Friday, June 24, 2016
Overview of ABF Research (Part II): Diversity & Inclusion and Access to Justice
My apologies for the long gap between posts about ABF research. I’m clearly not as prolific as other guest bloggers. In fact, I don’t think I can read as fast as David Fontana can blog. Well done, David!
Let me see if I can pick up the thread on the different parts of the ABF’s research portfolio.
In addition to Criminal Justice and Legal Education (described in my previous post), ABF research has also focused on the important topics of Diversity & Inclusion in the Profession and Access to Justice. Like most ABF research topics, these two aren’t self-contained or isolated areas of scholarship and programming. In fact, they often blend together.
Let me begin by describing some of our work on Diversity & Inclusion in the Profession.
Annual Law and Religion Roundtable
With Nelson Tebbe and co-blogger Rick Garnett, I have been an organizer of something called the Annual Law and Religion Roundtable ("ALRR" for short) for the past seven or so years. (Accuracy rather than modesty compels me to say that Nelson and Rick are the real heroes here and do the lion's share of the organizing work.) This kind of informal but organized subject-matter conference has become pretty common in recent years and has a been a wonderful development. I share the view of a number of participants that the ALRR is the conference I most look forward to every year; I even scheduled my annual summer surgery around the conference this year. This year the conference was held in Montreal at McGill University, with the generous support of McGill and various centers there, as well as Notre Dame Law School's Program on Church, State, and Society; the co-hosts at McGill were Jacob Levy of McGill's political science department and Victor Muniz-Fraticelli of McGill's Faculty of Law. (Check out the terrific recent books from Levy and Muniz-Fraticelli.)
A word or two on these kinds of conferences generally and on this year's roundtable in particular. For obvious reasons, these conferences are much better than general conferences like the AALS. They are generally pay-your-own-way affairs, although McGill and Notre Dame were generous in their support of conference resources and a fabulous dinner. Our approach with the ALRR has been to hold it at a different host school every year, to spread the organizing costs, stay a step ahead of the creditors, and make sure that it's easier for folks in different regions to attend the roundtable. (I am reminded every year of Guys and Dolls and the "oldest established permanent floating crap game in New York.") The guest list is large but not too large and never entirely fixed, and we try to ensure some rotation in and out of the roster. An important aspect of the roundtable is our desire to ensure a mix of senior scholars and junior and/or up-and-coming scholars in the field. Not only do we benefit a good deal from the ideas and energy of the junior scholars, but all three of us have benefited from the kindness of senior scholars in law and religion and would like to keep the virtuous cycle going. Participants are expected to read everything before they show up and presenters (not everyone presents every year) are expected to keep their remarks short so we can focus on questions and discussion. For the past few years, we have included a "hot topics" panel or two, to focus on new developments and give an opportunity to people who want to present but don't have a developed paper in hand. We generally try to make some invites outside the legal academy, to scholars of religion, political theory, history, or what have you, although we've been less successful in that. Dropbox makes it even easier to facilitate the whole thing.
I used to joke that the one problem with the roundtable was that there was too much damned pleasantness and agreement. Changes in the field and high-profile cases in the last three or four years have changed that to a degree, as has the fact that the composition of the room and of the broader church-state discussion has changed as more scholars who focus primarily on equality have taken up religion-related issues. That has been a valuable development on the whole, albeit one that can raise the temperature of the discussion. Over time, I have come to appreciate that one benefit of the subject-area annual roundtable is that one gets something of a real-time picture of what "problems" are coming to the fore or fading to the background and of changes in the center of gravity or consensus on law-and-religion issues.
Two notable features of the roundtable this year were the presence, obviously, of a substantial number of Canadians, and a larger number of political theorists and other non-law-school faculty. (A personal note: I graduated, around the dawn of time, from McGill, and it was a real treat to be back on campus and have ready access to the vastly superior Montreal bagel. As a partially Canadian-trained lawyer, it was also an honor to meet Canadian scholars whose work on law and religion whose work I have followed and respected for years.) The cross-border element was incredibly useful in ways both expected and unexpected. American and Canadian scholars learned a great deal from each other on the details of cases and the similarities and differences between the two countries on church-state law. More unexpectedly, the cross-border element of the conference and the presence of more non-law scholars changed the tone and nature of the discussion, altering the map of the room and disrupting the tendency to line up on opposite sides of particular hot-button cases. It was an interesting lesson in the unanticipated benefits of comparative constitutional law.
Thanks again to McGill, Notre Dame, Rick and Nelson, and the participants for a really fruitful and interesting discussion. If your field does not have an annual roundtable of this sort, I encourage you to start one up, and any of us would be happy to offer advice.
Whole Women's Health
Three cases remain to be decided this term--Whole Woman's Health, McDonnell v. US, and Voisine v. US. Of these, only WWH seemed even remotely likely to be a 4-4 affirmance. The Court issued two 4-4 affirmances on Thursday, in DAPA and Dollar General. Can we conclude, therefore, that WWH is not going to be a 4-4 affirmance? Is there any reason the Court would issue two divided affirmances today but hold one out until next week?
If not a 4-4 split, the next likely result is a 5-3 opinion declaring the TRAP regulations unconstitutional, with Kennedy joining Ginsburg, Breyer, Sotomayor, and Kagan, and Kennedy assigning the opinion. If so, WWH will offer a nice counterpart to Fisher. As Steve pointed out, Fisher marks the first time Kennedy has declared valid a racial preference. WWH would mark the first time Kennedy has declared invalid a restriction on abortion since he co-authored the joined opinion in Casey.
Thursday, June 23, 2016
A University Without Professors
What is essential to the concept of "university," and what could we live without? Professor Clayton Christensen has launched an institute to encourage "disruptive innovation" in education. But the founders of Forest Trail Sports University have gone beyond even what Chirstensen might have imagined, dialing their proposed disruption to eleven. They have 200 students committed to attend their new university for the fall, and they have entered into a lease with the financially struggling Barber-Scotia College to use its classrooms, libraries, and dormitories. No need for professors, though--Forest Trail students will simply enroll in online classes through Walden University, and "classes will be 'piped in' to classrooms at Barber-Scotia." So what's the point of founding a new university, especially one that costs $38,700 a year? It's right in the name--sports! They might not have professors, but they do have coaching staff. Students will be attending primarily for the purpose of athletics, including baseball, softball, basketball, soccer, volleyball, track, cross country, tennis, and golf, with a plan to add lacrosse. They already have 30 basketball games scheduled, and they haven't even opened yet! However, the founders may have gotten ahead of themselves--apparently they failed to register with state regulators.
A Different (First Amendment) World
Today the British vote in their hugely consequential EU referendum. The British rules about what can be covered on the day of an election are so interestingly different that I thought I would link to them.
What now on DAPA?
Today's 4-4 affirmance of the injunction against DAPA leaves things in obvious flux. There are several considerations affecting might happen now--legal, procedural, and political.
Procedurally, the next move is a trial on the merits and, as the trial judge has tipped his hand, likely entry of a permanent injunction. Then we go back up the ladder, presumably back to SCOTUS, by which point it will be back up to a full roster. I have heard suggestions that the government might seek a quick permanent injunction (if a defendant has no new evidence, the court can convert a preliminary injunction into a permanent injunction without a trial or further hearing) and expedited review to SCOTUS. Given my long-standing position that there will not be a ninth Justice until the start of OT 2017*, I am not sure this will achieve anything, until the hope is that SCOTUS would stay the permanent injunction pending review (which, of course, does nothing about the preliminary injunction that remains in place until final judgment).
[*] Assuming, of course, that a Republican Senate does not continue to refuse to allow an appointment because, even though the people have spoken, the real governing principle is that Democratic presidents do not get to make Supreme Court appointments.
Legally, the United States could attempt to apply DAPA outside of the eight states that brought this suit. Although the district court purported to issue a nationwide injunction, I do not believe a district court has that power. The United States is enjoined from enforcing DAPA only as to the plaintiff states, and no one else is protected by the injunction;** this was not a class action and there is nothing that legally makes this relief indivisible. The precedential force of the constitutional analysis supporting the injunction is limited to the Fifth Circuit. And SCOTUS's affirmance of that analysis does not create binding precedent. So nothing in the Constitution or any court order prohibits the United States from enforcing DAPA in, for example, California, especially if California does not object.
[**] For much the same reason that Obergefell did not, of its own force, require Texas to issue marriage licenses, a position Texas happily adopted a year ago.
Politically, I do not see this happening. It would take too long to explain to the public concepts such as scope of an injunction, regional precedent, and non-precedential SCOTUS affirmances. Instead, this would play in the public as the administration ignoring a court order, one seemingly emanating (or at least endorsed by) SCOTUS. [Update: I imagine the government also wants to avoid a situation in which it enforces the immigration laws differently in 42 states than it does in the other eight.]
Authoritarian Law Schools
One of the classic stories of how dictators maintain power is the selective distribution of patronage. It turns out that law schools can be part of that patronage. Many dictators have cared quite a bit about regulating legal education as a means of ensuring coercive control. In my work with a few newly democratizing countries, and in some preliminary research, I have discovered that it turns out that a very controversial issue in creating (or re-creating) a legal system can be how many law schools there are in that country. Dictators have favored increasing the number of law schools in several countries--places in North Africa and the Middle East are those I am most familiar with--as a means of ensuring coercive control.
More law schools means more lawyers, and more lawyers means that lawyers have lesser social status and lesser wealth. Lesser status and wealth makes lawyers less powerful and therefore less threatening to dictatorial control. More law schools also means more governmental resources being distributed to more--and potentially more geographically distributed--parts of a country. Just as other forms of governmental resources can be used to buy off threats, so too can resources in the form of the creation of new law schools.
Interdisciplinarity and Campus Design
There are at least a handful of law schools that are exceptions to what I will write below, but one of the major problems facing legal scholars (or any scholars) that want to be interdisciplinary is the simple physical isolation of their offices. Common problems that prevent interdisciplinary research have been noted before--such as discipline-specific hiring, publishing, and tenuring.
Another problem that deserves attention is that law schools (like other academic departments) tend to be physically distant from scholars in other parts of the university doing other work. This is even more dramatic for law schools, because they tend to have their own buildings, not just a floor in the same building as scholars affiliated with other departments. We know from economic geographers that physical proximity leads to more informational spillovers. It is quite hard for law professors to learn from and work with people who they have to make quite an effort to see on a regular basis. Law schools can hire those with degrees from other disciplines, but as these faculty are more and more physically distant from their former discipline they are more and more intellectually distant from those disciplines as well. If you want interdisciplinary work, you need interaction; if you want interaction, you need proximity.
Tuesday, June 21, 2016
Justice Sotomayor's Dissent in Strieff
I have written before of Justice Sonia Sotomayor's unique public profile, as represented in part by her judicial opinions. This style is characterized in substantial part by the accessibility of her arguments to the public. There is no better illustration of this than her dissent yesterday in Utah v. Strieff. Her invocation of language and sources from a range of publicly known authors--such as Ta-Nehisi Coates--has already led to her dissent receiving substantial amounts of public attention.
But notice one other feature of her dissent: the part of it that makes these publicly accessible arguments was joined by no other Justice. Indeed, Justice Sotomayor explicitly states in that part of her dissent that she is "[w]riting for myself." There were two other dissenting Justices in that case (Justice Ruth Bader Ginsburg and Justice Elena Kagan). Only Justice Ginsburg joined any part of Justice Sotomayor's dissent, and Justice Ginsburg did not join that last part of the Sotomayor dissent.
Is it because Justice Sotomayor states in her dissent that it is based on "my professional experiences," and it would be inappropriate for Justice Ginsburg (or Justice Kagan) to join a statement just based on insights derived from Justice Sotomayor's experiences alone? Is it because they disagree with something substantive Justice Sotomayor said in that part of her dissent? Is it because they believed it inappropriate and/or unwise to resort to this rhetorical style in a judicial opinion?
Cross-Border Campaign Contributions
One of the articles I am writing this summer is about the very few neighborhoods in a very few metropolitan areas that generate campaign contributions in large enough amounts to shape congressional elections in districts and states very distant and very different from those places--and how campaign finance law permits and even facilitates this behavior. This article is really an expansion of a shorter, popular essay I wrote about the congressional elections of 2014.
Geographical wealth disparities had started to decrease in the United States for several decades, but now this inequality is on the rise again. For instance, Manhattan has approximately 370,000 millionaires (defined by total wealth) located in less than four square miles, while Mississippi has one-twelfth as many millionaires in 12,000 times the number of square miles. There is a literature on cross-border contributions in law and political science, but rarely does it address how unequal the practice of cross-border contributions are because of this increasing geographical inequality. In the rural House district where I was raised, for instance, there were more campaign contributions from a few streets in New York City and Washington than there were from all of that rural district.
I wanted to highlight two recent, helpful discussions of this neglected issue. The Brennan Center has posted a report entitled "A Civil Rights Perspective on Money in Politics," and The City Lab has a companion story on "The Damaging Influence of Outside Money on Local Elections."
O.J. and Rodney King
I hope people have had a chance to watch O.J.: Made in America, the spectacular five-part ESPN documentary that traces O.J.'s life from his college career to his current incarceration, while weaving his story into the story of racial bias in society and the LAPD and O.J.'s lifelong efforts to "rise above" race (the telling line is "I'm not Black, I'm O.J."). The film links O.J.'s acquittal (by a largely Black jury) to the acquittal of the officers who beat Rodney King (by an all-white jury). On this telling, O.J.'s acquittal was "revenge" for the officers' acquittal, the long-awaited chance for an African-American to benefit from mistakes in the system. One juror explicitly acknowledges this as her reason for voting to acquit.
But the film (and every conversation about the connection) omits something: Two of the officers in the King beating were convicted of federal civil rights violations and sentenced to 30 months in prison (the other two were charged and acquitted). So if justice means that a wrongdoer is convicted and punished under some criminal law for his misconduct, there was some justice in that case. It may not have been enough justice or the right kind of justice. Thirty months was arguably too short (the court departed downward from an expected Guidelines range of 70-87 months). Perhaps it somehow would have been "more just" for them to be convicted of assault, etc., in state court rather than civil rights violations in federal court. Indeed, that might prove the point. Congress enacted the Reconstruction-Era civil rights statutes because the states were incapable and/or unwilling to enforce the rights of African-Americans against whites and white public officials. Having to resort to those in 1992 demonstrated how far we had not come.* Some had a sense that the civil rights charges were illegitimate, more a result of the rioting that followed the state-court acquittals (which the Koon Court took time to call out) than legitimate prosecutorial decisionmaking or use of federal criminal law.
[*] And still have not come, where police-abuse cases now do not even make it past a grand jury and even the civil rights backstop is increasingly unavailable.
It seems too simple to say "Stacey Koon, et. al, got off, so O.J. should have gotten off." Because Koon and Powell did not get off, at least not entirely. By contrast, two people who had nothing to do with anything were dead in a horrific manner (I had never seen the photos of the bodies or the crime scene--they were stunning) and, on the definition above, they did not receive justice.**
[**] I bracket for the moment how we consider, in terms of assessing "justice," the civil verdict that necessarily included a jury finding that Simpson killed Nicole Brown and Ron Goldman but that did not impose criminal punishment, or the absurdly long sentence Simpson received in 2008 for the events in Nevada, which everyone sees as having impermissibily taken the murders into account. In one interview segment, attorney Carl Douglas points out that the Nevada judge held the jury until late into the evening to announce the verdict on the thirteenth anniversary of the murder acquittal and sentenced Simpson to 33 years, matching the $ 33 million in damages awarded in the civil case.
Monday, June 20, 2016
More on RJR Nabisco and extraterritoriality
It makes no sense for a statute's private right of action not to be coextensive with the substantive law being applied. Ginsburg is correct that there should be a link, not separation, between prohibited activities and authorized remedies. At the very least, that should be the presumption, unless Congress provides otherwise in the cause of action itself. And a statute that says "[a]ny person injured in his business or property by reason of a violation" of some substantive law--where that substantive law has been (and, per Congress, can be) violated by that extraterritorial conduct--should allow for a claim for extraterritorial violation. By applying the presumption of extraterritoriality to the cause of action, the Court now requires Congress to draft the cause of action not only to link the right of action to the substantive law being enforced, but also to include language dealing with extraterritoriality. For example, I presume this case now means that, even if the Fourteenth Amendment applies extraterritorially, a § 1983 claim will not lie for such a violation, since nothing in the statute speaks to extraterritoriality (indeed, the purpose of that statute was bringing states into line within their own borders following the Civil War and has nothing to do with foreign conduct).
The culprit in this is Kiobel v. Royal Dutch Petroleum (2013), where the Court applied the presumption of extraterritoriality to the Alien Tort Statute, a purely jurisdictional provision. But the ATS is unique in that it grants not only adjudicative jurisdiction, but also prescriptive jurisdiction to create federal common law based on the law of nations as of 1789 and its analogues; the question in Kiobel was whether the grant of prescriptive jurisdiction could include common law applying extraterritorially. In other words, the courts were not only creating the right of action, they also were creating the law that "directly regulate[s] conduct or afford[s] relief." The end result in Kiobel is that the substantive common law the courts could create did not reach extraterritorial conduct (because Congress did not grant the courts the power to establish such common law), so neither could the court-created right of action.
Under RICO, however, the law regulating conduct does apply to extraterritorial conduct, per Congress. The right of action should, as well.
Foreign Plaintiffs and the Presumption against Extraterritoriality
The Supreme Court's decision today in RJR Nabisco, Inc. v. The European Community isn't surprising--observers had noted that "given the Court’s recent antipathy to applying U.S. law overseas," the Court seemed likely to rule in favor of the European Community. And today's ruling continued its trend of restricting transnational litigation in U.S. courts.
In the underlying case, the European Community and 26 of its its member states alleged that RJR Nabisco (and associated entities) "participated in a global money-laundering scheme in association with various organized crime groups." They sued in New York, seeking treble damages under RICO. The district court dismissed the case, holding that RICO could not be applied to conduct occurring outside the United States. The Second Circuit reversed.
The Supreme Court...
Professional Schools and Scholarly Innovation
I blogged earlier about one notable change in legal scholarship. I wanted to touch briefly in this post on something we see happening more generally in the scholarship produced by academics at professional schools: scholarly innovation that might not be as possible or as common if scholarship was only produced by the traditional departments of the social sciences and humanities.
One of the reasons why innovation is underproduced by academics in the departments of the social sciences and humanities is because of strong disciplinary constraints. Graduate school in the United States socializes students (the scholars of tomorrow) into the disciplinary constraints of the discipline they are entering. High-status academics dominate funding, hiring, publication, and tenure decisions in those disciplines. These high-status academics have made their reputations in substantial part by defining the discipline in which they operate, and policing the boundaries of that discipline. Disciplines usually do not fully credit--or credit at all--contributions in the journals of other disciplines. For those of you so inclined, it is worth checking out a great article in the American Sociological Review in 2005 about scholarly change that touches on the importance of high-status scholars in producing scholarly innovation.
12 years a President?
Following up on my discussion of Veep's penultimate episode and Tom James occupying the White House for twelve years: I asked Brian Kalt (MSU), who wrote the book Constitutional Cliffhangers, which explored various gaps in the constitutional provisions on presidential selection. He wrote the following (reposted here with his permission):
On the question of whether acting as president for four years should count, it does seem right textually. As such, I think it provides one of the strongest tests I can imagine of a person’s commitment to textualism, because it is so much at odds with the purpose of the 22nd Amendment. As with the question of whether there is a distinction between being eligible to be elected president and being eligible to serve at all, the legislative history tells us that the drafters intentionally sacrificed precision and broad coverage on the altar of supposedly simple language.
Following the path I take in my book, I would dodge the question somewhat by focusing on the practical side—positing that it is very unlikely that such a person would be able to get the people to elect him two more times. Conversely, if he did manage to get the people to elect him two more times, it would be hard for the courts or Congress to deny him his prize.
Brian described evolution of the language of the 22d Amendment, where a desire for simplicity of language collided with a desire to count at least some portion of another person's term toward the term, leading to a an unintended hole.
We finally get to the House election, but the episode is shown through the documentary (Kissing Your Sister: The Story of a Tie) that Selina's daughter, Catherine, has been working on all season. It is a nice change of pace. It gives us scenes we already have seen in real time during the season, but from the different perspective of Catherine's hand-held camera. It also shows the background events for things we have seen on the show. For humor, we see the background shots of Jonah (unsuccessfully) chopping wood for his campaign commercial. We see into the personal lives of the staffers--Amy's attempts to get together with Dan, Kent's membership in a Spanish-speaking motorcycle gang, Mike's shifting preparations for the coming babies. And we see Selina's verbal revenge against Amy for her outburst last season.
For plot, Catherine catches the lobbyist and Speaker of the House walking into Tom James' office announcing "future calling;" this lead to the dinner at the Mongolian Barbecue that we saw live a few weeks ago. We also see Catherine's interview with Bill Ericsson, the former staffer who took the fall and went to jail last season for the Meyer Campaign's illegal activities; he says that if he were James, he would try to get three states to abstain to send it to the Senate. We know Ericsson got his conviction overturned on appeal (he was running the Widow Sherman's campaign in New Hampshire), so now we can wonder if James or the lobbyist helped Ericsson to get out of jail.
Thursday, June 16, 2016
The Rise of the Chicago-Style Article
One of my writing projects in its earlier stages is about the intellectual space that legal scholarship occupies. My provisional argument is essentially that legal scholars increasingly occupy a space between universities and the public that has been vacated by the increasingly technical nature of the social sciences (and humanities). Law professors are more and more serving as translators, taking ideas that the university creates and translating them for the consumption of the public and the powerful.
As part of writing this essay, I have done what I did years ago for another article: read lots of law review articles from past and present to get a sense of how they have changed. I wanted to remark on a (related) change I noticed. I leave considerations of whether this change is good or bad to others, but I think the change is significant as a positive matter:
Wednesday, June 15, 2016
Notre Dame Law Review Symposium on Dignitatis Humanae
The symposium issue of the Notre Dame Law Review is out and available online. The symposium is titled "Religious Liberty and the Free Society: Celebrating the 50th Anniversary of Dignitatis Humanae." It includes interesting articles by John Garvey, Anna Su, Chris Lund, Tom Berg, Marc DeGirolami, and others. Enjoy.
Tuesday, June 14, 2016
The Orlando Shooter's Spouse and Misprision of Felony
CNN is reporting that Noor Salman, spouse of the Orlando mass killer, might have known about the attack in advance and failed to report it. Although federal authorities do not believe she was a co-conspirator (indeed, CNN reports that she discouraged her husband), they are apparently considering "whether to bring charges against her for allegedly failing to report her knowledge of his general plans to carry out some kind of attack" which might include misprision of felony. I have researched federal misprision; due to a hilarious set of misunderstandings when I was in practice, a prosecutor once good-naturedly suggested that it could be applicable to me. It turns out that misprision "requires both concealment and failure to disclose. Under it some affirmative act toward the concealment of the felony is necessary. Mere silence after knowledge of the commission of the crime is not sufficient." United States v. Farrar, 38 F.2d 515, 517 (D. Mass.), aff'd, 281 U.S. 624 (1930). See also Gabriel D. M. Ciociola, Misprision of Felony and Its Progeny, 41 Brandeis L.J. 697, 722 (2003). Accordingly, even if she knew of the plan and did not report it, she could not be guilty of this particular offense.
Whether Ms. Salman could be guilty of the 49 murders and many attempted murders as an aider and abetter, if, as reported, she drove her husband to "case" potential massacre sites knowing that he planned a mass shooting, presents a much more difficult question. Some courts require actual purpose to assist the criminal venture, others hold that knowledge that the conduct will aid and abet the crime is sufficient. From the 11th Circuit Pattern Jury Instructions (at 62) I am not sure which way the 11th Circuit goes, but the last sentence suggests they take the broader view that knowing assistance is enough: "you must find beyond a reasonable doubt that the Defendant was a willful participant and not merely a knowing spectator."
An Interview with Fr. (Prof.) Robert J. Araujo, S.J.
As Prawfs readers with way better memories than mine might remember, I mentioned last year that my friend and Mirror of Justice colleague, Robert J. Araujo, S.J. - a longtime law teacher and legal scholar at a number of institutions -- had passed away. Recently, thanks to the folks at the New England Jesuit Oral History Program, I got hold of this interview, conducted not long before Fr. Araujo's death, with Fr. Paul Kenney, S.J. Among (many) other things, Fr. Araujo reflected on his experiences with law-blogging. It might be of interest.