Friday, August 22, 2014
Number of FAR Forms in First Distribution Over Time
The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.
(All information obtained from various blog posts and blog comments over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)
An Update on the "Satanic Black Mass" Story
For students of law and religion, not to mention the much larger audience that likes stories about replevin, the story about the planned Satanic "black Mass" at the Oklahoma City Civic Center Music Hall has been very interesting. Here are some updates about this controversy. In short, the organizer of the event has returned (or said he has returned) what he said was an authentic piece of the Catholic host that he intended to use at the Mass. The story quoted at the MoJ cite adds: "Archbishop [Paul] Coakley has made repeated requests for the city’s leaders to cancel the satanic ritual in a publicly funded facility. 'I have raised my concerns … and pointed out how deeply offensive this proposed sacrilegious act is to Christians and especially to the more than 250,000 Catholics who live in Oklahoma.'" I cannot help but wonder, on the basis of this and similar statements that he has made, what Archbishop Coakley's position is on the Bronx Household of Faith case.
Talking about free speech or talking about racial justice?
The focus of public and media conversation on Ferguson has shfted. We are talking less about the triggering events--the possible murder/possible unconstitutionally excessive police shooting of Michael Brown,(*) the underlying racial atmosphere that made that shooting more likely, and systematic constitutional problems within the Ferguson Police Department--than about the First Amendment problems with how police have responded (and continue to respond) to peaceful protests in a public forum.(**) This has become a miniature of the Civil Rights Movement. When protesters hit the streets in the South and Bull Connor, et al., responded as they did, the legal conversation, at least in the courts, turned to the First Amendment and away from the underlying racial problems and racist policies that the protesters were attacking and seeking to change. The cases that reached SCOTUS arising from the events on the ground largely dealt with First Amendment rights to protest, sit in, crticize, organize, and advocate against the racist and discriminatory policies and practices in the South, without real discussion or resolution about their legality, constitutionality, or morality. Certainly these all were important victories for the movement and its members (as well as for society as a whole), but they can feel sterile when the underlying injustices are forgotten or pushed below the surface. The Court itself never directly tackled the underlying constitutional validity of most pieces of Jim Crow (primarily because Congress did it for them).
(*) Although the competence and commitment of the county prosecutor to vigorously prosecute a police officer has moved to the front of the line for the moment. Since the grand jury might take two months, this will go away soon, unless the governor preemptively appoints a special prosecutor.
(**) While somewhat overstated, Dahlia Lithwick makes some good points comparing police responses to these protests (which, unfortunately, likely will not be successfully litigated after the fact) with what the Supreme Court said in McCullen v. Coakley was constitutionally required, particularly about potential distinctions between protest and counseling.
On one hand, this is appropriate for the First Amendment. The whole point of free speech is that constitutional protection for protest, advocacy, and criticism of government should not turn on the subject of that protest, advocacy, or criticism or its underlying morality. It does not matter whether protesters are complaining about racism, police misconduct, the minimum wage, or United States's tolerance of homosexuality bringing about God's wrath--what matters is that their peaceful protest enjoys First Amendment protection. On the other hand, as Harry Kalven and Burt Neuborne both have argued, the concerns about ending discrimination silently informed the free speech jurisprudence of the early '60s--without necessarily saying so, the Court protected free speech precisely so the underlying system of racism and segregation could be attacked and, hopefully, changed.
But that leaves a nice question whether we (courts, the law, and the public) miss something by not talking more explicitly about the underlying issues leading to the protests and the First Amendment violations. And, more cynically, whether the national outrage over Ferguson that has latched onto the First Amendment concerns (because everyone feels and cares about "their" First Amendment rights personally) frees us to ignore the underlying racial injustice (which is personally disconnected from most people).
Would “Pattern or Practice” Litigation Work in Ferguson?
The following guest post is by Stephen Rushin, a VAP at Illinois.
Earlier this week, Howard wrote an interesting post about the possibility of DOJ intervention into the Ferguson Police Department under 42 U.S.C. § 14141. This statute gives the Attorney General authority to initiate structural reform litigation against local police agencies engaged in a “pattern or practice” of misconduct.
This post raised some important questions. How might the DOJ use § 14141 to reform the Ferguson Police Department? And would it work? Over the last two years, I've been empirically studying the DOJ’s use of § 14141 litigation in American police departments as part of my doctoral dissertation. I am in the process of converting this dissertation into a book (in contract with the Cambridge University Press) that argues that § 14141 is the most effective legal mechanism available to combat police misconduct. So it is safe to say that I am a strong proponent of § 14141 litigation. But this regulatory mechanism is not without its limitations. After the jump, I’ll breakdown what we know about § 14141, and I’ll describe how this sort of structural reform litigation could work in Ferguson.
Thursday, August 21, 2014
A Somewhat Interesting Question from a Terrible, Terrible Writer
At Slate, regular higher education writer Rebecca Schuman raises the question whether a professor should ever assign to students a book that he or she has written. Her answer: No, never! Except, yes, sometimes. And adjuncts probably should do so, because the mistreatment they receive matters more than the mistreatment that students receive.
I find the question an interesting one. But, I readily confess, I link to it here mostly to make publicly a point I've made more privately elsewhere: Rebecca Schuman is, by leaps and bounds, the worst writer on higher education I've ever read. That's not a critique of her views or her complaints about the university, only some of which are wrong. Nevertheless, taken on the whole, article for article, screed for screed, she is just awful--so consistently "love-to-hate" awful that I almost can't get enough of her work. This is not true for everyone--I wouldn't say it of Eric Jarosinski, for example--but in this case I would say that the fact that Schuman is leaving the academy for web journalism says far more about web journalism than it does about the academy. Nor does her regular column at Slate speak well for Slate, which used to be quite good.
Police body cameras are often seen as a panacea in police-public relations and in controlling police misconduct. Judge Scheindlin endorsed them during closing arguments in the New York stop-and-frisk trial. As I have written before, I support the idea, although I doubt it is an ultimate answer, since video is not as certain as many proponents make it out to be.
But events in Ferguson show a different reason that body cameras are not alone sufficient--we need to see all the actors in the exchange; it is not enough to see who the officer is looking at and perhaps hear what the officer is saying, we also need to see the officer. I was reminded of this by looking at the video after the jump. All of which may be to say that body cams are great, but they do not obviate a rigorous First Amendment right of citizens to video their interactions with police, wherever and however they occur. The effect would not be the same if we only heard the officer's voice, without seeing him pointing a rifle at unarmed civilians who do not appear to be committing any crime. (Reports indicate the officer has been removed from duty).
Judging similarity (Part 2)
In my first post on this subject, I wrote about the background that motivated us to conduct our studies on copyright infringement for our paper “Judging Similarity”. Today, I would like to discuss our methodology and results in more depth.
In the first study, we tested the hypothesis that images seem more similar simply by virtue of being copies. We used an online format and recruited subjects on Amazon Turk. Subjects were told that they would be shown image pairs and would be asked to rate their similarity on a numerical scale. We specified that subjects had to base their answers entirely on a comparison of the works themselves. We also told subjects that while there would be both similarities and dissimilarities, they had to judge the works as a whole. Further, we told them to assume each time that the work shown on the left was created before the work shown on the right. Subjects were randomly assigned to either the independent group or the copy group. The former group was told that the creator of the work on the right did not know about the work on the left during the process of creation. The latter group received the instruction that the creator of the work on the right copied from the work on the left during the process of creation. Subjects then proceeded to view image pairs such as this one.
We conducted statistical analyses and found that the individuals who were told that copying occurred rated works as significantly more similar to one another than did individuals who believed that the creation process had been independent.
Thoughts about Perez on Courage and Rationality in Regulation
Oren Perez (Bar Ilan University) has published Courage, Regulatory Responsibility, and the Challenge of Higher-Order Reflexivity in Regulation and Governance and on SSRN. Here's the abstract:
Contemporary regulators must respond to ever-increasing societal demands in various domains. Regulators must cope with these demands under conditions of extreme epistemic scarcity and ideological divide. This leaves regulators perplexed about what action they should take. Regulatory praxis offers two primary responses to this moral and epistemic dilemma: technical canonization and reflexive regulation. While these two approaches represent contrary regulatory philosophies, they suffer from two common blind spots: (a) disregard of the critical role of discretionary judgment in regulatory action; and (b) disregard of the dilemma of higher-order reflexivity. The article explores the idea of higher-order reflexivity in the regulatory context. This exploration renders visible the abysses that are faced by regulators as they attempt to resolve regulatory dilemmas through a cognizant and introspective process. The article argues that the Socratic concept of courage and the idea of forward-looking responsibility provide a plausible framework for thinking about the challenge of regulatory judgment. It concludes with a discussion of the legal and institutional mechanisms that could both facilitate and put to scrutiny the realization of this ideal (but noting also several features of the contemporary regulatory system which constitute potential barriers).
I always take note of Professor Perez's work, because he (among others) confronts, as he refers to it, the higher-order rules that determine how we go about applying rules, and the inherent regress or circularity in trying to come up with an objective foundational concept of judgment, an archimedean place to stand (as Ronald Dworkin characterized it here at page 88).
This particular essay is in the context of regulatory judgments, but it applies more generally. What do we mean by "higher order"? Let's suppose that I need to decide on an appropriate response to my child's misbehavior. Should I choose the first level rule of justice (in which case he's grounded until he's thirty) or the first level rule of mercy (oh, c'mon, I did the same thing when I was his age)? What rule do we apply in choosing between justice and mercy rules? Let's call this "Rule-Prime". Do I apply "justice" rules when the action involves a physical danger? Do I apply "justice" rules when the action has consequences for others? Okay, what's the rule for deciding how to decide how which rule is appropriate in "Rule-Prime" cases? Well, I guess there must be Rule-Prime-Prime. You can see when this is going to end. Never. (Note the application of this to the problem of the internal point of view in the "what is law?" jurisprudential debates. We could do an objective study of parents' disciplining habits and that would tell us about the practice, but it wouldn't tell us anything about how the parents came to see that as the governing first order rule.)
The lesson here is that, sooner or later, the power of rational thought runs out, and we have to turn to something else when we make decisions. Not only do I like his choices - courage (i.e. deciding even if we are uncertain) and responsibility (i.e. accepting the consequences of the decision) - I've written something similar in connection with business (and other) decisions: "The affective toolkit for getting beyond rational analysis to action includes attributes such as epistemic humility, epistemic courage, self-awareness, and the willingness to accept responsibility for the consequences of one’s decisions."
Wednesday, August 20, 2014
Who's Afraid of Assuming Federal Jurisdiction?
In the Supreme Court's much-discussed Hobby Lobby decision (decided at the end of June), the Court addressed whether for-profit corporations should be able to assert claims under the Religious Freedom Restoration Act (RFRA). The majority answered “yes” for a variety of reasons, mostly involving the statute’s text and history. But at one juncture, the majority and dissent also jousted over a pre-RFRA decision called Gallagher v. Crown Kosher Super Market. In the opinion of the Hobby Lobby majority, Gallagher “suggests, if anything, that for-profit corporations possess [free exercise] rights.”
Gallagher is a remarkable decision. In short, a plurality of the Court assumed standing before reaching the merits—contrary to the general rule later established in Steel Co. v. Citizens for a Better Environment. And, almost as remarkably, both the majority and the dissent in Hobby Lobby appear to be in denial about it. Hobby Lobby thus represents an interesting example of the Court’s willingness to engage in doctrinal revisionism. And, on inspection, the Court’s revisionism could have been done better.
More on police "pattern or practice" in Ferguson
Andrew Ferguson (UDC) has an essay at HuffPost discussing the potential for mapping and predictive technologies to look not only at where crime occurs (its primary current use), but also where police officers are at given times and what they are doing. We thus can identify and map "problematic" police-citizen interactions, thereby showing where individual officers may be acting improperly (e.g., making a high volume of stops without recovering any wrongdoing) and showing patterns of misconduct. The technology also would provide policymakers the notice necessary to establish municipal liability.
Response(s) to Rick Garnett's Essay on Freedom of Religion and Freedom of the Church
As Rick noted here a while back, he has a piece up at the Liberty Law site on "Freedom of Religion and Freedom of the Church." There have been several interesting responses to it by Donald Drakeman and John Inazu. Here is my own, less interesting response. It was a pleasure to read and respond to Rick's essay.
"Criminals In Uniform"
I have been profoundly disheartened by the police shooting, peaceful protests, draconian police response, and the slide into sporadic rioting currently dragging out in Ferguson, Missouri. The frustration expressed by the Ferguson protestors has reminded me of the restrained anger behind Professor of Jurisprudence at the University of Oxford, John Gardner's discussion of another police shooting: the London Metropolitan Police killing of Jean Charles de Menezes in 2005.
In a broadly "Diceyan" take on legal equality, Gardner argued that police officers are properly understood as "citizens in uniform." The austere Diceyan approach to police responsibility argues that lawless policing—searches and seizures without authority of law—are criminal acts. If an ordinary citizen who invades property, offensively touches, or detains and removes someone is guilty of a trespass, battery, or kidnap, then so is the citizen in uniform who acts without proper legal authorization. Worse, when a person charged with protecting the public and upholding the law harms the public and violates the law, they fail in their moral duties in particularly egregious ways.
Suppose this austere Diceyan approach applied to the police in Ferguson Missouri—or American policing more generally. Then Fourth and Fifth Amendment violations renders those few who engage in such acts police criminals in uniform just as much as extra-judicial killings do. The result is that, from an austere Diceyan perspective, those police officers fail the citizenry in the most egregious way: by becoming criminals themselves.
From this Diceyan perspective, Justice Cardozo's famous dismissal of the exclusionary rule in People v. Defore is deeply disingenuous. Cardozo asked should the criminal "go free because the constable has blundered." Blunderers do not intend harm: they are innocent-but-clumsy. More Keystone Cops than Stacy Koon (of Rodney King fame). But the austere Diceyan might argue that central problem with police misconduct is not clumsy cops, it is criminal ones.
Does it Even Matter What Steven Salaita "Tweeted?"
I have followed with interest the various stories and blog posts about Steven Salaita. Although there are aspects of Mike Dorf's initial post on the subject that I am uncomfortable with, I agree with him that there are some possible differences between firing and not hiring an academic candidate. We shouldn't be sanguine about those differences; refusing to hire a candidate for the wrong reasons--not liberal enough, say, or too liberal--is also a dereliction of academic duty. And we should be very cautious about "collegiality," without treating it as irrelevant. But there are, I think, potential differences between the kinds of factors that are relevant at one stage and those that are relevant at another.
I agree that the Salaita case raises serious concerns about academic freedom. I'm less convinced by some of the confident descriptions of the process and its legal consequences, but I haven't read every document. To my surprise, moreover, I find some aspects of the argument that some of Salaita's tweets have been overread persuasive. (We should always be cautious about confidently assuming that some statement is really a "dog whistle," as long as it can be read otherwise. I find it unfortunate that this seems to be an inconsistently applied principle.) I should add that that's a far cry from admiring the heated, obnoxious rhetoric that Salaita seems comfortable with in his tweets. In my view, which admittedly may be an outlier, most academics should be embarrassed to tweet at all; and all of them should be embarrassed to tweet like that. (The post I link to promises to go on to demonstrate that "Nelson's authority to speak about Salaita's termination"--note the assumption--"is compromised." I assume that most of the serious critics of university's treatment of Salaita consider that part of the argument irrelevant, if not damaging to their arguments.)
What I'm moved to wonder is how relevant much of the later discussion has been. The letter to which Dorf is a signatory describes Salaita's tweets, in rather general terms, as "statements on a matter of public concern," as as the voicing of views on "complex matters of public concern," as "participat[ion] in a rich, and at times heated, climate of debate on the issue of justice in the Middle East," and so on. Some critics, such as Steven Lubet, have criticized the letter writers and others for "soft-pedaling the anti-Jewish sentiments in [Salaita's] tweets." In addition to pointing to the post I linked to earlier reading those tweets differently--which, as I said, I found somewhat persuasive--critics of that position have ended up in a lengthy discussion of Hamas, the situation in and around Israel and Gaza, etc. And I wonder: Does it matter?
As I understand the strongest statement of the position that has been offered, this is a matter of academic freedom, pure and simple. On this view, Salaita was fired, or refused a process that should have led to his employment, and not just "not hired." The firing was a result of the content and viewpoint of his speech on Twitter. That is a violation of basic principles of academic freedom. Salaita's hiring itself, based not on his tweets but on a review of his scholarship and, presumably, his teaching and service, indicate his suitability for the position. If that's the case, it seems to me that what Salaita said is basically irrelevant. Provided that he was engaged in a "rich, and at times heated," debate on "a matter of public concern," and that he was fired, in violation of academic freedom, for doing so, why should we care whether his tweets were anti-Israeli, anti-Zionist, offensive, or indeed anti-Semitic? The question should be (almost?) entirely irrelevant.
On this view, it does not matter--except for public relations purposes--that the letter writers offered a rather anodyne description of Salaita's tweets. Nor--except for public relations purposes--would it matter if the letter writers had written instead, "A number of critics have said that Salaita's tweets trade in anti-Semitic tropes and imagery, are indifferent if not gleeful about doing so, and are enthusiastic in displaying bloodthirstiness about the people he reviles. We don't care, and we're outraged that he was fired."
It seems to me that if we take seriously the criteria applied by Salaita's defenders--and not without reason, if we care about academic freedom--it would hardly matter if Salaita had instead "tweeted" (leaving aside the question why grown-ups, let alone grown-up academics, bother with such an activity) any of the following:
"I'm beginning to think the Protocols of the Elders of Zion are right."
"One, two, a thousand Auschwitzes!"
"Obama is a traitor and a dictator. Time to exercise some Second Amendment remedies, NOW!"
"Maybe if the girls on campus dressed with decency and stayed off the booze, there would be fewer rapes at this school."
"If those monkeys in Ferguson want to burn down their own town, let them! Why waste the rubber bullets?"
Of course most people will find these statements objectionable. But that's hardly the point. They are, and the letter writers would describe them simply as, part of the rich climate of debate on matters of public concern. It's strange to me, then, how quickly the discussion in the comments has moved to questions about the nature and motivations of Hamas, whether it bears moral agency for the murders it commits, and so on. It should matter no more than it would matter whether Salaita, or some other academic, believed and argued that women's indecency and promiscuity is a major contributing factor to campus sexual assault, or that black criminality is a greater problem in Ferguson than police brutality. And, given that the real issue is one of academic freedom, the letter writers would surely be within their rights to describe one set of beliefs and arguments as abstractly as they describe any other.
One last note: an interesting comment on the Faculty Lounge wrote, in response to a question whether it would matter if Salaita were, instead, a Grand Wizard of the KKK who concealed his membership until he was hired, "[T]here is obviously a fundamental difference between holding racist ideas and acting upon them, just as there is a fundamental difference between engaging in terrorist acts and expressing sympathy for them. No one would argue academic freedom requires hiring either a Grand Wizard or a terrorist." That may be right, but note that this response assumes that the question is one of hiring, not firing. That is not what the question to which he was responding said. Moreover, the position of Salaita's defenders, or many of them at least, is that Salaita was hired, and now is being wrongfully deprived of the academic job to which he is entitled. I assume the proper response in such a situation, at least according to the arguments I have read so far, is that, at least depending on the nature of the activites he engages in, of course a qualified academic who is hired for a position and who also turns out to be a vocal Grand Wizard of the Klan should not be fired for that reason. And of course a suite of responses to such a dismissal is required, including protest and, for some, a refusal to participate in any events at that university.
Tuesday, August 19, 2014
Reforming the Ferguson Police Department
This Slate piece discusses the potential use of 42 U.S.C. § 14141 against the Ferguson Police Department in the wake of recent events. That section authorizes DOJ to investigate and bring civil litigation against a "pattern or practice" by law enforcement organizations that violates the Constitution; DOJ can seek an injunction or consent decree or, more likely, enter into a Memorandum of Agreement about reforms to be made by the agency.
Section 14141 was seen as a big step when it was enacted as part of the Violent Crime Control and Law Enforcement Act of 1993, a way to make-up for the perceived under-use of criminal civil rights prosecutions under § 242. Actual practice has been disappointing to many commentators, as Rachel Harmon (U VA) and Kami Chavis Simmons (Wake Forest) have discussed. In particular, they note that the focus of investigations has been on smaller cities, such as Pittsburgh, rather than large cities such as New York and Chicago (although the Slate article discusses an agreement--not sure if it was a consent decree or MOA--with Los Angeles that has been found effective). Certainly, this is the type of high-profile situation that would overcome federal inertia and prompt a response.
One problem is whether there can be a finding of a "pattern or practice" in Ferguson. Certainly the past week has demonstrated some potential misconduct and abuse of power by individual officers. And the department as a whole has handled the entire fallout badly (for example, of 78 people arrested last night, 75 were for failing to disperse when ordered, which brings us back to the problem of how police do (and are allowed) to respond to lawful assembly and protest whenever they also can point to the slightest risk of violence). And the militarized response certainly reflects department policies and practices, although typical of what many police departments are now doing. But there is a nice question whether awful response in a single situation, even one as high-profile as this, is sufficient to warrant federal intervention or whether it necessarily indicates broader problems.
The best hope may be that DOJ goes to Ferguson in a cooperative stance, looking not to pursue litigation, but to convince the department to accept an MOA, particularly in light of the awful optics of the past week. When my current dean headed the Civil Rights Division, he favored this approach, believing it created buy-in from the local government without an adversarial posture or the need to establish pattern or practice.
JOTWELL: Understanding Prophylactic Supreme Court Decisions
William Baude at JOTWELL has a review of my colleague John Stinneford's article, The Illusory Eight Amendment. Baude writes, "It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford's recent article . . . . " Professor Stinneford's article critiques Miranda v. Arizona, and contends, contrary to popular wisdom, that it did not truly create a prophylactic rule to prevent compelled confessions. Indeed, Professor Stinneford notes that "the Supreme Court in Miranda did not particularly care what the term 'compelled' means," and because of the Court's failure to address this issue directly, "many of the practices disliked by the Miranda court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession." Both Stinneford's perceptive article and Baude's review explore the implications of this analysis.
Summary judgment and the infield fly rule
No, not together, sadly.
The final version of An Empirical Analysis of the Infield Fly Rule is now on-line at the Journal of Legal Metrics/Journal of Law (the book will be out in a month or so). The article presents the results of a four-year study of all infield fly calls in Major League Baseball. I am extending the study for the 2014 and 2015 seasons, as well as trying to apply some advanced baseball metrics to measure the effect of the rule (or, more precisely, what the effect might be if we did not have the rule and infielders were free to intentionally not catch the ball in search of cost-benefit advantages).
And, completely unrelatedly, Mixed Signals on Summary Judgment is now posted to SSRN, and hopefully coming to a law review near you. Here is the abstract:
This essay examines three cases from the Supreme Court’s October Term 2013 that addressed the standards for summary judgment. In one, the Court affirmed summary judgment against a civil rights plaintiff; in two others the Court rejected the grant of summary judgment against civil rights plaintiffs, arguably for the first time in quite awhile, but in procedurally confounding ways. The essay unpacks the substance and procedure of all three decisions, and considers their likely effect and what signals they send to lower courts and litigants about the proper approach to summary judgment.
Monday, August 18, 2014
Can Standing Immunize Surveillance Programs From Judicial Review?
One of the abiding issues in standing doctrine is whether federal courts should care when legal violations seem to produce no viable plaintiffs. This issue has been particularly salient in debates about secret government surveillance. In recent weeks, yet another surveillance program has started to come into view, and commentators are again wondering whether anyone can challenge the program in court. What’s perhaps most interesting about this latest round of the controversy is that both sides can plausibly rely on the Court’s most recent decision on the issue.
Dean Frank Wu on Rethinking Law School
There has not been, in the recollection of anyone now living, a similar set of challenges for law schools. As with all such situations, however, leaders must spot the issues. We are in danger. We should not deny that.
I welcome the opportunity. We must cooperate -- bench, bar, teachers, students -- to take apart the system and put it back together again better.
Among other things, Dean Wu suggests that legal education should be re-worked to look and function more like medical education (a point that others, including my former colleague, Vincent Rougeau, now dean at Boston College, have also made).
I think that Dean Wu is right to underscore and emphasize what he calls the "maldistribution of lawyers" and also the "cost structure of legal education" and the crisis of "student loan debt." I do regret, though, what seemed to me to be his endorsement of a criticism that, in my view, is (for the most part) a straw man. After noting that the "century-old case method is transitioning towards skills training," he says "[t]he analysis of appellate decisions remains integral to the first year courses, but it would amount to an incomplete education at best" and contends critically that "some law school graduates" -- unlike medical-school graduates -- have engaged in "book learning alone."
The "transition" Dean Wu describes is clearly underway, but it seems to me that it has been for decades (and it has involved adding lots of enriching things -- not only skills training and clinical work -- to the "century old case method"). It's been a long time, I think, since anyone thought "the analysis of appellate decisions" alone could make for a "complete" legal education or since more than a handful of law-school graduates were trained through "book learning alone." The "law schools teach nothing of practical relevance or worth" charge is out there, I realize, but I continue to think it is significantly overstated. (And, to be clear, to say this is not to say anything about the extent to which "skills training" should be emphasized or incorporated more than it is at present.)
JOTWELL: Walker on the effect of teaching procedure
The new Courts Law essay comes from Janet Walker (York--Osgoode Hall) reviewing A Community of Procedure Scholars: Teaching Procedure in the Legal Academy, a piece by authors from four different systems (including Elizabeth Thornburg of SMU) comparing how civil procedure is taught in their law schools and the effect that has on procedure scholarship and procedural systems.
To the man who taught me the infield fly rule
I originally planned to post this last month, but obvious events made it feel inappropriate.
My father, Lawrence Wasserman, passed away July 10, at age 85. A friend once told me that losing a parent is when you really become an adult; I kind of believe that. Dan, being Dan, was one of the first people to reach out and extend condolences from afar--in fact, it was one of our last text exchanges. To tie this back to an earlier post, I just ended shloshim, the 30-day period of mourning in the Jewish faith, so this seemed a good time to write.
Judging Similarity (Part 1)
This post is by GuestPrawf Irina Manta.
I thought I would kick things off by talking a bit about the empirical intellectual property work in which I have been and continue to be engaged. Empirical work in this subject matter has been increasing in popularity in recent years after some pioneers like Barton Beebe and other scholars led the way. The relationship between social science and IP issues has fascinated me for years, so it is a much welcome trend in my eyes. Most recently, I collaborated on my own first project in that area with co-authors Shyam Balganesh and Tess Wilkinson-Ryan. The paper that resulted, Judging Similarity, will appear in the Iowa Law Review later this year, and I would like to offer a sneak peek here into some of the issues we examined.
The test for copyright infringement asks in part that fact-finders determine whether the original work and the allegedly infringing work are “substantially similar” to one another. Put differently, fact-finders—usually jurors—have to decide whether a “reasonable observer” would believe that the similarities between two works were of such a high degree as to involve wrongful appropriation. Further, fact-finders have to establish that actual copying took place, and similarity often plays a role to meet that prong as well when there is no admission of copying. While different circuits each have their own version of the copyright infringement test, they all require a showing of substantial similarity in some form or another. I expressed the concern in my earlier article “Reasonable Copyright”, 53 Boston College Law Review 1303 (2012), that the seemingly simple matter of determining similarity may create an inquiry that is particularly open to numerous cognitive biases. These biases, I argued, would distort the judicial process in a way that would likely generally benefit plaintiffs. My empirical work with Shyam and Tess allowed me to test some of these earlier intuitions I generated.
The first issue in the context of substantial similarity is that by the time the question of similarity reaches a jury, its members have already heard a great deal of evidence about the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and, on occasion, the market effects of the defendant’s copying. Although the similarity finding is meant to involve no more than a comparison of the two works to assess whether they are sufficiently similar to render the copying problematic (i.e., improper), that judgment may be affected by the availability of this other evidence. The fact-finder is required to answer the question of substantial similarity through a mere comparison of the two works, which will often involve actively ignoring instinctively relevant and highly salient information. Copyright law thus seems to assume that the inquiry into substantial similarity can serve as a simple comparison of the two works, even in the face of extensive factual evidence that bears directly on the dispute in question. The fact-finder is presumed to be able to cabin and exclude from the analysis all of the evidence with which the court has been presented in the lead-up to the issue of substantial similarity.
Sunday, August 17, 2014
Kar on Contract Theory: The Sequel ... And Putting Spectacles on the View from Nowhere?
Robin Bradley Kar has now posted the sequel to Contract as Empowerment: A New Theory of Contract. The second piece is Contract as Empowerment II: Harmonizing the Case Law. I did a quick review of the first piece in an earlier post.
I need to say first that the length and depth of this post is a reflection of the quality of Rob's work. I heartily recommend both articles, taken together, as an incredibly ambitious, if not promising (no pun intended), approach, particularly for those of us (like me) who were so significantly unsatisfied with seeing either the doctrine or the practice of entering into contracts as wholly explained by rational actor economics. So like most reviews, this is perhaps not as much about what Rob is arguing as much as a chance for me to pontificate. In short, don't take my characterizations as gospel; if you have any interest, download the articles while they're hot!
The context here is the longstanding philosophical debate about why and how courts go about using the resources of state power to resolve matters that originate wholly in private ordering. Over the last thirty or so years, those inclined to answer that question have tended to see the rationale for state involvement on two philosophical poles, one consequential and one deontological. From my standpoint, Rob's work (likely in contrast to my own) is firmly within that debate, in that he is searching for a philosophical resolution - one that harmonizes both explanation (i.e. what does contract law do?) and understanding (i.e. what does contract law mean?). Spoiler alert (yawn!): I don't think that kind of complete harmonization is possible, although I tip my hat to Rob's rigor in linking philosophical justification and discrete portions of the doctrine, such as consideration, expectation damages, interpretation, performance, and so on.
Does Ferguson show that Fischel's Homevoter Hypothesis undermines minority power?
One of the oddest aspects of the racial strife in Ferguson, MO is that the state government is providing more racially representative leadership than the municipality. Although Ferguson's population is two-thirds black, its municipal leadership is overwhelmingly white. The (black) chief of the state highway patrol turns out to enjoy more popularity with Ferguson's own (white) municipal police chief.
The idea that state government would protect the interests of a local majority of African-American residents from their own municipal government seems bizarre in light of Southern history. Southern white supremacists seeking to "redeem" government from black power during the 1890s and early 1900s stripped municipalities of power, concentrating decision-making at the state level, in order to prevent local majorities of black voters from controlling taxation of real property. (For a description of the white supremacists' "general hostility to home rule" in Alabama, see Knight v. Alabama, 458 F.Supp.2d 1273, 1284-85 (N.D.Ala.2004)). Moreover, the research of the late Elinor Ostrom and her colleagues in Indiana U.'s Workshop on Political Theory from the early 1970s suggested that black voters in small municipalities within St. Louis County trust their police forces more than black residents in the central city.
Why, then, has not Ferguson's local voters taken control of their own municipal government, electing a mayor and council that creates a police force that the majority can trust? The question has relevance beyond Ferguson's particular situation: The whole point of jurisdictional fragmentation of counties among many small local governments is to give voice to groups that otherwise would be drowned out at the county and state level. If small local governments like Ferguson cannot represent the preferences of two-thirds of their residents, then what good are they? At least one commentator has used Ferguson as a fable of the follies of local decentralization. To academics for myself who have a fondness for decentralization as a vehicle for protecting local voters' power, Ferguson presents a troubling data point. Is there any explanation for how localism seems to have gone awry in Ferguson?
Saturday, August 16, 2014
Why do big cities strangle themselves with zoning? (And will voting with your feet solve the problem?)
Mayor de Blasio is trying to create 200,000 new units of affordable housing in New York City over the next decade. An essential element of his strategy is to increase floor-area ratios (FARs) in return for developers’ leasing some percentage of the new units for rents below market rates. The entire strategy depends on the mayor’s persuading City Council to “up-zone” land – that is, increase the densities permissible under the NYC Zoning Resolution.
The obvious obstacle to this plan is that New Yorkers – like everyone else – tend to oppose new construction in their neighborhood. The wagons are already circling: Just blocks away from where I live, the neighbors are rallying against a couple of new towers with affordable units, ostensibly because they are too close to the new Brooklyn Bridge Park. But these neighbors’ politics ought to favor de Blasio’s plan, right? After all, de Blasio is standing up for affordable housing, a left-liberal goal, and the NIMBY neighbors are liberal brownstone types who allegedly support such goals. So de Blasio and his housing team (including NYU Law’s own Vicki Been, de Blasio’s new housing chief) ought to be able to talk the NIMBY folks out of their opposition, right?
Wrong. It is not just that neighbors’ fear for their condo down payment tend to trump their liberal sympathies for the poor. As David Schleicher and I argue in City Replanning, the less obvious obstacle is that the political economy of NYC’s legislative process tends to favor NIMBY ism, by placing neighbors from different parts of NYC into a collective action quandary. Even if each neighborhood were willing to take their fair share of affordable housing, there is no mechanism for inter-neighborhood bargains assuring that every other neighborhood will be equally accommodating to new construction. Moreover, the parcel-by-parcel bargaining typical of NYC land-use politics so raises the opacity and uncertainty of re-zoning that many developers will be driven out of the market.
After the jump, I’ll explain why contrary to vote-with-your-feet optimists like Ilya Somin, competition from other cities for NYC’s residents is not a great remedy for the NIMBY problem. Instead, David and I suggest a paradox: Command-and-control, centralized, comprehensive planning is actually libertarian. By getting rid of parcel-by-parcel bargaining and reassuring each neighborhood that they will not be left holding the affordable housing bag when they relent in their NIMBYism, the comprehensive plan can diminish the ferocity of the NIMBYs.
UPDATE: Ilya has a response to my post here. I agree wholeheartedly with his statement that foot-voting "makes the situation [of restrictive zoning] significantly better than it would be otherwise." But I think that Ilya errs in stating that "NYC and many other cities with restrictive zoning policies already have 'comprehensive' land use planning." In fact, New York courts (like courts in most states) have long construed the statutory requirement that zoning be "consistent with a comprehensive plan" to mean nothing more than that zoning amendments have a rational basis -- a test that places no practical limit on ad hoc deal-making.
Friday, August 15, 2014
First Amendment repealed in Ferguson, MO
Ronald K.L. Collins suggests (hopes?) we are about to enter a New York Times v. Sullivan moment in response to events in Ferguson, MO--broad free speech principles forged from public and media outrage and exposure of racial abuse by police and government officials. I am less sanguine, because I do not see either the government or individual officers being held to account or sanctioned in any way (legally or politically) for the massive restrictions on free expression that have been imposed in the last week. Collins may be correct that this may present an opportunity for the "admirably defiant spirit" of New York Times to "find its way back into the hearts and minds" of the public and for the public to demand that local government show greater respect for First Amendment rights. But these these events are not going to end with a resounding judicial affirmation of the First Amendment that will impose those obligations on government or sanction it for its past disregard.
Courts almost certainly will accept the government's assertions of public safety concerns and recent memories of rioting as justifying officers responding to seemingly peaceful, if angry, protests with riot gear and rubber bullets--these events illustrate Timothy Zick's thesis that public spaces are no longer for collective speech by large groups (My favorite detail: Police ordering people to return to their homes, then saying "Your right to assembly is not being denied"--oh, if you so say). The Eighth Circuit has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording. There is no evidence the city or county itself ordered officers to target people filming police--at best, municipal policy is silent. The federal government has already backed the local power play by declaring a no-fly zone over Ferguson, thus preventing television helicopters from recording activity from the air. DOJ has promised to conduct an investigation to see that justice is done, but that seems more about the original shooting; otherwise, DOJ assistance has been with "crowd control" and urging citizens not to "antagonize" police. But that "antagonism" has, in large part, consisted of attempting to assemble and protest and to video police massively over-reacting to those attempts--so DOJ's advice is for people not to do the things they should have a constitutional right to do. And like southern officials 50 years ago, Ferguson and St. Louis County officials do not seem affected or shamed by public outrage over their conduct, do not seem to acknowledge having done anything wrong, and do not seem inclined to make any changes on their own accord.
Again, the public takeaway from this may be a reaffirmation of free speech ideals. But is that enough without some official declaration and application of those ideals?
Update: According to this story, things played out much differently Thursday night, under the leadership of Missouri Highway Patrol Captain Ronald S. Johnson, a Ferguson native. There was no massive militarized police response to demonstrators and people were allowed to march and gather. And police officers were ordered to remove their gas masks. Missouri Governor Jay Nixon "vowed that officers would take a different approach to handling the massive crowds that have taken to Ferguson’s streets each night." (For those of you who teach Evidence, this would be an example of an inadmissible subsequent remedial measure).
Introduction: Irina Manta
The following is by Irina Manta, who will be guest-blogging with us for the rest of August and all of September.
My last exchange with Dan was on the topic of my guest-blogging here, and I hope to honor his memory by contributing to the wonderful community that he started and ran in the form of PrawfsBlawg. I will mainly be talking about my work in the area of intellectual property over the next month and look forward to the exchanges that will follow. My faculty profile is available here.
Thursday, August 14, 2014
Lubet on Academics, Law, and Politics
Steve Lubet published an op-ed in the Chicago Tribune today regarding the recent controversial non-hiring at Illinois. Seems to me he got it just about right.
The link will lead you (I believe) to a pay wall; the Tribune's editors have graciously allowed us to reprint - which you can find below the fold.
UPDATE: I have opened the comments. My concern originally was the fact that this is about the bounds of civil discourse (apart from the legitimately debatable issues of academic freedom and law), and because all the comments get e-mailed to me even when unmoderated, I didn't want to be a potential adjudicator of civil discourse. There's even a legitimate debate about what constitutes civil discourse, which is the part of Steve's essay that resonated with me. But there IS a line, albeit not always clear where it is, and I agree with Steve that this person crossed it. With that reservation now express, go to it.
Wednesday, August 13, 2014
Social and Legal Prejudice in Runyon v. United States
Runyon v. United States is a pending capital case in which the defendant has filed for cert and the United States sought eleven extensions of time before filing its brief in opposition earlier this month. As Amy Howe observed on SCOTUSBlog, the government’s highly unusual series of extensions delayed the Court’s consideration for almost a year.
Runyon is notable in part because it involves the interaction of prejudice in two senses—social and legal. In other words, Runyon asks whether prejudice in the sense of legal injury resulted from the government’s use of prejudice in the sense of social stereotypes.
Death Penalty Update
Dan Markel's last post here addressed the decision in Jones v. Chappell, in which US District Court Judge Cormac Carney declared the death penalty unconstitutional by reason of delay. He would probably have had a field day with the recent developments in the case.
A day after the decision, I started a petition on Change.org, calling on Gov. Brown and Attorney General Harris not to appeal the decision. It started as a small plea on Facebook, and without any pushing or prompting from me found its way to the Daily Kos and to the Daily Journal. By the time I submitted the petition, it was 2,198 signatures strong.
There are still 12 days left for the Attorney General to appeal the decision, and as I explained here, if her office does not do so, it doesn't mean the death penalty in California is effectively abolished, but it would be a great start of a series of legal and political moves that could spell its demise. I'm beginning to think that the death penalty can't be executed; rather, it has to die a slow death from a chronic disease (delays, costs, malfunctions)--much like the vast majority of the inmates on death row.
I think everyone understands this, even if they don't like it, and that includes death penalty proponents, who seem to be freaking out about the prospect of $130 million annually in savings and folks being put in general population serving life without parole (which they do anyway, just without the expenditure.) And it seems that death row supporters in California are beginning to freak out at the not-unlikely possibility that the Attorney General is going to leave this decision alone. First was this post on Crime and Consequences, inviting district attorneys to risk their jobs and eat up their lives by appealing a decision their boss might not appeal against her officer's discretion (really?). But then, the decision was actually appealed. Yesterday. Not by the Attorney General. By a private citizen by the name of Robert Justice.
Don't believe it? Here's the notice of appeal.
Conversion from Bluebook to Chicago Manual of Style
I was advised that there will be a book incorporating the Kelsen conference papers, so I just spent the better part of a full workday converting this essay from Bluebook to Chicago Manual of Style, using the publisher's template for headings, footnotes, references, and so on.
It's been a long time since I used the Chicago Manual. As with all languages, it takes a while to get fluent. But if you don't work a lot with court cases, statutes, and the other usual stuff of legal writing, it actually makes more sense, contains more information, and results in a shorter piece. The big pains in the patoot are that you have to show beginning and end pages for journal articles as well as publisher information for books. For law review articles, you can get the page ranges pretty quickly by clicking the "print/download" button on Hein Online, and Amazon is pretty good about publisher information, although it doesn't list the city of the publisher.
Normal people would have a research assistant do this but (a) I don't have one, (b) I probably wouldn't trust him or her to be as anal about it as I am anyway, and (c) I get a kind of sick pleasure out of it.
I am now available for consultation on these weighty matters as a service to the community.
Reviving the Research Canons: What Every Law Prof Needs to Have Read
Mike Madison has a really nice piece out entitled "Lost Classics of Intellectual Property Law." In it, he chides legal scholarship for failing to pay enough attention to older pieces that have come before and have laid the foundation for the discipline. His essay seeks to address this problem by setting out those "classics" that need to read, understood, and cited to provide "better and more consistent acknowledgement of earlier work." The article is actually a compilation of his earlier blog posts, including a 2007 self-described "rant" against the failure of IP scholars to understand the background literature in their field. Talking about presentations at a working-papers conference, Madison said: "By far the biggest flaw in presentations and papers by junior IP scholars (and sometimes by more senior IP scholars) was and is their evident ignorance of earlier work. And not just or even work published within the last year or last five years; I’m thinking of the fact that a lot of foundational work published ten years ago or earlier remains significant today."
The new essay called to mind a project we had at Prawfs eight (!) years ago called the "Research Canons" project. The effort was similar to Madison's -- to compile lists of the foundational works in the legal sub-fields for use by scholars in the area, particularly junior ones. At the completion of our two-month run, thanks to help from a lot of folks, we ended up with entries for 42 subject areas. We had 220 comments and links from 18 fellow bloggers supporting the endeavor. You can find a list of the subject areas, with links to the individual posts, here.
At the end of the Canons run, I expressed hope that the canons could serve as a continuing resource. However, I also recognized that "[a] weakness of blogs posts is that they seem to have a short shelf-life: once a post is more than a day old, it can be forgotten." I don't know whether folks continue to check out the Canons, but I suspect that they have been largely forgotten. So it seems like a good time to revive the project, eight years down the road, and think again about those books, articles, and chapters that are canonical -- that everyone in the discipline should have read.
So this post is intended as an announcement for the project and a request for feedback. What's the best way to proceed? I'm planning on having individual posts for individual subjects, as before. But this time, I'm thinking of asking for the following:
- Classic Canons. The pieces that form the foundation for the discipline.
- Forgotten Canons. The pieces that have not gotten the attention they deserve.
- New Canons. The pieces from the last decade that deserve canonical status.
Let me know what you think of the project, whether the old one was helpful, and what we can do this time to make it better.
Even football coaches are banning laptops
Tuesday, August 12, 2014
They in Their Humanity
In The Prince, Machiavelli describes the pleasure he derives from studying. “When evening has come, I return to my house and go into my study. At the door…I enter the ancient courts of ancient men…There I am not ashamed to speak with them and to ask them the reason for their actions; and they in their humanity reply to me. And for the space of four hours I feel no boredom, I forget every pain, I do not fear poverty, death does not frighten me. I deliver myself entirely to them.”
I had cause to think a lot about this, one of my favorite quotes, recently. An underrated pleasure of academic life, it seems to me, is getting "into our study," and the form of conversation it brings with it. It's a way in which to connect (albeit at a geeky level) with folks that (on a personal level) I might know quite well, or not at all. Some of these connections go beyond the rather impersonal academic interrogation implicit in asking the reasons behind another's work, and become the more personal collaborations in which ideas are directly exchanged, and the process of learning and growing becomes accelerated and fun. In the internet age, these connections are often made, and maintained, online as much as in person, but are not the less personal for that.
In a couple of short pieces, appropriately inspired by a short Prawfsblawg piece he posted, and my comments upon it, I was lucky enough to collaborate with Dan Markel. Through that process, I got to know him a little better than I did before. He was ticked off at some weird conditions a judge had demanded a defendant satisfy to be released on bail. I was taken with his righteous indignation, and then by his fastidious argument-checking. I enjoyed meeting his family and friends online, and catching up at conferences, and reading and re-reading his work, both finished and unfinished. I learned a lot from Dan, and still study and still learn.
Leiter on FAR forms
Brian Leiter offers six thoughts/pieces of advice on completing FAR forms. I agree with all six of his points, especially these two: 1) In listing courses, "be who you are, and not someone else," and do not try to game the system, and 2) Do not use the Comments, especially for something vacuous, like "I'm committed to being an excellent classroom teacher."
Robin Williams in Context
Robin Williams’ apparent suicide is tragic, but should not be surprising. An American is more likely to die from suicide than from a car accident. 38,285 people committed suicide in 2011, the most recent year for which data are available.
Many of these deaths were preventable. The suicidal impulse is very often fleeting. Ninety percent of individuals who survive a suicide attempt go on to die of something other than suicide. Reducing access to lethal means like firearms has been proven to prevent suicide. I have a law review article currently under submission that would allow for a new way to self-restrict firearm access. It may not have helped Williams, but it has the potential to help many others.
If you are thinking about hurting yourself, call 1-800-273-TALK (8255).