Saturday, May 19, 2012
Pithy graduation exhortation
This morning, at the graduation-day prayer service organized by the Notre Dame Law School Class of 2012, one of the readings was from Micah: "[D]o justice and [] love goodness, and to walk humbly with your God."
Best wishes and congratulations to all the new law-school graduates!
Posted by Rick Garnett on May 19, 2012 at 11:17 AM in Rick Garnett | Permalink | Comments (0) | TrackBack (0)
Friday, May 18, 2012
Best Practices for Coauthoring Legal Scholarship
I am coauthoring two of my current works in progress, which has caused me to do some thinking about the process of coauthoring. Obviously every project is different, but I am interested to know whether others think that there are universal best practices for successfully coauthoring legal scholarship. I'm also interested in insights about coauthoring in other fields, although legal scholarship has certain unique conventions of structure and citation that might differentiate it from other areas.
Others have written on this topic on PrawfsBlawg before. I'll add a few tentative thoughts of my own:
I think it's important to identify a project that will work well as a coauthored endeavor. I tend to think that the most successful coauthored projects are those that none of the authors could have written (or written as well) on her own. I'm currently collaborating with Professor Charlotte Garden (Seattle) on a project about the ways in which the interests of labor unions and racial minorities converge, and how leaders in both movements might harness that coalition of interests to facilitate social change. It's obvious that the collaboration makes sense: it builds on both Professor Garden's previous scholarship regarding labor unions and the political process (here and here) and my previous work regarding racial equality (here and here). More importantly, though, this isn't a paper I could write nearly as well alone, because I don't have the breadth and depth of knowledge regarding labor law and unions to make the most of the parallels to racial equality interests.
Continue reading "Best Practices for Coauthoring Legal Scholarship"
Posted by Nancy Leong on May 18, 2012 at 02:09 PM | Permalink | Comments (1) | TrackBack (0)
Why the ire over Citizens United?
I agree with Sam's post about the Toobin story on Citizens United--it does seem like much ado about nothing. My own theory about the internal dynamics at work considers the history of individual justices, namely Justice Kennedy. Austin v. Michigan Chamber of Commerce, the case Citizens United overturned, was decided in 1990, during Justice Kennedy's first full term on the Court, and Kennedy wrote the principal dissent (joined by O'Connor and Scalia). He likely had been itching to overturn that case since 1990 and the change of personnel and passage of time gave him the votes (save the Chief, at the outset) to finally do it.
Now, a different issue: In a comment to Sam's post, Orin Kerr says:
I suspect Toobin's article is getting a lot of favorable attention because a lot of his audience starts off with the belief that Citizens United is an evil ruling that the conservatives foisted on the American people on behalf of big corporations. The decision is so evil, the thinking runs, that how it came about is not unlikely to involve a devious machination.
Why is so much ire aimed directly and uniquely at Citizens United, out of the entire body of campaign finance law? Why is this case perceived as the alpha and omega of bad law on the subject? Yes, Citizens United overturned Austin. But Austin was 20 years at this point, so it was hardly Justice Brandeis in Erie overturning Swift. And Austin itself was arguably the First Amendment anomaly--the one and (at that point) only time the Court had accepted the equality rationale for regulating campaign spending (although it was equality in the guise of corruption). Austin could not be reconciled with Bellotti v. Bank of Boston in 1980, which invalidated a ban on corporate expenditures in an issue election, or, more fundamentally, with Buckley v. Valeo in 1976. So why pick on Citizens rather than these earlier precedents, especially Buckley, which is the case that introduced the fundamental idea that expending money for expression is First-Amendment protected?
Continue reading "Why the ire over Citizens United?"
Posted by Howard Wasserman on May 18, 2012 at 12:57 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7) | TrackBack (0)
Thank God I'm Canadian, Part XLVI
Todd Zywicki is seemingly obsessed with Elizabeth Warren and Brian Leiter and not, quite reasonably, me. Having written somewhat intemperately about his last Elizabeth Warren post, however, I would like to weigh in very briefly to comment on two or three points made in his newest one.
Todd writes: "Let me say again what I expressed at the outset–I have known from highly-credible sources for a decade that in the past Warren identified herself as a Native American in order to put herself in a position to benefit from hiring preferences (I am certain that Brian knows this now too)." (This is perhaps related to his statement later in the post that "there is plenty of bad blood between Elizabeth and myself.")
I'm in no position to evaluate the truth or falsity of that statement.
Continue reading "Thank God I'm Canadian, Part XLVI"
Posted by Paul Horwitz on May 18, 2012 at 11:35 AM in Paul Horwitz | Permalink | Comments (5) | TrackBack (0)
Scratching My Head Over the Inside Story of Citizens United
I am generally a fan of Jeff Toobin's journalism. I really enjoyed The Nine and thought it was quite insightful about the dynamics of the current Supreme Court, and I always benefit from Toobin's pieces in the New Yorker. And I am not generally a fan of the Supreme Court's Citizens United decision. I find the First Amendment issues relating to campaign finance actually quite difficult, in the sense that there seem to me to be quite strong considerations on both sides of the ledger, and Citizens United came down rather too strongly on one side of the issue for my satsifaction. Justice Stevens's dissent always seemed to me to have far the better side of the argument than Justice Kennedy's majority opinion in that case.
That said, I am quite puzzled by all the play that Toobin's piece on the inside story of Citizens United has gotten on the internet. The rapportage is great, but the conclusion that Toobin suggests and that many in the blogosphere are running with -- that the Court's decision in that case resulted from the Machiavellian machinations of a diabolical Chief Justice -- seems to me to go well beyond the evidence that Toobin musters.
The basic story Toobin tells is that, at the conference after the argument in Citizens United, the justices voted 5-4 to reverse the decision below and rule in favor of Citizens United. Chief Justice Roberts assigned the opinion to himself and circulated a draft that ruled on narrow grounds -- grounds that, crucially, would not require the Court to overrule earlier decisions such as Austin v. Michigan Chamber of Commerce. But Justice Kennedy circulated a concurrence arguing that the case should have been decided on broader First Amendment grounds, other conservative justices decided they preferred that approach to the narrower approach reflected in the Chief's draft, and so Chief Justice Roberts reassigned the majority opinion to Kennedy. Justice Souter later circulated a draft dissent that called out the majority for overruling precedent in a case in which no party had asked for precedent to be overruled. But that dissent never saw the light of day because the majority responded by putting the case over for reargument on the question whether Austin should be overruled. After reargument, the Court answered that question in the affirmative and ruled for Citizens United, 5-4, in a broad opinion written by Justice Kennedy over a blistering dissent by Justice Stevens. (Justice Sotomayor had taken both Justice Souter's seat on the Court and his place among the dissenters.)
Where's the devious machination here?
Continue reading "Scratching My Head Over the Inside Story of Citizens United"
Posted by Sam Bagenstos on May 18, 2012 at 09:45 AM | Permalink | Comments (6) | TrackBack (0)
Sports and personal jurisdiction
Yesterday, Jonathan Vilma, a linebacker for the New Orleans Saints and the player-leader in the teams alleged "bounty program" (paying out cash for injuring opposing players), filed a defamation action against NFL commissioenr Roger Goodell in the Eastern District of Louisiana. Having read the complaint, one of my first thoughts is that there is an interesting potential personal jurisdiction issue here. If Goodell does challenge personal jurisdiction, the precdent that Vilma must overcome comes, ironically, from Roger Clemens' defamation action against Brian McNamee (not to be confused with the government's seemingly abortive prosecution of Clemens for perjury).
Vilma sued in Louisiana, where he works but does not live, over comments that Goodell made in several press releases written and issued in New York about the bounty program, which largely took place or came out of Louisiana. Goodell allegedly intended and expected his statements to be disseminated publicly and, presumably, nationally. In Clemens, Clemens sued McNamee in Texas over statements McNamee made to the Mitchell Commission and to a Sports Illustrated reporter in New York about conduct occurring in New York and Toronto. The Fifth Circuit (which also includes Louisiana) held there was no personal jurisdiction over McNamee because he did not target his statements at Texas. He was speaking in New York about non-Texas events and had no control over where the statements ultimately were ultimately disseminated. The majority never really considered whether McNamee knew or intended his statements would be published in Texas or anyplace other than New York. The key in Clemens is that the Fifth Circuit refused to impute the obvious Texas contacts of SI or even the reporter (Clemens did not sue either one, but obviously SI published in Texas and the reporter would have known that) to the source of the statements, who only knew he was talking to someone in New York and had no knowledge or control over what happened next.
A few distinctions do leap out, so Vilma may be able to establish jurisdiction even in the face of Fifth Circuit's narrow approach. First, Goodell's statements, although made in New York, concern conduct occurring in Louisiana, so his particular statements were "directed" at Louisiana. Second, it could be argued that Goodell was more in control of the ultimate dissemination of his statements (since he knows national media, including media in Louisiana, will report his every word) than McNamee was in talking to a reporter from Sports Illustrated. Third, the lawsuit targets not only Goodell's press releases that were reported on, but also defamatory statements in reports he sent to all 32 teams about the investigation and findings; one of the teams to receive that report, of course, is the Saints, in Louisiana. Goodell had more affirmative control over the publication of his comments, including intentionally sending some written materials into the state. Fourth, it is telling that Vilma did not sue in Florida, where he lives, recognizing that merely feeling the effects of defamation at home would not be sufficient under the effects test, where the conduct falsely described took place elsewhere.
Posted by Howard Wasserman on May 18, 2012 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (2) | TrackBack (0)
Berger on Customs, Rituals, and Institutions
Peter Berger's blog is quickly becoming one of my weekly regular reads -- and as he explains in this post, blogging is a weekly affair for him. One of the nicest points he makes is about the ritualistic qualities and regularized patterns of the institutions that we construct for ourselves -- a point that has not gotten as much attention with respect to legal institutions as it perhaps deserves. Here's a portion on the relationship of habits, rituals, and institutions:
[E]very habit has the potential to become a ritual. Since ritual is at the very heart of religion, and since I have assumed the obligation to blog about religion at least most of the time, the topic is not out of order here.
Forming habits is a basic requirement if human beings are going to live in a society (which in turn is a requirement for surviving as a species). Society is only possible because its members share mutually predictable programs of behavior. We are different from even our closest zoological relatives in that our biological makeup falls far short of supplying the required programs. The social philosopher Arnold Gehlen interpreted our species as being instinctually deprived, a “deficient being” . . . . Since our instincts provide us with only a few programs of behavior, we must invent such programs ourselves. These ersatz instincts are what we call institutions . . . . Let us assume that Adam and Eve, when they met for the first time, did have a built-in program driving them toward each other. Beyond this primal interaction, nature did not tell them what else they should do with each other. Consequently human beings constructed these immensely varied and complex institutions, which provide programs for tackling the problems of sexuality, procreation, child-rearing, nomenclature, the rights of property, and so on. If these institutions—we commonly call them kinship—did not exist, the rules of engagement would have to be renegotiated every time a man was attracted to a woman, down to the property rights of great-grandchildren. This process of endless renegotiation would take all available time: Nothing else would get done, including such urgent activities as agriculture and warfare.
For further reflections of a similar nature, see Berger's wonderful book from a few decades ago, The Sacred Canopy: Elements of a Sociological Theory of Religion.
Posted by Marc DeGirolami on May 18, 2012 at 09:02 AM | Permalink | Comments (0) | TrackBack (0)
Scholarly journals, what are they good for?
I've been a bit busy recently because of this. Which is not to say I'm complaining, I'm not! I think it will be fun.
But when I'm not scratching my head as I learn the online submission system, catching up with current and possibly future editorial board members, and trying to coordinate my email and to do lists across my different computers (it's becoming increasingly clear that email control is a necessary skill for editors), I have been thinking about journals and the big picture.
Specifically, what do they do?
Continue reading "Scholarly journals, what are they good for?"
Posted by ERD on May 18, 2012 at 07:08 AM | Permalink | Comments (1) | TrackBack (0)
Religion, Hair, and Prisons
This post follows Sam's excellent comments on the Department of Justice's robust enforcement of the Religious Land Use and Institutionalized Persons Act ("RLUIPA") under the Obama Administration. I share Sam's view that the charge that President Obama is "waging a war on religion" is tough to square with his administration's significant RLUIPA enforcement efforts. As religious liberty in the penal context is of particular interest to me, I wanted to add a few items to the conversation that Sam started.
Before doing so, a little background: RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution. . . even if the burden results from a rule of general applicability,” unless the burden (1) “is in furtherance of a compelling governmental interest”; and (2) “is the least restrictive means of furthering that compelling governmental interest.” RLUIPA -- passed after the Supreme Court's decision invalidating the Religious Freedom Restoration Act as it applied to States -- attempts to restore heightened protection for the religious freedom of incarcerated individuals.
The generally applicable prison rules that I'd like to focus on are inmate grooming standards, which, broadly speaking, restrict the ability of prisoners to grow their hair or maintain facial hair. Georgia, for example, requires that inmates' hair must be no longer than three inches in length; mustaches that "extend beyond the edge of the mouth" are prohibited; and beards and goatees are prohibited. Prison officials generally offer four basic justifications for these restrictive grooming policies: they prevent inmates from drastically altering their appearance and thus limit inmates' ability to evade easy identification in the event of an escape or major incident; they are necessary for security purposes in that they make it more difficult for inmates to hide contraband; they ensure good hygiene; and they promote order and discipline.
These rules may conflict, however, with the religious requirements of inmates, such as Muslims, Sikhs, Native Americans, and Rastafarians, who are forbidden from cutting their hair. The question, given this "substantial burden" on these inmates' religious exercise, is whether restrictive inmate grooming policies can survive strict scrutiny. In an article forthcoming in the University of Miami Law Review, I highlight three questions that are relevant for courts asked to resolve this question in particular cases:
Continue reading "Religion, Hair, and Prisons"
Posted by Dawinder "Dave" S. Sidhu on May 18, 2012 at 06:36 AM in Religion | Permalink | Comments (3) | TrackBack (0)
The New Info re: Trayvon Martin and George Zimmerman
The latest batch of information shared by the government with the public and the defense continues to bode poorly for the prosecution, at least when held to a BRD standard for a murder charge.
1. The Times has posted a few audiotapes of interviews with witnesses of the encounter between Martin and Zimmerman. I'm on a deadline with something else, so I haven't gone through all of them yet, but at least one of them provides information to the effect that it corroborates Zimmerman's account that he was getting the stuffing beaten out of him by Martin prior to the shooting, and that Zimmerman had cried for help.
2. The article accompanying the audiotapes also reports that Martin's father told police that it was not Trayvon Martin who cried out for help on the 911 tapes. (Zimmerman's father said it was Zimmerman's voice, whereas Martin's mother had earlier said it was Martin). Audio specialists with the FBI apparently couldn't tell.
Continue reading "The New Info re: Trayvon Martin and George Zimmerman"
Posted by Dan Markel on May 18, 2012 at 12:37 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (5) | TrackBack (0)
Thursday, May 17, 2012
Mea Culpa on E-mail Correspondence, Blog Posts, & Student Privacy
As some may have noted, I've taken the liberty of deleting my earlier post on a student's accepting and then withdrawing from working as an RA. Deborah Merritt tells me that it was unprofessional of me to disclose the content of a student's e-mail, even though the student was not identified in the post, because classmates would infer the student's identity from the student's prior disclosures to third parties. (Other anonymous posters said the same thing, but I tend to discount anonymous responses).
Could the student have been identified from my post? I certainly did not think so, and I persist in the hope that anonymity was maintained. I hire several RAs each year. This particular student was one of many that I interviewed, and she never performed any work for me after accepting the job, because her work would not begin until June, two months after she withdrew from the job. I had never made a public announcement that she was one of my prospective RAs, so it simply did not occur to me that her classmates would figure out that (a) she had accepted a job with me, (b) she had withdrawn from that job, and (c) she actually wrote the message of which I complained.
But I am easily baffled by the internet and by students' social networks. Knowing the depth of my own ignorance on these matters, I really should have quoted the e-mail as a purely hypothetical message, without saying that it was from one of my actual students. On that point, Deborah Merritt is absolutely and completely correct, and, for that blunder, I sincerely apologize.
Not being able to put the genie back in the bottle, I decided to minimize the damage by simply deleting the whole post to cut off any further spreading of the correspondence. I remain hopeful that the student's identity was not actually revealed at all to anyone. (But she should feel free to e-mail me in person to let me know if she believes that she was "outed" by classmates: I'll apologize profusely to her as well, in person).
Lest anyone think that I deleted the post to hide evidence of the unpopularity of my stance, let the record reflect that the responses -- 75 of them by my last count -- ran heavily in the student's favor, with only seven or so agreeing with me that the tone of her message was too cavalier. The vast majority informed me that I was (using my words) a "hypersensitive curmudgeon." (There was some choicer invective as well).
Posted by Rick Hills on May 17, 2012 at 11:27 PM | Permalink | Comments (0) | TrackBack (0)
Too Much Law?
I'm delighted to be following Howard Wasserman (usually a good idea) in blogging about a review essay I recently published in Fordham Law Review Res Gestae. The essay is a review of Mila Sohoni's article, "The Idea of Too Much Law." Sohoni's article considers claims of "hyperlexis" -- literally, claims that we have too much law. She provides "accounts" of hyperlexis -- explanations that center on metrics such as the complexity and sheer volume of laws, as well as critiques that focus on the dynamics that generate hyperlexis. She finds these accounts difficult to accept: the metrics because they require major assumptions (e.g., what makes a legal system complex), and the explanations of hyperlexis's dynamics because they are simply unconvincing as broad explanations for hyperlexis (assuming that it exists). She concludes with what she describes as a "counsel of despair": hyperlexis claims are difficult to credit in the abstract, for the reasons she gives, but the hyperlexis critique of American law resonates powerfully, and corrodes citizens' faith in our regulatory system.
Sohoni's critique makes a lot of sense, and her focus on the hyperlexis concern is an interesting take on the ongoing debate about the scope and style of government regulation. But, as I suggest in the essay, uncovering the popular concern about hyperlexis may require thinking about hyperlexis as it's actually experienced -- citizens' day-to-day encounters with the legal system that might generate claims that there's, literally, too much law.
As luck would have it, we have a recent Supreme Court case that illustrates a citizen's encounter with a potentially hyperlexified regime. In Sackett v. EPA the Supreme Court held that pre-enforcement review was available when the EPA issued a compliance order to a couple who owned land that allegedly contained wetlands, and who were ordered to take significant remediation measures, backed by daily penalties for non-compliance, when they disturbed those alleged wetlands.
Continue reading "Too Much Law?"
Posted by Bill Araiza on May 17, 2012 at 06:49 PM | Permalink | Comments (0) | TrackBack (0)
Arizona Legislature Comes Out in Support of Ronald Dworkin
Perhaps that's not what it meant to do, but that's how I see it. I'm referring to a post by Eugene Volokh at the VC. (The man must employ half the legal librarians in Southern California. Either that, or he knows a lot about computers.) It discusses a recently enacted Arizona law. I quote Eugene quoting the law:
B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.
C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.
And “exercise of religion” is defined (in § 41-1493.01) very broadly:
“Exercise of religion” means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
Eugene disagrees with the law, rightly in my view. He writes: "[T]his law imposes a total bar on the consideration of religiously motivated behavior (or at least non-criminal religiously motivated behavior) by applicants for office. And it does so for the relatively high-level offices for which consideration of conduct and even speech and political belief seems most legitimate. Either the law will be enforced as written, in which case the appointing officials will be unable to exclude prospective candidates whose past conduct suggests they really should be excluded. Or the officials will find a way to indeed exclude such candidates, even when the past conduct is religiously motivated — but only by flouting the law."
What I find striking about this law is that law and religion scholars have written for years now about the difficulty or impossibility of distinguishing between religiously motivated views and policy or political positions, for purposes of rendering the former illegitimate in politics. Against this position, some scholars, including Dworkin, have argued that some laws can be viewed as unconstitutional because they represent legislators' religious views on policy questions and cannot be independently justified on "neutral," "secular," or "rational" grounds. (I see that argument much less these days in the literature, but Edward Rubin has made this argument in some recent work, as does a recent paper by Gary Simson.) Without saying more here, I think the mainline law and religion scholars have the better of the argument here.
In any event, the Arizona law seems to me to adopt a position that is remarkably similar to that of Dworkin and others who have argued for the applicability of the Establishment Clause to legislators' religiously motivated policy positions; it just happens to place the shoe on the other foot.
Posted by Paul Horwitz on May 17, 2012 at 11:48 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)
Obama's Secret War For Religion
A couple of months ago, it became common to hear the talking point that President Obama was waging a "war on religion." Although I have a view about whether that talking point was accurate as a description of the Obama Administration's approach to, for example, contraception (hint: I don't think it was), those debates have long since lost any capacity they may have had to generate light. So I don't want to rehash them here. But I do want to at least call attention to an area that hasn't drawn a lot of notice in the press, but in which the Obama Administration has fought vigorously for religious liberty.
That area is the enforcement of the Religious Land Use and Institutionalized Persons Act. RLUIPA, enacted in 2000 after the Supreme Court invalidated the Religious Freedom Restoration Act as it applied to state and local governments, imposes RFRA-like standards to state and local land-use decisions and the treatment of persons institutionalized in jails, prisons, and other state facilities. RLUIPA was passed with bipartisan support, and the George W. Bush Administration, to its great credit, did enforce the statute aggressively in the land-use context. The Obama Administration has continued that aggressive enforcement. But the Bush Administration did comparatively little to enforce the statute in the jail and prison context -- the context in which individuals are totally under state control and so are entirely dependent on state accommodations to ensure that they can practice their religion. This brief, filed in September 2008, was a rare exception. (The Bush Administration did defend RLUIPA's constitutionality in Cutter v. Wilkinson, but I am talking about affirmative enforcement efforts.)
That has changed significantly in the Obama Administration. The Obama Administration's Justice Department has filed briefs supporting the requirement that prisons give a kosher diet to Jewish inmates who observe kashrut; filed briefs in several cases and intervened as a plaintiff in another to support the requirement that prisons provide Native American, Sikh, and Muslim inmates with an exemption from hair-length and beard-length restrictions where necessary to avoid a substantial burden on their religious practices; intervened as a plaintiff in another case to challenge a jail policy that restricted the religious materials inmates could receive (a policy that made it difficult for a Jewish inmate to obtain a copy of the Torah and for two Muslim inmates to obtain a copy of the Koran); and argued for broad application of RLUIPA's institutionalized-persons provision before the en banc Ninth Circuit. (I should disclose that I supervised the work on a number of these cases, though the credit is very much due to the terrific career attorneys who worked hard on standing up this program and bringing the cases to fruition.)
I don't think this will change anyone's minds about whether President Obama is fighting a "war on religion." But I do think it's an important and underappreciated part of the Obama Administration's record in this area. I think it's fair to say that the Department of Justice has done more in the last two years to enforce the jail and prison provisions of RLUIPA than it did to enforce those provisions in the first ten years of the statute. And that's something that should count in any assessment of the Obama Administration's record on religious liberty.
Posted by Sam Bagenstos on May 17, 2012 at 10:59 AM | Permalink | Comments (4) | TrackBack (0)
Standing, sovereign immunity, and marriage equality litigation
My new essay, Rejecting Sovereign Immunity in Public Law Litigation, has been published at Fordham Law Review's Res Gestae. I am responding to Matthew Hall's Standing of Intervenor-Defendant in Public Law Litigation.
In ongoing marriage equality litigation, the named executive-officer defendants have declined to defend the constitutionality of the relevant laws in court. California's governor and attorney general refused to defend the constitutionality of Proposition 8; various federal cabinet officers, including Eric Holder, have refused to defend § 3 of DOMA in the strongest terms. This has lead to a scramble of other actors seeking to jump into the litigation to defend the constitutionality of the anti-equality law. In California, it was the sponsors of the popularly enacted law (who were allowed to defend in the trial court and appeal the adverse judgment to the Ninth Circuit); as to DOMA, it has been the Bipartisan Legal Advisory Group ("BLAG"), a standing committee of the House leadership. Hall argues (in a piece he presented at the Junior Fed Courts Workshop in February) that this type of intervention is proper only if the intervenor-defendant can satisfy a form of independent defendant-specific standing, to ensure an Article III case-or-controversy with a genuinely adverse and interested defending party.
I argue in response that this really should not be a matter of Article III standing and we only talk about it in those terms because of sovereign immunity. Sovereign immunity (of state and federal governments) prohibits private litigation against the government eo nomine (subject to some exceptions typically not applicable in constitutional litigation) and forces constitutional plaintiffs to sue responsible executive-branch officers under the theory of Ex Parte Young. But if we reject sovereign immunity, which arguably has no logical place in a republican system of government, we also eliminate the need for Young or the individual-officer workaround. We also eliminate the scramble of would-be intervenors that we have seen in the marriage equality cases. Plaintiffs can simply sue the state or the United States by name, giving us an unquestionably interested and adverse named defendant. The government then decides who is authorized to defend it (to "be" it) in court, when, and how.
The space limitations of a law review supplement forced me to leave out some important pieces to this idea. But I hope to go back and dig a bit deeper into it in the future, so comments and thoughts on Matt's and my exchange are welcome. I will add that I am on a SEALS panel this summer on the future of Ex Parte Young and this essay will provide the starting point for my presentation there--if there is no sovereign immunity, there is no need for Ex Parte Young in its most common application.
Posted by Howard Wasserman on May 17, 2012 at 10:00 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack (0)
Wednesday, May 16, 2012
The Missing Argument on the Tax Anti-Injunction Act
The following is a guest post from Yale 3L, Daniel Hemel.
During the March oral arguments in the health care cases, the Justices seemed skeptical of the claim that the individual mandate was a “tax” for the purposes of the Tax Anti-Injunction Act (TAIA). (If the Justices find that the Tax Anti-Injunction Act applies, they presumably would withhold a ruling on the constitutional questions.) The Tax Anti-Injunction Act states that unless one of the enumerated exceptions applies, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” But as Justice Breyer said of the individual mandate: “Now, here, Congress has nowhere used the word ‘tax.’ What it says is penalty. . . . And so why is this a tax?” His colleagues on the Court were similarly unwilling to countenance the claim that the penalty provision of the Patient Protection and Affordable Care Act (ACA) was a “tax” for the purposes of the TAIA.
Yet while the oral arguments focused on whether the individual mandate is a tax for the purposes of the TAIA, no one seems to have remembered that the lawsuit in question—Florida v. HHS—is not simply a suit to restrain the enforcement of the individual mandate. The complaint in Florida v. HHS “requests that the Court . . . [d]eclare the Patient Protection and Affordable Care Act, as amended, to be unconstitutional.” The plaintiffs explicitly argue that the mandate is not severable from the rest of the Act, and thus that “[t]he Court should hold the ACA invalid in its entirety.”
So for TAIA purposes, the relevant question is not whether the individual mandate meets the TAIA’s definition of a “tax.”
Continue reading "The Missing Argument on the Tax Anti-Injunction Act"
Posted by Dan Markel on May 16, 2012 at 10:07 PM in Constitutional thoughts, Current Affairs, Tax | Permalink | Comments (5) | TrackBack (0)
Benjamin, I just want to say one word to you -- 'robotics'
Of course, it was hard to get the phrasing from "The Graduate" just right in a post title, but there it is. A recent article in the New York Times suggests that robotics may hold great promise. Here's an edited excerpt:
Two people who are virtually paralyzed from the neck down have learned to manipulate a robotic arm with just their thoughts, using it to reach out and grab objects. ... The report, released online by the journal Nature, is the first published demonstration that humans with severe brain injuries can effectively control a prosthetic arm, using tiny brain implants that transmit neural signals to a computer. ... The two people in this study, a 58-year-old woman and a 66-year-old man, are quadriplegic, unable to use their limbs as a result of strokes years ago. ... With a little training, the two participants took control of the arm. It was the first time the man had used a limb of any kind in three years, and the first time in 15 years for the woman. Both were able to move the robotic arm and hand skillfully enough to pick up foam objects.
Continue reading "Benjamin, I just want to say one word to you -- 'robotics'"
Posted by Dingo_Pug on May 16, 2012 at 05:02 PM | Permalink | Comments (2) | TrackBack (0)
Contrarian Statutory Interpretation Continued (CDA Edition)
Following my contrarian post about how to read the Computer Fraud and Abuse Act, I thought I would write about the Communication's Decency Act. I've written about the CDA before (hard to believe it has been almost 3 years!), but I'll give a brief summary here.
The CDA provides immunity from the acts of users of online providers. For example, if a user provides defamatory content in a comment, a blog need not remove the comment to be immune, even if the blog receives notice that the content is defamatory, and even if the blog knows the content is defamatory.
I agree with most of my colleagues who believe this statute is a good thing for the internet. Where I part ways from most of my colleagues is how broadly to read the statute.
Continue reading "Contrarian Statutory Interpretation Continued (CDA Edition)"
Posted by Michael Risch on May 16, 2012 at 04:01 PM in Blogging, Information and Technology | Permalink | Comments (4) | TrackBack (0)
Non-White Friends
In my last post, I wrote about some of my recent research arguing that the diversity rationale -- as set forth most explicitly by the Supreme Court in the University of Michigan affirmative action cases -- has rendered non-whiteness a commodity. That commodity is valued by non-white institutions. Schools like to be able to advertise the diversity of their classes. Employers like to advertise the diversity of their workforces. In both instances, non-whiteness yields social and economic benefits to the predominantly white institution. Of course, I'm not claiming that all of this is the result of the Supreme Court's reliance on the diversity rationale. But that decision both reflects and reinforces an intense legal and social preoccupation with diversity in which non-whiteness has acquired a specific value to predominantly white institutions.
The value placed on non-whiteness extends beyond institutions and also affects the contours of relationships between white and non-white individuals. At the most atomized level, we see this in white individuals' desire to have -- or at least to claim that they have -- racially diverse groups of friends. Comedy provides a window into this ongoing social preoccupation. Half-jokingly -- but only half-jokingly -- one commentator observes that "[o]bviously, whites want black friends so as not to appear racist." Or recall the episode of Seinfeld in which George's boss accuses him of racism, and George desperately wants to prove him wrong. "It'd be great if he could see me with some of my black friends," George muses. "Yeah, except you don't really have any black friends," Jerry observes. (Spoiler alert: the episode culminates with George paying Jerry's pest exterminator, the only black person he knows, to go to lunch with him in the presence of his boss; the plan backfires when the scheme is uncovered and George's boss tells him that he has "sunk to a new low.")
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Posted by Nancy Leong on May 16, 2012 at 12:33 PM | Permalink | Comments (5) | TrackBack (0)
Fair Use and Electronic Reserves
For several years Georgia State was involved in litigation over the fair use doctrine. Specifically a consortium of publishers backed by Oxford, Cambridge and Sage sued Georgia State over copyright violations by many of the faculty. Many of my colleagues in the department were specifically named in the suit. A decision has now been rendered. You can read abou the decision here, and you can read the decision here.
The Court backed Georgia State in almost every instance, finding no copyright violation. However, the Court did lay down some rules - in particular you can use no more than 10% or one chapter, whichever is shorter, of any book.
Oh, and my colleagues were all found to have not violated copyright laws. For two of them the Court found that the plaintiffs could even prove a copyright.
Posted by Robert Howard on May 16, 2012 at 09:23 AM in Information and Technology, Intellectual Property, Things You Oughta Know if You Teach X | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 15, 2012
In the mail
I don't get to read books as much as I'd like, even in the summertime, but I wanted to bring a few new books to your attention, since I think they will be of wider interest, and perhaps you'll have good fortune to get them to the front of your reading queue.
First, Jeremy Waldron has reworked his Holmes Lectures and published them as a book entitled, "The Harm of Hate Speech." Waldron is one of my favorite legal philosophers and in this book, he takes on American exceptionalism having to do with free speech laws that protect bigots from censure, tort liability or punishment. I'm looking forward to seeing what he has to say.
Second, Eduardo Penalver, who regularly guestblogs here, has a new book on property theory that he has written with his colleague Gregory Alexander. It's called, suitably enough, An Introduction to Property Theory, and you can download the introduction here on SSRN and buy it here.
Last, for now, is a book by Princeton historian, Hendrick Hartog, called Someday All This Will Be Yours. Appropriately enough for a post-Mother's Day blog post, it's a modern history of inheritance and old age! If you have Prufrock on the brain, or are simply interested in the construction of contemporary familial mores, you will want to read this book. In the meantime: I grow old, I grow old, I shall wear the bottoms of my trousers rolled.
Happy reading!
Posted by Dan Markel on May 15, 2012 at 03:15 PM in Books | Permalink | Comments (0) | TrackBack (0)
Citations to the Federalist by The Supreme Court
Sorry I have been away. I am teaching a three week course, five days a week. Trying to teach Civil Liberties and Civil Rights to undergrads is never easy and this - well, that is best left for another topic. I want to briefly mention a paper that I along with two colleagues, Mike Evans, in my department, and Pam Corley of Southern Methodist University, will present at the upcoming Law and Society Association meeting in Hawaii (still another topic). Several scholars argued that there was an increased citation and use of The Federalist by Liberal justices and that in fact liberals use it more than conservatives. We found that is was true, but only for about a ten year period - from 1996 to about 2006, and that it was driven by Souter and Stevens, who have both departed. Kagan and Sotomayor rarely cite the Federalist, while Roberts was intitially reluctant, but now cites the Federalist frequently. The bottom line - if you think of citing the Federalist as the use of Originalism, once again conservative justices are using the approach more than liberal justices.
Posted by Robert Howard on May 15, 2012 at 11:17 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack (0)
Jotwell Con Law Pieces Welcome
Are there any recent constitutional law articles or books you like (lots)? If so, please consider writing about them for Jotwell, of which yours truly is the constitutional law co-editor. We have had some great recent submissions in our field but are looking to fill our virtual pages for the next few months. Here's a relevant excerpt from Jotwell's submissions info:
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Posted by Paul Horwitz on May 15, 2012 at 10:40 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack (0)
More Tests, Please!
Sam's post on timed exams and disabilities is too interesting not to weigh in on. I appreciate the thoughtfulness he and many of the commenters contributed to the discussion. I will add my two cents here about one of the primary issues he raises. I share some of the commenters' concerns about 24-or 48-hour exams: namely, that the burden for them can fall heavily on people with family and/or work obligations or health concerns. As a chronic pain sufferer, I am all too aware that "sub-disabilities" like mine can make it difficult to engage in sustained efforts of this kind over something like a 48-hour period. Mind you, I don't expect any testing approach to satisfy everyone, and I appreciate the thought Sam has put into the issue. Naif that I am, I will say that at schools with a strong honor culture, I think it's at least possible that stated restrictions on the amount of time one puts into the exam within that period may help. And I definitely agree with the commenters who talked about the importance of word limits; would that I used them more often.
One thing that struck me about the discussion was the extent to which it assumed that a 100 percent final will be given, so that the disagreement was mostly over what kind of final to give. I suspect it's nowhere as true as it used to be, but 100 percent finals still have a strong hold over law school culture.
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Posted by Paul Horwitz on May 15, 2012 at 10:29 AM in Paul Horwitz | Permalink | Comments (7) | TrackBack (0)
Drakon's Law on Homicide
For all of you criminal law professors who are looking for a draconian homicide statute for your next exam, here's a bit from the real thing -- Drakon's law on homicide (ca. 621 BC) (a portion dealing with involuntary homicide), which Solon (pictured) reformed thereafter.
Even if a man not intentionally kills another, he is exiled. The basileis [chieftains of a kind] are to adjudge responsible for homicide either the actual killer or the planner; and the Ephetai [judges as to, inter alia, involuntary homicide] are to judge the case. If there is a father or brother or sons, pardon is to be agreed to by all, or the one who opposes is to prevail; but if none of these survives, by those up to the degree of first cousin once removed, if all are willing to agree to a pardon; the one who opposes is to prevail; but if not one of these survives, and if he killed unintentionally and if the fifty-one, the Ephetai, decide he killed unintentionally, let ten phratry [a type of organized kinship group] members admit him to the country and let the fifty-one choose these by rank. And let also those who killed previously be bound by this law. A proclamation is to be made against the killer in the agora by the victim's relatives as far as the degree of cousin's son . . . .
Posted by Marc DeGirolami on May 15, 2012 at 09:30 AM | Permalink | Comments (1) | TrackBack (0)
Monday, May 14, 2012
Diversity and the Commodification of Non-Whiteness
As the Supreme Court prepares to confront affirmative action in Fisher v. University of Texas next term, a careful examination of some of the consequences of the diversity rationale seems timely. In a forthcoming article, I argue that the diversity rationale has had the effect of reducing non-white racial identity to a commodity.
How and why does non-whiteness function as a commodity? I argue that the diversity rationale and diversity thinking more generally has fueled an intense legal and social preoccupation with diversity. As the result of this preoccupation, non-whiteness has become something to be desired and displayed. In a previous post, I wrote about the incentives that the diversity rationale creates for predominantly white institutions to display their racial diversity. For both educational institutions and businesses, this might involve calling attention to non-white individuals in promotional materials -- even, at the extreme, by photoshopping them into such materials. Both educational institutions and businesses often feature pictures of non-white individuals prominently on their websites, or include links to statistics regarding the institution's diversity. Indeed, most large companies have an entire section of their website devoted to diversity. All of this contributes to the commodification of non-whiteness.
And such showcasing often has quite tangible economic benefits for the predominantly white institution. For a business, hiring and displaying non-white individuals can improve relationships with potential clients who value racial diversity. Likewise, showcasing non-white employees can facilitate recruitment of other talented non-white individuals or of white individuals who, for any number of reasons, value racially diverse work environments. A similar phenomenon can occur with colleges and universities: diverse student bodies often please influential trustees or donors, and racial diversity is often a selling point in attracting a well-qualified student body. The presence of non-white individuals throughout an employer's workforce also yields more concrete economic benefits by helping to provide a defense against ongoing employment discrimination suits or by preempting future suits. And apart from this litigation benefit, an employer's demonstrated efforts to diversify its workforce can help to protect the company's image and reputation in the face of litigation. One notable example of such successful image management is that of Wal-Mart, which undertook a well-publicized initiative to diversify its workforce with the result that even in the face of various sex and race discrimination suits the company received an array of awards and recognition for its efforts at achieving diversity.
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Posted by Nancy Leong on May 14, 2012 at 05:59 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack (0)
On Timed Exams
Every year I teach Disability Law, I spend at least one class on exam accommodations. We talk about accommodations for people with physical disabilities, vision disabilities, and, of course, learning disabilities and ADHD. It won't surprise anyone that the accommodation that generates the most discussion is the provision of extra time to take an exam. In fact, my casual empirical conclusion is that testing accommodation is the area of disability law that draws the most interest from both students and faculty at law schools across the country. Basically whenever I give a talk at a law school, some faculty member engages me in a discussion of whether it's appropriate that some students with some disabilities get extra time on their exams.
Still, I must say that I was a bit unprepared for just how much discussion the topic provoked in my Disability Law seminar this past semester -- and how upset so many of the students in my class seemed to be about the number of students (whom they believed to be) getting extra time accommodations. It wouldn't surprise me that the current economy and job market anxieties are making students more concerned about anything that might give their colleagues an unfair advantage (and at the same time making students more inclined to seek an advantage by obtaining extra time themselves). Also, the passage of the ADA Amendments Act of 2008, which overturned a series of Supreme Court decisions that narrowed the definition of disability, means that more ADA challenges to the failure to provide testing accommodations are likely to be successful than in the past. But, in any event, the discussion of the issue, and the level of skepticism of testing accommodations, was more fierce this past semester than at any time I can remember in the dozen or so years I've been teaching Disability Law.
Many of the people I talk to about this issue (including a lot of faculty and a number of my students this past semester), see two basic, mutually reinforcing, problems with extra-time accommodations on tests. First, many students and faculty believe that everyone would benefit from extra time on their exams, so that even for people who legitimately are diagnosed with learning disabilities the accommodation gives them an unfair advantage. Second, many students and faculty believe that the criteria for a learning disability or ADHD diagnosis are fuzzy and that students of greater financial means are more likely to be able to find a clinician who will make such a diagnosis -- so that people who don't really "deserve" extra time will get it, and that the extra time accommodations will, if anything, reinforce existing inequities. This leads lots of folks to conclude that we shouldn't give extra time on law school tests, at least for people with learning disabilities and/or ADHD.
I sympathize with some of these critiques. But I think the problem isn't with the testing accommodations so much as it is with the tests themselves. More below.
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Posted by Sam Bagenstos on May 14, 2012 at 02:55 PM | Permalink | Comments (34) | TrackBack (0)
Telecommuting for lawyers in a digital age?
I remember having a conversation with someone about a decade ago on the promise of telcommuting for attorneys and wondering why it wasn't more popular. The technology that would facilitate such a movement has increased rather dramatically since that time. Lawyers are generally required to work a lot of hours (at least in large firms and in some smaller ones) and the prospect of spending at least a some portion of those hours at home would seem to be a powerful recruiting advantage for firms competing over top associates (and partners). One survey suggests that 71% of lawyers report that they telecommute "sometimes," but this number also includes working on the road (at least that's how I read it). About half of the respondents reported telecommuting 10-24 percent of their time. While this does suggest a rise, it seems that telecommuting should be more pervasive - it's a win-win - or is it?
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Posted by Dingo_Pug on May 14, 2012 at 11:10 AM | Permalink | Comments (7) | TrackBack (0)
Why Not Regulate Marriage and Parenting *More?*
I am a frequent reader of Ryan Anderson's material and links, sent via daily email, to Public Discourse and other publications, offering a particular kind of social conservative response to daily events. Late last week, he provided a link to a co-written blog post at a Heritage Network blog titled "Obama and the Truth About Marriage." Some key passages:
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Posted by Paul Horwitz on May 14, 2012 at 08:48 AM in Paul Horwitz | Permalink | Comments (3) | TrackBack (0)
Online research groups?
During an earlier stint here, I wrote a bit about creating online research groups that crossed institutional boundaries. I've started thinking about this possibility a bit more, because I had an idea for such a group. Other things may make it difficult (if not impossible) for me to actually implement this particular scheme, but even if I grudgingly accept the possibility that I can't do everything I can think of, I see no reason not to think about things I can't do. (Or something).
So anyway, since I was thinking about the idea, I thought I'd see if anyone out there had done something like this and, if so, how it worked.
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Posted by ERD on May 14, 2012 at 08:06 AM | Permalink | Comments (0) | TrackBack (0)
