Friday, January 27, 2012
BU Symposium on "The American Right to Health"
As I write this, I am on my way to Boston for a symposium, sponsored by the American Journal of Law & Medicine (AJLM), on "The American Right to Health: Constitutional, Statutory, and Contractual Healthcare Rights in the United States." The symposium runs from about 9 to 5 tomorrow, Saturday the 28th, and it promises to be an interesting lineup (present company excepted, of course).
My own contribution (which, like the others, will be published in the AJLM) will focus on constitutional implications that may arise from the government's definition of concepts such as "medical necessity" and "essential health benefits" under the ACA. I plan to argue that, depending on how narrowly the states or federal government may delineate the benefits to which Americans are entitled under the Act, individuals' constitutional right to protect their health may be infringed. (Of course, this also assumes that individuals have a constitutional right to protect their health--a proposition that I have argued elsewhere). To the extent that the government will virtually occupy the field of health care, it will come to control individuals' private health care decisions to a greater extent than ever before. As such, it is possible that the courts will have to decide whether individuals truly possess a constitutional right to make certain health care decisions autonomously, and if so, when the government has violated that right.
The paper is not yet ready for prime time, so not available on SSRN, but I'd be interested in hearing any initial reactions to this very sketchy idea. Or just come on down to BU and check out the symposium!
Posted by Jessie Hill on January 27, 2012 at 12:46 PM | Permalink | Comments (0) | TrackBack (0)
Thursday, January 26, 2012
Quick Exclusive Submission to the FSU Law Review
See update below.
I was told yesterday that FSU's Law Review has one spot in the current volume that opened up at the last minute. If any of you have a piece that you want to submit for both exclusive and quick review, please feel free to send it (along with CV and cover letter) to Senior Articles Editor, Hannah Monroe, and feel free to cc me. Hannah's email is hdmonroe16 at gmail.com
The story is that the Review will basically occur over the next few days until a suitable piece is found. If you submit now, you agree to publish it with FSU if it is selected. Straightforward and simple. The board will turn over later this spring and the new volume will open up to submission around then. Thanks.
1/27 Update: The FSU LR has asked me to shut the spigot off by tomorrow (Saturday) at 12pm (noon). So please send something to Hannah before then. There very well may be an exclusive submission window that reprises itself later on this semester so watch this space (ie, read Prawfs) for more information.
Posted by Dan Markel on January 26, 2012 at 10:24 PM in Funky FSU | Permalink | Comments (3) | TrackBack (0)
Sometimes lower courts are not paying attention
One point I have been making repeatedly in my jurisdictionality scholarship (here and in two forthcoming pieces) is that the Supreme Court is working hard to drop hints to lower courts that what is truly jurisdictional is extremely narrow and what is merits is comparatively broad. Lower courts are mostly getting it.
But not always, unfortunately, as this Fifth Circuit case demonstrates. (H/T: Scott Dodson).
Continue reading "Sometimes lower courts are not paying attention"
Posted by Howard Wasserman on January 26, 2012 at 02:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 25, 2012
Baude on removal under the JVCA
Back in December, I posted comments from Art Hellman (Pittsburgh) on the newly enacted Jurisdiction and Venue Clarification Act, which worked some significant changes to the law of diversity jurisdiction, removal, and venue. Art was involved in the drafting process, particularly the removal provisions.
Now comes Will Baude, a Fellow at Stanford's Constitutional Law Center, in Michigan Law Review's First Impressions, pointing out some remaining holes in the removal provisions, as they relate to removability in diversity cases where there is uncertainty as to the amount in controversy.
Posted by Howard Wasserman on January 25, 2012 at 10:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack (0)
Learning from exams
I survived my first round of exam writing and grading, and now I’m meeting with students from last semester who want to go over their exams. As I do that, two questions keep coming to mind.
First, while I’m willing to accept that most of the students are just interested in knowing why they got the score they did and in seeing if they can argue their way to a higher grade (which they can’t, absent a math error on my part), I do wonder if anyone has suggested techniques for encouraging students to use these exams to further their substantive understanding of the subject.
Second, what can I do to learn from these exams? How do I assess whether it was fair? Whether it was too long? Too short? Too easy? Too hard? I’d love any suggestions people can share. Thanks!
Posted by Michael Teter on January 25, 2012 at 01:20 PM | Permalink | Comments (9) | TrackBack (0)
Tuesday, January 24, 2012
Ironic, crass, stark reminder, reclaiming imagery? You decide
Courtesy of Eric Muller, who has thought (and written about) the experience of the Holocaust, is this web site selling this shirt (and others) to mark Yom Ha'Shoah. The shirts purport to be a statement of memory and solidarity.
Ironic? Crass? Offensive? Stark and meaningful reminder? Show of solidarity? Reclaiming of hateful imagery? Something else?
Posted by Howard Wasserman on January 24, 2012 at 10:23 PM in Culture, Howard Wasserman | Permalink | Comments (4) | TrackBack (0)
Predicting FCC v. Fox: Counting the Oral Argument Tea Leaves
Political science research suggests that the more questions the Supreme Court asks a party at oral argument, the more likely that party is to lose. The tenor of the questions counts, too: hostile questions help predict hostile outcomes. (For some of the research, see Sarah Shullman here, and Timothy Johnson et. al. here). Moreover, a study by Epstein, Landes and Posner suggests, "Justices are more prone to question at oral argument parties against whom they will vote than parties for whom they will vote."
With this in mind I examined and listened to the recent oral argument (1/10/12) in FCC v. Fox Television Stations et. al (docket 10-1293). When decided, Fox will be the first Roberts Court case directly involving the mainstream media, so it is highly significant for media lawyers and anyone concerned about press (and specifically broadcast) freedom. The Fox case asks not only whether the FCC's policy against use of "fleeting expletives" violates the First Amendment, but also whether the entire indecency enforcement regime for broadcasting is unconstitutional. [My analysis of the oral arguments is below.]
Continue reading "Predicting FCC v. Fox: Counting the Oral Argument Tea Leaves"
Posted by Lyrissa Lidsky on January 24, 2012 at 04:22 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (3) | TrackBack (0)
The Grand Mortgage Crisis Bargain
The New York Times reports that as many as one million homeowners facing foreclosure could have their mortgages cut by about $20,000 each as part of a long-awaited deal being negotiated between "state attorneys general, federal officials and the nation’s largest mortgage servicers." The grand bargain, which may reach as much as $25 billion, would use up to $17 billion to reduce principal for homeowners facing foreclosure. Another portion would be set aside for victims of improper foreclosure practices, with about 750,000 families receiving about $1,800 each. Of the chief obtacles to a final settlement are the battles between state attorneys general over the size and distribution of the final award. New York's AG wants the banks to pay more, overall. California also apparently sought a specific set aside for its own region, one of the hardest hit in the country, which put off other state AGs.
Given the size and importance of a national relief package like this, one might think that the most natural place to resolve these kinds of regional battles would be in Congress. The tendency to rely on state AGs for such a broad national package, instead of Congress, dates back at least as far as Congress' failed attempt to broker a resolution to the national tobacco litigation in the 1990s. I describe the reasons for the rise of this kind of "executive branch compensation" over legislative funds here, as well as its implications for transparency, fairness and public participation in such massive settlements.
For those interested in a more detailed discussion the federal or state executive branch role in such settlements, see Adam S. Zimmerman, Distributing Justice, 86 N.Y.U. 500 (2011) (tracing the rise of federal agency based settlement funds, which collected over $10 billion over the past decade); Adam S. Zimmerman & David M. Jaros, The Criminal Class Action, 159 U. Pa. L. Rev. 1385 (2011) (tracing the rise of massive criminal restitution funds in deferred and non-prosecution agreements between corporate defendants and federal prosecutors); Donald G. Gifford, Impersonating the Legislature, State Attorneys General and Parens Patriae Production Litigation, 49 B.C. L. Rev. 913 (2008); Jack B. Weinstein, Mass Private Delicts: Evolving Roles of Administrative, Criminal and Tort Law, 2001 U. Ill. L. Rev. 947 (2001).
Posted by Adam Zimmerman on January 24, 2012 at 11:11 AM | Permalink | Comments (1) | TrackBack (0)
Hail to the Harvard Law Review
The January issue of the HLR reminds me yet again why it is the finest journal in legal academia, and its student editors the best and most perceptive in the business. Especially when it comes to the Recent Publications section. (Yes, this is another attempt to sell my book, which receives a short but positive notice in that section. Incidentally, my brother turns 50 later this week and it would make an excellent gift.)
Posted by Paul Horwitz on January 24, 2012 at 07:41 AM in Paul Horwitz | Permalink | Comments (4) | TrackBack (0)
Monday, January 23, 2012
What happened in Jones?
SCOTUS decided United States v. Jones today, on the surface deciding 9-0 that placing a GPS device on a car and monitoring the car's movements for four weeks constituted a search requiring a warrant. But a lot more is going on beneath the surface.
Justice Scalia wrote for five justices--himself, the Chief, Kennedy, Thomas, and Sotomayor--holding that a search occurred because the government trespassed in installing the GPS device and adopting a property-based conception of the Fourth Amendment that he argues prevailed until Katz in 1967 and that exists as a complementary approach to the Fourth Amendment. Justice Sotomayor concurred, joining Scalia's opinion and making it a majority, but arguing that Katz lives, explaining why this also constituted a search under Katz's privacy-based approach, and explaining that the physical intrusion "supplies a narrower basis for decision."* Justice Alito wrote a concurring opinion for four--himself and Justices Ginsburg, Breyer, and Kagan--to reject this property-based approach and explain why this was a search under Katz.
I don't know much about the Fourth Amendment jurisprudence. But I do wonder what went on behind the scenes. Is this a first move towards eventually overturning Katz and moving back to a property/trespass conception? Does the "political" divide (three of the four "liberal" justices did not join the majority) reflect a liberal attempt to push back against the attack on Katz? And what was Sotomayor doing? Alito would have had a majority if Sotomayor had joined; what sort of lobbying went on behind the scenes to get her to join one opinion or the other? Did he have the initial majority, then lose it when the opinions began circulating?
* This is one of those "I-join-the-majority-but-write-separately-to-explain-what-the-majority-means" concurrences.
Posted by Howard Wasserman on January 23, 2012 at 05:28 PM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink | Comments (3) | TrackBack (0)
Rival Settlements, Rival Fees
Several reports (here and here) over the past few weeks describe a controversial decision by Judge Charles J. Barbier—the federal judge overseeing thousands of lawsuits lodged against British Petroleum (and others) for the Gulf Coast Oil Spill—to set up a fund to pay fees for the lead attorneys. Among other things, Judge Barbier's order would fund lead attorneys in his court by deducting money from awards to people who applied to the Gulf Coast Claim Facility, a no-fault alternative to the litigation, established with the assistance of President Obama, and now overseen by Special Master Kenneth Feinberg. Judge Barbier's decision raises fundamental questions about the value attorneys contribute to each others' work in large, complex lawsuits--particularly, when they must compete with a large government-created settlement fund.
Generally, these "common benefit" funds are a familiar part of complex litigation. In many cases, the sheer size and complexity of litigation often requires a court to appoint “lead” or “liason” counsel to coordinate motions, conduct depositions and manage discovery on common issues that generally benefit potentially thousands of other plaintiffs. See, e.g., In re Diet Drugs, 582 F.3d 524 (3d Cir. 2009) (approving fund for electronic document depository that organized 80 depositions and nine million pages of documents made available to every plaintiff in the multidistrict litigation proceeding); Manual for Complex Litigation, Fourth §§ 14.215, 20.312 (2004). See also Charles Silver & Geoffrey P. Miller, The Quasi-Class Action Method of Managing Multidistrict Litigation: Problems and a Proposal, 63 Vand. L. Rev. 107 (2010).
The question then becomes, "Who pays for all that work, particularly if it benefits everyone else?" The answer, in many cases, is: everyone else. Courts will levy a kind of tax, typically between 4 to 6 percent of all of the plaintiffs' recoveries, to create a reserve fund to pay those attorney's fees. See William B. Rubenstein, On What A “Common Benefit Fee” Is, Is Not, and Should Be, 3 CLASS ACTION ATT’Y FEE DIG. 87, 88–90 (Mar. 2009). The policy has old roots. See, e.g., Trustees v. Greenbough, 105 U.S. 527 (1881)(“He has worked for them as well as for himself; and if he cannot be reimbursed out of the fund itself, they ought to contribute their due proportion of the expenses which he has fairly incurred.”) In short, the idea is that those who passively benefit from big lawsuits must bear their fair share of the cost.
What made Judge Barbier’s order unusual was that it also sought to tax those who chose to participate in a no-fault alternative to the litigation, the Gulf Coast Claim Facility, overseen by Special Master Kenneth Feinberg. Parties who seek awards from the GCCF give up their rights to a lawsuit, in exchange for compensation from the Facility. The GCCF does not require that claimants prove BP is liable, only their individual damages. Accordingly, Barbier’s order does not depend on the traditional justification for a common benefit fund—that individual plaintiffs directly benefit from a common theory of liability, or some "smoking gun" unearthed in discovery. Rather, Judge Barbier’s order depends on a more indirect concept of “common benefit" work.
The Court reasoned that lead plaintiffs in the multidistrict litigation improved transparency, as well as potential awards, in the GCCF. See, e.g., In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010. 2011 WL 6817982 (E.D.La. Dec. 28, 2011). For example, based on an application of the plaintiffs' counsel in the private litigation, the Court (1) ordered the GCCF to inform claimants of their right to counsel, (2) to provide translated documents, and (3) to avoid communicating directly with represented parties. The private litigants have also pressed for a more “liberal causation standard” and for “punitive damages,” which may also enhance the “settlement value of compensatory claims” before the GCCF. Id. at 2-3.
Barbier’s theory has some interesting implications for rival settlement schemes--large public funds established ostensibly for the purpose of luring people out of private litigation. (The September 11 Victim Compensation Fund and the National Vaccine Compensation Program, to name two, work similarly). On the one hand, there is no question that the existence of private litigation, as an alternative for those who consider filing with a large settlement fund, may foster competition and lead to higher settlement awards in a fund like the GCCF. But those abstract improvements are extremely difficult to quantify. After all, couldn't one make the opposite argument ? Are there cases where the existence of a large settlement fund actually increases the value of private litigation? I offer some thoughts about the law of common benefit funds, and the dynamic relationship between public settlements on private lawsuits, below.
The Law of Common Benefit Funds. There have been some analogous successful efforts by rival attorneys to collect attorney’s fees, under a common benefit theory, in class action settlements. For example, when attorneys representing objecting class members to a proposed settlement succeed, they may be entitled to a fee for the efforts expended to improve the size of the settlement. See, e.g., White v. Auerbach, 500 F.2d 22, 828 (2d Cir. 1974) (objectors entitled to attorneys fees for improved settlement); Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994); Richard L. Marcus, et. al., Complex Litigation, Cases and Materials on Advanced Civil Procedure 594-5 (5th Ed. 2010). Although the common benefit doctrine has been limited to class actions and "quasi-class actions"--like the coordinated litigation before Judge Barbier--I suppose that one could stretch that theory to those attorneys who object to the structure of a public fund, particularly when the structure impacts someone's ability to effectively consent or to find an attorney. But see Charles Silver, A Restitutionary Theory of Attorneys’ Fees in Class Actions, 76 Cornell L. Rev. 656 (1990) (setting out conditions for the application of the common fund doctrine in class actions).
In the September 11 Litigation, for example, many attorneys represented and advised clients who had to choose between private litigation and filing a claim with the September 11 Victim Compensation Fund. A similar threshold question for many attorneys advising clients in the Gulf will be whether and how to choose between a lawsuit and a no-fault alternative like the GCCF. Thus, all attorneys, and their clients may benefit, at least theoretically, when they can choose counsel and make decisions in an informed way. Then again, courts also have been far more hesitant to apply the common benefit doctrine to cases where the shared benefit is some kind of structural reform, instead of common work that increases the likelihood of damages. Compare Geier v. Sunquist, 372 F.3d 784 (6th Cir. 2004) (denying common benefit fund “where litigants are vindicating a social grievance”) with Silver & Miller, supra (collecting cases and describing examples of common benefit work, as including "deposition of a fact witness," as well as "common pleadings, motions, briefs, depositions summaries, and document reviews.")
The Problem of Rival Government-Settlements. Courts may also be skeptical of efforts to “tax” parties for improvements in a large government-initiated settlement based on the indirect efforts of private plaintiffs' counsel in a totally separate lawsuit. For example, less than two weeks before Merck publicly agreed to pay $950 million to settle criminal and civil claims by the federal government over its marketing of the painkiller Vioxx, the private plaintiffs in a parallel Vioxx litigation filed a little-noticed emergency motion to hold back a percentage of the government's award for their own attorneys fees. The Court found that there was "an apparently insurmountable disconnect” between the private attorney's work in and the DOJ settlement fund. In re Vioxx Products Liability Litigation, 2012 WL 10548 at*3 (E.D.La. Jan 3, 2012). A decent argument could be made that the private bar’s well-developed theory of liability, scientific evidence and individualized settlements in their own cases likely contributed to the size of the government’s $950 million dollar award. But the connection wasn’t “obvious” or “direct” enough for criminal investigations launched around the same time as those private lawsuits. Id. Accordingly, the Court found that plaintiffs were already adequately compensated out of their own $4.85 billion dollar settlement with Merck.
Can A Settlement Fund Increase the Value of Private Litigation? But another interesting wrinkle to Barbier’s order is that the private attorneys who represent clients before the GCCF may actually create higher norms and expectations for any final global settlement in the multidistrict litigation taking place before Judge Barbier. Individual applicants to the GCCF, represented by counsel, act as first movers. On a daily basis, they test novel theories of damages before Special Master Feinberg. As a result, those awards may set an even higher bar for any final, global settlement accomplished in the ongoing litigation. But see Silver & Miller, supra (observing that even though most "settlement leverage" comes from the work of individual attorneys who "identify potential clients, evaluate their claims, contract with them, and file lawsuits for them," courts generally do not consider this work as "common benefit" work.).
There is some--admittedly very poor--past evidence of this phenomenon. The small minority of families who passed on the September 11 Victim Compensation Fund and sued, rather than take money from the Fund, technically made out better financially: 93 of those 96 claims were settled, for an average of $5 million, or more than twice the average payment from the special fund. Of course, that number may have been self-selecting. As the judge overseeing those settlements observed, some families with high incomes chose to sue because they believed that the Fund would not adequately compensate them. And many who opted out of the Fund also ended up paying higher legal fees and court costs, not to mention waiting much longer for money they could have received earlier and invested.
But is it that speculative that attorneys who make claims in a rival settlement fund might raise expectations and awards for those who later settle their private lawsuits? If so, how should courts weigh the value those attorneys contribute to a final settlement? Is it fair to discount awards to those filing with the GCCF, by the real, but arguably less-direct, financial benefits private attorneys have conferred on GCCF claimants? (For those of you litigating before Judge Barbier, or who have filed claims with the GCCF, I'd be interested in hearing your perspective about this).
Posted by Adam Zimmerman on January 23, 2012 at 04:32 PM | Permalink | Comments (0) | TrackBack (0)
Fourth Annual Junior Faculty Federal Courts Workshop
The web site for the Fourth Annual Junior Faculty Federal Courts Workshop, at FIU College of Law February 2-4, is now up. Papers are available for downloading. The conference remains open to non-presenting senior and junior faculty; the cost of attendance is reading the papers and being ready to make comments.
Posted by Howard Wasserman on January 23, 2012 at 02:47 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack (0)
Be Fair to Newt
One last post, simply as a point of fairness. On the VC, Jonathan Adler points to a proposal by then-Speaker Newt Gingrich for a law that would require the execution of those who imported a sufficient amount of marijuana or other drugs into the country. Given the libertarian bent of many of the VC's readers, and for all I know the number of them who smoke dope, this might be taken as a disqualifying action by Gingrich in his current candidacy for the Republican nomination.
That hardly seems fair to me. There is absolutely no reason to believe that Gingrich meant it then, that he means it today, or that he will mean it tomorrow. True, there is also no reason to think that he wouldn't denounce such a law today, champion it tomorrow, and go back to denouncing it on Wednesday. But I hardly think we can blame Gingrich for his views on any particular occasion, or at least not for long. That would be like blaming the wind for blowing in an easterly direction in the morning, when you know perfectly well it will blow in three other directions by sunset. Let's be fair.
Posted by Paul Horwitz on January 23, 2012 at 10:01 AM in Paul Horwitz | Permalink | Comments (6) | TrackBack (0)
"Law, Religion, and Kissing Your Sister"
I'm going fairly dark for the next few weeks as I try to finish a book and an article. In the meantime, it being Monday, what better way to start your week than with some light reading.
I've posted on SSRN a draft paper--decidedly a draft, and comments are welcome--titled Law, Religion, and Kissing Your Sister. Some background: in October, my law school held a splendid conference called "Matters of Faith: Religious Experience and Legal Response." The speakers were first-rate and the discussion was excellent. My job was to comment on my friend and fellow blogger Rick Garnett's paper. But what I found especially striking about the conference as a whole was that the conference was "tied," as it were, 2-2, with Rick and Steve Smith representing one side of the church-state (or state/non-state) debate and Caroline Mala Corbin and Corey Brettschneider the other. (A fifth speaker focused on history and religious studies, and so didn't demonstrate the same degree of normativity as the other four. Go figure; she was the non-lawyer in the group.) Of course much of the reason for the tie was that it was an artifact of the selection of speakers. But it seemed to go beyond that, and point to the ways in which, and reasons why, church-state debates become fundamentally deadlocked. So rather than focus narrowly on Rick's paper, I decided that sometimes it's betta' to go meta, and focused instead on the nature of church-state "ties" themselves.
As readers of Mitch Berman's recent work know, interesting connections can be made between law and sports. In this paper, after discussing the "tie game" that resulted from the Matters of Faith conference, I do three things. 1) I talk about standard methods that law and religion scholars employ to tie to break ties in the area of church-state jurisprudence, and why they don't succeed. 2) I compare the treatment of ties in law and sports. I argue that, precisely because tie-breaking mechanisms in sports are unnecessary and can be wholly arbitrary, it is easier to command general acceptance of them; by contrast, tie-breaking mechanisms in church-state relations are necessary, but they are impossible to justify and cannot justify or capture general agreement. 3) Finally, I discuss how we might feel about this and whether we can or ought to do anything about it.
I hope students of church-state law--or sports fans!--read and enjoy the paper, and I invite comments and criticisms. Let me add two reading references for those who are interested, besides my book (which does, however, make a terrific Tu B'Shevat gift). First, I must recommend a little-noticed and, as far as I can tell, as yet uncited paper by Frank Michelman on the relationship between law and sports or games: "Adjudication as Sport: Rhetoric Astray," 38 Osgoode Hall Law Journal 583 (2001). 2) In my book and in the new article, I talk about the importance, from a constitutional agnostic standpoint, of courts finding language with which to speak to the losers in church-state cases. Similar lines of argument can be found in Robert Burt's book The Constitution in Conflict and in Emily Calhoun's recent book Losing Twice: Harms of Indifference in the Supreme Court.
It's a short paper and, I hope, a pleasant way to start your week. Enjoy! And wish me luck on cleaning out the Augean stables finishing my book.
P.S.: The title? A coach once compared ties in sports to "kissing your sister."
Posted by Paul Horwitz on January 23, 2012 at 09:51 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)
Sunday, January 22, 2012
Frost on Fallon on Scholars' Briefs
A while back there was some discussion in these parts about scholars' amicus briefs, their relative value or lack thereof, and what scholarly or other standards ought to apply to participating in one. The discussion stemmed from a recent draft piece by Richard Fallon. A link to that piece, and some summary and discussion, can be found here and here.
A few weeks ago, Professor Amanda Frost posted a draft reply, titled "In Defense of Scholars' Briefs: A Response to Richard Fallon." It deserves more attention than it has received so far.
Frost's admirably short and readable response first sets out her differences with Fallon:
* * *
I agree that a law professor should not sign onto a scholars‘ brief unless she has some special knowledge or expertise in the subject, and has then carefully read the brief and is satisfied that it contains reasonable arguments and advocates a result with which the professor sincerely agrees. Beyond this we part ways, for I do not believe that scholars‘ briefs must satisfy standards similar to those that govern scholarly publications. . . . Fallon argues that the norm of trustworthiness requires that a professor make explicit when any argument in a brief is at odds with that professor‘s purest beliefs about the law. So, for example, a law professor who believes that the death penalty is unconstitutional should not sign onto a brief that cites and relies upon precedent upholding capital punishment, even to argue that a particular defendant should nonetheless escape that penalty, unless the professor makes his views about the constitutional status of the death penalty clear. . . . I disagree that such candor is called for in a scholars‘ brief. [P] Furthermore, I think it is appropriate for a law professor to sign onto a scholars‘ brief even if she has not read, or read recently, every authority cited within it; even if she thinks some of the arguments made in the brief are not the best arguments from a scholarly perspective; and even if some significant counter-arguments are omitted.
* * *
Frost's defense of her differences with Fallon is based on two points. First, even where a scholar's brief is "not imbued with the attributes of legal scholarship," it may still contribute a number of things to the Court's store of knowledge and arguments: in particular, expertise and disinterestedness. Her other point is that she has "a different understanding of the relationship between law and politics" than Fallon, and places greater practical significance on "the differences in form and context between an amicus brief and legal scholarship." Because law and politics are not so easily separated, this helps justify professors in "signing onto amicus briefs that contain reasonable arguments that promote results they prefer, even if there are competing arguments that are a better fit with existing precedent or other authorities." And because the goal of a brief is to persuade within a relevant context, the rules should differ from those applicable in scholarship. For instance, "a brief that explicitly noted every precedent or doctrine that at least one signatory disavowed would lose some of its power to persuade. . . . The primary goal of filing such a scholars' brief is to influence the outcome, and thus Fallon's suggestion comes at a high price for those who write or sign such briefs with the hope of having such an effect."
I applaud Frost for setting out her views so clearly. But I disagree with her. I do not think she succeeds in demonstrating that A implies or requires B, and that leaves her response with the distinct quality of being a non sequitur. More below.
Continue reading "Frost on Fallon on Scholars' Briefs"
Posted by Paul Horwitz on January 22, 2012 at 01:39 PM in Paul Horwitz | Permalink | Comments (4) | TrackBack (0)
The Modern Plague of the Law Review Process: The Originality Graf
The post I wrote below about cycles and eternal returns in public law scholarship, and the wonderful exchange I got to have with a commenter on that post (thanks again; you made my morning), leads me to reflect on two things.
The first is simple enough. In hiring new law professors, committees and faculties often place a high premium on originality. This has much to do with the increasing availability of writing on the part of candidates and the insistence that they have a fully worked-out job talk. Compare this to stories of hiring in the past, particularly at elite institutions (for examples, see Julius Getman's wonderful memoir, or Steven Breyer's recent GW piece discussing the genesis of one of his early articles, or the memoirish piece by Joe Vining in a recent symposium dedicated to him). Once, a "likely fellow" might have been hired on the assumption that he could follow his muse where it took him; originality did not need to be proved up front. There were problems with this approach: 1) it was elitist, and based on few criteria at that; and 2) although we can focus on the Breyers and Vinings, we must remember the number of scholars chosen in this manner who quickly rose to mediocrity and stayed there. I prefer the current approach. But too much focus on originality, particularly when it often really means novelty or Farberian "brilliance," can miss much. I would rather that we look for a curiosity and independence of mind that suggests that a scholar will add value over the long run, following her train of thought wherever it takes her and without fear.
Continue reading "The Modern Plague of the Law Review Process: The Originality Graf"
Posted by Paul Horwitz on January 22, 2012 at 12:41 PM in Paul Horwitz | Permalink | Comments (19) | TrackBack (0)
Saturday, January 21, 2012
More on Corporate Personhood: The Eternal Return of Public Law Theory and Scholarship
It's not just Citizens United that has had people thinking about corporate citizenship and group personality in the past little while. The recently released decisions in Hosanna-Tabor, too, are directly relevant to these issues. Coincidentally, for the book I'm finishing (or desperately trying to finish) on First Amendment Institutions, I've been delving back into the work of a century and more ago: the age of the British pluralists, some of whose key figures include Maitland, Figgis, Laski, Barker, and others, and some of whom also drew on the German jurist Gierke. I am struck, and not for the first time, by just how much constitutional law and the debates it produces represent an almost eternal cycle, an eternal movement of the pendulum back and forth between different modes of thinking about some of these issues. That goes for both sides of the debate, certainly; it's a treat to dig into the Holmes-Laski or Holmes-Pollock correspondence and find Holmes expressing his skepticism about these writers' views on group sovereignty and personality. Doubtless one could go still further back to Athanasius. (I am not surprised that one of the finer constitutional law scholars working today, Adrian Vermeule, increasingly relies not just on the latest social science literature, but on close analyses of much older writers.)
The longer I am in this line of work, the more I think there is a kind of inevitable pattern to many scholars' lifecycles in this area. One starts with immediacy and certainty: one dives into the present debate, and does so more or less loyal to a particular position and aiming at definitive reform consistent with one's views. Some remain there for their whole careers. But if you want to stick with these issues and deepen your understanding of them, you are eventually going to find yourself going further and further back--not to the Founding, necessarily, since (in my humble view) people who move between the Founding and the present with no stops in between or further back are going to make little real intellectual progress. At a minimum, to understand Hosanna-Tabor or Citizens United at least, you will have to go a century back. Whether you choose to go still further in time and place, to the reception of Roman law in Germany and Italy, is up to you. However far you go, the shine will surely be taken off your sense of immediacy, as you realize that all this has happened before, in one form or another. And it is little wonder too that, for many of us, the longer one does this, the less faith one places in either certainty, doctrinalism, or reform. (To be sure, there will always be die-hard reformers who, oddly enough, insist on living in the present.) It's all very well to argue that corporations are persons or not persons. But the longer one examines these issues, the clearer it is that these debates have all aired before, and that the stronger the position you push on one side, the likelier it is that the pendulum will eventually swing back in a fairly short period of time -- say 50 or a hundred years. As usual, Ecclesiastes has us all dead to rights: there is nothing new under the sun, and all is vanity. Too much of this realization and you will cease being fun at parties.
This seems like a bit of a frolic and detour, but there's a point here. Of course there is something to be said for being deeply engaged in the issues of your time; you don't go to norm enterpreneurs for a sense of historical perspective. But if you would like to understand these issues rather than merely influencing them, you would do well to abandon today's newspapers and go digging in the basement of your law library. For those who have been interested in these issues in the context of church autonomy and Hosanna-Tabor, or corporate personhood and Citizens United, I strongly recommend that they look up books like this one or this one or this one. They won't tell you much about whether the Supreme Court was right or wrong in either of those cases, but they will tell you a good deal about the subterranean foundations of the arguments in those cases, and remind how you thoroughly the foundation has been left neglected: by most scholars, virtually all "norm enterpreneurs," and all of the judges. It's a shame that more people writing about these issues, certainly including the judges, have not so much as heard of the Wee Free Church of Scotland.
Posted by Paul Horwitz on January 21, 2012 at 10:24 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)
Greenfield on corporate personhood
Kent Greenfield (Boston College) had this op-ed in Thursday's Washington Post. Yesterday's Occupy the Courts ralliy has as its major target Citizens United (the rally was timed to the decision's second anniversary, which is today) and the idea that corporations possess First Amendment liberties. The group is pushing a constitutional amendment, which is garnering smatterings of support, providing that that corporations are not people, money is not speech, and constitutional rights are only for people.
Greenfield does a good job undermining the first and third of these goals:
The Constitution protects the rights of various groups and institutions — whether Planned Parenthood, Bob Jones University or the AFL-CIO — though they are not “natural persons.” Humans gather themselves in groups, for public and private ends, and sometimes it makes constitutional sense to protect the group as distinct from its constituent humans.
The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.
Continue reading "Greenfield on corporate personhood"
Posted by Howard Wasserman on January 21, 2012 at 09:05 AM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink | Comments (3) | TrackBack (0)
