PrawfsBlawg

Sunday, November 15, 2009

Caperton Capering

Bill A's post below alerted me to the final resolution of this case -- a 4-1 vote exactly the same way that the (now) recused judge voted the first time around.  In the Supreme Court case, a 5-4 decision that seems to break down along the usual ideological fault lines (with Justice Kennedy writing for the majority), the Court held that the due process clause is violated when a judge hears a case where he...got a whole heap o' dough from one of the parties.  The standard is, shall we say, flexible: where "the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable."  The Supreme Court evinced a highly particularistic mode of adjudication in this case -- the facts really mattered and it was, in Sunsteinian parlance, narrow and shallow in its approach.

Here's a question that's been rattling around about this case for me: if particularism is the order of the day for these sorts of cases, why shouldn't a prediction about the merits of the substantive claim at issue on appeal be a factor in deciding whether a judge ought to recuse?

Continue reading "Caperton Capering"

Posted by Marc DeGirolami on November 15, 2009 at 01:28 PM | Permalink | Comments (2) | TrackBack (0)

On "Reshaping the Federal Judiciary"

The New York Times's Charlie Savage has a very Savagesque story today discussing the relative paucity of judicial nominations that have either been made by President Obama or made it through the process.  Savage describes this as "deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments."  

The story provides some useful facts concerning the ways in which recent and pending departures from the White House counsel's office may slow things down still further.  The administration's response to the story -- that it is the number of confirmations and not nominations that matter, and that it is moving methodically and successfully on this front -- does not strike me as terribly persuasive.  It is also the case, when we talk about judicial vacancies, that whether one views the number of vacancies as a crisis or as no big deal tends to depend on who is doing the nominating.  I am mindful of the way that judicial vacancies changed in some eyes seemingly overnight from unexceptional to a "crisis" once the administration changed from Clinton to Bush.  

Still, the story strikes me as a poor one.  It reads very much like many such articles -- as serving primarily as a device for one faction in the Democratic Party to send a message to another faction, and an attempt to define the agenda to their advantage.  (Such maneuvers are of course not limited to Democrats.)  I understand one's perspective often drives how one views this story, and that many Republicans may feel that the Democrats are more aggressive in their judicial agenda than the Republicans when each occupy the White House.  (I don't agree.)  But the story does not seriously acknowledge the possibility either that the White House thinks that other issues on a very crowded political agenda are just more important than judicial nominations, or that it has something else in mind when it comes to restocking the federal judiciary than simply meeting staunch conservatives with staunch liberals -- that it actually likes judicial moderates for their own sakes.  To the extent it acknowledges any of these things, it certainly does not acknowledge that the administration might have a point.

Both the strong right and the strong left seem to overestimate the importance of judges as opposed to other policy matters, and to assume that the reward for any party's victory should be the delegation of judicial picks to their wing of the party.  In my view, the Republicans generally do proceed in this manner when in office, although again it may be my perspective talking.  Either way, there is no reason we have to agree whole-heartedly with this position, as Savage seems to do.  And we should certainly keep in mind the extent to which certain interest groups on both the left and the right lose their raison d'etre if they don't gain power in this area, and thus depend on these assumptions for their daily bread.  

The orientation of these thinkers is evident in the story itself.  From the left, Nan Aron argues in the story that it's wrong to think "Republican acrimony will be reduced" if the administration goes slower and lessens the visibility of nominations.  From the right, Ed Whelan, who is very much on-message, tells Savage: "On judges as on so much else, this administration seems to be much less competent than both its supporters and critics expected."  Both these statements only make sense if one assumes -- as both of these individuals do, and must if they are to maintain their influence -- that the primary goal of any administration should be to stock the judicial ranks with committed liberals or conservatives.  But, of course, the administration may think it has better things to do, or that there are better ways to think of the judiciary than as a gameboard in the culture wars.  It may even think that just because the Democrats take executive office, that does not have to mean that the left gets to run the judicial selection process.  And why should it? 

Posted by Paul Horwitz on November 15, 2009 at 10:41 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)

Saturday, November 14, 2009

Why McCain was right about health care reform: Tax subsidies for employer-provided health benefits & corporate feudalism

It is a familiar point that the keystone of America's corporate welfare state is the absurdity of employer-provided health care. The arrangement is absurd, because it ties health care to one's job, impeding the mobility of labor, forcing employers to delve into social controversies over (for instance) whether to provide same-sex health benefits, and leaving the unemployed, the under-employed, and those employed by small firms uninsured. We long ago got rid of most company towns on the theory that one's boss ought not to be one's landlord. Employers do not arrange meal plans for their workers. Employers do not buy our clothes for us or choose our kids' schools. Why, then, should they choose our insurance plan?

Like many absurdities that are difficult to eliminate, employer-provided health care is a product of pure accident: In 1943, the War Labor Board tried to assuage union demands for wage increases beyond the 15% hikes allowed by the Board's "Little Steel" formula by exempting fringe benefits of health insurance from wartime wage controls. The Board's theory at the time was that this concession would avoid wildcat strikes during wartime while keeping down inflation. But, along with the 1942 Revenue Act's provision exempting funds for employer-provided insurance from the excess profits tax, the WLB's decision created enormous incentives for employers to get into the health care business. No one at the time gave a thought to the idea that employers' controlling medical care might be a sort of corporate feudalism, tying workers' rights to social services to their jobs like a serf is tied to the lord's land. The corporate financing of health care had virtually no support from unions: Both the AFL and the CIO wanted health care to be funded by the feds. But the CIO's ability to win concessions on health benefits from big employers during the 1945-46 wave of strikes lulled unions into the complacent belief that they need not lobby hard for national health insurance because they could get the private version through collective bargaining.

With the flush '50s far behind us, this naivete now seems as quaint as flannel suits and fedoras. So when McCain campaigned on a platform of eliminating the tax exemption for employer-provided health benefits, I applauded the guy for courage and candor. And when Obama played the anti-tax card, denouncing taxation of health care benefits as "the largest middle-class tax increase in history," I cringed at his demagoguery. Of course, he had to back-pedal after he won, but the rhetoric haunts the debate: Unions are aggressively defending the tax exemption against the Senate's effort to kill the beast.

Is there any serious case for exempting employer-provided health benefits from taxation any more than any other in-kind benefit -- housing, food, clothing, transportation, etc? Or is this simply another instance of the immortality of every mistake that has lasted long enough to acquire a constituency?

Posted by Rick Hills on November 14, 2009 at 02:19 PM in Current Affairs | Permalink | Comments (6) | TrackBack (0)

Law and the Little Guy

In a comment to my earlier post on Kelo, Mike complained about the doctrinal protections available to officials (especially prosecutors) who commit major wrongs:

Some would say that the Court should not concern itself with the real-world impact of its cases. . . .  You rarely see that such policy concerns for the "little guy." Why weren't the Justices in Kelo wondering whether forcing Ms. Kelo to surrender her home would be for naught? In Youngblood, why wasn't the Court concerned with the policy implications of a rule that allows prosecutors to throw away exculpatory evidence?

Now, I am also troubled by what seems to me to be the too-broad expansion of a certain class of official immunities, but I don't think it's true that the Court rarely allows "policy concerns for the 'little guy'" to shape doctrine.  Of course it can be hard to tell, because somebody will always defend a case on the ground that it was correct even absent any policy concerns.  There are a lot of cases where the little guy made out all right, and where his success seems to be at least partly related to his little-guy-ness.

For example, City of Willowbrook v. Olech (2001): Plaintiff may state an equal protection claim as a "class of one," if she has been unfairly picked on.  (For some thoughts on the legacy of Olech see this old post by Dave Fagundes.)  

Or Erickson v. Pardus (2007):  Appeals court is summarily reversed for its treatment of a pro se prisoner's claim, with the reminder that pleadings "should be construed to do substantial justice," under Rule 8(f), and the comment that "The Court of Appeals’ departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pro-nounced in this particular case because petitioner has been proceeding, from the litigation’s outset, without counsel."

And lots of death-penalty cases, like Panetti v. Quarterman (2007) (prisoner given another chance to prove his incompetence to be executed) and Snyder v. Louisiana (2008) (capital defendant given the benefit of the doubt when the trial court might have made a factual finding adverse to him but wasn't clear).  And Gall v. United States (2007), where a sympathetic drug dealer finally gets a break in a sentencing opinion.  These are only a few examples that quickly come to mind, as it is said . . . .

Posted by Will Baude on November 14, 2009 at 01:41 PM | Permalink | Comments (0) | TrackBack (0)

Caperton Decision Reaffirmed

From How Appealing we learn that the West Virginia Supreme Court has reaffirmed its earlier decision in Caperton v. Massey Coal, the case in which the U.S. Supreme Court required the recusal of the Chief Justice of the state court for having taken a particularly large campaign contribution from one of the parties.  The decision this time was 4-1 (it was 3-2 in the original decision that was appealed to the U.S. Supreme Court), apparently after the state court appointed a state court judge to sit in for the forcibly-recused Chief Justice. 

Posted by Bill Araiza on November 14, 2009 at 11:22 AM | Permalink | Comments (0) | TrackBack (0)

Friday, November 13, 2009

The Albatross of Self-Consciousness

Today concluded a conference at Seton Hall Law School entitled Religious Legal Theory: State of the Field, defly organized by Professors David Opderbeck, Angela Carmella, and John Coverdale.  It was a wonderful chance for a whelp like me to see what wise souls coming from traditions ranging from Christianity to Judaism, to Hinduism, to Buddhism, to Islam, all thought was the locus of 'the action' in this budding area.  Co-guest blogger Rob Vischer's talk was especially thought provoking (see his Mirror of Justice post for a recap) as was John Nagle's discussion of "spiritual harms."  And (if I may be humored a little institutional plug) my colleague Mark Movsesian's exposition of the differences with which Muslims and Christians view the role of religious law within their respective faith traditions was ineffably lucid and insightful.  Mark has an uncanny gift for making inordinately complex things crystal clear and deeply interesting.

There was some discussion at the conference about "Christian Legal Theory" -- whether it is a "movement" or a "school" and whether it ought to be those things (cf. Law and Economics and Critical Legal Studies).  David Skeel described the scholar who is engaged in this sort of work as one whose normative project is influenced by Christian thought or traditions and who also engaged with secular scholarship.  So I suppose a "religious legal scholar" would be one whose normative scholarship is similarly influenced by religious thought or traditions.  This got me thinking in my own presentation: What is the nature of a religious legal theory anyway?  What makes it a religious theory?

Continue reading "The Albatross of Self-Consciousness"

Posted by Marc DeGirolami on November 13, 2009 at 10:42 PM | Permalink | Comments (0) | TrackBack (0)

Self-Promotion #4: Faculty Exchanges and Workshops with Other Schools

One of the things that I have always done with my law review articles when they were in the process of being written is to share them with as many other scholars in my field (and especially with experts on the topic of the paper) to get their insights.  I have been very fortunate to work with scholars at other law schools who have given of their time freely and in a selfless manner no matter how busy they have been.  Indeed, I myself probably read and comment on about 5-10 law review articles a year from others which are about to be submitted for law review publication.  I believe this is an exceptionally important thing for new scholars to do as they try to find their own voice.  They need to gain the wisdom of those who have gone before them and these academic elders are usually very willing to help (so don't be shy!).

All that being said, engaging in these individual and sometimes reciprocal readings of one another's law review articles is probably not the most efficient way to promote yourself in the larger academy. In recent years, I have become a huge fan of the faculty exchanges and faculty workshops.  It works differently at different schools, but the basic concept is for a school to send some of its scholars to other schools to workshop their papers in front of a different faculty and get their feedback.  What is great is that you get to know a whole another group of law professors outside of your field and you get their fresh perspective about the merits of your paper.  And because they are not your colleagues who might have to pass you in the law school everyday, they are more likely to hold forth and tell you honestly how they feel about your work. Of course, especially if you did a good job, this is yet another way to get known by a whole another group of law professors.

Continue reading "Self-Promotion #4: Faculty Exchanges and Workshops with Other Schools"

Posted by laborprof lpb on November 13, 2009 at 04:43 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack (0)

The "Death of 'Big Law School'"?

"Above the Law" has collected some posts dealing with the blog-circulating suggestion that "problems with the Biglaw business model will have major effects on the law school business model."  I'm confident that this suggestion is correct.  And, what was said at the "WSJ Law Blog" might also be correct, as a predictive matter :  "Perhaps the focus will be more on teaching students on how to draft interrogatories than on reading John Rawls. If we’re reading Gerding correctly, law school may become less fun, but perhaps more useful."  Again -- maybe so.

A friend passed this prediction along to me, noting that this change "has been a long time coming," and here's what I wrote back:

In my own view, for what it’s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach.  In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more*  like a humane discipline, than they currently are.  The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated.  There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.

This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics' self-important musings), even elitist.  I am uncomfortable with that.  To be clear, I think *practicing* law is (or, at least, should be) both "fun" and "useful" (it has certainly be fun for me!).  The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting.  My sense, though -- what I was trying to express in my note to my friend -- is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for.  It is absolutely the role of good law schools to produce good lawyers; I'm just suggesting that the problems with the structure of the profession have not shown that the way to produce good lawyers is to shrink our understanding of what it means to be a good lawyer.  The big-firm model of legal-services delivery seems messed up and dysfunctional, no doubt.  I'm pretty sure, though, it's not because students have been reading too much Rawls.  (Well, maybe it is.  But it's not because they have been reading too much Jacques Maritain or Thomas Aquinas.  =-)  ). 

 

Posted by Rick Garnett on November 13, 2009 at 03:04 PM in Life of Law Schools | Permalink | Comments (10) | TrackBack (0)

Cross-Border Speech Conflicts

According to this report, two German nationals who were convicted of murder and have served their prison terms have sued the Wikimedia Foundation to have their names expunged from the English language version of an article on Wikipedia relating to the victim.  The plaintiffs have already successfully sued for the same relief with regard to coverage of their crime in German media.  Germany's privacy law apparently provides for such relief, under a high court ruling from 1973.

Cross-border speech conflicts of this sort have become increasingly common in the Internet age.  The report references the case involving an order by a French court enjoining Yahoo! from permitting the auctioning of Nazi memorabilia in France.  So-called "libel tourism," where a plaintiff sues for defamation in a jurisdiction lacking Sullivan-like protections (typically the U.K.) seeks to enforce the judgment in the U.S., has also arisen with some frequency.  Several courts in the U.S. have refused to enforce such judgments.  A few state legislatures have enacted laws prohibiting courts from enforcing certain foreign libel judgments.  Congress is currently considering libel tourism bills that would bar enforcement of foreign judgments and perhaps provide a cause of action for American defendants.  Meanwhile, across the pond, British officials are considering changes to defamation law that would prevent manipulation of its courts by defamation plaintiffs. 

These and other cross-border speech conflicts are complicated by a number of issues, including the lack of global speech and privacy laws, the uncertain "place" of the First Amendment in a digitized and globalized world, the need to develop standards for resolving conflicts among national speech and privacy laws, the "rights imperialism" that may be involved in exporting a single nation's speech or privacy laws to other nations, and the practicalities of enforcement. 

As to the last, it is difficult to see how the foreign lawsuit will provide any meaningful remedy for the plaintiffs in this case.  The Wikimedia Foundation does not appear to have any assets in Germany.  More importantly, it will be practically impossible to scrub the Web, including archival materials, of all references to these plaintiffs.  As Dan Solove explained in The Future of Reputation, this information is part of a permanent chronicle of their lives.   

Posted by Tim Zick on November 13, 2009 at 11:23 AM in First Amendment, Web/Tech | Permalink | Comments (1) | TrackBack (0)

First Amendment Institutions as Part of the "Unique National Institution" Canon?

Anita S. Krisknakumar of St. John's has posted in interesting paper on SSRN called The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon.  Here is an excerpt from the abstract:

While Holy Trinity has been much-discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion, which declares that the "spirit" of a statute should trump its "letter" and relies on legislative history to help divine that spirit. In th[e] [neglected] second half, the Court tells a detailed narrative about the country's historically Christian roots and explains that, other interpretive rules aside, the statute simply cannot be construed against the church-because the United States "is a Christian nation."  This Article maps the methodology of the Holy Trinity Court's "Christian nation" argument and contends that that methodology constitutes an interpretive canon in its own right -- one which perhaps aptly can be called the "unique national institution" canon. The Article goes on to demonstrate that this interpretative canon has reared its head in a number of statutory interpretation cases decided since Holy Trinity. In Flood v. Kuhn, for example, the Court, in determining whether the antitrust laws govern baseball's reserve system, paid lengthy tribute to the historical and national significance of baseball in a manner (methodologically) reminiscent of the Holy Trinity Court's Christian nation argument. 

This paper should be of interest to those of us who have written about so-called "First Amendment institutions," and conversely Krishnakumar might learn from that literature that the kind of phenomenon she is discussing may be more widespread than she supposes.  Her discussion cannot help but evoke, for First Amendment scholars and institutionalists, echoes of the Court's discussion of universities in Grutter v. Bollinger as occupying a special niche in the constitutional tradition, or its suggestion in the American Library Association case that public forum doctrine was out of place in the case, which instead called on it to reflect on the special nature and purpose of libraries.  It also evokes the ministerial exception doctrine in law and religion, which has always been difficult to locate in a particular portion of the Religion Clauses and which also has much to do with the statutory backdrop in which it occurs.  By discussing these kinds of phenomena specifically within the tradition of statutory interpretation, Krishnakumar may lead First Amendment institutionalists to think about institutionalism as an interpretive canon or strategy, one that has quasi-constitutional status but is not necessarily tied to particular constitutional provisions.

Conversely, Krishnakumar might take something from the institutionalist literature.  Although her intuitions about how and why this canon of statutory interpretation has developed is thoughtful, it might benefit from work that has already been done on First Amendment institutions.  The "unique national institution" canon might have much to do with the questions of epistemic and legal authority that sometimes compel courts to defer to other "institutions," broadly understood, a point I develop in my paper Three Faces of Deference.  And Krishnakumar might, in the First Amendment literature, both find further examples of the unique national institution canon and think about how this canon can function at the level of constitutional interpretation as well as statutory interpretation.  In short, there's much we can learn from each other.  I encourage folks who are interested in First Amendment institutions to read this valuable paper, just as I encourage Krishnakumar to explore the First Amendment institutions literature.

Posted by Paul Horwitz on November 13, 2009 at 08:46 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)

Thursday, November 12, 2009

Stupak Amendment and the Constitution

Marci Hamilton argues today that the Stupak Amendment is unconstitutional on three grounds: 1) It violates the Establishment Clause by imposing a minority religious worldview onto secular policy; 2) It violates Equal Protection, by imposing limits on one female-centered medical procedure, but not on male-centered ones, such as Viagra prescriptions or prostate surgery; and 3) It violates Substantive Due Process and Privacy, imposing an undue burden on reproductive choice that is unconnected to government funds (as with the Hyde Amendment).

I don't buy the Establishment argument, for many of the reasons implicit in Rick's "simmer down" post. But the other two strike me as potentially meritorious arguments.

Posted by Howard Wasserman on November 12, 2009 at 11:14 AM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink | Comments (7) | TrackBack (0)

False "Facts", Free Speech, the First Amendment

Here's the abstract from Fred Schauer's recent Melville Nimmer lecture:

A pervasive problem in public discourse is the seemingly increasing prevalence in public debate of demonstrably false factual propositions, such as the non-American birth of President Obama, the prior knowledge of President Bush of the September 11 attacks, the intentional creation of AIDS by physicians and pharmaceutical companies, the non-existence of the Holocaust, and the predictive accuracy of astrology. Yet although this phenomenon is a serious problem for public discourse, it is one that the First Amendment tradition fails to address. In relying on the implausible epistemic claims of “marketplace of ideas” and “search for truth” rationales for freedom of speech, the First Amendment tradition is embarrassed by the way in which falsity thrives even under conditions of widespread freedom of speech. Moreover, a close look at the landmarks of the free speech literature from Milton’s Areopagitica to the present shows that the problem of factual falsity was simply not the concern of those who created and fostered our free speech tradition. This is not to say that widespread government regulation of non-commercial factual falsity is wise or constitutionally permissible. It is to say, however, that making progress against the problem of public falsity will require recognizing that free speech doctrine and principles are only a small corner of a wise communications policy, and that such a policy will attempt to deal with widespread factual falsity in ways that the free speech tradition cannot.

As Schauer observes, the idea that "the truth will out" is still with us, despite the mixed historical support for it, and has powerfully shaped free-speech rhetoric.  To be sure, "public non-commercial factual falsity will likely remain constitutionally protected for the forseeable future."  But, the "First Amendment is only a tiny sliver of communications policy" that "leaves numerous questions of communications policy untouched[.]  One of these questions the question of increasing acceptance of patent factual falsity, and it is a question whose economic, psychological, sociological, cultural, scientific, political, and policy dimensions are far more important than the legal and constitutional ones."

Thoughts?

Posted by Rick Garnett on November 12, 2009 at 10:18 AM | Permalink | Comments (5) | TrackBack (0)

Catholic Bishops + Stupak Amendment = Iran?

Michael Sean Winters writes, at America:

Timothy Stoltzfust Jost, a professor of law at Washington and Lee University, thinks issues of Church and State are involved. He writes: "For Congress to have to look to a particular church for permission to move legislation is frightening. Religious persecution is a very real issue for many throughout the world today. We have been very fortunate in the United States to have been largely spared its ravages. But the only guarantee that we will continue to enjoy religious freedom is the jealous protection of the separation principle. If any religion dominates politics, it has the power to dominate other religions as well. Let us not become another Iran." This is pure baloney. No one looked to the Church for "permission" and America is scarcely in danger of becoming another Iran.

Winters is right.  Simmer down, now.

Update:  The hits keep coming. Check out (and then groan at) this "animated cartoon" in The Washington Post.  What we are seeing in all this, I fear, is a re-emergence of Blanshard-ism.  Let's hope not.  The original doesn't deserve a re-make.

Posted by Rick Garnett on November 12, 2009 at 09:45 AM in Rick Garnett | Permalink | Comments (3) | TrackBack (0)

The Pleasures and Perils of Classes on the Workshop Model: A reply to Noah Sachs

In a very interesting post, Noah Sachs recently floated the idea of offering Law School Classes on a Workshop Model.  The idea is that the class would work on actual projects of some kind, for a real client (or at least with the goal of some kind of public dissemination of work product).  I have done a few of these, and think he is absolutely right that the educational experience can be wonderful for the students:

The benefit of a workshop model, I think, is that students would learn the substantive content of a seminar while gaining some practical experience, and they would interact with leaders in the community on a current problem.  Most of the work could be done on campus in ten to thirteen weeks.  The end product would be a report jointly produced by the students, involving legal and fact research, and it would be directly useful for the organization. 

it can also be great for faculty, who, because the project will ordinarily be in a field related to their scholarship, will keep up with what is happening in practice, and meet contacts who may be helpful with scholarship, etc. 

Noah does not mention the downside, however: Time.  This is hand-crafted, costly, time-consuming education.  It is much easier and more efficient to teach a class out of a casebook, or even a regular seminar.  One key reason is that with papers or reports going out into the world, the faculty member has to make sure the product is very good because the prof. bears some responsibility for it.

I just finished a hands-on project with students of a slightly different type, a criminal prosecution of a real estate agent who stole the property of an elderly woman with dementia.  See Ex-Real Estate Agent Pleads Guilty in Fraudulent Sale.  I learned a lot, including things potentially useful in papers, and I am sure the students did too.  But the case was active for four years, and the students and I spent many nights and weekends getting ready for hearings and a trial (adjourned because the defendant, in court, claimed he was having a heart attack).      

Posted by Jack Chin on November 12, 2009 at 04:35 AM | Permalink | Comments (1) | TrackBack (0)

FTC tries to be funny, but regulation may prove more effective than humor

The Federal Trade Commission has wrangled with companies like Experian for years.  Experian owns freecreditreport.com.  If you have turned on a television in the past half-decade, you have probably eyeballed an ad with a bunch of "slackers" singing the blues about identity theft ruining their lives. (If you watch television regularly, you probably know some of their songs...)

According to the premise of these ads, had these slackers signed up for the free credit report with the accompanying credit monitoring service, they would have ended their credit problems. Unsurprisingly, the problem is that there is nothing "free" about the core offering of freecreditreport.com. Engaging their service requires signing up for a very "un-free" monthly service that alerts customers about changes in credit status.

Congress required the three credit bureaus to establish www.AnnualCreditReport.com as an easy-to-use, no-strings-attached way for people to acquire their free annual report. (If you have read this far, this is not a bad reminder to follow that link and check your credit...)  Entities like freecreditreport.com may be confusing consumers about how to obtain the truly-free credit report that they are entitled to receive annually.

The NYT ran an excellent piece last week about this particular problem and the Commission's efforts to combat it.  Ultimately, the Credit CARD Act of 2009 requires the Commission to issue a rule that will require entities providing these services to disclose that the free credit report they are offering is not to be confused with the free credit report offered pursuant to statute.

In the interim, the Commission employed some amusing "debiasing" tactics that may have proven maddeningly effective had the tactics been employed on a large scale.  The Commission, not known for its sense of humor, distributed spoofs of the freecreditreport.com commercials.  This form of publicly-funded corrective advertising is amusing, but who was really going to see it?

The free credit report problem may soon go away. But it's good to know that the FTC has created a vibrant video channel.

There is more to be said about situating our current credit-reporting systems to work better for consumers. Jeff Sovern wrote an excellent piece here.

Posted by David Friedman on November 12, 2009 at 12:06 AM | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 11, 2009

Live the Fantasy

One of my Brooklyn colleagues has alerted me to Fantasy SCOTUS, which bills itself as "The Premier Supreme Court Fantasy League."  I don't know whether this is common knowledge, or one of a million such sites, but it sounds like fun for a rainy year.  Good luck, Josh! 

Posted by Bill Araiza on November 11, 2009 at 10:27 PM | Permalink | Comments (0) | TrackBack (0)

When Interviews Go Bad

A few years ago I started getting calls for press interviews.  I had some slight expertise on a couple of issues that were locally newsworthy, and got recommended to some press outlets by a colleague.  I ended up developing something of a relationship with a couple of reporters, with them calling on me whenever these issues bubbled up again. It was enjoyable, and I felt like I was making at least a tiny contribution to the public's understanding of difficult legal issues.  And saying I was going to be in the paper or on the nightly news broadcast had a lot more currency with friends and family than saying I had published another article.

But all the fun took a sour turn a few months ago.  I got an email from a reporter who wanted me to comment on a fairly hot-button First Amendment issue, but one that was pretty clearly resolved by the governing law.  After looking at the facts and checking up on the law I called the reporter, and he proceeded to interview me.  After I gave him the straightforward answer to the question he seemed (from what I could tell on the phone) a little disappointed, like he was looking for more.  So (bad move coming up) I speculated a little.  Change a fact here, make some assumptions there, I said, and maybe you might have a different case.

Bad idea.  The reporter thanked me and hung up.  When I saw the article, I saw another commentator quoted for the straightforward answer.  The next paragraph started something like "But not all experts agree.  Law professor Bill Araiza suggested ..." and then recounted my speculation, sans any of the qualifiers and limitations and statements that I was speaking about a hypothetical set of facts.

Continue reading "When Interviews Go Bad"

Posted by Bill Araiza on November 11, 2009 at 08:40 PM | Permalink | Comments (2) | TrackBack (0)

Self-Promotion #3: Writing Proposals for Conferences and Workshops

Before turning to the topic of today's post, let me say that I very much appreciate Paul Horwitz's contribution with regards to Institutional Promotion.  I may not have planned to mention institutional promotion as one of my self-promotion tips, but I think it goes without saying that promoting your institution is part and parcel to being well-known (and well-liked) in the legal academy.  Indeed, I know of very few instances where law professors unhappy with their current institutions didn't end up appearing dour and glum in either the blogosphere or at a particular conference.

With that out of the way, let me say that there are many opportunities for you (and your school!) to host or participate in a regularly scheduled conference or workshop.  I have in mind two different types of situations. 

The first one harkens back to my post in Self-Promotion #1 and the idea of forming a colloquium for your field, like Scott Moss, Joe Slater, and I did for labor and employment law. Now, there might be already existing annual colloquium in many different fields, but that does not keep you from submitting proposals for hosting those meetings.  Over the years, the organizing committee of the labor and employment law colloquium has had the pleasure of fielding many great proposals for holding the conferences througout the country. In fact, right now we are going through the process for the Fifth Annual Colloquium.  So another idea for getting yourself know (and in the process getting high marks from your Dean) is to host the next colloquium or conference. It goes without saying that many more people will know who you are if you are one of the organizers of such a program.

Continue reading "Self-Promotion #3: Writing Proposals for Conferences and Workshops"

Posted by laborprof lpb on November 11, 2009 at 05:32 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack (0)

Death Penalty

John Allen Muhammad, also known as the D.C. Sniper, was executed yesterday.  I have to say that I don't particularly care.

On the one hand, there are certainly some good arguments against the death penalty.  Most notably, there is the disturbing possibility that it results in the execution of the innocent.  Given the number of innocent people convicted of crimes, it seems likely that at least some innocent people get executed.  Execution is also very expensive -- the death penalty can add hundreds of thousands or even millions of dollars to the cost of a case, and it could be difficult to reduce that amount substantially without increasing the risk of an incorrect result.  (There's an argument that should appeal to conservatives -- instead of arguing the injustice or immorality of the death penalty, its opponents should try to portray the death penalty as just another big, expensive, mistake-filled government program.)  I wouldn't have been bothered to learn that Muhammed got a life sentence; I don't feel some strong need to have him die.

On the other hand, I have always felt that the amount of attention and opposition the dealth penalty receives is excessive, particularly in relation to the number of people it affects.  In the entire period from 1976 to 2005, 1000 people were executed in the United States.  That's about 33 people per year.  Meanwhile, car accidents kill over 40,000 people per year, and tobacco kills over 400,000 people per year -- in the United States.  Yes, death penalty deaths are different in character, but in the grand scheme of things, I think activists might do better to devote their time and energies to a cause that affects more people.

And in any event, if we are going to have the death penalty, it seems that Muhammed is the kind of person who should get it.  There didn't seem to be any doubt about his guilt, and his crime involved terrorizing society and killing multiple people for monetary reasons.  So while I wasn't feeling a strong need for him to die, neither do I find it especially disturbing. 

Posted by Jonathan Siegel on November 11, 2009 at 04:22 PM | Permalink | Comments (1) | TrackBack (0)

Stanford Law Spouses: Sandra Day and John O'Connor

John O’Connor, husband of Sandra Day O’Connor, died today at the age of 79.  My condolences to the family.  The couple met while at Stanford Law School (my alma mater) in the 1950s, where they both served as Law Review editors.  "Beware of proofreading over a glass of beer," Mr. O'Connor was later quoted as saying.

I also met my wife Roberta Oster while at I was Stanford, in Kathleen Sullivan’s First Amendment course, so I have a special interest in SLS couples.

Reading the obituary reminded me of an episode involving Professor Sullivan.  When she was serving as Dean of SLS, she came to Boston in the winter of 2003 to give a pep talk to admitted students in New England.  As one of a handful of SLS alums in Boston, I went to the dinner.  Many of these students had been admitted to both Stanford and Harvard and had to make an agonizing decision between the two.  After cocktails, Sullivan made a passionate plea for the students to accept at Stanford, citing its growing faculty, increasing clinical program, great location in the heart of Silicon Valley etc.  

As she was speaking, a major storm rolled into Boston, the skies turned dark gray, and hail fell that was so big it was banging against the windows of the building and making quite a racket.  Dean Sullivan paused, pointed toward the windows, and said with a grin, “Here’s one more reason to come to Stanford – res ipsa loquitur.”

Then she said, “And there’s another reason you should come to Stanford.  You can meet your life partner there.”  She told the story of how Sandra Day fell in love with John O’Connor under the palm trees in the courtyard, and then pointed to me and one other alum in the room who had Stanford spouses.  I don’t have the empirical data on whether SLS students marry each other at a higher rate than Harvard Law students, but maybe this should be an additional line in the US News Rankings.

Posted by Noah Sachs on November 11, 2009 at 04:15 PM | Permalink | Comments (3) | TrackBack (0)

52 Stat 351

My old professor, Jacob Levy (old as in erstwhile, not as in elderly), has these thoughts on the holiday:

There's commemorative cannon-fire outside my office right now, and I'm more disgusted than moved. Yet more artillery fire seems to me to miss what should be the point.

A Veteran's/ Armistice/ Remembrance Day observed on November 11 in particular shouldn't just mean a gauzy and somber honoring of live veterans and fallen soldiers. It should be in part a day of anger and horror about the particular war that ended on this day, the stupid brutality of it, and the evil that followed in its wake. Of course, no continuously-existing government (US, UK, Canada) is likely to create a day officially dedicated to pointing out that its predecessor contributed to the deaths of millions for no good cause. But we have the capacity to remember lessons other than the official ones.

I don't know as much history as I should, and so don't have a firm conviction about the "stupid brutality" of World War I, but I am certainly not confident that there was a good reason for most of the suffering that ensued.

Posted by Will Baude on November 11, 2009 at 03:05 PM | Permalink | Comments (0) | TrackBack (0)

Practical Implications of Legal Scholarship

Prison officials seized a copy of a prisoner's copy of the Georgetown Law Journal.  The prisoner claimed that this confiscation denied him access to the courts and the Fifth Circuit affirmed the district court's conclusion that this claim was frivolous:

An inmate alleging the denial of his right of access to the courts must demonstrate a relevant, actual injury stemming from the defendant’s unconstitutional conduct. . . . Brewster wrote in his more definite statement that his research on several pending lawsuits was delayed by the law journal’s confiscation and that his ability to draft pleadings was hindered by the loss of the wite-out. On appeal, Brewster argues that “he was attempting to formulate an appeal of his criminal conviction” when the law journal was confiscated. At no point in any of his pleadings does Brewster identify any issue that he would have brought in his criminal appeal or other suit if the law journal had not been taken from him. This omission is fatal to his claim.

Much has been made of the alleged irrelevance to modern legal scholarship to practical litigation, so I mostly found myself wondering-- what issue of the Georgetown Law Journal was it?

Posted by Will Baude on November 11, 2009 at 02:41 PM in Civil Procedure | Permalink | Comments (4) | TrackBack (0)

Ah, Sweet Mystery of Journalism

The New York Times has an entertaining story about Justice Kennedy's recent appearance at the New York private school Dalton (think Gossip Girl with, hopefully, better music).  The story reports that Justice Kennedy insisted on approving, in advance, any article in the school paper about his talk.  There are the usual quotes from journalism experts complaining that this is no way to teach the students journalism, and from the Court's information officer and others defending the Justice's request as simply being intended to ensure that he was accurately quoted.

I tend to agree with one person in the story that this was "a request that shouldn't have been made," although I mean that with less heat behind it than the person quoted.  On the one hand, sources are free to try to negotiate terms with reporters before speaking -- just as journalists are free to push back on those terms as hard as they want to.  On the other, it seems unlikely to me that a story in the Dalton school paper that accidentally switched Justice Kennedy's use of "which" to "that" would cause any serious damage to the public image of the Court.  

But what really captivates me about the story is the idea of Justice Kennedy as newspaper editor.  Can you imagine his flowery buried ledes?  ("Schools are a repository and font of knowledge, a place for the youth of our Nation to gather in all their diversity to learn the undying lessons of democracy, and -- in certain health classes -- a forum in which they can learn about the sweet mystery of life.  Last night, the Poughkeepsie school board, enacting a democratic ritual hallowed by time and following in the footsteps of Jefferson and Madison, voted to support a bond issue for construction of a new boys' bathroom.")  His many Rubicon-crossing moments of private contemplation before publishing, say, a story about city council debates over whether to build new speed bumps?  Would the poor paper ever get published on deadline?  The mind reels with possibilities.    

Posted by Paul Horwitz on November 11, 2009 at 11:40 AM in Paul Horwitz | Permalink | Comments (4) | TrackBack (0)

Property As/And Constitutional Settlement

I've posted a new paper with this title to SSRN.  The article addresses the constitutionality and propriety of governments settling constitutional issues or claims by disposing of public properties through various forms of privatization or by taking the subject properties.  Settlement-by-disposition has occurred with increasing frequency in Establishment Clause contexts.  Salazar v. Buono, which was argued in October and may be decided early next year, is an example.  Public forum properties such as streets and parks have also been disposed of in order to settle constitutional controversies.  Settlement-by-disposition is neither a new phenomenon, nor one limited to the sometimes contentious public display of religious symbols.  In addtion to the foregoing, consider Boumediene v. Bush, in which Justice Kennedy pointedly reminded federal officials that the power granted by the Constitution to acquire and dispose of federal territories does not carry with it the power to "switch the Constitution on or off at will."

The article traces the practice of settlement-by-disposition to the civil rights era, when officials devised a variety of creative dispostions in an effort to avoid integration.  Decisions from the 1960s and 1970s revealed no clear answer to the question whether officials could dispose of constitutional claims by disposing of public properties.  Some lower courts stretched the nascent state action doctrine and equal protection principles to prevent dispositions that were plainly intended to thwart integration orders.  But other courts, including the Supreme Court in a decision involving the disposition of public swimming pools, permitted officials to dispose of properties even though the result was to negate integration.  The Court did resist dual school system and other sham dispositions in the public education context.  But it was never forced to decide whether officials could simply close the public schools entirely in the face of desegregation mandates; although such proposals were made by segregationist public officials, southern parents and officials ultimately rejected the idea.    

In the aftermath of the oral arguments in Buono, some media and commentators seemed rather disappointed that the case might be decided on mere "property" grounds rather than on the Establishment Clause merits.  But I think settlement-by-disposition is actually the most significant aspect of the case, not least because this practice has implications far beyond the "donut hole" in the Mojave.  As Nelson Tebbe recently posed the fundamental question:  "When should we allow governments to deploy private-law rules in order to circumvent public-law obligations?"  I propose a general framework for thinking about and analyzing the constitutionality and propriety of settlement-by-disposition, one that draws upon the lessons of the civil rights experience.  The framework focuses on the fiduciary duties owed by public officials with regard to the critical assets subject to disposition.  The trust analogy I propose is not perfect.  But it responds directly to the danger that settlement-by-dispositon can be used to render constitutional liberties discretionary.    

 I invite those interested to read the draft, and of course would welcome any comments.    

Posted by Tim Zick on November 11, 2009 at 10:36 AM in Constitutional thoughts, First Amendment, Property | Permalink | Comments (0) | TrackBack (0)

"Self-Promotion" and Institutional Promotion

Paul Secunda's posts on self-promotion are very useful and I hope ambitious scholars, whether junior or senior, are taking a look at them.  One point I want to emphasize, by way of friendly amendment rather than suggesting any tension with Paul's own posts, is that a focus on "self-promotion" should not obscure the value and necessity of institutional promotion.  It seems to me that, done right, promotion of oneself should go hand in glove with promotion of one's institution -- even if the purpose of that promotion is (in part) to position yourself for the possibility of moving elsewhere.  I'm not suggesting that if your institution is genuinely lousy, you should pretend otherwise, although I imagine most institutional change will be effected by people who are working more or less within the institution rather than just bad-mouthing their institution around town.  But most of us are more or less happy with our institution, even if we have thought about eventually going elsewhere, and most of us have reason to be grateful for the support our institution has shown us -- say, by hiring us in the first place!  So, when you are promoting yourself, you should not neglect the obligation to dance with the one that brung you, even if you're also thinking about a future dance partner. 

What does that mean?  For one thing, as I've said before, it means not "hiding your nametag."  Anyone who has been to an AALS conference knows what I mean here.  Take some pride in your institution, regardless of where it stands on the food chain, and don't act as if you're ashamed of it or as if you have one foot out the door.  For another, as long as you're talking about yourself and your work on social networking sites and elsewhere, it means taking public note of the good work being done by your colleagues and your institution.  It also means recognizing that even as you're spreading your name around in various public circles, there is much you can do to build your institution at home -- championing workshops, hosting symposia, supporting junior colleagues, and so on.  Be a good citizen of your institution, even if you're digging out your passport for future travels.  

Institutional promotion is not only an obligation in itself, it is also complementary to rather than in tension with promotion of oneself.  Although you may travel far on your own merits, you will travel further if you come from an institution that people think is doing good things and hiring good people.  The more prominent your institution is, the more prominent you will be too.  And, when the phone calls start coming around from people who want to know from your colleagues whether you would be a good addition to some other school's faculty, it will help (duh) if you have not alienated your own colleagues by acting as if you're too good for them, and if they can say cheerfully that you have been a good institutional citizen and a good colleague and are likely to contribute in a similar fashion to the next institution.  You will leave friends behind, who will continue spreading your good name, rather than people who grumble about you.  You will also have a happier experience at your home institution and make it a better place to be, so that if your lateral move doesn't happen at all or takes longer than you thought, you are still making the most of your time there rather than becoming embittered.  I think institution-building is an obligation of every faculty member, whether they want to move or not, just as I think self-promotion is a perfectly reasonable and, if done right, entirely ethical aspect of one's professional work.  But it is nice to be reminded that institution-building can also be a healthy and effective part of self-promotion.   

Posted by Paul Horwitz on November 11, 2009 at 09:48 AM in Paul Horwitz | Permalink | Comments (5) | TrackBack (0)

Tuesday, November 10, 2009

Help Wanted: Clearing the Troubled Assets of the Penal State

I had to miss a criminal law careers panel at Berkeley Law today due to the ongoing influenza epidemic known as my home.  The panel had the intriguing title "Careers in Criminal Law: Beyond Defense & Prosecution."  I wanted to share a rough outline of what I would have said.  The prison crisis in states like California, and the ongoing over-investment of social resources toward mass incarceration in America that they show case, is one of the reasons it is so important to as what lies beyond the traditional careers in criminal law defense and prosecution.  For while the large urban public defender and district attorneys offices have been a mainstay of employment for graduates of American law schools since the war on crime began in the late '60s, the long war may be winding down(at least in growth terms).  But this does not necessarily mean the need for fewer lawyers, but perhaps different kinds of lawyering.  For while defenders as much as prosecutors have made their bread by helping to manage the processing of citizens into prisoners, the present/future offers lots of opportunities for those lawyers who can figure out how to reverse the process.

Continue reading "Help Wanted: Clearing the Troubled Assets of the Penal State"

Posted by Jonathan Simon on November 10, 2009 at 08:45 PM in Criminal Law, Jonathan Simon | Permalink | Comments (0) | TrackBack (0)

Self-Promotion #2: Twitter, Blogs, and Social Networking Sites

Yesterday, I started this series of post with  the thought of providing some ideas of how to engage in the art of self-promotion to get oneself better known through the academy so that one's work is read or perhaps to let potential lateral market suitors know that you are out there.  Today, in this second post of the series, I want to discuss the advantages and disadvantages of using various forms of internet tools to spread word of yourself.

First, one could always engage in blogging. There are way too many views on whether junior law profs should engage in blogging both pro and con to review them all in this post, but I want to make the point here that a certain type of blogging will get you known in a way that hopefully will not put off your colleagues. 

Continue reading "Self-Promotion #2: Twitter, Blogs, and Social Networking Sites"

Posted by laborprof lpb on November 10, 2009 at 05:58 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack (0)

Judges, Boy Scouts, and Invidiousness

One of the joys of teaching a brand new subject is that one comes into an existing field fresh as the driven snow and bursting with questions, blissfully unaware that others have probably been thinking about the very same things, in much deeper and more interesting ways, for eons.  That is the case for me, this semester, with Professional Responsibility.

Today's class dealt with judicial ethics, and we spent a little time considering Canon 3.6(a) of the Model Code of Judicial Conduct: "A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation."

The book I use asked this question: "What if a newly appointed judge is a member of an organization that discriminates on the basis of sexual orientation?  Must the judge resign from membership?"

Answer: "Probably so.  For example, if a newly appointed judge is an Eagle Scout and a longtime Boy Scout troop leader, and the Boy Scouts of America persist in barring men from being scout troop leaders, the judge would have to resign from the organization."

So judges cannot be Boy Scouts.  End of story. 

Continue reading "Judges, Boy Scouts, and Invidiousness"

Posted by Marc DeGirolami on November 10, 2009 at 04:46 PM | Permalink | Comments (10) | TrackBack (0)

No Virtue in a Rush to Judgment

I was a bit taken aback by the conclusion to David Brooks' column this morning in the NYT. With respect to new reports suggesting Major Hasan's Fort Hood massacre was the product of religiously inspired violence, Brooks writes that:

A shroud of political correctness settled over the conversation. Hasan was portrayed as a victim of society, a poor soul who was pushed over the edge by prejudice and unhappiness.  There was a national rush to therapy. Hasan was a loner who had trouble finding a wife and socializing with his neighbors. This response was understandable. It’s important to tamp down vengeful hatreds in moments of passion. But it was also patronizing. Public commentators assumed the air of kindergarten teachers who had to protect their children from thinking certain impermissible and intolerant thoughts. If public commentary wasn’t carefully policed, the assumption seemed to be, then the great mass of unwashed yahoos in Middle America would go off on a racist rampage.  

Worse, it absolved Hasan — before the real evidence was in — of his responsibility. He didn’t have the choice to be lonely or unhappy. But he did have a choice over what story to build out of those circumstances. And evidence is now mounting to suggest he chose the extremist War on Islam narrative that so often leads to murderous results. The conversation in the first few days after the massacre was well intentioned, but it suggested a willful flight from reality. It ignored the fact that the war narrative of the struggle against Islam is the central feature of American foreign policy. It ignored the fact that this narrative can be embraced by a self-radicalizing individual in the U.S. as much as by groups in Tehran, Gaza or Kandahar. It denied, before the evidence was in, the possibility of evil. It sought to reduce a heinous act to social maladjustment. It wasn’t the reaction of a morally or politically serious nation. 

On the contrary! There is no virtue in a rush to embrace "the possibility of evil."  Whenever harms happen to innocent people, they are to be regretted, but we'd be mistaken to call every harm a wrong (let alone an *evil* wrong) in the absence of some evidence suggesting that the harms were not products of accident or insanity. This initial reluctance (prior to evidence rolling in)  to link Hasan to radical Islam seems especially appropriate when a) there's the possibility of nasty spillover effects to innocent Muslims in the armed forces here and in the civilian population, and b) a mistaken linkage would jeopardize our foreign policy objectives with and in Muslim countries.

Normally, I find Brooks to be a breath of fresh air, at least as columnists go. Not 100% right, but at least usefully provocative. Not so with today's o'er-cooked pronouncements.

Posted by Dan Markel on November 10, 2009 at 04:13 PM | Permalink | Comments (2) | TrackBack (0)

School Segregation, Originalism and the Lost Black Republic in the South

Justices Breyer and Scalia recently spoke at the Rehnquist Center of the University of Arizona on their divergent views of legislative interpretation.  (Video here). Adam Liptak in The New York Times reported that the debate revived a decades-old litmus test of legitimate constitutional theory: Whether it leads to Brown.  Thus, in a wonderful article Michael McConnell, recognizing that the game was on the line, struggled to conclude that the original meaning of the 14th Amendment prohibited segregation even though many ratifying jurisdictions segregated schools before and after ratification.  Some critics of originalism propose that the original public meaning of the 14th Amendment permitted segregation, and therefore that to accept originalism is to accept segregation.  Unless the original meaning has changed recently, that implies that originalists would be forced to tolerate segregation even now.

My co-author Randy Wagner and I propose a different reconciliation of school segregation and the 14th Amendment.  In The Tyranny of the Majority: Jim Crow and the Counter-Majoritarian Difficulty, we note that after the Civil War, African Americans were an absolute majority of the population in Louisiana, Mississippi, and South Carolina, and more than 40% of the population in Alabama, Florida, Georgia, and Virginia.  Thus, the framers and ratifiers of the 14th (and 15th) Amendments resolved segregation politically: If the majority wanted school segregation, they would have it, but, given that political control in the South belonged to African Americans, it would be on terms not only acceptable to, but dictated by, them.  Of course, African Americans were disenfranchised in the South in ways now recognized as unconstitutional.  In 1954, then, the Court was not faced with a conflict between majority rule and minority right,  but with the fact that majority rule, and democracy itself, had come undone in the former Confederacy.    

Posted by Jack Chin on November 10, 2009 at 02:29 PM | Permalink | Comments (0) | TrackBack (0)

Democracy as the Rule of Law

I have posted a new paper on SSRN, titled Democracy as the Rule of Law.  Here's the abstract:

This paper is a chapter for a forthcoming book, Prosecuting the Bush Administration: What Does the Rule of Law Require? The book does not debate whether the Bush administration violated the law in the course of the War on Terror and the wars in Afghanistan and Iraq through such actions as torture. Rather, it assumes for purposes of debate that violations of the law occurred, and asks, if that is so, whether the rule law requires prosecution.

This contribution takes this question as an occasion to examine the tangled relationship between three essentially contested concepts: democracy, the rule of law, and transitional justice. It proceeds fairly unsentimentally, assuming that these concepts are not especially helpful as simple invocations and that they should be viewed as pragmatic rather than metaphysical goods. It makes two main arguments. The first, which many other critics share, is that transitional justice consists largely if not entirely of a pragmatic and political balance between democracy and the rule of law. It requires a consideration of what I call the “costs of settlement” - a balancing of past investments in and future costs to the stability and viability of both democracy and the rule of law. As such, both transitional justice and the “rule of law” itself, despite the latter term’s usual assumption of universality, may require different approaches and different compromises in different societies.

The second argument concerns the relationship between democracy and the rule of law. Many theorists treat these goods as distinct, if related, concepts, and tend to treat the rule of law in largely juridical terms, assuming that the rule of law demands the remedy of law, particularly in a prosecutorial form. This approach tends to miss something important. It fails to recognize that there may be a distinction between the rule of law and its implementation; and it obscures or neglects the possibility of treating democracy itself as one method of implementing the rule of law. The rule of law can be and, especially in stable democratic societies, often is implemented not just by and within the juridical process, but in the ordinary operation of the political process itself. Those critics of the Bush administration who argue that the rule of law demands a prosecutorial response to that administration’s allegedly lawless actions may neglect the degree to which the very fact of the administration’s passage out of power has itself provided a sufficient response, albeit perhaps an incomplete one. Democracy, in short, can be seen not as distinct from the rule of law, but as a form of the rule of law. I argue that, given the balance of the costs of settlement in this case - that is, the potential costs to both democracy and the rule of law of proceeding by a juridical route rather than through the ordinary political process - it may be that the democratic process has provided an adequate response to the Bush administration's alleged misdeeds, and that a prosecutorial approach would involve more costs than benefits for both democracy and the rule of law.

Comments are decidedly welcome.

Posted by Paul Horwitz on November 10, 2009 at 11:02 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)

Bilski Argument: Substance and Procedure

I attended the Bilski oral argument at the Supreme Court yesterday. Despite prognostications that it would be difficult to get in, I sat in the first row behind counsels' table.  It was not really the first row, as there were four seats in front of us that were next to counsels' tables. I got there at 7AM, but I believe that every member of the Supreme Court Bar was seated, even if they got there at noon, right before we were seated (about 100 seats). I suspect that it may have been harder for the public, as the gallery was a bit full. We were all better off than the morning crowd - they ran out of room for bar members, and some had to listen from a different room.

There was a bit of confusion because argument was scheduled for the afternoon. No one has really written about the procedure (that I could find), so I will. The gist is that there are two lines, and they clear the courtroom at noon. Thus, if you want to go in the afternoon, you have to wait all day (or take your chances arriving later, which seemed to pay off). I suspect the public lines in the front were also divided this way.

A final point - close was nice, but not necessarily a better view. The bench is high up, and all I could see were the heads of most of the justices.

That's enough about procedure - on to substance after the jump...

Continue reading "Bilski Argument: Substance and Procedure"

Posted by Michael Risch on November 10, 2009 at 09:58 AM in Intellectual Property | Permalink | Comments (9) | TrackBack (0)

Monday, November 09, 2009

Law School Hiring Thread, 2009-10, Thread Three: The Next Phase

This thread will be moved to the front every ten days or so.

Please add comments to this thread, not Threads One or Two (where comments are now closed).

This thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding:

a) whether they have received a callback from a law school and/or accepted it and

b) whether they have received an offer from a law school and/or accepted it; feel free to also leave details about the offer or info about teaching loads, research leaves, etc.

Law professors may also choose to provide information that is relevant to the entry-level or the lateral market.

Bear in mind: if you don't want your contact information displayed, please just enter in anon@anon.edu or something like that as an email address.

We will continue our spreadsheet approach:  All information should still come in through the comments. Our generous aggregator will continue to use a spreadsheet to aggregate the information (we have started a new spreadsheet for callbacks and offers, which appears below).  As before, only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded version below.

As always, please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.

The first thread is here; the second thread (where you can still get the AALS call spreadsheet) is here.

Posted by Dan Markel on November 9, 2009 at 10:50 PM | Permalink | Comments (283) | TrackBack (0)

In Memoriam: Fred Zacharias

 

I am heartbroken from the passing of my dear colleague Fred Zacharias. Fred has been bravely battling cancer this past year. This weekend he passed away surrounded by his loved ones.

Fred was an important scholar in constitutional law and professional responsibility. Among his many articles are "The Uniqueness of Federal Prosecutors," Georgetown Law Journal; "Waiving Conflicts of Interest," Yale Law Journal; "Structuring the Ethics of Prosecutorial Trial Practice," Vanderbilt Law Review; "Flowcharting the First Amendment," Cornell Law Review; "Federalizing Legal Ethics," Texas Law Review; and "The Politics of Torts," Yale Law Journal. Before coming to USD he taught at Cornell and George Washingtom Universities.

 

Fred was a wonderful colleague and mentor. He cared deeply about the institution, his colleagues and his students. He had a unique sense of humor and knew how to be a true friend. When I joined USD a few years ago, Fred was tremendously helpful and generous with his time, reading my drafts carefully and offering his thoughtful comments. Last year, Fred and I both participated in a NYC conference on lawyering. In his talk, and the paper published in the Fordham Law Review symposium, he describes being a public interest litigator before becoming an academic. He describes himself as a young lawyer dedicated to using law to making a difference, and inspired by “the important contributions of attorneys in American history, starting with the Founding Fathers and culminating in the lawyer heroes of the labor and civil rights movements, such as Clarence Darrow and Thurgood Marshall. I had read all the right books--ranging from Darrow's biographies to To Kill A Mockingbird. My professional career was built on the belief that attorneys usually are the catalysts for progressive reforms in the legal and social structures of the nation.” Fred continues his article by critically reflecting on the role of lawyers in democracy and in preserving a democratic climate in society. The article gives merely a glimpse of Fred’s important scholarly contributions. But more than that, to all of us who knew him, it represents some of the qualities we loved most about Fred: insightful, honest, deeply moral, and first and foremost, a good human being. 

 

Posted by Orly Lobel on November 9, 2009 at 10:08 PM | Permalink | Comments (5) | TrackBack (0)

Too Late

There is one more coda in what is probably the most-controversial-office-park-development in recent memory, the  Pfizer facility that ousted Susette Kelo from her house in New London, Connecticut.  The Hartford Courant reports:

Pfizer Inc. will shut down its massive New London research and development headquarters and transfer most of the 1,400 people working there to Groton, the pharmaceutical giant said Monday.

Susette Kelo's house has since been relocated elsewhere in New London.  I wonder if she will be allowed to move it back.

Posted by Will Baude on November 9, 2009 at 08:16 PM in Property | Permalink | Comments (2) | TrackBack (0)

Product Labeling: What's In Your Donut Today?

Back in May, looking for a quick snack at a Dunkin’ Donuts near Penn Station while in NYC for a conference, I saw something startling at the counter: calorie counts under each tray of donuts.  My favorite donut, Apple Crumb, had 460 calories, almost as much as a McDonalds quarter-pounder with cheese.  Thinking this was too much for my 9:30 am snack, I went with a glazed donut instead (220 calories). 

The calorie info was displayed thanks to a 2008 municipal law in New York City requiring calorie information at the point-of-purchase in all chain restaurants (the measure was upheld by the Second Circuit earlier this year against First Amendment and other challenges Download NYSRAOpinion).   Disclosure in NYC opened my eyes to what I was consuming, and it got me thinking more broadly about the role of labeling in consumer, public health, and environmental contexts.  If product labeling can help with nutritional choices, can it also be the path to ecological sustainability?  

Many countries now think so.  Eco-labels (which denote environmentally friendly products or help consumers compare products’ environmental characteristics) are proliferating in the EU and Japan. European car companies routinely tout cars’ CO2 emissions per kilometer in their ads.   Sweden now requires that the greenhouse gas emissions associated with food production and transport be listed on food packaging.   

And labeling is about to come to the United States in a big way.  In July, Wal-Mart announced that it is creating a worldwide “sustainability index” involving supplier disclosures about product impacts in four areas: energy and climate; material efficiency; natural resources; and “people and community.”   The information will be conveyed to consumers in a single sustainability rating for each product, right on the price tag.  Expect these new sustainability ratings in Wal-Mart stores in 2010 or 2011.

Continue reading "Product Labeling: What's In Your Donut Today?"

Posted by Noah Sachs on November 9, 2009 at 07:27 PM | Permalink | Comments (0) | TrackBack (0)

The Subjective Experience of Punishing

Criminal theorists are by now well acquainted with Professor Adam Kolber's provocative article dealing with the ways in which punishment, in order to be "proportionate," must account for the differences in which people feel the pain of punishment. The article is a challenge to retributivists -- those with the greatest theoretical interest in proportionality, the argument being that the objectivist advantages that retributivists claim over consequentialists are actually a mirage: unless retributivists can account in their sentencing schemes or decisions for the pain that Paris Hilton or Bernie Madoff will actually feel when sentenced to the same term as that hardened recidivist (and unless they can make the hardened recidivist really feel some serious pain), then the claim of objectivity is actually an illusion.  Retributivists of different stripes have responded (and, perhaps, are responding...Dan?) to Professor Kolber's claims.  For my money, a particularly short, sweet, and persuasive response has been made by Professor Ken Simons.  

But all of this talk of the relevance of subjectivity has me thinking along different lines.  If retributivists ought to care about the subjective experience of punishment, should they also care about the subjective experience of punishing?

Continue reading "The Subjective Experience of Punishing"

Posted by Marc DeGirolami on November 9, 2009 at 02:54 PM | Permalink | Comments (1) | TrackBack (0)

Self-Promotion #1: Build a Blog-Built Conference

I want to continue in a tradition I have had as a guest blogger at various blogs in the past: the serialization of posts on a topic of what is hopefully of mutual interest to a large segment of the blog readership.  Last time I did this was almost two years ago on that other blog (with the initials C.O.) and I wrote about my law school lateral market experiences.

This time I want to take on a somewhat related topic - self-promotion in the legal academy.  This interest stems from a great panel on self-promotion I heard at the Southeastern Association of Law Schools (SEALS) annual meeting this past August, featuring Jennifer Collins (Wake Forest), Erica Hashimoto (Georgia), and this blog's Paul Horwitz (Alabama).  At that panel, I jotted down a number of ways I thought that especially less senior law faculty could go about getting themselves "known" in the larger academy (hopefully for the good and not the bad).  Of course, being "known" in the legal academy is one way to get yourself out there on the lateral market and thus, the connection to my last series of posts on this type of topic.

Today, let me start by making a suggestion that is well within the scope of what junior law profs can hope to accomplish, at least in some fields.  A number of years ago on this blog, Scott Moss (Colorado), Joe Slater (Toledo) and I were bemoaning the fact that there were never ever any good labor and employment law conferences.  So what did we do? We started a colloquium of our own.  About to be in its fifth year next year, the Annual Colloquium on Current Scholarship in Labor and Employment Law has criss-crossed the country (from Milwaukee to Colorado to San Diego to Newark) and has involved literally hundreds of professors, practitioners, and students in a supportive dialogue on research and developments in labor and employment law. I think I can speak for my co-founders when I say that none of us had any idea of how successful this endeavor would, and continues to, be.

Now granted that this type of self-promotion is not available for those of you in fields that already have such subject-specific conferences, like in IP and ADR.  But my point is that there is still many disciplines that do not have any such programs and your colleagues in these disciplines are just waiting for someone to take the bull by the horns and start a colloquium.  It goes without saying that you quickly become known by those in your field and it is the type of enterprise that you can continue to be involved with over the years.  Because it is such a large undertaking, I would suggest, however, trying the create-a-colloquium approach with one or two other people in your field with whom you work well.

Next time: twitter, blogs, and social networking.

Paul Secunda

Posted by laborprof lpb on November 9, 2009 at 01:37 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack (0)

Free Speech and the Furrier

A judge in Portland, Oregon has cited Oregon's elder abuse law as authority for restricting the ability of protesters to approach a 75-year-old furrier.  The animal-rights activists, some of whom apparently shouted profanities at the businessman as he walked to his shop and his car, have been ordered to stay 50 feet from the furrier and 15 feet from his store.  This is another example of the phenomenon of imposing buffers and bubbles around places and persons in public speech contexts.  As is increasingly the case in public speech (and other) contexts, there is some video of the public protests.  In the linked-to video, the furrier and a companion appear to be smiling at certain points as the activists follow them, shouting slogans and profanities (which are "beeped" out of the video).  The protesters claim that other videos show the furrier making threatening gestures and physically assaulting some in their group.  The furrier apparently has video evidence of his own. 

The use of the Oregon Elder Abuse Act in this context may be problematic.  The Act appears to have been intended to prohibit various forms of physical and financial abuse of the elderly.  But it includes in its definition of "abuse" the "[u]se of derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to threaten significant physical or emotional harm to the elderly person . . ."  Surely the sensibilities of the elderly are entitled to no greater protection than those of women, aliens, or homosexuals in the public square.  To the extent the definition of abuse goes beyond unprotected categories of speech, it is an illegitimate basis for either a restraining order or a civil action by the furrier.

The Elder Abuse Act incorporates a general criminal prohibition on "menacing," which is defined as intentionally placing another, by words or conduct, in fear of imminent serious physical injury.  If the protesters aggressively followed and harassed the furrier, they may have violated this prohibition.  Even so, the scope of the court's restraining order seems questionable.  If the purpose is to protect the furrier from being placed in fear of imminent serious physical injury, a 50-foot protective bubble would seem to sweep more broadly than necessary.  The protesters have no right to threaten the physical safety of the furrier.  But as in other public speech contexts, the intended audience has no right to be shielded from even crude and offensive messages.  

  

Posted by Tim Zick on November 9, 2009 at 01:27 PM in First Amendment | Permalink | Comments (3) | TrackBack (0)

Course Evaluations

My faculty voted on Friday to change the course evaluation form that we ask students to fill out.  It's a small thing, but that didn't stop us from debating it for nearly two hours.

The length of the debate partly reflects our idiosyncratic love of long meetings -- we seem to have a Law of Conservation of Meeting Length, so that we find something to discuss regardless of the actual magnitude of a proposal's importance -- but it also reflects the fact that, although a change in the course evaluation form may seem trivial, it can actually have subtle and important implications.

Continue reading "Course Evaluations"

Posted by Jonathan Siegel on November 9, 2009 at 10:13 AM | Permalink | Comments (5) | TrackBack (0)

Hello and Thanks

Hello, everyone.  I will be posting as a guest on Prawfs this months.  Thanks to Dan Markel for the invitation -- I'm looking forward to it.

Posted by Jonathan Siegel on November 9, 2009 at 10:01 AM | Permalink | Comments (0) | TrackBack (0)

Sunday, November 08, 2009

You Know You're a Patent Law Geek When...

You know you're a patent law geek when these are the things that get you jazzed at the Smithsonian....

Continue reading "You Know You're a Patent Law Geek When..."

Posted by Michael Risch on November 8, 2009 at 06:58 PM in Intellectual Property | Permalink | Comments (0) | TrackBack (0)