Friday, May 16, 2008
What prompts structural constitutional amendments?
Carlton started a great discussion asking what the next constitutional amendment will be and has gotten a few good responses so far. I tend to think that any new amendment will be structural rather than rights-creating. But one of the comments, talking about the chances of dumping the Electoral College, suggested that if the 2000 debacle did not prompt a serious amendment move, it is hard to see what will. Indeed, the Electoral College reform efforts post-2000 have been all about ways to get to the functional equivalent of nationwide popular election without a constitutional amendment.
So this got me thinking: What has to happen to prompt a serious and successful move for a constitutional amendment, particularly a structural one? Let me suggest some considerations that, historically, appear to play into the mix, in some combination.
Continue reading "What prompts structural constitutional amendments?"
Posted by Howard Wasserman on May 16, 2008 at 02:05 PM | Permalink | Comments (4) | TrackBack (0)
Why the Court ought to deny cert in Smith v Barrow...
... And almost any other case involving Pierce/Meyer rights. The reason, of course, is federalism.
Institutionally complex rights -- including rights to private property, rights to parental control, rights to separation of powers (see Calder v Bull), rights to an equally funded public education, and a bunch of others -- should simply not be federalized absent the most pressing need. This is not because these are unimportant rights. To the contrary, they are among the most important. But centralized definition of institutionally complex rights -- i.e., entitlements to essentially systems of collective governance -- generally is a disaster.
Such rights cannot be protected by a simple federal injunction on some well-defined set of state practices. Instead, these rights are entitlements to complex systems of law: The existence of the right requires comprehensive and detailed regulation, balancing (for instance) the interests of children, relatives, teachers, etc, all of whom have plausible federal entitlements to free speech, free exercise of religion, anti-establishment, and, of course, parental autonomy.
The notion that Article III courts can effectively protect such rights with centralized directives from a committee of nine elderly lawyers is laughable. Far better to leave these issues to the state courts' enforcement of state constitutions, where (a) the affected constituencies are powerful enough to amend the organic law to their liking; (b) the variety of jurisdictions is great enough to accommodate passionate differences of opinion about which rights are "fundamental"; and (c) the jurisdictions are small enough that there can be a constant dialogue between the legislature and court about exactly how to manage complex entitlements. (As an example, consider school finance litigation: love it or hate it, would you really want this issue -- about which the states and experts are deeply perplexed -- federalized?)
The Court acted wisely in San Antonio School District v Rodriguez not attempting to federalize the right to an equally funded public education. They'd do wisely here in refusing to federalize parental rights selectively to use the public school system.
Posted by Rick Hills on May 16, 2008 at 10:03 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack (0)
Parental rights & public schools
One of the oddest "phantom fundamental rights" is the right to raise and educate one's children. The Court repeatedly recognizes it as fundamental under the 14th Amendment, citing Pierce and Meyer, the Ur cases of modern substantive due process. But the right is almost never enforced against some of only state laws that are likely to burden it -- that is, state laws pressuring kids to attend public schools.
But the Court is in conference this morning considering a cert petition that addresses precisely this sort of pressure. In Smith v Barrow, the Fifth Circuit upheld a district court's application of strict scrutiny to a public school official's refusing to consider a teacher for a promotion unless she moved her kid from private religious school to public school. The teacher won a jury verdict of 35k on the theory that her right to Pierce/Meyer right to control the education of her children had been burdened. The jury had expressly found no burden on any right of religious free exercise: the only right at stake was the "pure" parental right, not the "hybrid" parental + free exercise right suggested by Yoder.
Will the Court grant the petition? I think not: This particular issue is impossibly contentious. If the Court were to affirm, then expect a flood of litigation from home-educating parents demanding access to public schools' athletic, musical, and other extra-curricular programs. There already is plenty such litigation rumbling along in the lower courts -- but an infusion of strict scrutiny from SCOTUS would certainly cause organizations like the Homeschool Legal Defense Fund to press more of them successfully. But if the Court does not affirm, then what's left of the vaunted Pierce/Meyer right?
Sometimes it is just easier to decide not to decide.
On the other hand, I've been wrong before in my predictions. I thought, for instance, that the Court would not grant cert in United States v. Lopez, another Fifth Circuit opinion written by Judge Garwood. Maybe Garwood has triggered yet one more revival of a hitherto moribund doctrine.
Posted by Rick Hills on May 16, 2008 at 09:42 AM in Constitutional thoughts | Permalink | Comments (1) | TrackBack (0)
Thursday, May 15, 2008
An Open Letter to the Yale Law Journal: What is Your Real Policy?
I want Prawfs to do more hard-hitting investigative journalism; here's my contribution, which might well blow the lid off of the Yale Law Journal. So the YLJ "claims" in their submission policy that "The Journal reviews all manuscripts anonymously, without regard to the author's name, institutional affiliation, prior publications, or pending publication offers." (Guidelines here) But if this is true, then why does their submission website allow for the uploading, albeit optionally, of a CV? I hate to call them out in public, but the YLJ did not respond to an email inquiry before post time. Is it a trick? Those who submit CVs will be downgraded because they obviously didn't read the submission guidelines carefully? Actually, my real theory is that so many authors want to submit a CV that the editors decided to allow submission of one, so authors didn't append it to their article or cover letter.
But with the information there, when, at some point in the process, the editors find a piece interesting, do they still refuse on principle to read the CV to check out the track record and training of the contributor? I find it hard to believe.
UPDATE: This post began mainly as a joke; I thought I had found an inconsistency in the YLJ policy, not an inaccuracy. But then commentators, anonymous and otherwise, said that the evaluation policy was not correctly described on the YLJ website: Evaluation is non-blind at the critical stage where a submission is rejected or advances to serious consideration. At subsequent stages it is mixed, with one voter (the initial screener) knowing the author's identity and other information, and other voters "blind", but aware that the initial screener's vote and opinion are based on additional information. Now I am really dying to know the specifics of the current policy, and, if review is not entirely blind, as commentators suggest, why the YLJ would state that it is.
Another point: Some research suggests that reviewers aware of an author's sex may discriminate against female scholars (a famous study suggests that knowing the sex of an auditioning musician has a similar effect). I doubt the YLJ would say they don't care about the possibility of discrimination. But the other obvious retort--"don't worry about the non-blind aspects of our selection policy, we monitor outcomes to ensure fair representation on sex (and race)"--makes the description of the selection policy quite distant from the actual policy.
Posted by Jack Chin on May 15, 2008 at 03:07 PM in Life of Law Schools | Permalink | Comments (19) | TrackBack (0)
How does one measure "governmental centralization"?
At the risk of wearing out readers with my shilling for my ALEA panelists' articles, I mention Ezra Friedman's first-rate empirical piece investigating the relationship between governmental size and willingness to redistribute wealth. Friedman finds that counties with more decentralized expenditures are less likely to redistribute wealth. That is, county Leviathans are more friendly to the poor.
One might, however, quarrel with Friedman's measure of decentralization. He looks to the fraction of county expenditures that are spent by subcounty governments -- towns, villages, cities, etc. He acknowledges that the measure is imperfect: The towns might get all of "their" revenue from the feds, the state, or the county, and those higher-levels might dictate the spending decisions by "puppet" local governments.
But the problem is even greater than he acknowledges. Many local governments are created for the sole purpose of keeping taxation low. Such municipalities are often formed defensively to avoid annexation by a neighboring municipality. (The practice was comprehensively documented by Gary J. Miller, Cities by Contract: The Politics of Municipal Incorporation (Harvard Press 1981) and Nancy Burns, The Formation of American Local Governments: Private Values in Public Institutions (Harvard Press 1994)). Such municipalities are often little more than five unpaid trustees and an answering machine: They purchase minimal services from the county, bargaining for low fees and low service levels, because their constituents dislike taxes more than they like services. The decision about revenue in such a county is decentralized in the sense that tiny towns are dictating low taxes and low expenditures. But such a county will come across as highly centralized in Friedman's measure, because the county budget might dwarf those of the anti-tax towns.
This comment is not meant as a criticism of Friedman (whose collection and analysis of data is truly impressive) but rather as a lead-in to a more general question: How does one measure decentralization quantitatively? Some scholars have simply despaired of finding any reliable quantitative measure (see, e.g., Edward C. Page, Localism and Centralism in Europe: The Political and Legal Bases of Local Self-Government (1991)).
Such a measure would be enormously useful in analyzing how various legal arrangements affect centralization levels. (Think of the bromides one reads in law reviews about federalism's being protected through the national political process: A good quantitative measure of true federalism -- that is, state control of money or power -- would help confirm or disconfirm such statements).
Alas, I have never encountered a reliable measure. Has anyone else had better luck?
Posted by Rick Hills on May 15, 2008 at 01:23 PM | Permalink | Comments (0) | TrackBack (0)
Icahn's Eleven (Er, Ten)
With the righteous rage of an arbitrager scorned, Carl Icahn is looking to take over Yahoo so that it can be taken over by Microsoft. In a letter ostensibly to Yahoo chair Roy Bostock, Icahn says that he believes the board acted "irrationally" and "unconscionabl[y]", and announces that he will be leading a proxy fight on behalf of Yahoo shareholders.
There seems to be a fair amount of positive reaction to this news, as the hostility to Yahoo, its board, and CEO Jerry Yang continues to fester. I'm a little skeptical. First, there is Icahn's failed proxy battle at Time Warner. Sure, he got a face-saving settlement out of it, but former TW CEO Richard Parsons clearly emerged the victor. Icahn and his advisor Bruce Wasserstein suffered career-damaging blowback from that failed endeavor. (There's also Icahn's failed efforts as a Blockbuster shareholder to get the company to merge with Hollywood entertainment.) Second, Microsoft has dropped its offer for Yahoo and claims the deal is dead. Maybe Ballmer is not really out of the game, but as I wrote last week, there are good reasons for Microsoft to walk away. Will the involvement of Carl Icahn, who is clearly only interested in extracting the maximium price from Microsoft, make Yahoo more enticing?
Finally, there is Icahn's proposed board.
Continue reading "Icahn's Eleven (Er, Ten)"
Posted by Matt Bodie on May 15, 2008 at 01:22 PM in Corporate | Permalink | Comments (1) | TrackBack (0)
What do bureaucrats want?
Being a panel chair for tomorrow's ALEA conference, I thought I'd go that extra mile and read the papers of my panelists in advance of the conference. All three were interesting, but Yehonatan Givati's paper on “Strategic Statutory Interpretation by Administrative Agencies” inspires me to ask the question: What do bureaucrats want? More pointedly, why do academics -- especially economically oriented ones -- persist in assuming that bureaucrats want power?
Givati sets up a model rooted in the assumption that "as long as no appeal [to a court] is provoked, a more aggressive interpretation [of statutes] is preferred to a less aggressive one." (page 2). Why is this a plausible assumption on which to erect a model? It has been three years since Daryl Levinson published "Empire-Building Government in Constitutional Law," and yet model builders are still relying on the old saw that bureaucrats want to push the statutory envelope with "aggressive" interpretation of statutes. As Levinson noted, there is very little evidence to support such an assumption. Bureaucrats might be time-servers who like the quiet life. Or they might have been appointed to head an agency that their boss wants to euthanize (think of Republican Presidents and HUD). Or they just might be legalistically oriented and want an interpretation that is highly formalistic and therefore easy for their subordinates to follow and for them to defend. Or they might be captured by the people that they regulate and choose the interpretation that most accords with their views -- which might be a form of inaction unappealable under Heckler v Chaney.
There is, in short, no general reason to believe that bureaucrats, in general, like to push the envelope of the statutes that they administer in order to enlarge their discretion or power. but it seems to me that economists like to assume that they do. Any thoughts as to why?
(Incidentally, the premise built into Givati's model does not affect the interest of Givati's "surprise" ending, which is that increasing judicial deference will not necessarily induce agencies to be more aggressive in statutory interpretation. Briefly, Givati poses the possibility that (a) firms will be more likely to appeal if courts defer more to agency interpretations and (b) agencies do not like incurring appeals. Find (a) counter-intuitive? Read the paper).
Posted by Rick Hills on May 15, 2008 at 12:28 PM | Permalink | Comments (1) | TrackBack (0)
What will be the Next Constitutional Amendment?
It's been 37 years since the last contemporaneously proposed and ratified constitutional amendment (I'm setting the aside the 27th Amendment, with it's tortured 200-year history). There have been only two comparably long periods in our history without an amendment, the 61-year period between the 12th and the 13th Amendments, and the 43-year period between the 15th and the 16th Amendment. It strikes me as most unlikely that we will have another amendment by 2014, so in six years we will be in the second-longest period in our history without an amendment.
Constitutional amendments are notoriously hard to adopt. Even the important work of the Continuity of Government Commission, which developed bipartisan approaches to the compelling problem of government continuity in the wake of a massive terrorist attack, went nowhere. Is it possible that there will be no more constitutional amendments? We certainly need them. Fixing our idiotic system of electing the President would be a good start, but I'm not going to hold my breath waiting for that to happen.
So here's a question for our PrawfsBlawg readers: What do you think will be the next constitutional amendment? I'll check in in fifty years, and see if anyone got it right. Drinks on me for the winner.
Posted by Carlton Larson on May 15, 2008 at 12:17 PM in Constitutional thoughts | Permalink | Comments (7) | TrackBack (0)
AALS Section on Agency, Partnerships and LLCs: Call for Papers
You may have seen this news a month ago, but now that the summer is starting, perhaps a reminder would be helpful.
The Section on Agency, Partnerships and Limited Liability Companies is calling for papers for the 2009 AALS Annual Meeting in San Diego. We are interested in presentations on the application of modern theories and empirical methods of business associations to agency and unincorporated firms. The program has two goals: First, to show how these theories can be enriched by taking them outside the "box" of corporate law; and second, to show the relevance of agency and unincorporated firms to the mainstream of corporate theory and empirics. A non-exhaustive list of possible topics includes the nature and function of fiduciary duties, agency theory, the role and enforcement of contracts, jurisdictional competition and choice of form, the relationship of federal and state law, jurisprudence, international and institutional comparisons, and legal and economic history. Please email either a draft paper if available, or if not an abstract and outline, to Larry E. Ribstein, University of Illinois College of Law, ribstein [at] law.uiuc.edu, by no later than September 1, 2008.
Posted by Matt Bodie on May 15, 2008 at 10:30 AM in Corporate | Permalink | Comments (0) | TrackBack (0)
My memo on exam-writing
I have given my students the attached memo for the last three years. Download Exam_memo.pdf Feel free to use it yourself, if you like: I hereby waive any copyright.
The memo offers precisely the same advice as Eric Johnson's recent post. The essential point is that facts + law = analysis, while Law alone = vomit. Students hate this advice, because applying the law to facts requires them to think rather than regurgitate or opine. Few people like to think for more than a few minutes at a time, and with good reason: Thinking is a painful and annoying activity, albeit with long-term payoff, like running long distances regularly or raising toddlers.
Posted by Rick Hills on May 15, 2008 at 09:35 AM in Teaching Law | Permalink | Comments (4) | TrackBack (0)
The Perils of Vicarious Liability in the Parenting Context
Via the indefatigable Doug at SLP, I just came across this story detailing the planned incarceration of a father for the failure of his daughter to achieve a GED degree. I'm not kidding.
A man ordered by a judge to make sure his daughter hit the books has found himself in jail because she failed to earn a high school equivalency diploma. Brian Gegner, of Fairfield, was sentenced last week to 180 days in jail for contributing to the unruliness or delinquency of a minor. He was ordered months ago to make sure his 18-year-old daughter Brittany Gegner, who has a history of truancy, received her GED - something that hasn't happened yet. Brittany Gegner, who said Monday that she plans to take a required GED test this month, said her father shouldn't be blamed for her failure because she has been living with her mother. "It was my wrongdoing, not his," said Brittany Gegner, whose fiance and 18-month-old daughter also live at her mother's home in nearby Hamilton. "He shouldn't have to go to jail for something I did." Her mother agrees. "Brittany is almost 19 years old now and I think it's unfair to put her father in jail," said Shana Roach. "She's an adult now, and it's not right to rip an innocent man from his home."
Brian Gegner's wife, Stephanie Gegner, said she and her husband are afraid he will lose his job if he remains in jail. She said they tried to keep his daughter in school. "You'd take her to school and she'd go out the other door," Stephanie Gegner said.
It's possible there are facts here that the story omits. Indeed a little research via google reveals that the father was in fact living with his daughter when the truancy occurred. And "she has since taken the GED exam and passed all but the math portion, which she has failed several times."
But the larger point remains: can the law justifiably punish a parent for the actions of a child? In our forthcoming article, Punishing Family Status (BU LRev 2008), Ethan, Jennifer and I address these vicarious liability laws and the way that they impose criminal liability by virtue of family status. A snippet of that analysis follows after the jump.
Continue reading "The Perils of Vicarious Liability in the Parenting Context"
Posted by Dan Markel on May 15, 2008 at 12:01 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 14, 2008
Bluebook factoid?
A colleague stopped by office to whine about what law review editors were doing to his writing. S/he is one of those lovable grumpy types who likes to talk about the good old days; so long as they were old, they were good. During the anti-Bluebook part of his speech, s/he claimed that standard form back in those good old days only required last names in citing articles and books (though s/he suggested that books used first initials). That sounded right and coheres with what old articles look like. Since I've grown up as a scholar under the "new" rules, I don't give them much thought; it seems rational enough to include full names.
But then s/he claimed something I hadn't heard before: that the Bluebook started requiring full names in citing articles and books "so that law review writers would be more transparent about the gender of the authors they were citing in their articles." In short, s/he claimed that law review editors are engaging in a form of feminist activism by requiring full names. Although I don't really care about this particular rule in the Bluebook (whereas the "et al." rules strike me as quite dated and worth fighting against -- especially for the citation of articles where I am a second or third author), I do find it rather funny, if it is true.
Is it? Were you part of this generation of Bluebook editors that adopted this change? Did you imagine that it would help women and reveal the patriarchy for what it is? Is this tale made up? Do tell.
Posted by Ethan Leib on May 14, 2008 at 11:40 PM in Books | Permalink | Comments (6) | TrackBack (0)
Changes at the Solicitor General’s Office
For those who haven’t seen, Solicitor General Paul Clement announced that he will leave the government on June 2. I had the great experience of working with Clement for a year when I was a Bristow Fellow, and I think his departure will be a blow to the office. Not only is Clement is an excellent lawyer and advocate; he also has amazing capacity to get immense amounts of work done. More than that, he has done, I think, a really good job of fulfilling the difficult task of satisfying the administration while at the same time maintaining credibility with the Court by presenting only plausible legal arguments, such as in the Heller case (the DC gun case).
I don’t know what his plans are, but Clement will be a huge asset to wherever he lands. As for his successor, I obviously can’t be sure, but I suspect that Greg Garre, who is the current principal deputy, will become the Acting SG.
I don’t think it is surprising that Clement is leaving now instead of waiting until the change of the administration. The administration change comes in January --- right in the middle of the Court’s term. Staying until that time would mean that Clement would file briefs in cases that he would not be able to see through to oral argument.
On a related note, word on the street is that deputy SG Thomas Hungar is also planning to leave this summer. That’s going to leave the office with two of its four deputy spots open (that’s assuming Garre gets bumped up).
Posted by Andy Hessick on May 14, 2008 at 10:48 PM | Permalink | Comments (0) | TrackBack (0)
Your Chance to Speak to New Legal Scholars
At the end of June, the AALS sponsors a conference for law professors just entering the profession. The program includes panels on teaching strategies, learning theory, law school politics, and other essentials for newcomers. There's also a panel on scholarship, a sort of "how to" session. I will be one of the panelists.
My able co-panelists--Angela Davis and Cheryl Hanna--will talk about the actual writing process and the distribution of the written work after it is complete. I will be talking about "getting your ideas." Put another way, this panel requires someone to talk about the current landscape of legal scholarship, and to suggest to newcomers how they might try to enter and change that landscape.
I've got some ideas for a taxonomy of legal scholarship that could be useful for new law profs. But I would like to hear ideas from others. So here's the deal: send me your ideas for how to break down the subject matter and methodologies of legal scholarship into categories that will be useful for new law professors. If I decide to use your suggestions, I will of course publicly attribute the idea to you.
Tell me: what should new law profs hear about the legal scholarship landscape?
Posted by Ronald Wright on May 14, 2008 at 08:33 PM in Legal Theory | Permalink | Comments (0) | TrackBack (0)
What's Your Advice to 1Ls on Exam Writing Technique?
While grading exams – what I’m doing now – I worry that I am giving grades that largely indicate how well people can write law exams, rather than a purer measure of how well they’ve mastered the material in the course. Especially for 1Ls.
It seems inconsistent with basic notions of fairness that some students, tipped off by a mentor on how to write a great exam, get glowing report cards, while other students, who may have had similar great potential, get mediocre marks for lack of knowing what to do with their bluebooks.
There are two ways I try to remedy this inequity. One is to include multiple choice and class participation in the grade. But the main palliative, as far as I am concerned, is helping students to learn how to write better exams. Yet that is a daunting task.
This summer, I am going to put together a very slim guide – or a long memo with exhibits – for my 1Ls on how to get good grades on law-school exams.
Will you help me? Tell me: What wisdom do you pass on to your students? What quick-and-dirty fix-it tips do you have to offer? Is there a book someone sells (maybe yours?) that you would recommend?
I would be very grateful. Maybe this post and its comments will be a document itself I can refer students to. Here’s my boiled-down counsel to law-exam newbies:
Continue reading "What's Your Advice to 1Ls on Exam Writing Technique?"
Posted by Eric E. Johnson on May 14, 2008 at 07:29 PM in Teaching Law | Permalink | Comments (11) | TrackBack (0)
The Edwards Endorsement
So Edwards is going to endorse Obama. The initial news coverage makes it sound as if Edwards decided on the endorsement now that it is sufficiently likely that Obama will be the Democratic nominee. But I wonder if there was another part to the calculus--perhaps Edwards' sees his leverage with the Obama campaign as being particularly good at this moment. It would seem to have peaked with the North Carolina primary, but Edwards' voter demographic strength is precisely Obama's increasingly apparent voter demographic weakness: white, working class voters.
For whatever reason Obama has trouble getting white, working class votes--Ohio, Pennsylvania, Indiana, and now West Virginia. Obama got a mere 26% of the West Viriginia vote. West Virginia voters have access to the same national news media as anyone else and have to know that Clinton is not a particularly viable candidate at this point. But they still went out and voted for her (or alternatively voted against Obama). Heck, Edwards got 8% of the West Virginia vote and he isn't even running any more.
Edwards' appeal to white, working-class voters makes him a good complement to Obama. He also doesn't doesn't overshadow Obama and his presence isn't a reminder of Obama's relative youth and inexperience, the way say, a long-serving governor or senator would be. I wonder if this is part of a move towards Edwards as a running-mate--Edwards was able to strike the deal when Obama's white working class voter problem became all too obvious after West Virginia. But that's just my idle speculation.
Posted by Adam Levitin on May 14, 2008 at 06:38 PM | Permalink | Comments (3) | TrackBack (0)
Note-spotting
Here at Prawfsblawg and elsewhere, a brief flurry of attention descended on an anonymous case comment in the Supreme Court issue of the Harvard Law Review, which began, modestly enough, "The history of the Fourteenth Amendment is one of hierarchy and capitalism." Dan called the comment "very bizarre" and "jarringly out of place," although he rightly found unfortunate the kind of piling on that commenters treated the piece to on the VC. I agreed that the quality of the piece was problematic, but also found the very fact of its being "jarringly out of place" somewhat refreshing amidst the very competent but wholly routinized case comments one normally finds in the Supreme Court issue: "like setting loose Little Richard in the middle of a cotillion or bringing a mutt to a dog show -- or performing "Super Freak" at a child beauty pageant," to quote my earlier post.
I raise all this because I am reading the latest issue of the Harvard Law Review (not available online yet, but when it is it will be here) and reading a Note titled, after an inscription on a statue in Cambridge Common, "Never Again Should a People Starve in a World of Plenty." It's unusually thinly sourced for a Harvard Law Review Note -- not that I'm encouraging people to use more footnotes! And it has a certain voice ("There is injustice everywhere. The last place there should be injustice is in the justice system.") and theme that . . . . well, I find myself wondering whether we have found our anonymous author once again.
I don't mean to be unduly gossipy about this sort of thing; it's worth a two-paragraph blog post and not more. And I am not knocking the observation that injustice is bad; heaven forfend. Just the same, I'm curious whether this is the same author.
Posted by Paul Horwitz on May 14, 2008 at 12:57 PM in Article Spotlight | Permalink | Comments (5) | TrackBack (0)
Governors versus Congresspersons as Presidential Aspirants
Are we seeing the passing of the Era of Governors-as-Presidents? The era began after Watergate, when distrust of Washington led to the election of a series (4 out of 5) Presidents' having been former governors who ran against the nefarious inside-the-beltway "Washington Establishment."
This pattern was in striking contrast to the years between FDR's death and Ford's loss to Carter, when all five elected Presidents were all federal officials (counting Ike as commander of Allied forces in Europe). Incidentally, the 1945-1976 period was also the period in which the federal code and CFR relentlessly expanded in size. The Great Turnback of grants and regulatory discretion to the states was a product of two former governors -- Reagan and Clinton -- with such notable (or infamous, if you are so inclined) measures as TANF, expansion of section 1115 Medicaid waivers, Lopez/Morrison/Gonzales v Oregon judicial vindication of state power, etc.
But now we have three Senators vying for the White House. Is it the end of an era? Has Bush II finally cured the public of outside-the-Beltway rhetoric? Do voters want a seasoned federal pol after years of incompetence disguised by a folksy twang?
As a certified federalism nut, I face this prospect with misgivings. But perhaps I am overly pessimistic (or, if you are more nationalistically inclined, optimistic). Thoughts?
Posted by Rick Hills on May 14, 2008 at 09:50 AM in Current Affairs | Permalink | Comments (6) | TrackBack (0)
Candor & Politics: Now Accepting Nominations for the LaFollette Award
As the Democratic primary winds down, the question arises: Will some candidate win the uncoveted LaFollette Award this year?
The LaFollette Award is given (by yours truly) to the candidate who most distinguishes himself or herself by conscientious indifference to public opinion in the service of truth as he or she sees it. The title of the award is inspired by Mencken's famous encomium in praise of LaFollette during WWI:
The older I grow the less I esteem mere ideas. In politics, particularly, they are transient and unimportant…. There are only men who have character and men who lack it. LaFollette has it. There is no shaking or alarming him. He is devoid of caution, policy, timidity, baseness—all immemorial qualities of the politician. He is tremendous when he is right, and he is even more tremendous when he is wrong. LaFollette not only voted as a Senator, against American participation in the war; he also refused flatly to change his views when he failed to prevent it. What followed is well remembered. While the uproar lasted he was practically barred from the Senate Chamber. His colleagues, eager to escape contamination, avoided him; he was reviled from end to end of the country; all the popularity and influence he had built up by years of struggle vanished almost completely.…But LaFollette stuck. The stink-bombs burst around him, but still he stuck. The work of his whole life went to pieces, but still he stuck. Weak friends deserted him and old enemies prepared to finish him, but still he stuck. There is no record that he hedged an inch. No accusation, however outrageous, daunted him. No threat of disaster, personal or political, wabbled him for an instant. From beginning to end of those brave and intelligent days he held fast to his convictions, simply, tenaciously, and like a man.
Past honorable mentions include Paul Tsongas (him of the “I’m no Santa Claus” fame). Past winners include Bush I (for accepting the inevitability of tax increases), Ford (for pardoning Nixon), and Truman (for firing MacArthur). This year, there seems to be a bumper crop of aspirants – well, two – who want to use their “straight-talking” reputations to build up brand recognition with voters.
But will either clinch the deal by saying something risky that they obviously believe? (Denouncing the gas tax holiday garners, at most, a tepid honorable mention). Will Obama actually admit that NAFTA neither cost nor created a lot of jobs? Or that eliminating outsourcing would probably also eliminate the Indian middle class and risk economic collapse of unstable economies? Will McCain admit that tax breaks in an era of runaway deficits are silly and demagogic? Will either admit that slogans on Iraq regarding withdrawal time are essentially meaningless, because the situation there is too volatile to predict more than a week in advance? In short, will either address the voters as mature adults rather than as drunken fans at a tailgate who cannot understand sentences too long for a tee shirt?
Any such unforeseen candor will win the LaFollette award immediately – not to mention, in all likelihood, more time in in the Senate. Stay tuned.
Posted by Rick Hills on May 14, 2008 at 09:30 AM in Current Affairs | Permalink | Comments (6) | TrackBack (0)
Tuesday, May 13, 2008
Signing off
I am grateful to the Prawfs for inviting me back for another stint. I'm especially glad to have had the chance to stay on in May after a particularly busy April. My fellow bloggers each month have been fantastic, and I look forward to keeping up with the next crop from my teaching and writing outposts over the summer. Oh, and one last music suggestion, even though it's not Sunday: Dengue Fever. Enjoy!
Posted by Nadine Farid on May 13, 2008 at 11:57 PM in Blogging | Permalink | Comments (0) | TrackBack (0)
The RIAA in the News: Catching Pirates and Conditioning University Funding
The RIAA is turning to states to help with piracy on college campuses. Tennessee has just passed a law, and Illinois is considering one, obliging public universities to implement and enforce measures that seek to prevent copyright infringement via university networks. My (admittedly limited) understanding of currently available means for curbing such activity is that they will necessarily also prevent legitimate uses of university network resources; findings by the Common Solutions Group support my hunch. Further, it seems a heavy burden indeed to place upon universities to monitor this sort of activity—particularly when that burden will fall to state-funded schools.
On a similar note, an article in today’s Chronicle of Higher Education discusses the RIAA’s pirate-catching tactics. What caught my eye was not the RIAA’s use of LimeWire (though I found that inexplicably amusing), but the paraphrased admission by a spokesperson that “the RIAA can tell only when a song is being offered for users to illegally download; investigators have no way of knowing when someone else is actually downloading the song”. This admission goes to the heart of the RIAA’s litigation strategy against P2P users: that simply “making available” a copyrighted work, without more, is sufficient for a finding of copyright infringement—that offering for distribution, in other words, is equivalent to distribution. A number of district courts have tackled this issue in recent months (catalogued and analyzed by William Patry and the EFF, among others), with varied results. I am pleased that the courts are willing to engage in thoughtful assessment of the RIAA’s claims, rather than simply rubber-stamping them (most recently in this decision denying summary judgment for the RIAA against pro-se defendants). I am also concerned, however, that those courts supporting the RIAA’s interpretation of the law are creating a standard that is much too broad, and that will have unintended consequences.
Posted by Nadine Farid on May 13, 2008 at 03:31 PM in Intellectual Property | Permalink | Comments (1) | TrackBack (0)
Political Casualties
Ohio Attorney General Marc Dann will be stepping down later today, after initially refusing to do so in light of a sexual harassment scandal that involved members of his staff (and a pineapple pizza--why these details surface is utterly beyond me). Representative Vito Fossella has yet to step down, though robust talk of his determination to run for re-election has waned. Any bets on Massachusetts House Speaker Salvatore DiMasi?
Posted by Nadine Farid on May 13, 2008 at 03:21 PM in Law and Politics | Permalink | Comments (0) | TrackBack (0)
May Quicksand
As May arrives, law school classes end, and as quickly as possible I find a way out of the quicksand of exam grading.
What's the best way to draw myself out of the quicksand? How best to clear my mind and jump into some summer work? Deadlines won't inspire me now -- I placed an article in the Spring Law Review Lottery. None of my projects are far enough along to contemplate an August cycle submission. I'm truly looking forward to a symposium this summer at Ohio State, dealing with prosecutor discretion, but I can't start work on that manuscript until some data arrives from a research assistant.
So what's the perfect quick-start writing format that will help me put grading and deaning behind me for the summer, even if the larger summer research plans seem indigestible at the moment? I think we've just found another useful role for blogging!
Posted by Ronald Wright on May 13, 2008 at 03:19 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack (0)
The Hazards of Trying to Set the Record Straight
The political campaign season inevitably brings a rash of candidate claims and counterclaims, charges and rebuttals, the presentation of "myths" v. "realities." Conventional wisdom suggests that a smart candidate will leave no misleading claim by his or her opponent unrebutted.
But emerging evidence suggests that that strategy bears the risk of simply reinforcing the initial "false" claim in onlookers' minds. Cognitive psychology research finds that repeatedly exposing listeners to claims like "aspirin destroys tooth enamel" increases the perceived truth of those claims -- even when the statements are explicitly identified as false at the start.
For example, a study in the consumer context -- How Warnings about False Claims Become Recommendations -- focused on older adults and found that repeatedly identifying a claim as false helped folks remember it as inaccurate in the short term, but led them later to recall it as true. In other words, repeating the claim in order to rebut it contributed to listeners' greater familiarity with -- and better memory of -- the original inaccurate claim itself rather than the more complex rebuttal context in which the claim was repeated. The authors concluded that "The more older adults were told that a given claim was false, the more likely they were to accept it as true" after several days had passed.
So what's a beleaguered pol to do? Not fight back, and leave your opponent's misleading claims unrebutted? Or try to set the record straight, and bear the risk that you're just reinforcing the original charge? Sometimes you just can't win for losing . . . .
Posted by Helen Norton on May 13, 2008 at 01:56 PM in Current Affairs | Permalink | Comments (2) | TrackBack (0)
Symbolic Counter-speech and the Pledge of Allegiance
Commentators have been talking about four middle-school students in Minnesota who were suspended for not standing during the Pledge of Allegiance. District policy requires students to stand, although they need not recite the Pledge. The local ACLU sent a letter to the district and over the weekend the suspensions were lifted and the students' records cleared. Good to see the District came to its senses, although it is a shame it took the ACLU, the threat of a lawsuit, and some bad publicity to get it to do so.
Calvin Massey, writing at the Faculty Lounge, suggests that the case is troubling, although not as clear-cut as the ACLU suggests. I would suggest that it at least should be that clear-cut.
The students engaged in what I have described as symbolic counter-speech: Brandeisian counter-speech responding to a symbol, using the symbol and its surrounding details as the vehicle for that counter-speech. One common mode of symbolic counter-speech is nonparticipation in a symbolic activity, such as the ceremonies or rituals designed to honor or affirm that symbol.
Nonparticipation can be understood in two ways. First, it is a protected refusal to engage in expression aganst your wishes. Under West Virginia State Board of Educ v. Barnette, the First Amendment protects unwilling students from being compelled to salute the flag and recite the Pledge. Importantly, however, the symbolic celebration of the flag (to which Barnette provides protection from compulsion) resides the entire ceremony--everything from standing, to facing the flag, to placement of a hand over the heart, to the recitation of some or all of the words. Thus, to have any force, the liberty not to be compelled to participate must apply to every part of that symbolic celebratory ceremony.
But nonparticipation itself is expressive; the act of refusing to join sends a counter-message (silent and non-specific though it might be) about the symbol and its message. An individual's ability to protest a symbol must include the ability to opt-out from everything surrounding that symbol, even something seemingly as innocuous as being made to stand silently.
Massey does raise the spectre of the fact that this occurred in the school setting and the argument that the school has a legitimate pedagogical interest in preventing interference with school business that might come from sitting students fostering a "climate of sullen disrespect." But I do not see how sitting fosters any more of a climate of disrespect than not saluting or remaining silent or omitting certain words. It is a bit more obvious perhaps, but shows the same refusal to engage with the symbol and its surrounding details. I might agree if students engaged in more-disruptive modes of symbolic counter-speech--shouting down the flag, loudly uttering different words (hence the above cartoon), or perhaps even more-dramatic non-participation, such as turning away from the flag (although I would be troubled by the last one). But merely sitting this one out does not cause any sort of disruption in the Tinker sense or even interfere with the school's mission or message in the Morse v. Frederick sense.
Posted by Howard Wasserman on May 13, 2008 at 12:14 PM in First Amendment | Permalink | Comments (4) | TrackBack (0)
Of Witchcraft and Warlords
As Professor Kolber noted several days ago, Congolese are attacking witchcraft with cringe-worthy means. The situation in the Congo is a matter of revived interest personally, due to my involvement on the board of a nascent citizen-journalist NGO based in the Congo and neighboring Rwanda. The problems in the Congo are not limited to deprivations of manhood: The country is mired in a war that has killed 5.4 million people—that’s severalfold the Rwandan genocide and well over ten times the estimated toll of the war in Darfur. The war in the Congo faces little resistance internationally, despite its politics, despite reports of U.N. malfeasance, and despite the death count. The country needs international attention, perhaps a grassroots movement that can serve to motivate action. Bono, are you listening?
Wealthy by African standards, the Congo is hijacked by its own citizenry, especially with respect to the legal rights of the countless women who are the victims of the most brutal rapes imaginable—often at the hands of military personnel sent to protect them. An HBO documentary that debuted in April details the horrors these women experience, from the act of rape, to the murdering of their families, to their social ostracizing, to the impotence of the legal system to address their claims—a system that only recently implemented laws against rape, and that fails to support the enforcement of those laws. The Balkan war tribunal established rape as a war crime, but perpetrators of this crime in the Congo have yet to be brought to justice in any forum. In fact, the International Criminal Court has barely waded into the mire to prosecute those responsible for the atrocities of the war.
As one male interviewed in the documentary stated: ‘If a society does not protect its women and children, what kind of society is it?’ Given the extent of the damage in the Congo, unwavering international support for its citizenry—in the form of, at least, dedication to the prosecution of those permitting the rampant savagery against innocents—is wholly warranted. If a society does not protect its women and children . . . .
Posted by Nadine Farid on May 13, 2008 at 04:02 AM in Current Affairs | Permalink | Comments (0) | TrackBack (0)
Monday, May 12, 2008
'Why I Don't Write'
Three years ago, Paul Horwitz started a wonderful discussion about the value of scholarship by law professors, Why I Write. Those of us who populate the legal blogosphere tend to be writers. We write articles, essays, symposia pieces, and, our appetites still unsatiated, jump into blogging, op-ed writing, and the like. The personal and professional benefits of writing are obvious and immediate. You get bigger raises, get promoted, get invited to speak at conferences, and become part of a national network of scholars in a field that helps assuage some of the loneliness or monasticism of the academic life. Many of my friends in the law professoriate still express amazement that they get paid to write! About things they care about!
An equally interesting, and perhaps more troubling question, is why some professors choose not to write. Even the top law schools -- as presumably will be revealed by Greenbag's pending "Deadwood" rankings -- have professors who have not written a piece of scholarship, legal or otherwise, in years. I have heard various explanations from some non-writers about why (typically post-tenure) they choose not to write, although none of these seems completely satisfying. Unlike the folks at GrumpylawMoneylaw, I don't think the answer is that non-writers are thieves who could easily be brought into the scholarly fold by an aggressive dean or post-tenure review.
Continue reading "'Why I Don't Write'"
Posted by Geoffrey Rapp on May 12, 2008 at 12:52 PM | Permalink | Comments (5) | TrackBack (0)
Quality Judicial Writing?
Justice Scalia's new book, "Making Your Case: The Art of Persuading Judges" -- co-authored with Bryan Garner – offers suggestions for written and oral advocacy. While Scalia and Garner agree on many topics, an interview in the ABA Journal reports that they disagree on a few matters related to effective legal writing, such as the value (or lack thereof) of substantive footnotes, the appropriate use of contractions, and the decision to place string citations in text or in footnotes.
Not surprisingly, the authors have a number of complaints about lawyers' written submissions to the bench. Their critiques of lawyerly writing prompt me to invite nominations for exemplary judicial writing -- i.e., judicial opinions that (apart from whether you agree with their holdings) you find especially clear, cogent, well-organized, and enjoyable to read. I'll start by nominating Justice Jackson's dissent in Korematsu. The opening sentences demonstrate from the start his crisp prose style:
"Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that, apart from the matter involved here, he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived."
Posted by Helen Norton on May 12, 2008 at 11:28 AM in Teaching Law | Permalink | Comments (0) | TrackBack (0)
"Beyond the Breaking Splendour of the Years"
I've blogged several times before here about the Tri-4-Gey team's efforts, inspired by my colleague Steve Gey and his battle with ALS, to raise funds to battle Lou Gehrig's disease. The excellent news is that they have now raised over $70,000, due in part to the generosity of readers of this blog. You can continue to donate here.
In the meantime, Steve's battle grows ever more difficult. A couple weeks ago, there was a lovely story in the St. Pete's Times by John Barry about how Steve and his students are dealing with the sad situation. Here's a link. Breaks your heart. And inspires it too.
Title: a line from a poem by Dowell O'Reilly
Posted by Dan Markel on May 12, 2008 at 12:20 AM in Odd World | Permalink | Comments (0) | TrackBack (0)