Saturday, October 25, 2014
The "Oral Argument" Podcast
I realize that, for some, podcasts are very five years ago. But for those who still partake, one of my favorite legal podcasts is "Oral Argument," produced by (and starring) my friends (and University of Georgia School of Law Professors) Joe Miller and Christian Turner. Unfortunately, in this week's episode, they fell victim to one of the classic blunders: They had me as the guest. Among other things, we talked in detail about the minefield that is the availability of private remedies to challenge government action (see, e.g., Howard's post on the Eleventh Amendment). The catalyst of the discussion is the Armstrong case the Supreme Court is scheduled to hear during its upcoming Term (which, as I've previously written here, could be the real sleeper of the Term if the Court scales back the availabity of Ex parte Young relief).
This week's blip notwithstanding, the other episodes have been quite entertaining (and enlightening), at least for nerds like me...
Friday, October 24, 2014
The Eleventh Amendment is a pain
This lawsuit, filed today, alleges that the NCAA violates the Fair Labor Standards Act by not paying student-athletes (who, it alleges, are akin to work-study students). Named defendants are the NCAA and every Division I school, many of which are state schools; the suit seeks unpaid wages and an injunction requiring the schools to stop violating the FLSA (meaning that students be paid wages going forward). The problem: States cannot be sued by name under the FLSA, which is a Commerce Clause enactment on which Congress cannot abrogate sovereign immunity. And Ex Parte Young is not available for recovering the unpaid wages, so the plaintiff cannot retrench and sue the president of each state university.
Without even getting into the FLSA merits, this is a case in which the Eleventh Amendment is genuinely a barrier to relief. The plaintiffs' best move is to try to proceed with their claims against the private schools, then hope the Department of Labor will be persuaded by the arguments and will jump into the case.
The push for quantity
Zak's post, Howard's post, Bridget Crawford's post, and Orrin's post and the comments to them pose some questions and some answers about the quantity of publications law professors and candidates for teaching positions have. Underlying these is a tension about tradeoffs between quantity and quality and concerns about the source of the pressure to produce. I would even go farther than any of them, and suggest there is something of an arms race afoot that we ought to be concerned about. Based on my experience as a VAP and on the hiring committees of two schools, I also think there are reasons in addition to those already suggested for that arms race, and I'll list them in no particular order. There is a lot of overlap among these, but I use a list for convenience (quantity over quality).
1. Labor market competition. There aren't very many desirable positions available in any given year. Something like fewer than 10% of those who apply through the AALS (which is the only easy place to track hiring stats) are successful, and especially as faculties are shrinking, the market is only getting tighter. Given that scarcity, candidates need to be ever more accomplished to even be considered.
"It is a book you will not be able to put down often enough."
I was not favorably impressed by Bruce Allen Murphy's recent biography of Antonin Scalia, Scalia: A Court of One. It was certainly a substantial labor, but in my view not a successful one as a matter of either substance or style. My review of the book is finally out in Commonweal. I note that Commonweal, which is currently celebrating its ninetieth birthday, is currently providing free access to the entire site for registered readers.
A number of people were struck by how favorably the book was treated in some early reviews by liberal writers, despite what I consider its highly evident flaws. (By no means all of of the liberally inclined reviewers praised it, to be sure.) It was also the target of enthusiastic evisceration by conservative writers, albeit there was much more basis for those criticisms. I suggest in the review that there are in fact two or three sound basic points in the book, but those points are not new. And
[w]hat’s new, alas, is not useful. Murphy['s book] is full of opinions and speculations. The opinions are conventional, the speculations tendentious. They’re easy to spot, at least: you know you’ve reached the end of the record and the beginning of fanciful speculation when the footnotes suddenly vanish. There are countless examples of overconfident speculations that quickly become treated as fact, and of downright questionable conclusions.
Whether Scalia: A Court of One is good or bad, fair or not, has been largely irrelevant [to a number of early reviews and discussions]. What matters is the occasion the book provides for liberals to come together in gleeful disdain for their stock villain, or for conservatives to gather in joyful defense of their hero. They’ve relived the Scalia controversy rather than reviewing the book. An experienced judicial biographer, Murphy has chosen well and labored hard—but in vain.
Enjoy. And be sure to read Justin Driver's excellent review of the book in The New Republic, whose "back of the book" continues to delight.
Con Law Offerings at AALS This Year
The panels in and around constitutional law at the upcoming AALS annual meeting are pretty impressive this year. Here's the AALS promo, with links to the panel descriptions and lineups. I was slightly involved in the Law and Religion program, which I think is extremely timely, has a great list of speakers, and will be well worth attending, for people interested in equality as well as those interested specifically in law and religion issues. And I look forward to catching the Fish-and-Posner Show.
- Perspectives on Federal Power Under the Reconstruction Amendments (Section on Constitutional Law)
- Liberty-Equality: Gender, Sexuality, and Reproduction- Griswold v. Connecticut Then and Now (Section on Constitutional Law, Co-Sponsored by Sections on Legal History and Women in Legal Education)
- Religious Beliefs and Political Agendas: What Role Should Faith Play in the Public Square (Section on Jewish Law, Co-Sponsored by Section on Islamic Law)
- Engendering Equality: A Conversation with The Honorable Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States, and New Voices in Women's Legal History (Joint Program of Sections on Legal History and Women in Legal Education, Co-Sponsored by Section on Constitutional Law)
- Transgender Equality: Prisons, Workplace, and Academic Institutions (Section on Sexual Orientation and Gender Identity Issues)
- Voter Suppression, the 2014 Elections and Beyond (Section on Civil Rights)
- The Future of Marriage (Section on Family and Juvenile Law)
- The Voting Rights Act at 50 (Section on Election Law)
- How (Not to) Provide Statutory Accommodations for Religion (Section on Law and Religion)
- Congressional Dysfunction and Executive Lawmaking During the Obama Administration (AALS Academic Symposium)
- Legislation/Regulation and the Core Curriculum (Section on Legislation & Law of the Political Process)
- Designing a Regulatory System for the Age of Decentralized Virtual Currencies (AALS Crosscutting Program)
- Competition Policy in Health Care (Section on Antitrust and Economic Regulation, Co-Sponsored by the Section on Law, Medicine and Health Care)
- The Rising Bar to Federal Courts: Beyond Pleading and Discovery (Section on Civil Procedure)
- After Bay Mills: The Longevity of Tribal Sovereign Immunity (Section on Indian Nations and Indigenous Peoples)
- The Role of History in the Federal Courts Canon (Section on Federal Courts)
- The Future of the Federal Housing System (Joint Program of Sections on Financial Institutions and Consumer Financial Services and Real Estate Transactions)
- Net Neutrality: Where does the FCC go from here? (Section on Mass Communications Law)
- Anita F. Hill, Supreme Court Confirmation Hearings, and a Screening of the Film "Anita" (AALS Crosscutting Program)
- The Fifty Years War: Can Legislation Ameliorate Poverty? (AALS Crosscutting Program)
- Richard Posner and Stanley Fish: Revising Interpretation (Section on Law and Interpretation)
Writing, Fast and Slow
Zachary Kramer's thoughtful post, "The Slow Writing Movement," brings up a broader choice between two approaches to producing legal scholarship. Fast versus slow. Or what I think of as the Chicago style versus the Harvard style.
The Chicago style is to pump out a bunch of articles every year. When you get an idea for an article, whether big or small, you write it up. The idea is to produce a steady stream of scholarship. Not every article will be a home run. But among your articles enough will be a hit that you'll produce a major body of influential work. I call this the Chicago style because it is most closely associated with the traditional faculty culture at the University of Chicago Law School.
On the other hand, the Harvard style is to write less but bigger. You focus on quality instead of quantity, not sending out an article unless and until you think it is the definitive statement about that area of law. You won't win any productivity awards. But what you send out should be a signficant statement -- if not a home run, at least a double or triple. And by focusing your efforts on really big ideas, the thinking runs, you'll produce a major body of influential work. I call this the Harvard style because I have heard it associated with the traditional faculty culture at Harvard Law School.
Thursday, October 23, 2014
More scholarly outlets?
Zak started a conversation and Bridget Crawford asks a follow-up: When did it become the case that one post-law school is not sufficient to make one a viable candidate and that 2-3 post-school pieces are the norm? One possibility (raised by Bridget and Glenn Cohen in the comments to Zak's post) is the rise of the VAP and the time and writing expectations it provides.
I want to connect it several changes in scholarly publishing (which may be complementary to the VAP explanation):
1) There are more outlets for scholarship. Most schools have several journals and the number seems to be rising. The number of speciality journals has increased, including "law-and-policy" journals that publish the same type of public-law stuff that already plays well in general law reviews.
2) The "typical" article is shorter than it was 10-15 years ago, prompted by the guidelines adopted by several of the t14 reviews. The typical piece is 15-20k words, as opposed to 25-30k. This means, I suppose, that you can write two articles in roughly the time you used to be able to write one.
3) The rise of on-line supplements and similar outlets for shorter scholarship provides an incentive and opportunity to publish one big piece and one small piece in a year.
I am not looking at FAR forms this year, so I do not know if any of these explanations is empirically supported. But I do know that all 3 have affected how and what I write. So it makes sense that they also might affect what VAPs and others planning for the market do (especially if they are getting advice from people in roughly the same position as me).
Justice Clarence Thomas and Korematsu: The Sequel
I blogged here on October 15, about an article of mine that was published this year in the Harvard Journal of Racial & Ethnic Justice titled “Justice Clarence Thomas’s Korematsu Problem.” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868 . Legal scholar Ilya Somin at the Volokh Conspiracy has authored an interesting and lengthy post critiquing parts of the article. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/20/does-justice-thomas-endorse-the-supreme-courts-notorious-decision-inkorematsu-v-united-states/ Respectfully, I think Ilya is wrong.
First, Ilya and I actually agree on several things. We agree that Justice Thomas was wrong in his Hamdi dissent because Thomas granted excessive power to the President during wartime. Even Justice Scalia, contre Thomas, acknowledged that a U.S. citizen could not be held virtually incommunicado, without formal charges, and interrogated indefinitely, whether the person was an enemy combatant or not.
Yet Justice Thomas in Hamdi wrote that: “The Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and this authority carries with it broad discretion.” Thomas also writes earlier that, “The Founders intended that the President have primary responsibility – along with the necessary power – to protect national security and to conduct the nation’s foreign relations.” Further Thomas quotes from another case where the Supreme Court says that, “"We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous." Thomas also touts the advantage of the “unitary executive” and the executive’s role as the “sole organ” and “single hand” in such matters. I want to add that the decision was 8-1 with Thomas the lone dissenter taking this extraordinary position. He is way out on a limb in finding this U.S. citizen has virtually no rights. And it’s important to note that Justice Thomas was wrong even though Hamdi was labeled an enemy combatant. Thomas also indicates that he believe courts should hesitate to intervene in such decisions. All of these views are consistent with Korematsu.
The Slow Writing Movement
Orin's post below on tips for new professors is chock-full of good advice. I'm especially interested in his first suggestion, Send out an article in the spring submission of your first year. The reasons he gives make sense.
In the spirit of giving advice from lots of different angles, however, I want to push new professors to think about writing in a different way.
On Being Sued, 2
Man kills puppies, allegedly.
In life and in law, the word "allegedly" does a lot of heavy lifting. It conveys that something has yet to be proven, that it may in fact be wrong, that a search for truth will uncover what really went down. Allegations are a core part of legal practice, just as they are a core part of journalism, not to mention how we read and absorb news.
Catalanello v Kramer was a case about the word allegedly. Did my article use it enough? Did my article make clear that I was talking about a case at the pleadings stage? Can the word allege--in one form or another--turn a defamatory statement into a non-defamatory statement? Whoops, I meant to say an allegedly defamatory statement.
At oral argument, plantiff's counsel argued that my article blurred the line of fact and allegation. A reader would get the wrong impression, thinking that my discussion was about decided facts rather than allegations of fact. The judge even asked counsel if I should have used the word allegedly in every sentence. Counsel rejected that approach, preferring instead that I had, at the outset of the paper, said that the case was ongoing (which the paper clearly said), that the facts were contested, and that plaintiff denied the allegations in the underlying case.
The distinction between allegations and facts is fuzzy. We lawyers are used to it, but my sense is that most non-lawyers don't see the difference. This is where context comes into play. I wrote the paper for lawyers. I never imagined others would read the thing.
Which brings me to the point. The lesson of my brush with defamation law is that the walls of the ivory tower are porous, and our scholarship is going to leak out. You can't prevent others from reading your work and reacting to it. Sites like SSRN and Bepress provide easy access to our scholarship. Don't get me wrong. I think this is a great thing. I want my work out in the ether; I want people to hear what I have to say. But it means that we have to be careful about what we say and how we say it.
I stand by my paper. I don't think it was defamatory, and I'm glad the court dismissed the case--not just for me, but for the scholarly process in general. A world in which we can be held liable for talking about ongoing cases is a scary place in which to write.
While the case was ongoing, I read--more like devoured--Amy Gajda's book The Trials of Academe: The New Era of Campus Litigation. Gajda has a wonderful chapter on scholarship in an era of defamation suits.
More to come.
Wednesday, October 22, 2014
Doubts About Jurisdictional Doubts in Dart
Could there be outside-the-box solutions to the jurisdictional puzzle in Dart Cherokee Basin Operating Company, LLC v. Owens? I recently chatted about this topic with Akhil Amar, one of the five people still interested in it. If you are people three to five, then this is the post for you.
Tuesday, October 21, 2014
Another voice on classroom technology
From Clay Shirky, a professor media studies at NYU. I especially appreciate the point that student distraction by technology is a biological inevitably; as he writes, "[h]umans are incapable of ignoring surprising new information in our visual field, an effect that is strongest when the visual cue is slightly above and beside the area we’re focusing on." This is important on two levels--one personal, one professial First, it gives lie to the "if you'd be more interesting in the classroom, they'd pay more attention" trope. Second, I can use it to explain to my wife why my eyes always move to watch sports on a tv screen in a restaurant.
Subject matter jurisdiction crossword
The answer to 12-Down is "thetutor" (Spencer's TA); the answer to 15-Down is "Locke" (that section's torts professor). New York Times rules apply, so an answer can be more than one word. Have at it.
Tips for First-Year Law Professors
I want to offer some advice for the fortunate few who landed a tenure-track law teaching job recently and are now in their first year of teaching. Everyone has a different perspective, of course, and if I go astray, I hope others will respond in the comment thread. But if this is your first year of tenure-track law teaching, here are some tips you might consider:
1. Send out an article in the spring submission window of your first year. When your new colleagues voted to hire you, they made a bet that you'll be a productive scholar. Now they're watching you to see if their bet was correct. Prove them right by sending out an article in the spring of your first year. You'll benefit in lots of ways. First, your colleagues will be very pleased to see you off to a good start. Second, tenure will look (and be) so much easier with a new article already under your belt. And third, it will get you into the habit of sending out an article in the spring submission window. My sense is that the best submission window is usually around the last week of February. Put that on your calendar and plan to send out your article around then.
2. Invite your senior colleagues out to lunch. Your senior colleagues can be a tremendously useful source of wisdom and insight for you. They know how to teach, they know how to write, and they know all the ins-and-outs of the quirky academic institution you have just joined. Plus, some of them are even really nice people. (Strange but true.) For all these reasons, it's good to get to know them outside of faculty meetings and workshops. Here's an idea: Pick a few senior professors who you think may be particularly good role models for you -- perhaps they're in your field, or maybe they're particularly prominent scholars -- and invite them each to lunch. Chances are, they'll be happy to have lunch with you, happy to get to know you, and happy to share any advice they can.
3. Don't assign too much reading. It's common for new law professors to assign a lot of reading for class. In my view, it's better to assign less reading and go over the material in a rigorous way as part of a rich class discussion than to assign more reading and go over it in only in a breezy and superficial way. And in many cases, more reading means more students unprepared for class. I find that when teaching upper-level students in a doctrinal class using a standard casebook, somewhere around 20 pages of reading for a one-hour class is a good ballpark. If you're teaching fall 1Ls, maybe start with 10 pages per class-hour and work your way up to 20 by the end of the semester. Of course, these are just ballpark estimates, and the actual amount depends on the school, the book, the course, etc.
Supreme Retirements and the Habit of Politics
There's been a lot of debate over the past year or so about whether Justices Ginsburg and Breyer should or will retire in order to maximize the chances that President Obama will be able to name their successors. In an effort to put out this fire, Justice Ginsburg recently fed the flame by asserting that “If I resign anytime this year,” the President “could not successfully appoint anyone I would like to see in the Court.” Jeffrey Toobin asked the President about this, and he responded with a measure of skepticism, while conceding: "Life tenure means she gets to decide, not anybody else, when she chooses to go.” Underlying these events is an important question: should supposedly neutral Justices time their retirement decisions based on what seems like political strategy?
Monday, October 20, 2014
Misunderstanding Rule 11
Via Slate, the lame-duck attorney general of Arizona cited FRCP 11 sanctions as a basis for no longer defending (or appealing, although that would be covered by FRAP 38) same-sex marriage bans. The argument, it seems, is that defending the bans (or appealing) would be seen as imposing unnecessary delay or expense or as a frivolous argument not warranted by existing law. Mark Stern at Slate and Josh Blackman both see this more as a political move. I want to suggest it must be, because the argument is wrong legally.
Whose job is it, FRE edition
I finally got around to reading the argument in Warger v. Schauers, dealing with whether FRE 606(b) prohibits inquiry into jury deliberations in trying to show that a juror was untruthful during voir dire. During the argument, counsel for respondent (the defendant, who won at trial) repeatedly argued that, if the Court believes it would be better to allow juror testimony on such claims, then it is a job for Congress to change the rule. Counsel repeated this point several times, always mentioning Congress as the source of any change.
But it is not Congress's job, at least not primarily--it is the Court's job, under the Rules Enabling Act. It is true that the original 606(b) from 1973 (it was amended once, in 2006) was affirmatively enacted by Congress as part of the original Federal Rules of Evidence. But since then, changes to the FRE follow the same procedure as changes to the FRCP or FRCrP, with the advisory committees and the Court taking the lead and Congress merely exercising a power to disapprove a submitted rule. And while Congress can always amend the rules through ordinary legislation, that is not the primary or presumptive way to make a change. When litigants talk about the meaning of the FRCP or the need for amendment, it is always discussed primarily in terms of the Court and the committees. I am wondering why it should be different with the FRE.
Parents and the Privacy of Their Children
In a fascinating article about her son’s relationship with Siri in yesterday’s New York Times, Judith Newman does a terrific job illustrating some key benefits of artificial intelligence. Newman observes how Siri has infinite patience for lengthy and detailed discussions of her autistic son’s obsessions, how it forces him to enunciate clearly if he wants to elicit an answer, and how their interactions improve his communication and social skills. Very exciting stuff.
While I enjoyed learning about Siri's impact on Newman's son, the article also reminded me that when writers take us into the privacy of their families’ lives, we may learn more than we should. Millions of other readers and I now know very intimate details about Newman’s son. We know what he likes to discuss. We know which social skills he lacks. We learn about his speech skills.
In this case, Newman may have drawn the right balance. From her description of her son, it sounds like his autism is obvious to people who meet him, so it’s not as if she disclosed a medical condition, such as HIV infection or diabetes, that otherwise would not be detected by others. And her son may be very proud of his role in teaching so many people how technology can influence the lives of people with autism.
But other revelations about children are more problematic. In many cases, it seems difficult to justify the intrusions into the privacy of their children’s lives by author-parents. Often, the writings may serve many purposes but not the interests of the children they depict. At a time when government, corporations, and other outsiders are too quick to invade the privacy of children, one would expect parents to be more careful about doing so themselves.
Law School Hiring, 2014-2015, Thread Two
Please leave comments on this thread regarding whether you have received:
(a) a callback from a law school and/or accepted it; or
(b) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Five miscellaneous things:
1. If you don't want your contact information displayed, enter firstname.lastname@example.org or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
4. The year's first hiring thread is here. Comments to that thread are now closed.
5. In each of the last five years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at slawsky *at* law *dot* uci *dot* edu, and I will get you set up.
Sunday, October 19, 2014
An Op-Ed on Alabama's Amendment One
Here's an op-ed from the local paper, the Tuscaloosa News, discussing a state constitutional amendment that is on the Alabama ballot next month. That amendment, which bars the application or enforcement of "foreign" law (including religious law, and indeed the history of this provision suggests it is just a next-gen anti-Sharia law) in highly limited circumstances--circumstances that I argue are already covered by current law, rendering this law redundant at best--can be found here. More background on the amendment can be found at Ballotpedia. Comments are welcome, and more detailed inquiries via email are also welcome. Enjoy. Here's the opening paragraph:
Normally, when legislatures do foolish things, at least they do them on their own. But sometimes they ask for our help in being foolish. Alabama's Legislature has done so this year by putting Amendment One on the ballot in this November's election. We should decline the invitation.
Audio at Oyez
Does anyone know why Oyez no longer offers audio of SCOTUS arguments with the transcript embedded into the audio (Compare this audio from last term with one from this term)? It was a great feature that made reviewing arguments easier and more engaging. True, you get the same effect by reading the transcript while listening to the recording. But I am curious why the site has stopped using a truly unique and beneficial feature.
Saturday, October 18, 2014
Chairing, Hiring but Not Attending FRC
This year at USD law school I am chairing our appointments committee and we are focusing on hiring an environmental and/or energy law candidate, whether entry-level or lateral who will assume institutional leadership in the field given that we have a program, concentration, journal and an Energy Policy Initiatives Center (EPIC). We decided to not send a team this weekend to DC. Given our focused search, we believe we can identify the best candidates through the FAR forms, speaking to references, to the candidates over the phone/skype and reading their scholarship. I heard some other schools are following this pattern of skipping DC and our guru Paul Horwitz suggested I post something about this trend. It seems to have been working rather well on our end though it is always nice to have the opportunity to meet two dozen wonderful new scholars in a condensed period of time.
Friday, October 17, 2014
Religious accommodations and legal pluralism
In this piece, ("Religious accommodation's roots in legal pluralism"), Columbia's Prof. Katherine Franke writes that "one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme." She also writes, later in the piece, "the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority."
Now, for me -- unlike Katherine, it seems -- to identify something's roots in "legal pluralism" is, generally speaking, to pay that something a compliment! (I recommend, by the way, Prof. Victor Muniz-Fraticelli's new book, The Structure of Pluralism.) But, put that general matter aside: Although Madison's Memorial and Remonstrance certainly takes seriously the authority of "sources exogenous to the secular legal system itself," I don't think that our accommodation-through-exemption regime in the United States really reflects or constitutes a "threat to the idea of state power" or even to the idea of "singular legal authority." In practice, and in most of the arguments for religious accommodation, it seems to me, the conversations and litigation happen in terms of interest-balancing, toleration, benevolence, getting-along, etc.
It is true that -- for some of us, anyway -- the idea that the state's authority is both bounded and non-singular is important and worth operationalizing through constitutional doctrines like the ministerial exception and decisions like Kedroff (more on that here). But again, most requests for religious exemptions, in practice, look and sound to me much more like requests (or pleas) for toleration and for the state to stay its hand, moderate its approach, and endure a little inconvenience in order to reduce unnecessary pain to certain citizens with religious objections to complying with otherwise generally applicable laws.
We could hear, for example, Mr. Holt as making some kind of jurisdictional claim about the state's lack of authority to regulate the length of Muslim prisoners' beards and, to be sure, he is (at least implicitly) claiming that to the extent the relevant non-political authority's commands conflict with the political authority's, he believes the former authority's are the ones that, for him, control. But, within the confines of our religious-liberty legal regime, he is simply invoking one of the political authority's valid and binding laws (RLUIPA) in support of his claim that another of the political authority's binding and valid policies (the prison-grooming regulation) can, all things considered, be modified in application in this particular case, and therefore should. It seems to me that there is nothing -- to borrow Katherine's word -- particularly "radical" about that.
Egg Freezing and Women's Decision Making
The announcement by Apple and Facebook that they will cover the costs of egg freezing predictably provoked some controversy—predictably because it involves reproduction and also because too many people do not trust women to make reproductive decisions.
Interestingly, the challenge to women’s autonomy can come from both sides of the political spectrum, as has happened with several assisted reproductive technologies. Scholars on the left criticized surrogate motherhood on the ground that surrogates were exploited by the couple intending to raise the child, and other new reproductive technologies are criticized on the grounds that women will feel obligated to use them rather than free to use them. Indeed, this concern about coercion drives some of the objections to egg freezing.
Richard's post on the problems created in Dart Cherokee by the court of appeals failure to explain its reasoning and Gerard Magliocca's CoOp post on recent examples of SCOTUS issuing procedural orders affecting constitutional litigation without explanation share a common theme--to what extent do courts, particularly reviewing courts, have an obligation to explain themselves. That obligation might be to reviewing courts, lower courts, current litigants, future litigants, or the public at large.
The problem is that the desire to provide explanation potentially butts against case-management concerns and the difficulty (if not impossibility) of providing reasoned explanations for every decision, including procedural decisions such as declination of discretionary review (the issue in Dart), cert. denials, and stays (or releases of stays) pending review. Courts do not have the time or resources to provide full-on reasons for every decision, particularly where reasons require consensus on a multi-member court. Then we have to figure out whether less-than-complete reasoning is better or worse than no reasoning at all. And we potentially fall back into the debates of the late '90s and early '00s about non-precedential opinions and the problems they create.
Importantly, neither Richard nor Gerard argues that courts should do this in every case, but only special cases--where failing to explain wuld effectively insulate a decision from review or the issues are signficant enough that special guidance is needed. I would reiterate that the decisions prompting the discussion involve particular procedural concerns rather than the ultimate merits.
Should Lower Courts Facilitate Supreme Court Review?
Last week’s oral argument in Dart Cherokee Basin Operating Co. v. Owens featured a lot of discussion about whether a circuit court had erred by insulating a legal ruling from further review. This possibility raises an interesting question: Do the courts of appeals generally have a responsibility to facilitate Supreme Court review?
Thursday, October 16, 2014
Number of Schools at AALS FRC Over Time
In 2012, there were 142 AALS member or approved schools at the FRC.
In 2013, 94 schools.
In 2014, 81 schools.
(Say +/- 2 for each year due to vagaries of counting.)
In praise of being a white belt
My oldest child is getting ready to test for a black belt in tae kwon do next week, and my other two children are only a few months behind. They started taking classes a few years ago at a school that encourages the whole family to take classes, so I joined them. I was not good. I still am not good, but it's taught me a number of valuable things about teaching that I never would have realized otherwise.
1. Embrace being a white belt. The white belt is the earliest stage of any martial art, the stage of a total beginner. A white belt may be the world's expert in some other field, maybe even in some other martial art, but in this one, and in this school, this person is a beginner. It requires a level of humility and adventure to let yourself be a beginner, especially when you've worked so hard to establish yourself as an expert with authority in a heirarchical field like ours. But there is only room for improvement from beginner-ness. When else is there nothing but up-side, an opportunity to see what you can do and improve on that?
Our students go through something like this when they start law school. I'm sure that you remember what it was like, whether you went straight to law school from undergrad, worked for awhile, or had pursued another degree. You had worked hard to accomplish things, had even felt some level of mastery, maybe, and now, you were starting over. And students seem to fall into two main categories. Some think that everyone else is more accomplished than they are. Others chafe at the failure of others to recognize their brilliance. If we remember some important things about being a beginner, we can help our students through the pain of beginner-ness to also see its virtue and embrace the possibilities--including doing the kinds of work that will make them successful lawyers.
Being a beginner is context specific but also a universal experience. Everyone (except maybe Cass Sunstein, or Chuck Norris) is always right now a beginner at something. And a person can be a beginner at one thing while being a master of another. There is no impact on a person's intelligence or worth to accept being a beginner at something. And just because other people are better at this thing doesn't detract from the things you are an expert in. In beginner-ness is there is no shame, and only potential.
2. Practice makes you better, and practice involves failure.
Does Teaching Torts Warp Your Brain?
Maybe something just happens after 10+ years of teaching Torts. Delve each week into human suffering...in sets a bit of desensitization. Every terrible tragedy in the news -- say, a horrible hayride accident in Maine--drives the Torts Teacher to start asking questions.
Does primary assumption of risk bar a hayride accident victim's lawsuit? (No). Has industry custom been violated? (Perhaps). There's a little voice in one ear opining, "too soon," and one in the other ear whispering, "teachable moment." Who knew, for instance, that Maine has a two-year old rec use-like "Agritourism Activities" law? (HT: Portland Press Herald). That there were attorneys specializing in hayride accidents?
Or consider a simple object encountered in daily life - say, a pencil. The Torts Teacher finds fascinating the question of how many different ways one could accidentally cause one's self fatal injury through encountering said object. (42).
Wednesday, October 15, 2014
Justice Clarence Thomas and Korematsu
Recently, there was a discussion on the lawcourt listserv about the worst U.S. Supreme Court decisions ever. On a related note, this past summer, my short article titled "Justice Clarence Thomas's Korematsu Problem" was published in the Harvard Journal of Racial & Ethnic Justice, and posted on SSRN. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868 Ironically, the issue of whether the Court should formally repudiate Korematsu was also raised in a separate cert. petition during the period I worked on the piece. Further, Ilya Somin had a post or two on the issue of repudiation, if I recall correctly. Looking back on the article, I confess that I'm still stunned that Justice Thomas's view of war related executive power, as taken from his judicial opinions, would seem to support Korematsu. The abstract is below. Contrary thoughts or arguments are welcome. Or perhaps I should not be stunned.
The U.S. Supreme Court's infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision. This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case. Two cases provide the major evidence. First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights.
Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process. California argued this minimized racial violence. Thomas therefore abandoned his well-known position of racial color-blindness in the case. The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu. The essay also addresses several counter-arguments. While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.
One More Reminder for Interviewing Faculty at the AALS
In addition to Paul's list, I'll add one more: Please be courteous and let candidates know as soon as they are no longer in the running. Some appointments committees don't do this, presumably because it's not really pleasant to have to tell applicants that they've been rejected. (I'm still waiting to hear from some schools I interviewed with in 2000. Maybe they forgot my e-mail address?) Enduring that slight unpleasantness is a big favor to candidates, however, as they need to plan their futures in light of the options they have. So please don't leave candidates guessing if you know that they're off your list.
Ebola, Epidemics, and Federalism
The Ebola epidemic has made emergency public health measures a subject of global importance. Within the US, attention has focused on federal efforts to monitor potentially contagious persons entering the country, and on both state and federal efforts to curb the spread of infection. (Paul Rosenzweig’s post over at Lawfare is a good example.) Clearly, the end of this humanitarian crisis will turn on medicine and public policy. But there is also a set of constitutional doctrines relevant here. In recent years, public health problems have played a significant role in thought experiments regarding the scope of state and federal power. Some of these scenarios don’t seem quite so hypothetical anymore.
Reposted: "Interview Tips . . . For Faculty"
Following up on Zak's post below, I'm reprinting a post I put up some four years ago, back in the springtime of my blogging years. It asks what interview tips we might give to interviewers, rather than candidates, at the faculty hiring conference. I have not reexamined it and I don't know what I would, on further reflection, change about the advice; I offer it for whatever it's worth and not as a statement of my current views. The original post is here and there were some useful comments on it; I'm in transit today and have closed comments on the current post. And, of course, interviewers looking for something to read on the plane to DC might print out and read Martha Nussbaum's sobering article Cooking for a Job: The Law School Hiring Process. The post follows:
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It's just about meat market time again, and as always the interwebs are filled with advice for candidates, including recent posts here and at the Faculty Lounge. Perhaps it's time we change focus a little by asking what interviewing tips we should offer to hiring committees. Having been through the process, most of us are perhaps a little able to offer some suggestions about what interviewers at the meat market ought to do or ought not to do, both for the sake of a friendly interview and for the sake of a successful hiring process. I welcome suggestions, although I'll start things off with a few tips of my own.
1: Be on time. We always tell candidates to knock politely then wait patiently. But what's good for the goose is good for the gander. In a room with six or more people, surely someone is capable of keeping his or her eye on the clock and keeping things moving. It seems discourteous to make interviewees wait. This includes the hour after lunch; if your 1 o'clock candidate can make it back in time, so can you. (Conversely, candidates, keep an eye on your own watch; if the interview is over, I know you may want to linger as long as the faculty want to keep chatting with you, but have some consideration for the next person waiting and politely make your excuses. "I'm sorry, but I've got to interview with Yale in a minute" is a good exit line.)
2: Have something specific to say about your school. Candidates are often told not to ask boilerplate questions about the law school they are interviewing with -- to have done some studying and have pertinent questions to ask. Again, the same thing should be true the other way around. Telling a candidate that you have a fine, collegial environment with lots of support for teaching and scholarship is like a law firm telling you they have excellent work and a friendly environment: it may (or may not) be true, but it's not very helpful. Have answers ready about what actually distinguishes your school (if anything -- it's not clear that there's always a really great answer to this question), what specific virtues it has and what challenges it faces and how it plans to meet them, what its five-year goals are, what the living environment is actually like (a selling point for many schools, in my view, including those outside the great cities, which can become commuter schools for students and faculty alike), and so on -- and make them as specific as you reasonably can. You may not always want to be thorough in your disclosures, but be honest in what you do say and as candid as you can be.
On Houston's Broad Supboena [UPDATED]
Eugene Volokh has a good post on developments in litigation in Houston around that city's equal rights ordinance. The only report I've seen so far from a mainstream outlet is this Houston Chronicle story, which reports in part:
Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. City attorneys issued subpoenas last month during the case's discovery phase, seeking, among other communications, "all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession."
Of course a good deal of the reporting on the development is from partisan outlets and should be read, if at all, with caution (a number of headlines out there, for instance, talk about Houston seeking "oversight" of sermons and so on). But while I would want to know more, I find the Chronicle report and the language quoted in it troubling on its face. Better than having to rely on overheated sources (including the press release by the ADF, which is involved in the case) would be more mainstream media coverage of this request, which I think certainly deserves it.