Tuesday, December 06, 2016

Clemency and Collateral Consequences

Back in May, a Loyola Law School student and I submitted a clemency petition to the Office of the Pardon Attorney (OPA) as part of President Obama's Clemency Initiative. Our client had received a 30 year sentence for a non-violent cocaine offense that would, today, likely come with a 10-12 year sentence.  Our client had already served 19 years of the sentence. At the end of October, I received the amazing phone call from the OPA informing me that the President was signing the petition, and that our client's sentence was to be commuted, and would expire in Feb. 2017, sparing him 6-11 additional years in prison.

That Obama should sign thousands more such petitions before he hands over the Executive Office to an individual who does not believe in the redemption of anyone other than himself is an imperative of justice. Yet, despite this tremendous victory, the challenge that awaited our client upon release was not lost on him. He was now 52 years old, he possesses few 21st-century labor market skills, and--perhaps most daunting of all--he would still carry his criminal record with him wherever he went. 

Malcolm Feeley famously wrote three decades ago that, when it comes to criminal justice, the process is the punishment. In today’s increasingly efficient, assembly-line criminal justice system, the process may no longer extract such a damaging toll (though it certainly inflicts unnecessary harm). Rather, as James Jacobs has written in his recent book on criminal records, The Eternal Criminal Record, today “the basic punishment meted out in criminal cases is a conviction record that exposes the record-subject to discrimination, disabilities, and disqualifications.” 

I ignored the advice of wise colleagues and prawfsblawg commenters about writing a book review pre-tenure and reviewed Jacobs' important book. [I loved doing so, and would do it again, whatever tenure points it was or wasn't worth.] In it, I noted three aspects of American Criminal Record Exceptionalism: that in the United States, criminal records are exceptionally public, exceptionally punitive, and exceptionally permanent. The mixed feelings I have on behalf of my clemency client are most related to the exceptional permanence of his criminal record. As he sets out as a 52-year-old man, whose days of offending should be long behind him, to find work and housing, to access public benefits and vote for representatives and on legislation that will govern his community, he will too often find that his punishment continues because his criminal record decides his fate.

A commutation is not forgiveness in the way that a pardon is. As the DoJ FAQ on clemency makes clear, a commutation "does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction." Yet a commutation suggests that a sufficient amount of punishment has already been inflicted on the offender. For reasons explored briefly in my book review and more fully in other articles I've written about criminal convictions and access to citizenship and the criminal records of youth, I think it is worth serious consideration whether there should be a statutory sunset on the collateral consequences of criminal records. Decarceration and penal moderation deserve the policy momentum they have today, and they should be joined by further efforts to minimize the unjustifiably long shadow of criminal convictions. 

Posted by Kevin Lapp on December 6, 2016 at 02:17 AM in Criminal Law | Permalink | Comments (0)

Monday, December 05, 2016

Must Read: Tristin Green's new book - Discrimination Laundering

I am excited to report that the much anticipated book of law professor Tristin Green is out. Here is the description from Cambridge Press: 

While discrimination in the workplace is often perceived to be undertaken at the hands of individual or ‘rogue’ employees acting against the better interest of their employers, the truth is often the opposite: organizations are inciting discrimination through the work environments they create. Worse, the law increasingly ignores this reality and exacerbates the problem. In this groundbreaking book, Tristin K. Green describes the process of discrimination laundering, showing how judges are changing the law to protect employers, and why. By bringing organizations back into the discussion of discrimination, with real-world stories and extensive social science research, Green shows how organizational and legal efforts to minimize discrimination – usually by policing individuals over broader organizational change – are taking us in the wrong direction, and how the law can do better by creating incentives for organizational efforts that are likely to minimize discrimination, instead of inciting it.

I was lucky enough to receive an advance copy of the book to review and here is what I wrote for the back-cover blurb:

Tristin Green, one of the nation’s leading employment discrimination scholars, has written a book that will change the way we understand the processes of workplace inequality and what should be done to prevent ongoing biases and discrimination. With compelling storytelling and sophisticated analysis, Discrimination Laundering provocatively shows that, perversely, the law increasingly shields organizations from responsibility for patterned institutional discrimination. Green skillfully weaves together developments in law, legal scholarship, and social science in a way that deepens and furthers the debate about workplace equality. The book is important, imaginative, and a must-read for anyone who cares about next generation anti-discrimination policies.

Buy it while its hot - assign it to your students - get it as gifts. Especially now - we need this book and its smart insights! 


Posted by Orly Lobel on December 5, 2016 at 05:03 PM | Permalink | Comments (0)

What is a Law School Professor of Practice?

Over the past decade or so, more and more law schools have jumped on the"professor of practice" bandwagon. This may have been driven by progeny of the Macrate Report or by the need to develop still another term for the untenured faculty member who is different from an adjunct and may or may not be different from a faculty member connected with the law school clinic. Anecdotally, it may characterize the year-to-year contractors who now oversee externs or who populated the clinic.  

In other schools it is similar to the AAUP designation and identifies a well thought of person who has practiced outside the academy and who now spends most of her time doing something at the law school as a sabbatical from that practice or after such a career. It is definitely caught up in the tension related to the perceived growth of the percentage of faculty in the untenured and untenurable category. The AAUP has looked a bit at professors of practice in the academy. https://www.aaup.org/report/professors-practice  Here is part of what they have to say. “While appointments to these positions and similarly titled positions such as "practice professors," "professors of the practice," and "professors of professional practice" have commonly been reserved for practitioners who are appointed because of skills and expertise acquired in nonacademic careers, such appointments are also being offered to individuals with academic backgrounds.“

What seems to be an increase in the number of professors of practice comes at the time when all but the top twenty or so law schools are rearranging themselves in response to a rapid decrease in revenue. Perhaps this means that the increased use at schools with stable income is different from the increase at schools that are adjusting to a decrease in customers as well as a decrease in revenue. One thing that is clear is that the category has not been examined outside individual law schools or perhaps not much within. In one way that makes sense since we are in the very early stage of development and perhaps too early for insights other than noticing and understanding the various categories subsumed within the term. 

The author is a professor of practice who started my career as a full time law prof for two years and continued as an adjunct, but spent most of my career in legal services and private practice, then retired and came back to the law school. Last year i wrote and did not teach at all and spent about 12 hours a week at the school. This semester i am writing and co teaching a lawyering practice/extern course. Next semester i will fill in for an overload and teach commercial transactions and will hopefully continue to write and raise the number of hours i am at the law school. I may spend some time thinking and writing about professors of practice and welcome examples of the way the term is being employed at other law schools. 

Posted by david lander on December 5, 2016 at 10:40 AM | Permalink | Comments (0)

"Crazy Ex-Girlfriend" does Erie

One of the characters on Crazy Ex-Girlfriend just started law school (in the middle of the year, but whatever). Last week, she was studying with a classmate and reminds him that "We have to remember that federal courts in diversity actions apply the substantive law of the state . . ."

Of course, she was supposed to be studying for Torts, but whatever.

Posted by Howard Wasserman on December 5, 2016 at 10:31 AM | Permalink | Comments (0)

Jews, race, ethnicity, and religion

A good read in The Atlantic on whether Jews are "white" or whether we constitute a distinct racial or ethnic group, and what that means for our place in American society. It is a question that may be more relevant in the coming years, on both sides of the political spectrum.

Posted by Howard Wasserman on December 5, 2016 at 09:54 AM in Howard Wasserman, Religion | Permalink | Comments (1)

Sunday, December 04, 2016

Football rules question

I am a week late to this question about the end of last week's Ravens-Bengals game. Quick reminder: The Ravens lined up to punt from their own 22, with 11 seconds left. The punter took the snap and danced around with the ball, while his teammates committed multiple, blatant holds. The punter finally step out of bounds in the back of the end zone for a safety after time expired. The officials called the holding fouls and awarded the Bengals two points on the safety, but declared the game over, invoking the rule that a half cannot be extended on an offensive hold.

Here's my question: Rule 4, § 8, art. 2(g), on extending a half after time expires, states "if a safety results from a foul during the last play of a half, the score counts. A safety kick is made if requested by the receives."

It seems to apply here--the holding fouls produced a safety (because the punter was in the end zone) on the last play of the game. And the officials announced that the safety was a result of the holds, not the punter stepping out of bounds.

So why wasn't that rule invoked to give the Bengals a chance at a free kick? Why wasn't that rule applicable here?


Posted by Howard Wasserman on December 4, 2016 at 02:05 PM in Howard Wasserman, Sports | Permalink | Comments (5)

Friday, December 02, 2016

Pedagogy and the Election

With my last post this election cycle, I wanted to do two things: first, to say thank you to Howard for the invitation and to my fellow contributors for their insights; and, second, to describe one important step that my colleagues at the University of Washington have taken in response to the presidential election and the questions it has raised.

My colleagues have designed a new course, entitled “Executive Power and Its Limits.” This course explores the boundaries of the presidency and the regulatory state. As designed by two of our administrative law experts, Sanne Knudsen and Kathryn Watts, the course is part overview, with discussions of the President’s relationship with the three branches of government, and part case study, with days devoted to a range of substantive areas, including immigration, health care, and the environment. Each of these areas of study will draw on expertise here at the law school, with most class sessions run not by Sanne or Kathryn, but rather by others on the faculty. One of the most innovative and important aspects of this course involves the way the students will be assessed. Rather take a final exam, each must draft one of the following: a regulatory comment in an ongoing rulemaking; a citizen petition for rulemaking; or an amicus brief in a pending case. The students decide on their own what position to take in their projects and whether, ultimately, to file the documents they have composed.

The creation of this class makes me proud to be a member of this faculty, and it helps me better to understand the wide range of roles that we can play as professors and members of the legal community. My colleagues’ response to the election has been to design a forward thinking, practically empowering, substantively rich, and ideologically neutral course that will benefit the students—and by extension, the wider community—enormously. It’s a course that, in my mind, should be taught every year, and one that is particularly important during times of presidential transition. I hope others are also finding ways to commit creativity and energy to figure out how best to respond to what we are, in all likelihood, now facing: an extended period of significant legal change.

Posted by Lisa Manheim on December 2, 2016 at 02:08 PM in Current Affairs | Permalink | Comments (2)

Facebook’s Fake News Crisis and Social Media Echo Chambers

This week I wrapped up my Torts course with a discussion of products liability and the McDonald’s hot coffee case. We watched this clip, which noted that Stella Liebeck’s case became one of the most misreported tort stories of all time: news of the $2.9 million verdict went viral, facts were skewed, and Ms. Liebeck was villainized.

The hot coffee case happened in the 1990s, and I can only imagine the memes and fake headlines we would have seen on Facebook had the case happened today. This brings me to the 2016 election – the results of which left many people stunned by the seemingly unpredictable outcome. Social media may be to blame, at least in part, for two reasons. First, “fake news" has blurred the lines between entertainment, advertising, and real journalism. Second, our news feeds keep us from hearing diverse perspectives.

First, fake news is becoming harder to spot and control. Until two weeks ago, Facebook allowed fake news stories as sponsored content. These stories consist of made-up clickbait, dressed up to look like legit news. Fake-news generators would pay to have their content appear on Facebook because it brought more clicks and ad revenue. Rolling Stone reported this week about a comedian and fake-news creator who intended to troll Trump while making some cash in the process, thinking his stories were too ridiculous to fool anyone. New York Times interviewed a fake news creator in Tbilisi, Georgia who focused on anti-Clinton news, as it produced the most clicks. He also considered his work satire and not fake news. Certainly we as readers should use good judgment and be at least somewhat skeptical about what we read. But one recent study shows a disturbing inability to differentiate between real news and fake news, especially among younger people. The truth is, we are not sorting out fact from fiction very well online.

Second, news feed bias may have led us further astray.

Continue reading "Facebook’s Fake News Crisis and Social Media Echo Chambers"

Posted by Agnieszka McPeak on December 2, 2016 at 09:45 AM in First Amendment, Information and Technology, Web/Tech | Permalink | Comments (6)

Thursday, December 01, 2016

The academic calendar and law review submissions

Excited to be back at Prawfsblawg again for another month, musing mostly about youth and the law and law enforcement surveillance. Thank you to Howard for making it possible.

I'll start things off with an observation about the upcoming winter break and it's relation to what most seem to believe is the increasingly unitary Feb-March submission cycle for law review articles (though I submitted an article this past fall, and ended up with a placement I was thrilled to get).

Continue reading "The academic calendar and law review submissions"

Posted by Kevin Lapp on December 1, 2016 at 04:47 PM | Permalink | Comments (2)

The  Benefits of Closer Connections Among Law School  Adjuncts and Full Time Law Faculty

Surveys have confirmed the perception that adjuncts play a major and important role in U.S. legal education. The most recent surveys which were conducted in 2007 and 2010 have  demonstrated the extensive use of adjuncts at most U.S. law schools. They have also pointed out  the courses most often taught by full-time faculty members and the courses that are taught by adjuncts, most of whom are  judges and lawyers with other full time jobs. It is past time for an updated comprehensive survey to determine whether the  reduction in revenue in the face of continuing pressure for a more “practical;” curriculum have resulted in any change in the use of adjuncts so that any such changes can be thoughtfully evaluated.

The 2011 Best Practices Report of the  Committee on Adjunct Faculty of the ABA Section of Legal Education and Admissions to the Bar stated:

“In addition to the teaching contributions of adjunct faculty, however, there exists another and slightly different kind of contribution that adjuncts may make.  There is a largely untapped potential for collaboration where full-time faculty and adjunct faculty could work together in ways that truly enhance the students’ experience while at the same time maximizing the contributions that the full-time and adjunct faculty may make to the study and improvement of the law. “

If a school creates a community among full time-faculty and adjunct faculty and successfully encourages meaningful interaction among them, the full-time faculty and the adjuncts will both benefit and and the law students will be the major beneficiaries. This interaction can also dilute any resentment, lack of respect and disrespect that may exist from the full-time faculty to the adjuncts or from the adjuncts to the full-time faculty.

There are many specific examples of how that might be done.  Full time faculty members regularly make presentations of drafts of articles and other types of work to the faculty.  It would be simple enough to invite adjuncts who teach in the subject area of those presentations to participate.  The result would be not only the improvement of the articles, but an interchange across full-time-adjunct lines which might build mutual respect and enhanced understanding.  

Another example is the work of the curriculum committee. Whenever that committee is considering issues in a particular subject matter area it would be an easy matter to invite input from adjuncts who teach in that or related subject matter areas.  Once again the interchange would not only improve the decision making but would also increase the respect in both directions. A third possibility is including the adjuncts in the vetting of new faculty who would be teaching in an area related to that of the adjunct.  

In order to identify the efforts that make the most sense at any particular law school and in order to lay the foundation for a successful effort, first steps might be:

Identify an initial core group of adjuncts who might be willing to spend a few extra hours a month and who have something to contribute to the law school in addition to the specific courses they teach; and develop an small,active and strategic committee including an administrator who works with adjuncts, full time faculty and adjuncts.

Perhaps the current crises in cost of legal education  and in enrollment and revenue provide the opportunity for such innovation. There are lots of other practical opportunities for such collaboration.

Posted by david lander on December 1, 2016 at 01:21 PM | Permalink | Comments (16)

Greetings from a First-Time GuestPrawf

This is my blogging debut – thanks for having me as a guest this month! I’m an assistant professor at University of Toledo College of Law, where I teach Torts, Legal Ethics, a seminar on social media discovery, and, as of next semester, Privacy & Data Security Law. I mainly write on social media & the law (which is basically the law of the horse but with emojis). I thought December would be a great month for my guest stint, as post-election analysis would die down and we once again would be interested in seemingly trivial things, like social media. So much for that!

But I still intend to blog about social media topics, including social media’s post-election angst. Other topics will include top social networks your students use (spoiler alert: it’s Snapchat), Facebook tools to tame your out-of-control news feed, social media issues in legal ethics, and Twitter tips for academics. I’ll also write a bit about the sharing economy & tort law, my other area of interest.

So thanks again for having me and I look forward to a great month!

Posted by Agnieszka McPeak on December 1, 2016 at 10:42 AM in Blogging, Web/Tech | Permalink | Comments (1)

Election 2016

After the jump are all the posts on Election 2016 (in reverse chronological order). Thanks again to Josh Douglas, Ned Foley, Lisa Mannheim, Michael Morley, Bertrall Ross, and Franita Tolson for participating, along with our regular Prawfs who weighed in.

One note: I posted the links in chronological order and it is fascinating to read posts from early October, amidst the debates and "locker room talk," discussing Republicans looking to replace Trump, whether early voters could/should be able to change their votes, and whether Democrats would eliminate the filibuster to get Clinton justices confirmed. It is a stark reminder of how suddenly and completely everything flipped and how wrong many of us were.

Continue reading "Election 2016"

Posted by Howard Wasserman on December 1, 2016 at 09:15 AM | Permalink | Comments (0)


Happy December, everyone. Thanks to all of our November guests, as well as our election bloggers (I will post a single post with all the election-related writings later today).

And please welcome our December guests: David Lander (Saint Louis), Kevin Lapp (Loyola-LA), Scott Maravilla (ALJ), and Agnieszka McPeak (Toledo).

Posted by Howard Wasserman on December 1, 2016 at 08:43 AM in Blogging, Howard Wasserman | Permalink | Comments (0)


It's past midnight on December 1 and forget turning into a pumpkin, I'm quickly turning into a lean & mean exam-writing and grading machine.  I’ve had a great time blogging—thanks for reading and commenting.  Enjoy the holiday season and until next time, Margaret

Posted by Margaret Ryznar on December 1, 2016 at 01:18 AM | Permalink | Comments (0)

Wednesday, November 30, 2016

Political parties and constitutional mechanisms

Piling on Lisa's post about the next steps in the presidential election (recounts in three states and the Electoral College vote on December 19):

1) Lisa correctly argues that 37 faithless electors are highly unlikely, because electors are party regulars. This shows another way that the not-accounted-for rise of political parties affects constitutional structures. The electors do exercise independent judgment. But the exercise of that judgment is affected by the existence of political parties as the unit around which elections, including the selection of electors, are organized. Electors retain independent judgment, but party affiliation affects how they exercise that judgment. It is the Daryl Levinson/Rick Pildes thesis applied to the election process.

This is why one proposed Electoral College gambit revolved around getting those 37 electors not to vote for Clinton (which partisanship deters them from doing), but to vote for a third, acceptable, competent, compromise Republican (e.g., Kasich or Romney seems to have been seduced by the cuisine of the Dark Side), who could then be chosen by the Republican-controlled House (with support from Democrats) in the contingency election.

Continue reading "Political parties and constitutional mechanisms"

Posted by Howard Wasserman on November 30, 2016 at 05:01 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Who Will Be Inaugurated on January 20? (Almost Certainly Donald Trump)

Recent days have seen a surge in efforts to change the 2016 presidential results. Jill Stein is spearheading calls for recounts. Democratic-affiliated electors are joining attempts to convince their Republican-affiliated counterparts to vote faithlessly on December 19. In response to questions about these post-election developments, I thought I would provide a few quick thoughts. The punchline is straightforward: none of this activity is likely to change who will become the 45th president. The following discussion provides more context.

First, for those trying to understand the recounts, state law is what governs. As a result, the rules governing recounts vary, and the answers to legal questions—including when and how to demand a recount and which standards govern the proceedings themselves—depend on whether one is seeking to recount votes in Wisconsin, or Michigan, or Pennsylvania. Despite such variation in the rules, the ultimate outcomes of these recounts are likely to be the same. Because taken either together or individually, they are very unlikely to make a difference in the 2016 presidential race.

By my count, the outcome of the 2016 presidential race changes only if recounts flip the results in all three of these states. This is because Donald Trump’s current elector total is 306, which means he has 36 more than he needs. In other words, Trump would need to lose the votes of 37 electors in order to drop below 270. Wisconsin provides 10, Michigan provides 16, and Pennsylvania provides 20. (There is, of course, the possibility that some of the Trump electors—that is, some of the electors who were selected based on Trump’s statewide victories—will prove to be “faithless,” thereby dropping Trump’s totals under 270 without all three of these states necessarily being flipped. See below for why this is unlikely to occur and why, even if it did occur, it is unlikely to change the result.)

What are the odds that recounts will change the outcomes in all three of these states? Based on historical evidence, the odds are minuscule.

Continue reading "Who Will Be Inaugurated on January 20? (Almost Certainly Donald Trump)"

Posted by Lisa Manheim on November 30, 2016 at 03:19 PM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (7)

Sponsored Post: Learning Criminal Procedure

The following post is by Ric Simmons (The Ohio State University Moritz College of Law) and Renee M. Hutchins (University of Maryland Carey School of Law) and is sponsored by West Academic.

The ABA, employers, and students themselves tell us that law schools must do more to produce students who are better equipped to enter the practice of law.  The goal of complete practice-readiness might be something of a tall order.  True competence in even one area of the law may take five or even ten years to develop.  We have our students for just three.  But, there is certainly much more we can be doing to make our students what we will call “practice-primed.”  There are steps we can take during those three years to ensure that the students have the basic knowledge they will need as young lawyers.  There are things we can do to ensure students are exposed to a fuller array of the skills they will need in practice, not just the narrow range that has been the focus of more traditional approaches to the curriculum.  This is a large part of the reason we came together to write the Learning Criminal Procedure.

Continue reading "Sponsored Post: Learning Criminal Procedure"

Posted by Howard Wasserman on November 30, 2016 at 09:31 AM in Article Spotlight, Blogging, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

What’s Going On?

While it has been fun for me to check news headlines against my data (of 109 divorce cases involving children from Marion County filed over 3 months in 2008), my law review articles resulting from this data look at how closely the Indiana courts follow legislative mandates and national trends on property division and child-related matters in divorce.

First in regards to property-related issues, Indiana has moved toward limiting spousal support, like other states.  According to the Indiana family law code, rehabilitative maintenance can be awarded for up to 3 years, or as long as the spouse can’t work due to a health issue or a child’s health issue.  Indeed, in my sample of divorce cases, only in 3 cases did a spouse receive spousal support.  This may be in contrast to many people’s expectations regarding alimony.  The Marion County courts also seemed inclined toward approximately a 50/50 property division, as the rebuttable presumption in the Indiana family law code requires.

Second, in regards to child-related matters, while the mother received primary custody in a bit more than half of the cases, there seems to be an effort to closely involve both parents no matter the custody arrangement.  In my data, visitation was very liberally awarded, as can be seen by the fact that many parents had a parenting time credit applied toward their child support, which aims to offset the child’s daily living costs during extensive visitation.  About 1/3 of cases had child support arrears, which is in line with difficulties in child support collection around the globe.

It’s been really interesting to see all this data to check against family law theories and headlines.  While it’s just one set of data, it’s been a useful glimpse into what’s going on today.

Posted by Margaret Ryznar on November 30, 2016 at 06:13 AM | Permalink | Comments (0)

Tuesday, November 29, 2016

Tools of the Trade

We don’t have many “tools of the trade” as law professors.  Last year, my daughter had to take “something mommy or daddy uses at work” to preschool for show-and-tell.  Given that my husband and I are both law professors, we were in a bit of a pickle: putting a 10-pound casebook in her tiny backpack seemed like a recipe for a back injury, and handing her a single piece of chalk seemed like a cop out.  We finally settled on a copy of the Constitution which was almost certainly underwhelming for the 4-year-olds in her class, particularly compared to what the other kids (with significantly cooler parents) brought in.  In my next life, remind me to be a paleontologist.

Her assignment made me reflect on the few tools that I do use and whether they are the best available for the job.  I’m currently working on the fifth article that I’ve written with Scrivener, the word-processing program and “project management tool” designed for long-form writing.  I made the switch from Microsoft Word about three years ago, and I haven’t looked back.  My sense (solely from reading Scrivener’s online discussion boards and talking to colleagues) is that the program is fairly popular with our counterparts in the social sciences and humanities, but that only a small – but extremely devoted – cadre of law professors has adopted it.

My writing process hasn’t changed much in recent years and Word always seemed completely sufficient for my purposes, so I was skeptical about whether learning a newer and more complicated program was worth the effort.  Within a month of switching, though, I had become somewhat of a Scrivener zealot among my friends and colleagues.  It has increased my efficiency and almost eliminated the typical shuffling of papers that writing a scholarly article entails.  Having the ability to organize and access my sources, outlines, drafts, and data all within one interface has been a game changer for me.

The Scrivener experience has made me wonder what other workplace tools I’ve been missing.  What’s been working for you?

Posted by Tracy Hresko Pearl on November 29, 2016 at 03:17 PM | Permalink | Comments (8)

Law, Social Activism, and Political Change

Since a few weeks ago I have been thinking more and more about social movements and the law. A few years ago, I published an article called The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics, published in the Harvard Law Review. I wrote it because I wanted to sound the alarm that progressive lawyers and activists were criticizing the law and the power of governmental institutions to bring change in counter-productive ways and at the same time, conservative social movements were in fact using the courts, the legislature and the executive branches in more effective ways. Here is the abstract. I might have written the article differently today but the core of it is still very much relevant to 2016:

The limits of law in bringing about social change have long preoccupied legal thinkers. A recent development, however, is that new schools of thought build upon the critical understanding of these limits to produce a body of literature that privileges in a variety of ways extra-legal activism. These writings present themselves as alternatives to the path of legal reform, avoiding the risks of cooptation and deradicalization which have been the fate of earlier legalistic activism. Three extra-legal focal points emerge in this literature: (1) a move away from professionalism to "lay lawyering"; (2) a move from the legal arena to an "autonomous sphere" of action; and (3) a departure from formal legal norms to softer, "informal" normativities. The article demonstrates how these recent developments are misdirected, as they draw erroneous conclusions from critical understandings about the cooptative risks of legal strategies. In particular, contemporary proposals of extra-legal reform strategies fail to recognize ways in which such alternatives are frequently subject to the same shortcomings they seek to evade by opting out of the legal arena. Linking historical examples of critical analysis of the labor and the civil rights movements to contemporary public interest literature, the article charts a more nuanced map of legal cooptation critiques, which include distinct claims about resources and energy, framing and fragmentation, lawyering and professionalism, crowding out effects, institutional limitations, and legitimation. The article argues that the contemporary manifestation of a critical legal consciousness has eclipsed the origins of critical theory, which situates various forms of social action on more equal grounds. The new extra-legal truism, which rejects law reform as a transformative path for social change, consequently risks reinforcing the very account that it sets out to resist - that the state is no longer able to ensure socially responsible practices in the 21st century economy.

Posted by Orly Lobel on November 29, 2016 at 02:05 PM | Permalink | Comments (0)

The return of flag burning? (Updated)

Donald Trump tweeted this morning (after the sun was up, so no 3 a.m. jokes to be had) "Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!" Jonathan Chait suggests this is misdirection to cover Trump's pending kleptocracy and the (from Democrats' perspective) extreme policy ideas of his cabinet members, a red-meat issue to rile up both his critics and supporters

But it raises the question whether a flag-burning amendment is coming in the new Congress and whether it might, finally, pass. The last time it moved to a vote was 2006, the last time Republicans controlled both houses and the White House; it passed the House and fell one vote short in the Senate. And that was without an unpopular Republican President making it into a thing. With a very different, more conservative Senate and a Republican president willing to making it an issue that appeals directly to his base, might the amendment finally get out of Congress? Plus, Republicans control both chambers in 30 states and Nebraska's unicameral legislature seems likely to go for it, given the state's politics. Are there seven more states to be had in a new political environment?

Another thought: Maybe Trump's target is not Barack Obama's legacy or Lyndon Johnson's legacy, but William Brennan's legacy.

Update: A number of Republican Senators and Representatives, including Mitch McConnell, reminded Trump that the First Amendment protects flag burning and the right to "disgrace" the flag. Of course, one could see many people pivoting from such "is" statements about flag burning to support an amendment that creates a new "ought." To his credit, McConnell seems more categorically opposed to messing with the First Amendment.

Second Update: What would the vote be if flag burning came anew before the current Court? The only current justice I could see ruling against flag burning being protected, based on recent First Amendment cases, is Justice Alito.

Third Update: I should add that, under the theory of departmentalism I have been espousing here and elsewhere, Trump's threats are constitutionally permissible and appropriate. If he believes flag-burning can constitutionally be punished, he is free to seek to prosecute, jail, or strip citizenship from those who burn flags. He will lose when he tries. But his actions are consistent with his oath and his Take Care obligations.

Posted by Howard Wasserman on November 29, 2016 at 01:51 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Five lessons on body cams

Elizabeth Joh (UC Davis) has this piece in Slate identifying five problems that have arisen with the implementation of police body cameras, which she turns to five lessons on the limits of technology to, alone, resolve problems. I especially appreciate points # 2 (do not adopt technology without also working out the regulatory details of how the tech will be used) and # 3 (rank-and-file police may, and have, resisted new technology). I have covered both in my writings on the subject.

Posted by Howard Wasserman on November 29, 2016 at 09:18 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)