Thursday, October 02, 2014

Another Type of Standing That Isn't?

Last term, the Court’s unanimous decision in Lexmark foreshadowed a major doctrinal shift in the area of third-party standing. As I’ve discussed in previous posts, Lexmark re-characterized “statutory standing” as part of the statutory merits. But Lexmark also went out of its way to hint that third-party standing might soon become parts of the merits as well.

Continue reading "Another Type of Standing That Isn't?"

Posted by Richard M. Re on October 2, 2014 at 01:38 AM | Permalink | Comments (0)

Wednesday, October 01, 2014

The Electorate and Attorneys

Thanks to the PrawfsBlawg folks for letting me join in again.  Dan Markel's loss has been devastating, but I hope we can keep his mission alive here by going full speed ahead.  As an Iowa-based law professor (Director of the Drake Constitutional Law Center), we have one of the key U.S. Senate elections occurring between Republican Joni Ernst and Democrat Bruce Braley.  They are battling to replace Democrat Tom Harkin.  Some of you may know, from national new stories, that Braley got into trouble when he was filmed at an out of state fundraiser explaining, in part, that popular incumbent Senator Grassley is a farmer from Iowa who never went to law school.  Moreover, Braley elaborated that Grassley may become leader of the Senate Judiciary Committee.  Braley's statements were not good politics to say the least.  In addition, the fundraiser apparently involved trial lawyers and Braley himself is a trial lawyer.  Joni Ernst supporters have run that film clip often on television.  On the other hand, Ernst has at times advocated abolishing the Department of Education, privatizing social security, and has not opposed impeaching President Obama.  During a recent debate, she appeared to move to the center on some issues as would be expected.  Braley did a good job in the debate but did not press her hard on certain matters.

What's fascinating though is that the Braley team has made no effort on television to defend the view that lawyers can play valuable roles in society, even though his campaign Web site does just that.  The Web site mentions several instances of Braley helping the underdog against various powerful interests.  Certainly, former Presidential candidate John Edwards used his work as a plaintiff's attorney at times to promote his candidacy.  Presumably Braley's political consultants (who may know more than me) think the "attorney" word should go virtually unmentioned in television advertisements.  But that has handed over the issue of who is the better person to Joni Ernst, as her campaign has run effective ads about her leadership in the National Guard.  Moreover, she presents well on television.  The polls show Ernst with about a 6 point lead.  Whatever happens, it's sad to see the Braley team essentially abandon any defense of some of the good work that Braley likely did as an attorney, even if their strategy is not totally unexpected. 

Posted by Mark kende on October 1, 2014 at 03:08 PM in Culture, Current Affairs, Law and Politics, Web/Tech | Permalink | Comments (0)

Quack

Over the summer, my friend Dan Markel invited me to be a guest at this blog. I was one of probably hundreds who received that twice-yearly call for guest bloggers. Yet another exmaple of how many people floated in Danny's orbit. It had been years since I blogged, but I decided to respond to the request this time because I wanted to write a little about Catalanello v. Kramer, a defamation lawsuit in which I served, grudgingly, as the defendant. Current guest blogger Geoffrey Rapp blogged about the case back in April of 2013.

I do have thoughts on the case--what was at stake, what I learned from the process, how I came to love the concept academic freedom--and maybe I'll get to them while I'm here this month. But it feels wrong not to say something about Danny first.

Continue reading "Quack"

Posted by Zachary Kramer on October 1, 2014 at 11:32 AM in Dan Markel, Life of Law Schools | Permalink | Comments (0)

Life is short

Thanks to Howard for the introduction and to him and all of the permaprawfs for letting me guest here this month. I had expected to thank Dan, of course, who asked in May if I would do another guest stint (my last one was a number of years ago), and so it was oddly comforting that the actual invitation from typepad to begin blogging had the subject line, "Dan Markel has invited you to join PrawfsBlawg." I have had similar messages before, automated from accounts connected with friends or family members who have passed away. I like these messages from the ether, like a friendly wave from the other side.

I didn't intend for my first post to be so sentimental, but night before last a woman in my circle of friends passed away, and her husband and other friends have been writing about her decision to end treatment that would not cure her so that she could live her remaining days as fully as possible with her family. It's a good reminder to work in the things that matter all of the time. And so, in her honor and as a reminder for all of us, here is a link to the poem that she asked her husband to read at her memorial service, On Living by Nazim Hikmet, which begins:

Living is no joke, 
you must live with great seriousness 
like a squirrel for example, 
I mean expecting nothing except and beyond living, 
I mean living must be your whole occupation. . . . . 

Posted by Marcia L. McCormick on October 1, 2014 at 08:25 AM in Blogging, Culture, Current Affairs, Dan Markel, Life of Law Schools, Teaching Law | Permalink | Comments (0)

Tips on Placing Law Review Articles

I've come back to guest-blog this month at Prawfs in memory of my friend Dan Markel.  Dan started Prawfs as a forum for junior law professors.  (The strange blog name, for those who don't know, is a Markelism for "raw law professor blog.")  I thought it would be fitting to focus my guest-blogging on the topic that originally formed the core of Dan's vision.   In particular, I'm going to blog about topics of special interest to junior law professors and those currently on the teaching market. I'll start with a topic that a lot of junior profs worry a lot about: How to place a law review article in a good journal.  Here are five tips to consider.

1) Submit in the spring.   The best time to submit an article is in the spring submission window, after the new Articles Editors take over and are looking to fill their volume.   Other times can work, certainly, but they tend to be more hit or miss than the spring.  So unless you have a very time-sensitive article, or you need a placement on your CV (such as for a FAR form you plan to submit), it's best to wait for the spring.  The spring season varies journal to journal, but a good ballpark is somewhere in the mid-February to mid-March window.

2)  Make your abstract and introduction clear and easy to read.  For placement purposes, the abstract and introduction are the most important part of the article.  Articles editors will skim them to see if the rest of the article is worth reading, so you need to make the best possible impression.   Think of this as your elevator pitch. The abstract is the 1-minute version of your pitch, and the introduction is the 5-10 minute version. Your abstract and introduction should be as clear and straightforward as you can possibly make them.  Assume your reader is a generalist, and speak plainly and without jargon about what you are saying and why it matters.  For example, if you're making a normative argument, don't just say that your article "explores" a topic or "contemplates" an issue.  Instead, tell them your  precise claim at the outset.  Have a prominent paragraph in both the abstract and introduction that begins, "This Article argues that . . . ." 

Continue reading "Tips on Placing Law Review Articles"

Posted by Orin Kerr on October 1, 2014 at 12:24 AM in Article Spotlight | Permalink | Comments (12)

Tuesday, September 30, 2014

Ebola in the United States—Some Resources for the Law School Curriculum

Law students have lots of things competing for their attention, but one topic I’ve found of general interest this fall is Ebola.  Although the topic is obvious low-hanging fruit for those of us in the health law crowd, I’d suggest there’s plenty to keep Constitutional Law, Torts, Commercial Law, International Law, immigration, etc. going as well.  An infectious disease like Ebola triggers concerns about shipping, air travel, and, of course, quarantine, search, and seizure.

Today’s news that a Texas hospital has diagnosed a patient already in the United States was inevitable-and provides an opportunity to throw a legal spotlight on the laws of quarantine and isolation.   As a matter of Constitutional Law, the President of the United States can take any measure necessary to protect the nation’s security, remember President Bush’s plan to use the military to control pandemic flu (see an overview from the CRS or the plan itself),  or  interstate commerce, but only individual states have the power to take action addressing health issues that do not threaten the safety of the country as a whole.   That’s because individual states, but not the federal government, retain “police power” to promote the health of their citizens even in the absence of a threat to others.  Here’s a helpful article.  This overview of emergency legal powers, specific to Ebola, comes from the Robert Wood Johnson foundation supported Network for Public Health.  Here is some more general information comparing state and federal authority from the CDC and a great overview from the Congressional Research Service.  While Ebola itself is low on the list of the scariest diseases we in the U.S. risk catching (here’s a list from for those who don’t have enough to worry about), it is interesting to see how quickly it happened given that estimates of only a few weeks ago were that the probability was no more than 25%.  Here’s how Vox explained it using visuals.

 

Posted by Jennifer Bard on September 30, 2014 at 06:45 PM in Constitutional thoughts | Permalink | Comments (0)

Goodbye!

I wanted to take this opportunity to thank everyone at Prawfs for having me here. For those interested in following my work and activities, my SSRN page is here and my Twitter handle is @irina_manta. 

Posted by Irina Manta on September 30, 2014 at 06:26 PM | Permalink | Comments (0)

Hiding Behind the Law

Today’s report in the New York Times provides disturbing information about the government’s decision in 2008 not to bail out Lehman Brothers, a decision that may well have deepened the economic downturn considerably. The report is disturbing in a number of ways—for example, Federal Reserve chair Ben Bernanke and New York Fed president Timothy Geithner apparently were not aware of an analysis that suggested Lehman could have been saved. It also is troubling that Bernanke and Geithner have claimed since the collapse of Lehman that their hands were tied by the law. In subsequent responses to questions about their approach to Lehman, Bernanke and Geithner have replied that they lacked legal authority to bail out Lehman.

According to the Times’ analysis, that was not true, and it is unfortunate that public officials would try to avoid accountability for their decisions. Of course, Bernanke and Geithner are not the first people to blame the law in an effort to avoid taking responsibility for their actions—judges and others do that all too frequently. And there is no small irony in blaming the limits of the law in an era when presidents are quick to take actions that exceed their legal authority. 

Posted by David Orentlicher on September 30, 2014 at 01:20 PM | Permalink | Comments (0)

AALS Recruitment Conference Advice

Before I sign off, I thought I'd put out a request on behalf of my fellow job market candidates for advice about the upcoming hiring conference.  I've come across a number of helpful posts from a few years ago, but didn't find as much from the immediate past, and I think it would be particularly interesting to hear from anyone who was on the market in one of the recent down years.  But of course all tips are welcome!

Here are a few helpful posts with interview tips from Lyrissa Lidsky (2011)Tim Zinnecker (2011), and Daniel Solove (2005).  And here's a collection of teaching market advice posted on Prawfsblawg back in 2005.

Thanks again to the Prawfs team for giving me the opportunity to guest-blog, and best of luck to everyone going on the market this year!

Posted by Richard Chen on September 30, 2014 at 10:55 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (1)

Balance of video

This piece in Sunday's Times offers a different perspective on the race to equip police officers with body cameras--they are law enforcement's response to increasingly ubiquitous amateur citizen videos, which the piece describes as "hav[ing] become part of the fabric of urban democracy." This turns the narrative somewhat on its head. Supporters of the right to record (including me) have generally argued that the citizen's right is essential in response to increasing police-controlled recording (through dash cams, street cameras, recorded station-house interviews, and other surveillance). As I put it once, citizen recording produces "a balance of power in which all sides can record most police-public encounters occurring on the street and in the stationhouse. Big Brother is watching the people, but the people are watching him."

But articles such as this one suggest that police see that balance as having shifted too far towards the public. Body cams--the latest technology--now are seen as a way for the government to restore that balance.

Posted by Howard Wasserman on September 30, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, September 29, 2014

JOTWELL: Wasserman on Redish & Aronoff on judicial retention

I have the new Courts Law essay, reviewing Martin Redish (Northwestern) and Jennifer Aronoff's The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism. They argue that judicial life tenure is required as a matter of Due Process, where any other form of retention risks judges being influenced in their decisionmaking by concerns of how to keep their seats on the bench. I have taught for years that retention is the bigger deal than selection in terms of judicial independence (something my daughter also decided to ask about at dinner last night); they finally made the argument.

Posted by Howard Wasserman on September 29, 2014 at 10:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

The Professor As Node

It's hard not to notice a shift this fall(?) among the lawblog world to Twitter.  Though the cool kids are already up on something called "Ello," the rest of us, having only recently figured out how to create a "split post" on a blog are now trying to limit ourselves to 140 characters through imaginative vowel-deletion.

When I entered full-time teaching, the big, symposium-worthy question was whether blogging "counted" as scholarship. At that time and today, I thought that question somewhat off point -- it didn't and doesn't matter whether blogging is scholarship or counts as scholarship. The only real question was whether blogging was a worthwhile activity for a scholar and teacher.  That is to say, is blogging what our students are borrowing money to have us do?  Because Twitter posts are necessarily less detailed and thus, at least individually, seem to lack the usual scholarly weight, they perhaps more obviously raise the question of appropriateness as an activity for those whose lives are funded by the future repayment obligations of others.

I've come to the opinion that Tweeting, "LinkedIn-ing", and blogging -- along with other forms of online networking -- are exactly what our students are paying us to do.

Continue reading "The Professor As Node"

Posted by Geoffrey Rapp on September 29, 2014 at 09:32 AM | Permalink | Comments (9)

Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2014.  

The conference seeks to address the following topics:

  • Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
  • The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
  • Legal obligations and accommodations of religious health care organizations
  • Protection (or not) of health professional conscience
  • Health care decision-making for minors with religious parents
  • Religious objection v. discriminatory behavior
  • Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
  • “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
  • Abortion policy, including clinic protests and protections, and its relationship to religion
  • Embryonic stem cell policy and its relationship to religion
  • End-of-life care, including assisted suicide, and its relationship to religion
  • Complicity as both a legal and religious concept
  • Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Posted by Howard Wasserman on September 29, 2014 at 09:31 AM in Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Rotations

As September turns to October, our thanks to our September visitors--Seema, Irina, Richard, and Jennifer--for helping kick-off the new school year.

For the new month, we welcome a slate of returning GuestPrawfs: Mark Kende (Drake), Geoffrey Rapp (Toledo), Marcia McCormick (Saint Louis), Zak Kramer (Arizona State), Orin Kerr (GW), and David Orentlicher (Indiana-Indianapolis). [Update: And Richard Re (UCLA) will continue his extended visit with us]

Posted by Howard Wasserman on September 29, 2014 at 08:01 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, September 28, 2014

ASU Aspiring Law Professors Conference

Yesterday I attended the sixth annual Aspiring Law Professors Conference at Arizona State University.  I thought I would share a little about my experience for those who might want to attend in future years.  Overall, I found the conference to be very helpful to me as someone who is on the market this year, and I really appreciated the enthusiasm and generosity of Dean Doug Sylvester and all the professors who attended.  They are doing all of us aspirants a great service by spending their free time on a Saturday trying to prepare us as effectively as possible for the process that lies ahead.  (I haven't attempted to reproduce most of the specific advice that we received, but a quick Google search reveals that past conferences were recapped in further detail by permanent Prawfs bloggers here and here.)

The day began with a keynote address by my Pepperdine colleague, Paul Caron, titled Law School Rankings, Faculty Scholarship, and the Missing Ingredient.  The address started by asking a question Paul had previously raised with a co-author in What Law Schools Can Learn from Billy Beane and the Oakland Athletics, namely how we can better measure faculty contributions to a law school’s success.  Paul went on to argue that, while existing rankings based on faculty scholarship are undoubtedly important, more metrics need to be developed to assess other aspects of a professor’s value to the institution, particularly with regard to the student experience (the “missing ingredient” in existing rankings).

Continue reading "ASU Aspiring Law Professors Conference"

Posted by Richard Chen on September 28, 2014 at 11:41 AM in Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink | Comments (2)

Saturday, September 27, 2014

Intellectual Property Infringement as Vandalism (Part 4)

This is the fourth and last part of my post on my new co-authored piece Intellectual Property Infringement as Vandalism (the first part is here, the second here, and the third here.

While, as discussed previously, a number of people advocate for intellectual property to receive the same level of protection as property, few would openly say that it should receive more. In the discussions about intellectual property as property, the latter is generally viewed as a ceiling in that category. One would therefore expect at first blush that when it comes to sanctions, intellectual property infringement would at most be punished at the same level as property violations. Our paper shows that intellectual property infringement bears the most resemblance to vandalism and trespass. In the realm of sanctions, however, not only are the statutory criminal and civil sanctions generally higher for intellectual property infringement than those for vandalism, they are also higher than for downright property theft.

One of the ways to make a comparison is to imagine a hypothetical good of a certain value and examine how it would be treated under intellectual property versus property law. As will become apparent, this exercise is not without its problems and perils, but it is informative nonetheless. Let us assume that an individual distributes a song illegally to 1,001 other individuals. The song would normally cost $1 to download legally. Had all 1,001 individuals who thus obtained illegal copies bought the song in a legitimate fashion, its owner would have earned $1,001. That being said, in this type of situation, undoubtedly not all 1,001 people would have actually bought the good, so the harm to the song owner is lower than that. Furthermore, one could argue that this distribution may constitute a proximate cause for future redistributions, which would bring about greater harm. The extent of this redistribution and of the role that the initial distributor played in their causation are difficult to predict, as is the number of people who would or would not have bought a given song. As a matter of approximation, let us therefore proceed with the figure of $1,001 for the harm (the high end) but with no regard for subsequent harm involving redistribution. Indeed, that is the figure that copyright law would use to evaluate the gravity of the offense. Whether the action was taken for profit or not, a person guilty of this violation could go to prison for up to a year and be fined up to $100,000. If that individual distributed the song to 2,501 people (thus causing a potential harm of $2,501), she would face a maximum sentence of five years if it was done for profit or three years if it was not. She could also be fined up to $250,000.

Continue reading "Intellectual Property Infringement as Vandalism (Part 4)"

Posted by Irina Manta on September 27, 2014 at 06:59 PM | Permalink | Comments (3)

Friday, September 26, 2014

Ah, censorship

Shudder to think how different Western Civilization would have been. (H/T: The Big Lead).

 

Python-Letter

Posted by Howard Wasserman on September 26, 2014 at 10:18 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Thursday, September 25, 2014

"Conscience and Community: Understanding the Freedom of Religion"

Here's a short piece I did for the Cornerstone blog, which is a project of the Berkley Center's Religious Freedom Project.  A taste:

 “Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets—and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” “Religion” is famously difficult (some would say “impossible”) to define and the distinction between “religion,” on the one hand, and “culture,” “tradition,” “identity,” and “politics” is much more contested than clear. The idea that it is only, or even primarily, an “individual experience” is relatively new on the scene. In any event, it seems clear that “religion” involves more than—even if it certainly does involve—the commitments, values, beliefs, professions, and practices of particular persons. It also involves—and it is exercised both by and through—communities, families, associations, societies, authorities, and institutions. . . .

The piece is consonant, in places, with Paul's book, which -- as was noted here -- John Inazu has recently and very thoughtfully reviewed.

Posted by Rick Garnett on September 25, 2014 at 04:20 PM in Rick Garnett | Permalink | Comments (0)

Karima Bennoune Wins Dayton Prize

Congratulations to UC Davis Prof Karima Bennoune whose book Your Fatwa Does Not Apply Here: Untold Stories from the Fight Against Muslim Extremism (Norton) won the Dayton Literary Peace Prize.  As one of the judges put it: 

In Your Fatwa Does Not Apply Here, Karima Bennoune walks a tightrope between, on the one hand, the tragic  consequences of Islamist fundamentalism and, on the other, the West’s inability to imagine Muslims as anything more  than terrorists or passive victims. Her solution is to tell us the stories that disturb both of these stereotypes,  vividly presenting us the experiences of individuals from a vast array of identities and social positions — as women,  as journalists, as educators, as makers of and keepers of cultural tradition. She conjures what those of us living  inside the Western media bubble have never seen before: a dizzingly diverse Muslim culture (that is no more cohesive  than, say, that global cohort labeled “Christians”) represented by a bevy of activists from across the globe determined  to realize their personal and communal desire beyond fundamentalist strictures.

Her TED talk When People of Muslim Heritage Challenge Fundamentalism  has had more than a million views.

 

Posted by Jack Chin on September 25, 2014 at 02:14 PM | Permalink | Comments (0)

Suboptimal Human Rights Decisionmaking

In a forthcoming paper, I explore ways in which human rights violations may result from suboptimal decisionmaking rather than utility-maximizing conduct by state leaders.  Most strategies to influence the human rights practices of a country involve efforts to alter its expected utility calculation, either by introducing material incentives so that compliance is more attractive or by changing underlying preferences so that human rights concerns are seen as more intrinsically valuable.  These are known in the literature as coercion and persuasion respectively.  Drawing on social science research that demonstrates how individuals often fail to maximize their expected utility, my paper argues that at least some human rights violations likely result from such suboptimal decisionmaking.  And if that is correct, then the human rights community may be missing out on opportunities to improve compliance that do not require altering a state’s expected utility calculation through coercion or persuasion, but instead work within a state’s existing incentive structure.

For this blog post, I thought I’d describe the three specific causes of suboptimal decisionmaking that I discuss in the paper and invite suggestions on other lines of research to explore.  As I discuss in the paper, there are methodological obstacles to applying behavioral research, which is generally based on studies of individuals in laboratories, to real-world state conduct, which involves decisionmaking by groups consisting of experienced elites who might not make the same mistakes that participants in artificial experiments do.  I chose the three causes of suboptimality that I did in part because there is a substantial international relations literature that has already attempted to make that translation, and in part because they seemed likely to contribute to the types of flawed decisions that would result in human rights violations.  But of course the behavioral literature is quite vast, and I may have missed some other promising avenue.

Continue reading "Suboptimal Human Rights Decisionmaking"

Posted by Richard Chen on September 25, 2014 at 11:54 AM in International Law | Permalink | Comments (0)

Self-Defense Against Firearm Suicide

If you're interested in mental illness, guns, or suicide prevention, check out my new article on SSRN:

Putting Arms at Arm's Length: Precommitment Against Suicide  

Here's the abstract and link: "Nearly 20,000 Americans each year commit suicide using a gun. Many would survive if it were more difficult to obtain the gun. The proposal here is not gun control, but self control. Specifically, this article proposes allowing individuals to confidentially put their names into the existing federal background check system and thereby to prevent their own future firearm purchases. Empowering people to restrict their own access to guns has the potential to save many lives, is supported by other self-binding regimes, and poses no serious constitutional concerns."   http://ssrn.com/abstract=2500291

Posted by Fredrick Vars on September 25, 2014 at 10:37 AM | Permalink | Comments (6)

How to Save the World Without Being Happy or Virtuous?

It was not surprising that an op-ed in the Harvard Law Record recommending that fledgling graduates of schools like Harvard "save the world by working in biglaw" would provoke some attention and reactions. Paul Caron has links to that op-ed and some responses that ran in the Crimson. At Above the Law, the more or less inimitable Elie Mystal has a forceful if not especially cogent response as well. I am somewhat more sympathetic to the initial piece, although that does not constitute a complete endorsement. 

Mystal's response is somewhat illustrative of what I think is the rather confused reaction that met the piece. That piece argued--without factoring in whatever social utility is provided directly by working in a big law firm itself--that working in BigLaw is the "greatest utility maximizing option" these students have, because they could simply donate 25 percent of their income to worthy causes, and that the good done by this would outweigh the good done by working directly and less remuneratively in lower-paying public service jobs.

Mystal made two arguments. First, and quite rightly, he pointed out that is is unlikely in the extreme that "any Biglaw associate, anywhere, who is going to give away 25% of their post-tax salary." True enough! But he makes his first error here, writing style aside. The question posed by the op-ed writer is not whether current BigLaw types would donate a quarter of their income to worthy causes; it is whether the kinds of people who normally work in public interest law would donate a quarter of their suddenly vastly expanded salary to such causes. There are perfectly good reasons to think that this too is unlikely. Just because you want to do public interest work and are sufficiently dedicated to doing so to take a lower-paying job, that doesn't mean you are going to give away a quarter of a large salary if you actually get that salary. I assume at least some of those people would, naturally enough, buy condos, pay down their debt faster, take vacations and/or gather the beginnings of a nice wine cellar, lease high-end luxury hybrid SUVs, and so on. Nevertheless, one would think on Mystal's logic, or that offered by other critics of the op-ed, that if the kinds of people who do public interest law took BigLaw jobs for the express purpose of dedicating more of their income to charitable giving, those people would be more likely to do so.

Ah, but would they be happy? Would they be fulfilled? Would they be decent people? That's the second point of Mystal's rebuttal, more or less, and it is a theme that runs through the Law Record rebuttals as well. Thus, one writer acknowledges, "I love my work and being engaged with causes I care about makes me happier. This does not reduce or demean the impact of the work I am involved in. For those who have the all the choices of employment at their fingertips, we should all graduate into employments we love. With all the choices in the world, I also hope we’ll choose well – taking seriously the power society has handed us because of our degrees and profession." And Mystal, presumably having done some research or reporting on this question, talks a bunch about how "people who actually care about the public interest...think." One friend made what I thought was a better, more subtle version of this argument, suggesting that it matters that people do intrinsically virtuous things, regardless of the net social benefit to others.

My reading of the initial op-ed is that its basic answer to these lawyers is, "But why should I care about you?"...

Continue reading "How to Save the World Without Being Happy or Virtuous? "

Posted by Paul Horwitz on September 25, 2014 at 10:10 AM in Paul Horwitz | Permalink | Comments (6)

Inazu, "Institutions in Context"

John Inazu has a new review up on SSRN of my book First Amendment Institutions. (Incidentally, it makes a fine Rosh Hashanah present.) It is supportive of the general institutional project but carefully critical of some important aspects of its implementation in the book. I am grateful to John for reading it, which places him in a small select club, and for his thoughtful remarks. Here's the abstract:

This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously.  Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities.  He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries.  These chapters bring to life our diverse institutions and their differences.  It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates.  In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to First Amendment doctrine that can meaningfully distinguish between them?  I turn first to pressures internal to Horwitz’s institutional categories by focusing on two of his core examples: universities and churches.  I then examine Horwitz’s chapter of associations and suggest broader implications than he acknowledges.  I conclude by offering a different way to parse Horwitz’s argument: embracing his institutional distinctiveness within the time-honored public-private distinction that he rejects.

Posted by Paul Horwitz on September 25, 2014 at 09:21 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, September 24, 2014

The Reluctant Dissenter

On Monday, the Ninth Circuit issued a 6-5 en banc decision granting habeas relief for a Miranda violation. The case, Sessoms v. Grounds, has garnered attention in part because Chief Judge Kozinski wrote an opinion “regretfully dissenting” from the court’s judgment. Remarkably, Kozinski voted to deny habeas relief, even though he was “glad” that his own view of the law lost. Kozinski's reluctant dissent provides a window into how judges struggle with the sometimes conflicting demands of law and justice.

Continue reading "The Reluctant Dissenter"

Posted by Richard M. Re on September 24, 2014 at 12:41 AM | Permalink | Comments (7)

Tuesday, September 23, 2014

The Washington Redskins, the Lanham Act, and Article III

As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.

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Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)

Teaching current events

Interesting piece in the Chronicle of Higher Ed. At my school, one of the categories on student evals is how we work current events into the discussion. I have used things from Ferguson in Evidence, notably in discussing character evidence and other acts. And I think the controversy around the non-hiring of Steven Salaita at Illinois may lend itself to some discussions of promissory estoppel (there have been some interesting on-line debates about whether he might have a good P/E/ claim). But I think that is as far as a law school class can go with current events, at least before things play out legally and outside of a small, niche seminar.

On a related note, we are working to start a program of monthly faculty talks/panels to discuss ongoing and current events with students and student organizations. Something different than a series of "teach-ins," it will be more a chance for faculty to share their work and to engage with students on hot topics.

Posted by Howard Wasserman on September 23, 2014 at 04:40 PM in Current Affairs, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Relative Standing in the Seventh Circuit

In Association of American Physicians and Surgeons, Inc. v. Koskinan, the Seventh Circuit recently found no standing where plaintiffs challenged the IRS’s failure to collect an Affordable Care Act tax. Koskinen may prove to be a bellwether for future cases involving challenges to executive inaction. But what's most interesting about Koskinen is that it cited last year's Supreme Court decision in Lexmark as a reason to argue in terms of relativity—that is, in terms of whether the plaintiffs before the Court were the best ones available--even though that inquiry seemed irrelevant as a doctrinal matter. The takeaway is that relativistic reasoning often lies just under the surface of current standing doctrine.

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Posted by Richard M. Re on September 23, 2014 at 01:26 AM | Permalink | Comments (0)

Monday, September 22, 2014

Markel Memorial

Last Tuesday, Florida State University College of Law hosted a memorial service for Dan. Here is the program from the event, which included some very touching remarks from several colleagues from FSU and elsewhere, as well as one former and one current student. There is video of the event; I will provide the link as soon as I can.

Posted by Howard Wasserman on September 22, 2014 at 11:18 PM in Howard Wasserman | Permalink | Comments (0)

Addressing the Unmet Need for Civil Legal Representation--and the Legal Employment Market

It’s my privilege to hang out with present and future health care providers almost every day through teaching at the Texas Tech University Health Sciences Center's  brand new Public Health School and being an adjunct faculty member at our terrific medical school and on the advisory board of our awesome nursing school.  One of the issues that always surprises them is how little access most individuals have to legal services as compared to medical services.  We are used to hearing the bad about access to health care—and there is still plenty of bad—but unless a person faces criminal charges, brought by the government, there is no right to legal representation for those who cannot afford it and very few public or private sources of insurance. 

   The primary source of federal funding for individuals involved with a civil dispute—child custody, divorce, land-lord tenant, employment, the  Legal Services Corporation (LSC), estimates that 80% of “low income Americans who need civil legal assistance to do not receive any, in part because legal aid offices in this country are so stretched that they routinely turn away qualified prospective clients.”  See report, Documenting the Justice Gap in America.   Individual states also have some subsidized civil aid programs.  Although the current president is about as sympathetic to LSC as any in recent history, demands for help still far outstrip demand

Risa Kauffman of Columbia Law School reported to a U.N. Human Rights Committee examining how the U.S. complies with the an international covenant on civil and political rights reported that:  "In the United States, millions of people are forced to go it alone when they're facing a crisis….It's a human rights crisis, and the United States is really losing ground with the rest of the world."

And if anyone is wondering why, given this size of this unmet need and given the existing federal investment in student loans for legal education and the downturn in legal employment opportunities, there hasn’t been federal action to increase staffing at LSC and other organizations—that’s a good question. 

If, however, your first reaction here is to laugh and tell a lawyer joke, browse through these state reports, complied by the National Legal Aid & Defender Association and usually commissioned by state courts and chief judges, documenting the unmet need for civil representation in our 50 states. The National Legal Aid and Defender Association has helpfully put together a 50 state survey of reports. The ABA has a Standing Committee on the Delivery of Legal Services that considers access as well as other issues. 

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Posted by Jennifer Bard on September 22, 2014 at 03:46 PM in Current Affairs, Law and Politics | Permalink | Comments (0)

Stone on sex discrimination and professional sports

The following is by my colleague (and past GuestPrawf) Kerri Stone, responding to my post on how professional sports teams and leagues respond to sex discrimination.

The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.

Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.

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Posted by Howard Wasserman on September 22, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)