifically acquaintance sexual assault.

Her explanation of presumption of innocence matches how I teach it in Evidence, as the assignment of the initial burden of production. The default conclusion is innocence, unless and until the party opposing innocence (the prosecution) introduces sufficient evidence of not innocent. And the competing stories of the victim and the defendant are two bits of evidence to be considered. Then, having carried that burden, the jury must be strongly convinced.

Colb is right that sexual assault is not the only type of so-called he-said/she-said; she gives the example of a mugging in which the evidence is competing testimony between the victim and the defendant's mother, but argues that we never would deride such a case as he-said/she-said. The difference is the underlying misogyny that Colb says permeates sexual-assault cases. Because that misogyny bad a particular evidentiary consequence--the allowance of evidence of victim character. We do not, and never have, allowed such evidence in the mugging case. And despite recent efforts such as rape-shield statutes, the use of such character evidence has not gone away.

Posted by Howard Wasserman on July 16, 2018 at 08:44 AM in Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (20)

There Is Nothing New Under the Sun - Xenophobia Edition

PapaParisPart of this is recycled from something I posted (can it be?) on Christmas Day, 2007 over on Legal Profession Blog.  At the time it was a tribute to my wife Alene's grandfather, Nathan Milstein, one of the longest serving lawyers in the history of the Michigan bar.  (That is him on the left, Alene on the right, and our niece, Paris Franklin, in the middle.) The last couple paragraphs in that post prompt me to reprise much of it.

Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929.  Nathan passed away in 2003, having continued to practice until his late eighties.

Nathan's practice in the 1930s included, among other things, immigration.  That came up in a conversation Alene had with my colleague, Prof. Ragini Shah, who founded Suffolk's Immigration Clinic.

I am burying the lede here, so bear with me.

What prompted the post over ten years ago was the renewed interest in Diego Rivera and Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude:  their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.  We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to Nathan, who represented and befriended Rivera and Kahlo during their stay in Detroit.  (Family legend has it that Kahlo made a pass at Nathan, but this is unconfirmed.)  

Continue reading "There Is Nothing New Under the Sun - Xenophobia Edition"

Posted by Jeff Lipshaw on July 16, 2018 at 07:59 AM in Blogging, Current Affairs, Immigration, Lipshaw | Permalink | Comments (1)

Sunday, July 15, 2018

ACLU in the NYT (Updated)

I was traveling last week, so I was unable to read and comment on last week's New York Times Magazine feature on the ACLU. The story emphasizes two themes--its litigation against the Trump Administration across a range of issues and the way it has looked to the NRA's political and electoral strategies for guidance.*

[*] The headline on the article in the print edition was A.C.L.U. v. Trump. The headline in the online article was Can the A.C.L.U. Become the N.R.A. for the Left.

The article does not get into the controversy over the ACLU's First Amendment work, its role in Charlottesville, or the recent controversy over its policies on representing certain speakers in First Amendment cases. None of the political and litigation effects discussed in the piece involve the First Amendment. The article downplays the degree to which this reflects major changes to ACLU activities. It states this is "not the first time the A.C.L.U's mission has shifted," pointing to its birth in the 1920s to protect radicals and unionists and the slow discovery of the benefits of litigation in those efforts. But that was a shift in tactics, not a shift in mission. The print article describes the ACLU has having become a "rapid legal assault force against the Trump Administration." But the Administration's many sins have not involved limiting speech rights, so that role has required less work on free speech and more on immigration, due process, equal protection, and voting rights. All of which is important. But it is different than what the group has historically focused on.

Update: Marin Cogan in The New Republic explores how the ACLU's competing agendas and roles conflict in the Age of Trump. No mention of the Times Magazine story or of the representation guidelines, although it discusses the negative reaction by many affiliates to the organization's representation of Milo Yiannopoulos or the Charlottesville Nazis. Cogan offers an interesting conclusion--the NRA succeeded because of political polarization, in which certain issues (e.g., gun rights) are entirely associated with one political party. But resistance to sharp ideological boundaries is part of the ACLU's (First Amendment) DNA, so its continued desire to appear (and perhaps remain) non-partisan will frustrate and disappoint liberals hoping it will become the single organization to promote their interests.

I cannot tell if Cogan believes this is a good or bad thing.

Posted by Howard Wasserman on July 15, 2018 at 07:28 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, July 13, 2018

Two interesting civil rights puzzles (Updated)

No connection, other than being news stories while on a driving vacation.

1) A Cook County Parks District police officer resigned when video emerged of a drunk man harassing a woman renting a covered picnic area, while the officer watched and did nothing, despite requests from the woman. The drunk man, who was arrested when other officers arrived, was screaming about the woman not being American and should not have worn a Puerto Rico t-shirt in America.

The fun puzzle is imagining the woman's lawsuit against the officer (putting aside that she suffered minimal or nominal damages and a lawsuit may not be worth the candle). Under DeShaney, the officer cannot be liable under due process for failing to act to stop the drunk man or otherwise protect the woman. She would have to bring her claim either under equal protection, that the officer failed to act because she is Puerto Rican, or free speech, that the officer failed to act because he disagreed with the message on her t-shirt or, perhaps, because he agreed with and wanted to support the drunk man's anti-Puerto Rico speech directed against her.

Update: Erica Goldberg argues that much of what the drunk man did was pure speech, so the officer would have violated his First Amendment rights had he intervened sooner. I interpreted the video as being more in-your-face and threatening (and thus less purely protected expression), giving the officer leeway to step-in sooner than he did. But I see Erica's point that this can be read as obnoxious counter-speech.

2) Democratic-controlled states, anticipating overruling of Roe/Casey, are moving to update and enact protective abortion laws. Many progressive states still have on the books the restrictive abortion laws from the early 1970s that became unenforceable following Roe.

Continue reading "Two interesting civil rights puzzles (Updated)"

Posted by Howard Wasserman on July 13, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

A Professor's Modest Dream

My undergraduate alma mater, the University of Michigan, holds an annual summer event up here in northern Michigan, generally highlighting an achievement of somebody affiliated with the university.  This year it was an interview with Hendrik Meijer, the CEO of the Meijer super-grocery store chain, but also something of a scholar, who just published a biography of Senator Arthur Vandenberg. (Michael Barr, long-time Michigan law professor and recently appointed dean of the Gerald R. Ford School of Public Policy, ably conducted the interview.)

Image.1531193713927But I digress slightly.  Absolutely my favorite course at Michigan was the fall 1973 edition of "Introduction to Film," taught by Professor Frank Beaver (left), only three years out from having received his Ph.D.  I remember that course chapter and verse, from conceptual montage to the shocking "gun" scene in Edwin S. Porter's The Great Train Robbery to the assessment of that neat new film, American Graffiti, to Professor Beaver's admiration of Haskell Wechsler's Medium Cool. (I wrote my paper for the course on Deliverance.)

A couple years ago, I recognized Professor Beaver at one of these events, introduced myself, and began spouting back to him chunks of lectures he had delivered more than forty years before.  Since then we catch up annually, as we did last night, on new movies.  Professor Beaver still writes on film for Michigan Today, the alumni publication.

I think I took his course in his fourth year of teaching.  I "accosted" him roughly forty years later.  Because of my late entry into academia, the equivalent for me would be a former student approaching me in roughly 2051, when I will be a spry 97 years old.  I can only hope.

Posted by Jeff Lipshaw on July 13, 2018 at 08:53 AM in Books, Culture, Film, Lipshaw | Permalink | Comments (0)

Teaching Compliance

During bar study, July 4th is a big “you don’t have much time left” marker, and that is how I feel about the academic summer.  As soon as the fireworks have died down, I start thinking about teaching.  I love teaching.  I love teaching Contracts to 1Ls, in part, because it is hard to imagine a greater privilege than being able to help introduce the law to a brand new set of students.  But I also love teaching my Compliance course, because it allows the students to confront legal issues that are still being debated and determined.

Developing my Corporate Compliance & Ethics Seminar was both exciting and challenging.  At the time I started teaching it there was one compliance casebook (it is excellent), but I wanted to use a different set of materials for a seminar.  As many of you know, coming up with a set of materials for a course from scratch is time intensive, but it is also very rewarding, particularly when it overlaps with your scholarly interests. 

I decided to break my course up into modules and to use case studies as a vehicle for learning each concept covered.  Module I covers introductory materials like the Organizational Sentencing Guidelines, the importance of self-policing, as well as some background reading in behavioral ethics.  In Module II, we go through different actors within compliance efforts, like regulators, gatekeepers, and whistleblowers.  In Module III, we cover substantive compliance areas.  I have traditionally covered the Foreign Corrupt Practices Act, Antitrust, the False Claims Act, and Title IX.  In Module IV, I merge the theoretical concepts we have learned in class with some more practical concerns.  This latter module has changed each year I’ve taught it, with last year focusing on conflicts of interest and sanctions for compliance officers.  Finally, I weave in coverage of applicable Model Rules of Professional Conduct throughout the course.  

In other words, there is a whole lot of information crammed into a 14 week course, but it has generally been quite successful.  I use some classic exemplars for case studies—like Enron and Siemens—but I also use current events when I can.  For example, during last year’s whistleblowers class, I put together materials from the Wells Fargo scandal.  The mix of (i) case studies, (ii) theoretical background reading, and (iii) Model Rules has sparked intensive discussions about the role lawyers play within compliance efforts and where the boundaries should be when defining the scope of responsibility that lawyers should have for ensuring successful compliance programs are created and developed.  It is fun to teach, and the students seem to enjoy the concepts learned.  And because this is a class where the law is still quite dynamic, I’m looking forward to amending my antitrust and whistleblowers sections next week!

Posted by Veronica Root on July 13, 2018 at 08:27 AM in Corporate, Criminal Law, Teaching Law | Permalink | Comments (0)

Thursday, July 12, 2018

JOTWELL: Wasserman on Mitchell on writs of erasure

I have the new Courts Law essay, reviewing Jonathan Mitchell (VAP at Stanford), The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming), which debunks the idea that courts "invalidate" constitutionally defective laws, since the laws do not disappear from the U.S. Code. Mitchell's article has lent a welcome new angle to my arguments against universal injunctions and in favor of judicial departmentalism.

Posted by Howard Wasserman on July 12, 2018 at 09:52 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Vaccine Safety Resources for Teaching and Litigation

 

Anyone teaching about public health and vaccines – whether in the context of a public health law class or a traditional health law class with a section on vaccines - could benefit from a quick introduction to the scientific issues surrounding vaccines, including potential claims about safety concerns. To make life easy for those seeking such information, the Vaccine Education Center of the Children’s Hospital of Philadelphia (VEC) put together a collection of the strongest referenceson several commonly raised safety concerns. The collection was created through a collaboration between Dr. Stanley Plotkin, MD, Dr. Paul Offit, MD, and Dr.  Heather Bodenstab, PharmD.  

The logic behind the effort is that it is rarely possible to be familiar with all anti-vaccine arguments, especially since in today’s social media world claims change very fast, and few experts or professors can keep up with them. Similarly, an expert in evolution will not be familiar with all claims put forth by creationists, or an astronomer with flat earth claims. The library includes summaries of the most relevant, scientifically-based studies on each topic as well as links to a topical overview from elsewhere on the VEC website. It can help law professors be  prepared to address these common claims without requiring them to spend long hours tracking anti-vaccine claims and researching answers. It can also help lawyers and expert witnessesin cases related to vaccines, and could be of value to anyone interested in the science of vaccine safety.

 

Posted by Dorit Reiss on July 12, 2018 at 08:31 AM in Teaching Law | Permalink | Comments (0)

Wednesday, July 11, 2018

Hiring Committees 2018-2019

Please share in the comments the following information related to the 2018-2019 law school faculty hiring season:

(a) your school;
 
(b) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);
 
(c) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
 
(d) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(e) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
 
(f) your committee's preferred way to be contacted (email, snail-mail, or phone); and/or
 
(g) the number of available faculty positions at your school.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

If you would like to reach me for some reason (e.g., you would prefer not to post your committee information in the comments but would rather email me directly), my email address is sarah dot lawsky (at) law dot northwestern dot edu.

Remember, you cannot edit the spreadsheet directly. The only way to add something to the spreadsheet is to put the information in the comments or email me directly, and I will edit the spreadsheet.

Posted by Sarah Lawsky on July 11, 2018 at 10:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (7)

Is competitive eating a sport?

I should have written this last week, after watching the Nathan's Hot Dog Eating Contest on July 4, but I never got around to it. Anyway, is competitive eating a sport? The announcers spent a lot of the broadcast talking about how 11-time champion Joey Chestnut trained and worked his mouth, jaws, esophagus, and digestive tract to take and swallow such large amounts of food.

My four-part definition of sport is: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. Numbers 2-4 are satisfied--it is a competition, no machines are involved, and the skill of eating and swallowing is performed to the end of consuming lots of food. So the question is whether chewing and swallowing qualify as large motor skills.

Posted by Howard Wasserman on July 11, 2018 at 08:55 AM in Howard Wasserman, Sports | Permalink | Comments (8)

Tuesday, July 10, 2018

The Court’s Religious Jurisprudence and Vaccines

 

The Court’s Religious Jurisprudence and Vaccines

In my last post, I pointed out that for over a century, for good reasons, courts have upheld school immunization mandates, including in the face of challenges based on the First Amendment’s free exercise clause. Two federal Court of Appeals cases in 2011and 2015reaffirmed this. The courts’ approach is based in part on powerful dictum in Prince v. Massachusetts, and in part on Employment Division v. Smith. All the courts upholding California’s new school vaccine legislation, SB277, echoed that view.

An important qualification is that states that do provide an exemption face constitutional limits that seemed designed to make the exemption hard to police and easy to abuse (though each by itself can be justified). States cannot require a clergy lettersupporting an exemption claim, because that discriminates in favor of organized religion. States cannot refuse an exemptionto a member of a religion that supports vaccines – for example, a Catholic or Jew – on the basis of that alone, if she claims a personal religious objection to vaccines. And when state law, itself, does not require evidence of sincerity, several courts have ruled that officials cannot add that requirement. State officials must accept any claim of religious objection at face value.

This makes a religious exemption very hard to monitor. Most of the users of this exemption are likely refusing vaccines for non-religious reasons. Having a religious exemption – when courts have consistently found it is not required – is likely a poor policy choice.  

One question is whether the recent Supreme Court jurisprudence will change the current judicial consensus that a religious exemption is not required in vaccine mandates. This is a narrow application of these decisions (and far from inclusive, because I want this post reasonably short); but this exercise can highlight some potential risks of the court’s recent religious jurisprudence even the supporting justices seem not to desire.  The current Supreme Court majority has been fairly cautious in its handling of the religious cases. But we are facing a potentially different composition of the court – and who knows? (For more detailed discussions of the religious jurisprudence on this blog, seehere,here,hereand here, for example. For a recent discussion of a paper on appointments on this blog, see here).

Continue reading "The Court’s Religious Jurisprudence and Vaccines"

Posted by Dorit Reiss on July 10, 2018 at 11:57 AM in Constitutional thoughts, Religion | Permalink | Comments (6)

Monday, July 09, 2018

Constitutional Politics, Court Packing, and Judicial Appointments Reform

The following post is by Matthew Seligman, a VAP at Cardozo. It is a short version of his new paper.

In the aftermath of Justice Kennedy’s retirement announcement, several legal scholars have suggested that Democrats should add seats to the Supreme Court when they retake the Presidency and Congress.  Jed Shugerman, for example, advocated expanding the Court to 15 if Trump’s replacement nominee is confirmed, on the ground that no President under investigation for conduct that plausibly could lead to impeachment has appointed a Justice who might rule in his own case.  In addition to that conflict-of-interest principle, Ian Samuel suggests packing the courts in response to prior rounds of Republican hardball—most notably the Republican Senate’s refusal to consider Judge Garland’s nomination to succeed Justice Scalia.  Samuel is aware of the obvious implication of initiating a cycle of retaliatory court packing, as Richard Primus explained in the Harvard Law Review Blog in response to Steven Calabresi and Shams Hirji’s proposal last year that Republicans expand the courts of appeals by dozens or even hundreds of judgeships.  An escalating cycle of packing and re-packing the courts would offer fleeting advantage to one side and then the other (assuming neither side is able to permanently entrench its political dominance).  And the cost would be steep: undermining the legitimacy, public acceptance, and even basic functioning of the courts. 

Continue reading "Constitutional Politics, Court Packing, and Judicial Appointments Reform"

Posted by Howard Wasserman on July 9, 2018 at 03:24 PM in Article Spotlight | Permalink | Comments (12)

Coase and Fireworks

493l4SRQTVOydKrgKSgSugIn my continuing effort to demonstrate what the mundane world looks like through the eyes of a nerdy law professor, today we will talk about Ronald Coase, recipient of the Nobel Prize in economics, and fireworks.

Before we had dogs, I liked fireworks, at least the professionally staged kind.  Up here in Charlevoix, Michigan, every year in late July the town has a week-long event called Venetian Festival.  The highlight on Friday night is a spectacular fireworks show out over the lake for which our deck is effectively a front row seat.  For the last seventeen years or so, however, I have not been out on the deck nor have I seen the fireworks.  No, I am back in a closet with the door closed, comforting our dog(s) who is/are going batshit crazy.

With the professionally staged fireworks, at least I know when to go into the closet and when I can come out.  It's the private ones that really drive me crazy.  In Massachusetts, where we live nine months of the year, I don't have worry.  Private fireworks are illegal, end of story.  

Here in Michigan, however, we have to deal with one aspect of the state legislature's Year of Living Stupidly.  In 2011, the same year it passed the law eliminating the requirement that motorcyclists wear helmets, Michigan first permitted the sale of fireworks in the state.  In 2013, it amended the law to permit local units of government to ban the use of consumer fireworks, but not on national holidays, the day before or the day after a national holiday.  (It also allows any city in the state with a population greater than 750,000 - there is only one - to ban them between midnight and 8 a.m. on such holidays, and only between 1 a.m. and 8 a.m. on New Year's Day.)

The reasons for my sitting on the beach and, like a complete dork, reading Ronald Coase's The Problem of Social Cost follow the break. If he had the house next door, and had the same issues I do, what might he say about it?

Continue reading "Coase and Fireworks"

Posted by Jeff Lipshaw on July 9, 2018 at 09:54 AM in Deliberation and voices, Law and Politics, Legal Theory, Lipshaw, Property | Permalink | Comments (5)

Sunday, July 08, 2018

Northwestern University Law Review Exclusive Submission Window

From an email I received earlier this week.

________

 

Summer Exclusive Submission Track: July 2018 - NOW OPEN!

The Northwestern University Law Review's Summer Exclusive Submission Track is now open and will be open from July 1 - 15, 2018. Articles should be submitted as Word or PDF attachments to Senior Articles Editor Kendra Doty at kendradoty2019@nlaw.northwestern.edu. Please kindly title the subject line "2018 Exclusive Submission Track." For all articles submitted in accordance with the instructions outlined below, the Law Review guarantees Articles Board consideration and a publication decision by July 31, 2018.

Articles receiving a publication offer via the exclusive submission track will be published in Volume 113 in late fall of 2018 and early spring of 2019. Participating authors must agree to withhold the article submitted through our exclusive submission track from submission to any other publication until receiving a decision back from us. Authors not receiving publication offers are free to submit elsewhere after notification of our publication decision, which will occur no later than July 31, 2018. 

Please note that by submitting an article via the exclusive submission track, the author agrees to accept a binding publication offer, should one be extended.

If you have any questions, please contact Kendra Doty, Senior Articles Editor, at kendradoty2019@nlaw.northwestern.edu

Posted by Veronica Root on July 8, 2018 at 10:03 AM | Permalink | Comments (1)

Merde and Break a Leg!

It is summer conference season, more or less - tomorrow Bar Ilan University Law Faculty is holding a book event for You Don't Own Me (come if you are in Israel - its at noon and open to all), last week I gave a talk in Amsterdam and later this week - speaking in Madrid - so I thought I'd share something I just learned from some of my hosts - the origin of the wish - Merde that performers give each other before a performance. While there are lots of theories about where "break a leg" comes from, there appears to be a consensus that the French Merde! or the Spanish wish mucha mierda comes from the time when participants would come to the theater in horse carriages. The performers would glance outside to the street and hope to see a mountain of horse poop - sign of a full house...

So here's to a summer and a new academic year with lots of Merde!

 

Image result for horse carriage

Posted by Orly Lobel on July 8, 2018 at 06:05 AM | Permalink | Comments (0)

Saturday, July 07, 2018

Love and Fear in Research and Writing

This week I had the pleasure to tag along to my life scientist friends to hear the opening talk of a large biology/cancer research conference in Amsterdam. The speaker was Uri Alon from Israel's Weizmann Institute and I loved what he had to say. He spoke about the emotional aspects of being a primary investigator, running a research lab and mentoring students. I found his talk to be universal and insightful also for us lawprawfs and social scientists. Also - he plays the guitar during his talks - and he even improvises a song with requests from the audience. You can him here on related themes and his famous "I got scooped" song.

 

 

 

Posted by Orly Lobel on July 7, 2018 at 04:25 PM | Permalink | Comments (0)

AALS Call for Papers: “New Voices in Legislation”

 

The AALS Section on Legislation & Law of the Political Process is pleased to announce that it will host a “New Voices in Legislation” program during the 2019 AALS Annual Meeting in New Orleans, LA.  This works-in-progress program will bring together junior and senior scholars in the field of legislation for the purpose of providing the junior scholars with feedback and guidance on their draft articles.  Scholars whose papers are selected will present their work in small panel sessions.  A senior scholar will moderate each panel and lead discussion about the draft article.

Continue reading "AALS Call for Papers: “New Voices in Legislation”"

Posted by Howard Wasserman on July 7, 2018 at 10:31 AM in Teaching Law | Permalink | Comments (0)