Tuesday, February 09, 2016

Baby Blue and Copyright Overreaching, OR: Don't Make Me Embarrassed to be an HLS Alum, People, Like For Serious.

For those of you who don't know, there's a fight brewing about the Bluebook. Not about the fact that it's awful (though it is), but about overreaching copyright claims the Harvard Law Review appears to be making in connection with it---claims that are, frankly, making me embarrassed to be an HLS alumnus. (Though not ashamed, because I was never on law review. Thank goodness.)

In this post, I want to tell you about an open-source effort to free the Bluebook, and about what you can do to help inflict enough social pressure on the HLR to make it actually possible.

Continue reading "Baby Blue and Copyright Overreaching, OR: Don't Make Me Embarrassed to be an HLS Alum, People, Like For Serious."

Posted by Paul Gowder on February 9, 2016 at 03:38 PM | Permalink | Comments (7)

Three-Judge Courts and Precedent: An Election Law Procedural Quirk

Must three-judge federal district courts follow the law of the circuit in which they sit?  

Three-judge district courts are an anomaly, used mostly in certain election law disputes such as statewide redistricting claims and some campaign finance litigation.  In these cases, the initial single judge refers a qualifying case to the chief judge of the circuit, who will constitute a three-judge district court.  (The Supreme Court clarified, this term, that the single judge may not consider the merits, but must refer all qualifying cases to the chief judge for the creation of a three-judge district court.)  The chief judge assigns a circuit judge and two district judges to serve as the three-judge court.  The court sits like a normal trial court, making findings of fact and conclusions of law.  Decisions of this court are appealable directly to the U.S. Supreme Court, skipping the court of appeals stage.  Congress created this procedure for cases that will uniquely benefit from faster resolution and multiple minds at the outset, as the decisions are often seen as less biased and more legitimate. (For more on this process, see my article The Procedure of Election Law in Federal Courts.)

Sometimes, these courts face questions that the circuit court in which they sit have already decided.  A circuit court ruling on a particular point of law would be binding on a single district judge.  Are these appellate decisions also binding precedent on a three-judge district court? Although most three-judge district courts have said that they must follow circuit precedent, they are wrong.  I explain why after the jump.

Continue reading "Three-Judge Courts and Precedent: An Election Law Procedural Quirk"

Posted by Josh Douglas on February 9, 2016 at 01:36 PM in Civil Procedure, Law and Politics | Permalink | Comments (6)

The FOIA, Inc. Industry

In my last post, I explored the mismatch between the intended core users of FOIA—the media—and the makeup of the requester population at some agencies as primarily commercial enterprises. In fact, as my forthcoming article details, commercial requesters have found a multitude of uses for government information. Businesses use FOIA to get information about their competitors, lawyers use FOIA both to get information useful to their current clients but also to obtain information useful to recruiting clients (for example, potential drug and medical device claims), and businesses use FOIA to get information they then use for their various consulting, advising, and publishing ventures.

Companies that provide due diligence services are another group of frequent commercial requesters. For example, at EPA, almost all of the most frequent commercial requesters are companies that evaluate environmental risks for business clients prior to real estate transactions. Likewise, at SEC, many of the most frequent requesters are due diligence firms that provide reports prior to initial public offerings, mergers and acquisitions, and other business deals, for which they seek any information that might suggest a regulatory risk or investigation of the target company.

And finally, there is a group of frequent commercial requesters that most interested and in some ways surprised me, and that was the proliferation of a category of businesses I classify as information-resellers. These are businesses that request large volumes of records from the federal government and resell them, at a considerable profit, to private parties.

Continue reading "The FOIA, Inc. Industry"

Posted by Margaret Kwoka on February 9, 2016 at 10:58 AM | Permalink | Comments (0)

Monday, February 08, 2016

Metaphysical Fourth Amendment question: how long could a tiny ATF agent sit atop a telephone pole?

Today the Sixth Circuit handed down a notable opinion squarely addressing the question, reserved in United States v. Jones, 132 S.Ct. 945 (2012), of how many ATF agents can fit on the head of a telephone pole whether longer-term surveillance by law enforcement infringes on a reasonable expectation of privacy—thus triggering Fourth Amendment protection. 

The majority held that the ten-week recording of several residences at a rural Tennessee farm, from a camera mounted on a public utility pole, did not infringe on the resident’s reasonable expectation of privacy.  District Judge Thomas Rose, sitting by designation, disagreed in a partial dissent.

Continue reading "Metaphysical Fourth Amendment question: how long could a tiny ATF agent sit atop a telephone pole?"

Posted by Jonathan Witmer-Rich on February 8, 2016 at 03:49 PM | Permalink | Comments (8)

The Best Time To Submit Is Precisely 10:40 on Feb. 23

The Yale Law Journal just released some interesting statistics about the submission season for the past 3 years.  Some highlights:

  • In the aggregate, the heaviest week of submissions is Feb. 15-21.  The second heaviest is Feb. 22-28
  • The number of submissions in early- to mid-March is still significant
  • A majority of offers are made in "March or later"
  • Submitting too early can hurt your chances, at least if you are not giving them an exclusive window of a couple of weeks and another journal makes an offer first

So if you don't plan to submit for a few weeks, cease your angsting, at least for now.  (If you really feel the need to angst, head over to the Angsting Thread About Angsting Threads).  

Also relish in the fact that, with 16-20 pieces per Volume, you have about a 0.08%-0.10% chance of landing a spot!  That's better than the Powerball!

And now back to writing about election law.  I'll see you soon.  

[Update: Precisely one minute before I submitted this post, Richard posted a much more thorough and thoughtful analysis of the Yale Law Journal's data. So go to his post if you want some real substance on these issues.] 

Posted by Josh Douglas on February 8, 2016 at 03:40 PM in Law Review Review, Life of Law Schools | Permalink | Comments (0)

Yale Law Journal Posts Submission Data

Today, the Yale Law Journal posted an interesting report entitled “Journal Releases Guidelines and Data on When To Submit Articles and Essays.” The basic empirical showing is that "the spring submissions cycle is increasingly front-loaded, with a growing percentage of pieces submitted in the first half of February."

If you give an academic a cookie, or data, he’s likely to ask for more. Perhaps the most important sentence in the YLJ report is the most cryptic: “[O]f the dozen or so publication offers that the Journal makes in the spring cycle, historically a majority have been made in March or later.” Does “historically” mean to encompass only the last few years? And, do the March offers tend to result from mid- to late-February submissions? That information would shed light on whether the timing of a submission affects acceptance.

That said, the report does raise the possibility that early submissions may be disadvantaged. The report raises this point by noting that one “downside” of early submission is slower review. According to the report, “The front-loaded cycle places a significant strain on the Articles & Essays Committee.” This statement seems to assume that a “front-loaded cycle” is one in which most submissions are in February. While submission levels seem quite high in early February, they get even higher in mid to late February. So, to avoid the asserted rush, it would seem necessary to submit in March – by which point, other journals may have filled valuable spots.

Continue reading "Yale Law Journal Posts Submission Data"

Posted by Richard M. Re on February 8, 2016 at 03:39 PM | Permalink | Comments (1)

Saturday, February 06, 2016

Flint and Minoritarian Fiscal Illusion: Will Republicans and Libertarians Stand Up and Cheer for Governmental Liability?

There has been a longstanding debate in legal academia about whether government is really afflicted by "fiscal illusion" -- that is, the illusion that governmental officials care mostly or only about costs affecting the fisc and, therefore, will impose inefficiently large private costs on individuals if these private costs are not reflected in budgetary outlays. The theory was initially championed by advocates for a robust doctrine of regulatory takings, and it was rooted in a simple political economy of majoritarian politics (set forth, for instance, by Blume's, Rubinfeld's, and Shapiro's 1984 article): If most voters benefit from a regulation that imposes costs on a small number of landowners, then politicians responsive to the majority will ignore the costs to gain the benefits.

Since Daryl Levinson's classic 2000 article, Making Governments Pay, however, scholars have been going short on fiscal illusion. As Daryl notes, damages against private organizations might deter their officers, because officers care about maximizing stuff like share price, and shareholders can sell in a liquid market. But why should anyone believe that a majority of voters can overcome collective action problems to force politicians and bureaucrats to protect the public treasury or maximize majority-benefiting regulations? Why will not these public agents betray voters by paying off influential landowners, public employee unions, or contractors at public expense? Efforts to confirm empirically the existence of a fiscal illusion have not been especially encouraging. (See, e.g., Y.C. Chang's sophisticated empirical study of Taiwanese officials' decisions regarding compensation and property assessment and Bethany Berger's a more recent argument that politicians' incentives to increase the yield of ad valorem property taxes will protect against fiscal illusion).

Fiscal illusion, however, need not be based on a majoritarian theory of politics in which a mob gangs up on the lone landowner -- a theory that is perhaps unrealistic outside of a smallish suburb homogeneously populated by Bill Fischel's "home-voting" homeowners -- but rather in minoritarian politics.

Consider, as an example, the City of Flint's crisis with lead-contaminated water as Exhibit A of presumptive fiscal illusion. Darnell Earley, the emergency manager appointed by Governor Snyder to run Flint, had a bureaucratic mandate to save money and no electoral incentive to protect non-fiscal goals like voters' health. By switching Flint's water supply from the expensive Detroit water system to the cheaper and more corrosive Flint River, Earley maximized the first goal and ignored the second, with the result that Flint's residents now have elevated lead levels in their blood.

An easy case for presumptive fiscal illusion, right? If you have been a champion of liability for regulatory takings on "fiscal illusion" grounds, then should you not support Mike Pitt's lawsuit for damages against the city and state under a theory of municipal and/or state liability? And yet I have not heard many of my fellow Republicans and libertarians calling for a weakening of Eleventh Amendment and state sovereign immunity defenses or for a broadening of Monell "custom-and-practice" liability. Perhaps I just have not been paying attention (in which case, readers, alert me to the conservatives cheering on lawsuits for damages against Flint). Or perhaps conservative jurists have generated mutually incompatible doctrines on takings liability and sovereign immunity for decades, leaving conservatives ambiguous about expansively construing governmental liability for torts as opposed to takings. It seems to me, however, that, whatever the case for fiscal illusion in the context of zoning, the case for such fiscal illusion here looks pretty strong. Why are not damages the needed antidote?

Posted by Rick Hills on February 6, 2016 at 02:05 PM | Permalink | Comments (1)

Friday, February 05, 2016

The Rule of Law in the Real World.

This round of prawfsblawgging comes at an exciting and terrifying time for me: my first book, The Rule of Law in the Real World, comes out in a few days, courtesy of Cambridge University Press. It's an attempt to reconcile the philosophical, legal, and empirical literature on the ideal of "the rule of law," and show its symbiotic relationship with genuine legal equality. I think the official release date is February 11, although at least one person has already gotten her hands on a copy (before me!). Pre-orders are open (Cambridge, Amazon). I've also put up a website at rulelaw.net, mainly as a home for some cool interactive data visualizations---but I also hope to make it a live, ongoing thing, collecting other rule of law scholarship, data, and knowledge in general.

So the exciting is obvious, buy why terrifying? Well, I think that all of us academics are subject to quite a bit of imposter syndrome, and none more than those of us doing interdisciplinary work. No matter how good you are, even if you're Richard Posner Himself, you can't produce high-quality scholarly work in every discipline at once.  So anyone who publishes an extremely interdisciplinary book---and this book is that, in spades, delving into political philosophy, classics, game theory, empirical analysis, and other areas---surely must live in terror of opening up the journals or getting a Google Scholar alert to see his or her book get shredded by someone who actually is good at one of the disciplines the book has invaded.  And while there are treatments for this condition---serious cross-training, showing your work to people who know more than you before rather than after publishing it--- there is no certain cure. 

Yet some research topics really can only be handled by using methods from every field at once. The rule of law is definitely one of those: it has such a long historical provenance, has been the object of so many conflicting interpretations from lawyers, philosophers, historians, economists, political scientists, and others (Waldron once called it an "essentially contested concept"), and has such growing policy relevance in a world where hundreds of millions of dollars are spent promoting it (or the promoters' conception of what it might be) in places like Afghanistan, that the only way to really get any traction and make any progress is to try to bring something together from those disparate domains.  This is, I think, why Brian Tamanaha's wonderful rule of law work has become so influential: he really made the first big attempt to listen to all the diverse conversations on the subject.

So hopefully the terror of the review pages will prove unfounded, and it'll turn out that I'm really not faking competence in all those things.  The next half a year or so will tell.  In the meantime, I'll be blogging about The Rule of Law in the Real World throughout the month, along with whatever other crazy topics happen to cross my mind.  Onward!

Posted by Paul Gowder on February 5, 2016 at 06:29 PM in Books, Legal Theory | Permalink | Comments (2)

More intentional fouls

Following on my earlier post, NBA Commissioner Adam Silver now says he will have the league's Competition Committee explore ways to restrict the practice, explicitly recognizing it as an aesthetic concern. But any rule has to consider all responses and downstream consequences. For example, the first corrective was that off-the-ball fouls in the last two minutes of the game result in the fouled team shooting one free throw and keeping the ball; coaches have responded by having players jump on the bad shooter's back on a free throw attempt, which is considered a loose ball and not subject to that rule. Proposals have included limiting the number of times a team can do it, given the shooting team the option of getting the ball out of bounds (my preference), or giving the fouled team an extra free throw, to be taken by any player (a version of something suggested by a commenter to my earlier post).

Something to watch this off-season, especially to the extent the making of sports rules can tell us something about the making of laws.

Posted by Howard Wasserman on February 5, 2016 at 01:00 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Power or Participation? Consensus in Political Deliberation

How should we structure our democratic institutions? Do we worry about political power, and so seek to maximize the ways in which political authorities are accountable to the public? Here we might emphasize reciprocity as a core feature of political institutions. Or to maximize the public’s participation in the political process. On the one hand, accountability checks the unbridled power of the political elite. On the other hand, public opinion is likely to be ill-formed or easily manipulated, more the result of passion than reason or knowledge, as Madison worried in Federalist 10? If we are worried about an ill-informed public, then we might promote a form of participation that allows political representatives to discount public opinion, even while maximizing public participation in selecting those representatives or even canvassing opinion.

The debate about political process has become especially important in the policing context. The Final Report of the President’s Task Force on 21st Century Policing enthusiastically endorsed procedural justice as the best way for the police to build trust and legitimacy within their communities. Procedural justice has been endorsed on the other side of the Atlantic as a means of promoting consensus based policing. Drawing on research from organizations whose members share a common purpose, procedural justice argues that we ought to adopt procedures that encourage participation, and treat the participants respectfully, beneficently, and neutrally.

Continue reading "Power or Participation? Consensus in Political Deliberation"

Posted by Eric Miller on February 5, 2016 at 12:24 PM in Criminal Law, Deliberation and voices, Law and Politics | Permalink | Comments (0)

Thursday, February 04, 2016

Maybe they should stop eating cheese, too.


My Facebook feed is blowing up with snarky comments in response to the CDC's just released report and recommendations on Fetal Alcohol Syndrome.  As I understand it, researchers have yet to identify any "safe" level of alcohol consumption during any stage of pregnancy, in part because it would be unethical to test the proposition through blind studies etc.   The CDC voices its concern that women reportedly continue drinking alcohol (meaning, they have had at least one drink within the past 30 days, if I am reading CDC's website correctly), when they attempt to become pregnant.  Plus, many women who are not even trying to conceive have unplanned pregnancies, and they report drinking too.  So, the CDC tells us in quite an alarmed tone: "3 million US women" risk "exposing their developing baby to alcohol." To eliminate the risks associated with such exposure, the CDC recommends no alcohol consumption for those who are or even "might be" pregnant. In other words, unless a sexually active woman of childbearing age is using birth control, she should stop drinking.      

This is not the first time this issue has surfaced, but it is the first time abstention has been recommended not just for those who are pregnant, but also for those who are of childbearing age and engaging in unprotected sex. 

Continue reading "Maybe they should stop eating cheese, too. "

Posted by Miriam Baer on February 4, 2016 at 04:57 PM | Permalink | Comments (6)

Discussing the Vanishing Civil Trial

Thanks to Howard for letting me linger here a few extra days. I wanted to close with a plug for a terrific new article in Judicature by U.S. District Judge D. Brock Hornby, entitled Imagined Conversations: The Decline in Federal Civil Trials. The steady drop in the federal civil trial rate since the 1960s is well-known, but Judge Hornby offers a concise and fresh take on the topic by envisioning a no-holds-barred conversation between old law school classmates who now occupy a variety of senior legal positions, from judges to trial counsel to corporate general counsel. 

The article is a great read: short, entertaining, and fast-moving. It will be required reading for my civil procedure students.  Most importantly, it keenly and respectfully identifies the many interrelated factors have contributed to the drop in civil trials over the past several decades. It should provoke useful discussions between unabashed proponents of civil trials (like myself) and those who are more agnostic.

Relatedly, I was thrilled to see that the same issue of Judicature features a compelling plea from John Rabiej to open federal PACER records for academic research without the need for district-by-district waivers.

Both pieces are well worth your time.  To shamelessly borrow a phrase from Larry Solum, download them while they’re hot!

Posted by Jordan Singer on February 4, 2016 at 03:29 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

JOTWELL: Coleman on McCuskey on "submerged" decisions

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Elizabeth McCuskey's Submerged Precedent (forthcoming Nev. L. Rev.), which examines the substantial body of reasoned district court decisions that are often not publicly available.

Posted by Howard Wasserman on February 4, 2016 at 12:26 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Who is making the 700,000 FOIA requests the government receives every year?

The Freedom of Information Act has been making a bit of news recently, as Congress considers proposed reforms, and the House has even passed a bill that would effectuate the most significant changes to the statute in nearly a decade. Many of the proposals are excellent, and, if enacted, would certainly strengthen the public’s right to access government records.

But a more structural problem plagues FOIA, one that I explore in depth in my forthcoming article: it was designed to perform one function and, to a large extent, it is used to serve others. What purpose was it designed to serve? Mostly journalists’ interest in reporting the news to the public. In fact, it may even be fair to say that the news media essentially drafted the law. In 1953, Harold Cross wrote a book called “The People’s Right to Know” in his capacity as an advisor to the American Society of Newspaper Editors, the most prominent journalism association at the time. After documenting the patchwork of existing access laws, most of which fell woefully short of journalists’ needs, Cross called on Congress to legislate a right to access public records. Because the book garnered interest in Congress, Cross himself subsequently become the legal adviser to the special subcommittee in the House of Representatives tasked with drafting the law, and journalists mostly staffed the committee. That is, journalists were crafting the very contours of the law, not just its vision.

Continue reading "Who is making the 700,000 FOIA requests the government receives every year?"

Posted by Margaret Kwoka on February 4, 2016 at 10:59 AM in Information and Technology, Law and Politics | Permalink | Comments (1)

The Investigative Grand Jury in Police Use of Deadly Force Cases

One notable but perhaps overlooked statement from Cuyahoga County Prosecutor Tim McGinty, regarding his use of the grand jury in the Tamir Rice case, is his claim that he used the grand jury in that case (and in other police use of deadly force cases) “sitting as an investigative panel.”

This statement goes part of the way toward responding to some of the criticism levied at McGinty.  Critics complain (among other things) that in most grand juries, the grand jury process is relatively short, and the prosecutor presents only as much evidence as is needed to get an indictment, actively pushes for an indictment to be returned, and presents the jury with a bill and urges them to indict—none of which happened in the Tamir Rice case.  In fact, McGinty did not even present a draft indictment to the jury for their vote.

In most cases, grand juries are used for their charging function, not primarily for their investigative function.  In the more unusual case that a grand jury is used in its investigative role, the claims above do not necessarily hold true—the investigative jury process is often lengthy, with many witnesses, and the prosecutor is sometimes seeking information rather than aggressively pursuing charges.  At the end of some investigative grand juries, the prosecutor does even not ask for a vote on a draft indictment.

McGinty’s claim that he used the grand jury in its investigative function thus begins to explain why the grand jury in the Tamir Rice case operated differently from how most grand juries ordinarily operate.

But—does it make sense to use an investigative grand jury in a police use of deadly force case, such as the Tamir Rice shooting?  I don’t think so.  Prosecutors turn to the investigative grand jury when they want to make use of the unique powers of the grand jury to conduct a particular type of investigation that might otherwise be very difficult to conduct.  The grand jury can subpoena witnesses and make them testify under oath (unless they invoke the Fifth).  It can subpoena documents.  The investigative grand jury allows a prosecutor in a complex case, such as some types of white collar crime, or conspiracy, or official corruption—to nail down many witnesses, get their testimony, find out what happened in smoke-filled rooms.

These tools are not particularly needed in most police use of deadly force cases.  Take the Tamir Rice case.  The video evidence and the dispatcher communications were all available, and all witnesses who were going to talk did talk with the police.  Using an investigative grand jury did not allow McGinty to unearth evidence or statements he did not already have.

Thus perhaps a better way to frame the question about McGinty’s use of the grand jury in this case is not “why is this grand jury process different from ordinary grand juries?” but rather, “why would a prosecutor use a grand jury in its investigative function, in a case where the investigative powers of the grand jury are not needed?”

I’ll turn to consider that question in a later post.

Posted by Jonathan Witmer-Rich on February 4, 2016 at 09:16 AM | Permalink | Comments (1)

Wednesday, February 03, 2016

University compliance: employee privacy and academic freedom

In the days before I switched over to academia, I worked briefly for Verizon as an Assistant General Counsel for Compliance.  Upon turning on my computer every day, a sign flashed on my screen reminding me that "my" computer wasn't my computer at all, but was in fact my employer's computer.  Thus, like my fellow colleagues, I was fully aware that my emails could be searched, as could any of my Internet searches.  None of this bothered me terribly, as I knew it was standard practice among corporate employers.  I kept a separate email account for contacts with friends and family and went about my merry way.

All that changed as soon as I moved over to a law school.  If the "norm" within a publicly held corporation was that the company retained an obligation to search its employees' emails and monitor their Internet usage, the norm within the university setting seemed (that's the operative word) wildly different.  The oft-cited concept of academic freedom altered the relationship between employer and employee, as did the notion of shared governance.  Accordingly, different expectations prevailed, punctuated by Harvard's email-investigation scandal a few years back.  

These privacy-friendly norms and expectations may change, however, as educational institutions increasingly take greater efforts to secure their systems and respond to compliance obligations imposed upon them by outside regulators. Cal/Berkeley's reported adoption of an email monitoring system to deter hackers is currently in the news (although the school assures its students and professors that it is not reviewing their emails), and one cannot help but think that academia's monitoring of its employee-email systems will become more common over time (if it isn't happening already).  The foregoing developments invoke questions not only about the proper contours of student and faculty privacy, but also about internal compliance efforts within academic institutions.

Compliance, broadly defined, is a process of educating employees on internal and external rules, monitoring employees to make sure they follow those rules, disciplining (and/or terminating) those employees when they violate rules, and self-reporting firm-related violations to the proper authorities.  Universities, as well all know, are subject to quite a few rules; thus, the need for internal academic compliance officers (and apparently, trade journals related to the topic). No matter how fuzzy and warm we try to portray compliance, the function pits the employee against his employer and erodes privacy. Observers more or less accept this state of affairs within the for-profit corporation, although even here, there are certainly those who worry about the ways in which "compliance" unduly harms employees.  The "academic compliance" context, however, is one that cries out for further attention, particularly from those of us who think and write so much about corporate investigations and monitoring.   

Posted by Miriam Baer on February 3, 2016 at 07:56 PM | Permalink | Comments (0)

Hello World!

Thanks to the Prawfsblawg folks for inviting me back to the blawg. I see it's a crim heavy cast of characters this month. I too have just finished a draft of an article about policing and democracy, some of which I'll share on the blawg. Perhaps I'll start with some of the democracy stuff, since it's primary season. More on that later ...

Posted by Eric Miller on February 3, 2016 at 02:48 PM | Permalink | Comments (0)

Hello from warm and sunny Cleveland

Thanks to Howard for the invitation, and to the late great Dan Markel for his work inviting me (like so many others) into the scholarly community.  Here in Cleveland the sun is shining, the temp is currently 61, and the firm of James, Love, Irving & Associates is doing fine work.

Meanwhile there are a lot of interesting, important, and troubling criminal justice problems in Cleveland.  In the coming month I plan to discuss some of those, such as the role of the prosecutor and of the grand jury in police use of deadly force cases.

Also I plan on discussing the concept of affirmative consent in rape and sexual assault law. 

Posted by Jonathan Witmer-Rich on February 3, 2016 at 11:42 AM | Permalink | Comments (0)

Bibas on "The Decline of Mercy"

Over at First Things, Prof. Stephanos Bibas - whose "The Machinery of Criminal Justice" I really enjoyed -- has a review  of this book, "The Decline of Mercy in Public Life," by Alex Tuckness and John Parrish.  Bibas concludes with this:

Justice requires discretion as well as rules, and it can coexist with mercy.

When our laws deny this truth, they grow mechanistic and inhumane. Strenuously squelching arbitrariness simply drives discretion underground (say, from judges and juries to prosecutors) or forces everyone into the same Procrustean bed. Exalting rights and censoring empathy can be heartless toward criminal defendants and debtors. Government social programs risk crowding out charitable expressions of love that remind ourselves that the poor are our brethren and we are all our brothers’ keepers. And all of these rule-based, bureaucratic approaches miss opportunities to inculcate the virtue of mercy in our hearts as well as in our children’s. Government cannot mirror Christian teaching, particularly in a pluralistic country. But it can leave more room for Christian insights to leaven rules with mercy, compassion, and love.

I shared the review with my CrimLaw students and thought it might be of interest to CrimPrawfs, too!  And, I am reminded that our dear friend and colleague, Dan Markel, published an article early in his career -- in 2004 -- called  "Against Mercy."  

 

Posted by Rick Garnett on February 3, 2016 at 10:44 AM in Criminal Law, Rick Garnett | Permalink | Comments (0)

Tuesday, February 02, 2016

Serial 2:5

In the most recent episode of Serial, Sarah Koenig argues that the military (for that matter, the nation) really wasn’t doing everything it could to search for Bergdahl, even though officials were publically saying that they were doing everything they could to find him. She offers several reasons for this, and I discuss some of those below the fold. 

To me, the really interesting reason is the one related to victim-blaming. Koenig implies that officials of all ranks may have intentionally sidelined his case because they blamed Bergdahl for putting himself in his situation.  Maybe this is a reflection on my beliefs about human nature, but I am not going to presume that those officials made those statements in good faith. Without more evidence, I won’t jump from victim blaming to intentional inaction. 

I will make the jump from victim blaming to unintentional inaction, though.

We have seen this before in the military – in the sexual assault arena. The military has been under sustained and serious criticism about its handling of sexual assaults for over two decades, and the standard reply has been, “We take this seriously and are doing everything we can to stop the problem.”  I also take those statements at face value and believe that the people making those statements about macro-level policy honestly believe what they are saying. 

However, at the micro-level – at the level of a particular case – I think that the people in the military are often unconsciously influenced by the behaviors of the victim in that particular case (and also can’t believe that a good soldier would rape someone). When looking at that case, they decide not to take action in that case.  (They will certainly take action when the “right” case comes along).  When we add up those cases, we see a system that does not take the problem seriously.

I talk more about that here and I test that theory here.  It turns out that those who run the military justice system are much more conservative and hold more traditional gender role beliefs than the general public.  That may not be a surprise, but the degree of difference should be.  The following tables are modified from those articles.  In the first one, the respondents were asked whether they agree that it is better for women should stay at home rather than go into the workforce.  The y-axis is percent.

Continue reading "Serial 2:5"

Posted by Eric Carpenter on February 2, 2016 at 06:21 PM | Permalink | Comments (2)

Submission Angsting Spring 2016

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that the "days to rejection" and "days to acceptance" columns are locked because they auto-calculate. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.

Rostron & Levit's extremely helpful guide to submitting to law reviews is available here.

Here is the final page of comments.

Update: I have added a column to the spreadsheet entitled "Username" (current column H, after "Days to Acceptance"). This is of course totally optional, but a way to make keeping track easier. For example, if you pick a username (for some reason the sample username "Floop" keeps coming to my mind), you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

 

Posted by Sarah Lawsky on February 2, 2016 at 02:06 PM in Law Review Review | Permalink | Comments (51)

Introduction

Thanks to Howard for the invitation and the welcome. I am truly delighted to be guest blogging on Prawfs this month. For those of you I have yet to have the pleasure to know, I am a long-time die-hard proceduralist. I teach Civil Procedure, Administrative Law, and Federal Courts, and this semester for the first time, have added perhaps my first “substantive” course, National Security Law. Although any good proceduralist knows the substance/procedure dichotomy is murky, if not entirely false, I will admit that the move away from procedure has in fact felt uncomfortable, though certainly exciting.

In some ways, teaching National Security Law was the next, inevitable step for me. I have written about procedural aspects of government secrecy for essentially my whole (short) academic career. For a long time I fought full engagement with national security, hoping instead to address problems with procedural rights and remedies for all kinds of secrecy equally. But the truth is that our deepest government secrecy problems today concern security, and national security secrets are not treated the same as other secrets.

As you may have guessed by now, I am planning to use my time here to share my thoughts on the intersection between government secrecy, procedural justice, and national security. Before I get to national security, though, I will begin with a few posts on a slightly orthogonal topic: the corporate and commercial use of the Freedom of Information Act. I will share with you some of the findings I report in my forthcoming article FOIA, Inc., which is based on original data collected from six federal agencies’ records. While I think the findings are, in and of themselves, quite surprising and worthy of consideration, I hope by the end of my series, when I engage more fully with national security secrecy, I can make the connection between these two threads apparent.

I am looking forward to the month!

Posted by Margaret Kwoka on February 2, 2016 at 11:07 AM in Blogging, Civil Procedure, Information and Technology, International Law, Law and Politics | Permalink | Comments (0)

Local Judges and Local Government

My study of local judges -- and their relationships with local government -- is now available at the NYU Journal of Legislation and Public Policy and SSRN.  Here is the abstract:

This interview-based empirical study explores how local judges view themselves and their crosscutting roles in local and state government. In particular, it considers local judges’ relationships with the public that elects them, the executive and legislative branches of their localities, and the larger statewide judicial bureaucracy of which they are a very large but somewhat disconnected part. The Article reports on the results of interviews with local judges at the county, town, and village levels — and suggests some broader lessons for scholars, officials, and policymakers interested and active in local government law and politics. Those who study local government have insufficiently appreciated how the local courts are a part of the constellation of local power and sovereignty, and they have failed to appreciate some of the psychological and institutional pressures local judges face in performing their roles.

Posted by Ethan Leib on February 2, 2016 at 08:38 AM | Permalink | Comments (0)

Monday, February 01, 2016

Hello from Iowa! OR: Democracy, I am in it.

Hi everyone. It's good to be back! This month; I'll be blogging about my very shortly forthcoming book (The Rule of Law in the Real World, coming out from Cambridge on February 11. Buy! Buy!), constitutional things, jurisprudence things, data things...

But tonight, I'm in Iowa. So I'll be live-blogging the caucus, which officially starts in 10 minutes. I'm on the iPhone typepad interface, so I can't be responsible and break the post (it also looks like I can't put up photos? Later.) but you all really want to read about the cute and actually democratic-ish side of American politics.

So here goes some good-old-fashioned liveblogging. This might just be really boring: for example, it's 6:53 now, and I'm in a very, very long line (photo later) with my wife and several colleagues. If a blizzard hits and this massive crowd gets trapped, I intend to eat the republicans first (they eat more meat; they're probably tastier). But here's to hope that there are inspiring speeches, mass shifts, maybe even a runaway caucus that tries to nominate Elizabeth Warren or Julian Castro (my classmate!), or, you know, me or something. And no cannibalism.

In case you're curious, I'm caucusing for Hillary.

7:04. The massive Democrat line just passed one of the Republican rooms. It's almost empty. Iowa City! It almost feels like being back in California, except for the likelihood of a blizzard and cannibalism.

Continue reading "Hello from Iowa! OR: Democracy, I am in it."

Posted by Paul Gowder on February 1, 2016 at 08:06 PM in Current Affairs | Permalink | Comments (6)

Catching up

Howdy everyone,

For those who do not know me, my scholarship focuses on organizational wrongdoing.  Over the years, I have written quite a bit about corporate crime and corporate compliance.  More recently, I have turned my attention to wrongdoing within prosecutor's offices. Currently, I am tidying up a piece that focuses on Fourth Amendment violations by the police.   I'll blog on some of these topics later this month. 

The last time I blogged for Prawfs, the United States Attorney's Office for the Southern District of New York was busy prosecuting a bunch of folks for insider trading.  That effort produced, at best, mixed results for the government. On the plus side, it apparently has generated a fairly entertaining television show on Showtime.

Back when I last blogged, critics were complaining about the dearth of prosecutions of individuals responsible for corporate wrongdoing. Not much has changed on that front, although the DOJ unveiled in September its newest policy designed to better deter corporate crime and nab individual offenders.  I'll offer some thoughts about that later this week. 

 

Posted by Miriam Baer on February 1, 2016 at 07:26 PM | Permalink | Comments (1)

Is the Unexpected Pandemic Expansion of an Already Known Arbovirus Really a Surprise?

I think of a surprise as something unexpected. Was the pandemic expansion of Zika truly unexpected?  

Kevin Outterson has had me thinking about this since Saturday when, in opening remarks at  the American Journal of Law and Medicine sponsored "Global Infectious Diseases: New Challenges and Solutions" conference he pointed out that the December 3, 2015 special supplement in Nature, predicting the next possible pandemics, did not mention Zika.  

This is true. This is notable. But the very last entry on Nature's list was the idea of the predictably unpredictable rise of a formerly known virus to pandemic levels through  a combination of possible mutation and certain increasing human travel and disturbance.  

As Anthony Fauci and David Forens have noted in the NEJM, "[Zika] has already reinforced one important lesson: in our human-dominated world, urban crowding, constant international travel, and other human behaviors combined with human-caused microperturbations in ecological balance can cause innumerable slumbering infectious agents to emerge unexpectedly."

We should, in short, expect the unexpected.  That a disease first identified in 1947 in Uganda,  then  lived in relative obscurity, primarily in wild primates and arboreal mosquitoes,  until its spectacular expansion beyond a relatively narrow geographic niche is a compelling story.  It is, in part,  a story about 5,000 years of adaptation by the  mosquito to life with humans using domestic water storage containers. And it is also a story about the rise of large scale domestic water storage in and near dwellings in water-starved parts of  Brazil.  That this evolutionary cascade would yield this kind of surprise, seen from this perspective, may not be entirely surprising. 

The real shock will be if we continue, in light of this, with our one bug one drug approach to treatment, rather than developing vaccine platforms for varied virus groups that can be quickly modified to attack newly emerging viruses.

I guess it all depends on how you feel about surprises. 

It has been my pleasure to visit with you as a guest blogger  for part of this month. Thank you for the experience. If you'd like to read more, find me blogging  at: http://www.marciarille.com/.

 

Posted by Ann Marie Marciarille on February 1, 2016 at 06:22 PM | Permalink | Comments (0)

O Utopia

“Kindness and good nature unite men more effectually and with greater strength than any agreements whatsoever, since thereby the engagements of men's hearts become stronger than the bond and obligation of words.” ― Thomas More, Utopia

Some months back news outlets reported that an entire Italian village was being sold for a song. I posted the story on one of my social media accounts with the idea of recruiting friends to create a perfect community, a little utopia, if you will. I had an enthusiastic response. Within minutes, we populated our little village with a couple of lawyers, a doctor, a few musicians, a librarian, some artists, an architect, a journalist and many other professionals. What an ideal world: a town where every need was met from building to services and everyone was in agreement. Then a friend shared my story with her own set of distinct friends, urging a buy-in to the village. This new set of enthusiasts also possessed a great variety of skills and expertise, but generally had vastly alternate political views. So now we have a potential town that represents polarity in politics and personal values. After a week, our utopian village expanded to represent a microcosm of the exact world most of us live in now, complete with high potential for disagreement on important issues (and not necessarily an open-minded view toward compromise) and a general lack of economic and demographic diversity (everyone had to purchase the village, after all).

In our real-life non-utopian worlds both our actual and our virtual lives are arranged to experience only similarities. Depending on where we live, the only time we are exposed to "another world" is at the Department of Motor Vehicles at drivers license renewal time.We are all increasingly irritated by a differing view, and this is mostly because such views are expressed with such vitriol as to produce a negative visceral response. There is no discussion, no understanding, but instead this ever increasingly polarity. (Especially magnified now, during the election primary season).

Because we cannot live in a perfect academic village, it is at least my utopian hope that we can continue to move toward an expansive view in legal academia that operates out of kindness, contemplates more fairness and less fear, more equality and less hierarchy, more opportunity and fewer closed doors.

I wrote a bit here in the last month here about unevenness in the legal Academy, in the hierarchy faculty status and of gender roles, both in academia and in the world. I also honored David Bowie, who through his decades of artistry, demonstrated tolerance for alternative worlds and views, and intolerance for intolerance. As Big Thinkers, we have the advantage of articulating important issues to bring them to a general conscientious, to rework our own structures for an improved existence. I appreciate the opportunity to have had a venue this past month to raise a bit of conscientious. Hopefully I triggered some thoughts that will drive increased change and forward movement.

Thanks. See you later.

Posted by DBorman on February 1, 2016 at 10:41 AM | Permalink | Comments (0)

Rotations

Happy February, now with even more days!

Thanks to our January visitors--Ann Marie, Zak, Deborah, Jody, and Jan; some of them may be hanging around for a few extra days to do some final posts.

And welcome to our February visitors--Miriam Baer (Brooklyn, back after a long absence), Josh Douglas (Kentucky), Paul Gowder (Iowa), first-time GuestPrawf Margaret Kwoka (Denver), Eric Miller (Loyola), Ajay Mehrotra (Indiana;Northwestern and American Bar Foundation), and Jonathan Witmer-Rich (Cleveland-Marshall). In addition, Eric Carpenter will continue reviewing Season Two of Serial.

Posted by Howard Wasserman on February 1, 2016 at 08:01 AM in Blogging | Permalink | Comments (0)

Sunday, January 31, 2016

Donald Trumps the 22d Amendment

Do you think the makers Trump-plate_129363_240278_579x

 

 

 

 

Q_R5ChVKlRml3tKGh9ARANptmQ55TFvNyY2vpI6F49Y0QIa5x3uajb3T4-54_NrESUtMz6EQV3JSWehWkdWF-SXI5o6gZCPSDh3_H5ZngrIWbx3b-jESz45xqJcvWjZQ

and wearers

 

 

 

have heard of the Twenty-Second Amendment?

Posted by Howard Wasserman on January 31, 2016 at 07:54 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

The Supreme Court, On Demand

It has become almost a yearly rite: Congress introduces a bipartisan bill to require television cameras in the Supreme Court. The Justices express their concerns about the proposal. High-minded words are exchanged about the dignity of the courts versus the public’s right to know. Eventually the bill dies in committee.

The traditional arguments for cameras, such as public interest in following high-profile cases, or general appeals to transparency, are unlikely to resonate with the Court any more this year than in years past. But there is another case for Supreme Court cameras, and it stems from the federal judiciary’s own highly successful cameras program in the district courts.

Continue reading "The Supreme Court, On Demand"

Posted by Jordan Singer on January 31, 2016 at 12:14 PM in Judicial Process, Law and Politics, Television, Web/Tech | Permalink | Comments (7)