Sunday, March 09, 2014
When an Undue Burden?
Recently passed legislation in Texas is effectively closing 44 of 50 abortion clinics in that large and populous state. Meanwhile, in my home state of North Dakota--large, but not very populous--where one abortion clinic operates in the far southeast corner of the state, parties have just settled a lawsuit regarding a state admitting privileges law when a local hospital agreed to give such privileges. Despite the divergent outcomes in each of these two states, isn't the ultimate result the same: people who don't reside near a state's clinic(s) may be unduly burdened when attempting to exercise their constitutional right to an abortion.
Imagine if a Texas or North Dakota law required gun stores to follow clearly unnecessary regulations that forced the closure of most of them, and another law prohibited the mailing of firearms. No doubt people would claim a Second Amendment violation if they had to
- travel hours to buy a gun;
- wait for 24 hours;
- receive information about the alternatives to buying a gun, such as installing home security systems or buying a guard dog; and
- receive information about how guns inevitably result in the death of whole, human lives.
Would this be a Second Amendment violation (not to mention a First Amendment violation as to the last point, something courts in the abortion context have rejected)? If so, should the anti-abortion laws in Texas and North Dakota be unconstitutional as well? What if potential gun purchasers and women seeking an abortion, who live near their state's border with another, more libertarian, state, can travel five minutes across state lines to exercise their constitutional rights? Would this mean that these people lack standing to sue for their state's complete prohibition on gun sales and abortions, because they can exercise their rights? Put another way, may tiny Rhode Island prohibit gun sales and abortions but Texas may not?
The inconsistent answer depends upon whether we engage in a formalist-legal analysis or a factual analysis. Under a formalist-legal analysis, the answer is clearly no, because states may not prohibit that which is a federal constitutional right. It doesn't matter whether Rhode Islanders can easily travel across state borders to exercise their rights. Under a factual analysis, however, the answer is yes. Someone in portions of Texas who wants to obtain an abortion will formally-legally have the right to an abortion in one of the six remaining abortion clinics, but because of distance, cost, etc. will effectively not have that right. Thus, Texas' laws should be struck down because they create an undue burden. Someone in Rhode Island who wants an abortion, however, can (in theory) easily travel to Connecticut or Massachusetts. Factually, she has much less of a burden than someone in parts of Texas.
But this cannot be. There must be a formalist-legal and factual analysis, which courts ostensibly engage in. But thus far, courts have been unwilling to recognize that geographical distance to an abortion clinic might pose an undue burden. Perhaps if the same law were leveled at gun sales, courts would rule differently. While choice is popular among legislatures and courts, apparently it's only the choice to possess an object that can kill. For these institutions, perhaps being pro-choice does, in fact, mean being anti-life.
FSU Law Review Exclusive Review
The Florida State University Law Review will be conducting exclusive spring article reviews over the next few weeks. Any article submitted to this exclusive review between now and March 15th will be evaluated by March 22d. By submitting the article you agree to accept an offer for publication should one be extended. You are not required to withdrawal your article from consideration by other journals, but you may not accept an offer from another journal unless we have notified you with a decision not to publish your piece. Any articles accepted through this review will be published in our fourth issue, which is slated for publication in summer of 2015.
If you have an article you would like to submit, please e-mail Jordane Learn a copy of the article and your CV at FSUarticleselection@gmail.com with the subject line "Exclusive Spring Article Review." We look forward to reading your submissions.
Saturday, March 08, 2014
Gambling v. PEDs and the Baseball Hall of Fame
Warning: Another sports-and-law post, this focusing on the internal rules of baseball as a business
Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. TThe excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic that surrounds PEDs.
But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.
Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.
Coulda Been Contenders
Do people have favorite cases/issues for which SCOTUS did not grant cert, but who think that if it had, the resulting opinion might have been impactful, important, or otherwise interesting? Mine is Epton v. New York, 390 U.S. 29 (1968), in which the Court denied cert from the petitioner's conviction for conspiracy to riot, advocating criminal anarchy, and conspiring to engage in such advocacy. The overt acts alleged consisted of speeches and the preparation of leaflets, all of which, according to a dissenting Justice Douglas, would normally be protected by the First Amendment.
As I have argued, conspiracy entails a First Amendment work-around: direct speech prohibitions are generally unconstitutional, but conspiracy charges can effectively quash speech rights. Epton might have responded, answering the "important question," as Justice Douglas put it, "Whether the overt act required to convict a defendant for conspiracy must be shown to be constitutionally unprotected." Id. at 31.
Friday, March 07, 2014
The problem with PowerPoint
Editing Cases for Class
This is my first year teaching on the tenure track, as well as my first year teaching doctrinal courses; to a certain extent, I’m still feeling things out as far as how I’d like to run and organize my classes. This semester, I’m teaching a class on Speech Torts. As you might imagine, the coverage of the course is fairly idiosyncratic, which posed some problems in picking out a casebook: no casebook would hit all (or even most) of the material I wanted to cover in the course, and a significant portion of any casebook I could pick would go unused.
So I decided to put together my own case materials. I’ve largely found the extra investment of time worth it, since I can tailor the course exactly the way I’d like it (while, of course, saving my students from having to shell out $200 for a lightly used casebook).
This has raised the issue of how (and, I suppose, if) to edit cases. My instinct has been to edit on the heavier side so cases are lean and focused on the points I want to emphasize, which leads to more focused classroom discussions and allows me to cover more material. On the other hand, there’s a lot of potential benefit in giving unedited (or very lightly edited) cases to students. Many will go through law school with only limited experience in dealing with cases “in the wild,” and being able to organize multiple issues, plow through complicated procedural histories, and generally separate the wheat from the chaff are all valuable legal skills.
So a question for those of you who regularly edit cases for your classes (and those who have put together casebooks): what is your general case-editing philosophy? I realize that a lot of this will be tied to the specific case and material being covered, but all else being equal, do you tend to edit lightly (or not at all), or do you tend to apply a heavy hand?
Supreme Court Unanimity, T'other Way Around
At CoOp, Gerard Magliocca has an interesting "thought experiment"--I would call it a "question"--about Supreme Court unanimity. He asks: "Can anyone think of a Supreme Court opinion that failed because it was not unanimous? In other words, is there any opinion that was gravely undermined by the fact that one or two Justices dissented?" The discussion is good. (For the record, like at least one other commenter I would have offered Gobitis as an example as well.) But I think the question or its suppositions may get things the wrong way around. Supreme Court opinions don't fail because they're not unanimous; they're not unanimous because they (are about to) fail.
Not always, of course. Really, this question and/or situation is most relevant where the Court is confronted with a politically and socially charged issue that is in the middle of the journey from being uncontested on one side of an issue to being uncontested on the opposite side of the issue. (The best discussion I know of on this is Larry Lessig's earlier con law theory work.) Unanimity at the first end will not rescue an opinion from being overruled when the social and legal consensus has reached uncontestability on the other end. But a lack of unanimity on the Court in the middle period, the stage in which some issue or value is in a period of contestation, is a sympom or indication of that state of contestability. The consensus may resolidify around the earlier view of what is uncontestable. Who knows; maybe the Court's opinion, divided though it may be, will contribute to this resolidification, although I rather doubt it. Other times, the consensus will end up forming at the opposite end of the issue. (And perhaps the Court will help here too, although again I am skeptical.)
We won't know where we stand until there has been some kind of new equilibrium reached. But if and when it is reached, and if the social consensus has formed around a new view of what is uncontestable, then we can look back to that divided (and later reversed or dead-ened) opinion as an indication that the Court took on the issue, not so much too early (although we might conclude that it did), but too early to be in a position to settle the issue, or appear to settle it, with any finality. Until that social consensus has arrived, courts will engage in lots of issue avoidance and other exercises of the passive virtues. On some occasions, they will nevertheless reach a substantive decision on one side of the issue or the other. But as long as that issue is still socially contested, there is little reason to think any court decision will be the final word on the subject.
The comments to Gerard's post offer some possible examples and illustrations. I'm not sure all of them work with the little pattern I've offered above. Some certainly do. Others indicate, in line with Michael Klarman's work, that sometimes the state of contestability on an issue can be in one place for the Court and other national elites and elsewhere with respect to public opinion. Brown's unanimity made an important statement about the state of contestation around issues of segregation on the Court and in similar circles, but did not necessarily indicate the same stage of uncontestability in the South. Bowers, Lawrence, the SSM cases, and the contraceptive mandate cases can all be viewed in light of the fact that we are in a period of active contestation on issues of gay rights. And so on.
Nothing terribly novel here. Just food for thought, picking up on the discussion in the comments to Gerard's post.
Thursday, March 06, 2014
More on United States v. Abu Ghayth
In its opening statement to the jury in the conspiracy and material support trial against Sulaiman Abu Ghayth, about which I posted a blog entry yesterday, the government did not allege that Abu Ghayth helped plan 9/11 or any other terrorist attack. Instead, the government alleged that Abu Ghayth was part of a "global conspiracy" and used his words to recruit fighters to the Al Qaeda cause.
Rachel VanLandingham, a prominent national security scholar and excellent person, has provided a thoughtful counterargument to my first blog post. Given that as well as the prosecution's opening statements, a few additional thoughts are in order, after the jump...
The 2013 Full Hiring Report
Alexander Tsesis, of Loyola-Chicago Law School, has individually contacted all 180 law schools that are members of the AALS and collected all of the hiring data for entry-level law school hires who began in 2013 (i.e., last year's report: this year will be the 2014 hiring report).
I run some analysis of this information below, but let's be absolutely clear: all of the work on this project was done by Tsesis, to whom, if you are interested in this sort of thing, you owe a big thanks. (I'll start: Thank you!)
Following is a data summary that compares the Spring Self-Reported Entry Level Hiring Report for 2013 (i.e., last year's report) to the full data set for 2013 (last year).
To remain consistent with previous analyses, while the Tsesis data spreadsheet contains all hiring information he received, the data analysis includes only tenure-track hires at U.S. law schools.
In the self-reported version, there were reports of 106 tenure-track hires, at 74 different law schools. The complete data set has 126 tenure-track hires, at 82 law schools. So the self-reported version got about 84% of the new hires.
We had only two schools have been reported as doing no entry level hiring in 2013. In contrast, the complete data set has 87 schools reported as doing no entry level hiring.
(87 schools did no entry level hiring; 82 schools hired entry-level tenure-track professors, perhaps in addition to non-tenure-track long-term-contract entry-level hires; and 11 schools did not hire entry-level tenure-track professors, but did hire long-term-contract entry-level hires. This is a total of 180 schools.)
The two sets are quite similar. The biggest difference is in the percentage of fellowships: in the self-reported set, 78% of the hires had fellowships, and in the complete data set, 71% have fellowships.
Here are the schools from which people got their JDs in the complete data set, with the increase in number of reports in parentheses.
Q: How many tenure-track hires in 2013 got their JD from School X?
Yale 21 (+2); Harvard 18 (+2); NYU 13 (+1); Chicago 6; Duke 6 (+1); Berkeley 5 (+2); Michigan 5; Virginia 4; Columbia 4 (+2); Cornell 3; Georgetown 3; Northwestern 3; Other 35.
Schools in the "other" category with two JD/LLBs who reported hires: Stanford; Texas; UCLA.
Schools in the "other" category with one JD/LLB who reported hires: American; Boston U; Brooklyn; College of Mgmt Acad Stud; Diego Portales; Duquesne ; Florida; Fordham; George Mason; Hastings; Kansas; Louisana State; Melbourne; Mexico; Miami; Montana; New Mexico; North Carolina; Oklahoma; Penn; Phillipines (U of); Puerto Rico (+1); Russian University; Rutgers-Camden; SMU; Tulane; UC Davis; Washington (St. Louis); West Virginia.
Here is the full spreadsheet. This includes sheets with (1) All tenure-track and long-term clinical hires; (2) tenure track hires only (this is the data on which I ran the comparison, to be consistent with previous reports); (3) a list of schools that did not do entry-level hiring in 2013; and (4) a comparison of the self-reported data and the full data set. Hires that were not on the self-reported sheet are indicated by a yellow highlight.
Three cheers for Alexander Tsesis!
[Originally posted 3/6/14; edited 3/6/14, 3/7/14 to remove four hires erroneously included; edited 3/9/14 to add one hire erroneously mischaracterized as non-tenure track.]
Update, 3/7/14: Brian Leiter provides updated placement rates.
The Unfulfilled Potential of "Above the Law"
"Above the Law" has been disappointing. Like a lot of other law professors, I would guess, I'm uncomfortable with some of the anti-law-school rhetoric that Elie Mystal and others have been trading in there. But that's not the disappointing part -- in fact, I think Elie has been largely responsible in his vitriol. (And there have sadly been many deserving targets.) Instead, I'm disappointed that ATL has not fulfilled its promise of being the go-to site for news about lawyers and law schools. Instead, it's been a useful site for *links* to news about lawyers and law schools.
What's the difference? ATL has almost no original content, at least in terms of news. There's a lot of opinion, yes, and that opinion can be entertaining and informative. But most of the time, the opinion is: "Hey, did you see this? Wow! LOL!" I cannot remember any time--any time--where ATL broke a news story. Maybe they have, and I'm forgetting. All the stories I remember start with a brief overview, a link, opinion, a block quote from the original source, and then further opinion. It's like I'm reading Yahoo.
So here's my plea -- do some original journalism! Yes, journalism is expensive. But how many people are working over there? Can't you assign three folks out of j-school or law school each to a "beat" -- law schools, Big Law, and other lawyers and judges -- and set them loose with a modest expense account and time to dig? There's news out there -- do some actual reporting! I suppose it's not the Gawker way, perhaps, but seriously -- how much better would ATL be if it actually broke some of its own stories? It would depend on the quality of the stories, of course. But ATL could make itself into a "farm team" for folks looking to work at the New Yorker, NY Mag, VF, the Atlantic, the Awl, or Grantland. I'd prefer some long-form pieces -- send somebody to X law firm or Y law school to actually do some digging and provide a deeper perspective. But short "Page Six" items would be entertaining as well!
I give ATL credit for its rankings, which were a thoughtful attempt to reconstruct the formula with more emphasis on jobs and alumni rankings. (Full disclosure: SLU placed 47th.) But it's not the investigative journalism that ATL seemed poised to provide when it started. With the proliferation of blogs, there is so much opinion out there. ATL is now a group blog, with some smart folks and smart opinions but just links, not news. I had thought it had the chance to be something a little different.
More on the Civil Rights Division
Dahlia Lithwick basically gets it right: The "notion that the head of the Justice Department’s Civil Rights Division should have ever fought for civil rights has now become disqualifying."
But this is not anything new--Senate Republicans have been doing this to Democratic nominees to the Civil Rights Division for 20 years. As Bill Clinton's first nominee for the position, Lani Guinier famously faced strong Republican opposition based largely on her academic writings; Clinton withdrew the nomination when it became clear she could not be confirmed. And Bill Lan Lee served Clinton's entire second term without Senate confirmation--2+ years as acting head and one year as a recess appointee. Senate Republicans explicitly opposed Lee because he was and would be "activist" on civil rights. (And I would add that using that word to describe a lawyer and an executive-branch official reveals just how utterly meaningless it is).
Wednesday, March 05, 2014
More Honest Bob Casey
[But any attorney who seeks to help guarantee that right, in a case in which I believe the crime is sufficiently heinous, becomes per se unqualified for high public office. So, hey attorneys, feel free to help guarantee that right to citizens.]
Down with OCC?
Most banking experts would agree that the Office of the Comptroller of the Currency (OCC) is the most captured of the banking agencies. In fact, given its funding structure (it is paid fees by the banks it regulates), how could it not be? If you don’t believe me, go and read Saule Omarova’s excellent article that carefully describes the OCC’s use of interpretive letters to allow banks to engage in derivatives trading, which is clearly outside the parameters of “the business of banking.” The OCC allowed a historical expansion of traditional banking activities and introduced unprecedented risk into the banking sector without seeking public comment through rulemaking. In addition to allowing banks to engage in risky activities, the OCC also did its best to protect national banks from state consumer protection laws. In other words, the OCC repeatedly asserted that federal consumer protection law preempted state consumer protection law. That would be just fine if there were similar federal consumer protection laws that the OCC or other regulators meaningfully enforced. What it actually did, as Art Wilmarth explains, was to free national banks from any consumer protection law that had any bite. But why wouldn’t you do that if you are funded by fees from the very banks that get to choose you as their regulator?
After the financial crisis, some suspected that the OCC would be disbanded like the OTS. But that didn’t happen. It would appear that actually nothing happened to punish the OCC except some verbal slapping around by Congress. Indeed, Congress—for mysterious reasons—elevated the OCC’s status by making it an independent agency. However, Kent Barnett’s article, Codifying Chevmore (forthcoming in the NYU Law Review), points out that Congress does actually punish the OCC in a way that has huge repercussions for the administrative state.
The article says that Dodd-Frank slaps the OCC with a “Skidmore penalty” for preemption decisions. Meaning: while all the well-behaved agencies get stronger Chevron deference, the OCC now has weaker Skidmore deference. This does a few important new things: (1) alerts the courts that they need to keep an eye on the OCC, (2) sends a strong message of disapproval to the captured agency, (3) codifies Chevron and Skidmore deference (which he calls Chevmore) for the first time, suggesting that Congress knows of and generally acquiesces to the Chevmore doctrines, and (4) establishes that Congress has found another legislative tool for agency oversight—what Congress giveth in agency interpretive discretion, it can taketh away.
The Skidmore penalty is a great message Congress sends to the OCC as to agency preemption. But it does not apply to other OCC decisions. Congress went out of its way in Dodd–Frank to say just that (§25b(b)(5)(B)).So nothing stops the OCC from acting through guidance documents as it did with derivatives. Should Congress use the Skidmore Penalty for other OCC decisions? Other agencies? Which ones? And will it ultimately make any difference to agency decision-making?
Swansea University College of Law Chair In Empirical Legal Studies Available
Swansea University College of Law wishes to further augment its interdisciplinary research through the appointment of a Chair in Empirical Legal Studies. We seek a research leader with training in criminology, social sciences and law whose work is focused in quantitative methods as they are applied to law, institutions of criminal justice, and human behaviour. The successful appointee will also serve as Head of the Department of Criminology within the College of Law.
Applications are invited for the post of Chair in Empirical Legal Studies, reference AC00757. This is a permanent post on the Research and Leadership pathway.
This is an exciting opportunity for the successful candidate to establish themselves as a recognised campus leader on quantitative analysis in the social sciences, responsive to external research income initiatives of UK research councils and European funding bodies. Swansea University is one of the leading natural and physical sciences and engineering universities in the United Kingdom. This post offers an opportunity to bring expertise in the empirical social sciences to complement the cutting edge research being undertaken at Swansea University not only in the natural and physical sciences and engineering but also in the social sciences, the humanities and the professional disciplines.
Applicants should have an outstanding record of international excellence in research achievement and publication over the last five years in their subject area. They will be excellent and enthusiastic communicators of their subject and will demonstrate the ability to provide academic vision for their subject, with supporting evidence of strong academic leadership in research and teaching. In addition to demonstrating a first-rate research publication record (3* and 4* in REF terms), applicants should look to establish their credentials for academic leadership.
The College will be delighted to speak with potential candidates who wish to explore this appointment further on an informal and confidential basis. Please contact the Head of College, Professor John Linarelli J.Linarelli@swansea.ac.uk, +44 (0) 1792 295831.
Sulaiman Abu Ghayth, Membership Crime, and the First Amendment
The criminal trial of Sulaiman Abu Ghayth is beginning in the Southern District of New York. Abu Ghayth is charged with conspiracy to kill U.S. nationals, conspiracy to provide material support and resources to terrorists, and providing said material support. See United States v. Sulaiman Abu Ghayth, No. S14-98-cr-1023-LAK. The initial (not superseding) indictment is here. The indictment alleges that Abu Ghayth “urged others to swear allegiance to Bin Laden, spoke on behalf of and in support of al Qaeda’s mission, and warned that attacks similar to those of September 11, 2001 would continue.” In addition to these allegations, the government has alleged the following overt acts: Abu Ghayth agreed to assist Bin Laden by “giving speeches and appearing in al Qaeda propaganda” for the purpose of recruitment to al Qaeda; praised the September 11 attacks; praised other terrorist attacks; and participated in other al Qaeda propaganda. It is also alleged that Abu Ghayth was “engaged in planning and perpetrating federal crimes of terrorism against the United States.” More after the jump...
SEALS Prospective Scholars Workshop
I had the good fortune last summer to participate in the program for prospective law profs (prawfs?) at the Southeastern Association of Law Schools (SEALS) conference. I participated in two mock interviews with folks that I'm sure will be terrific faculty members, and we also got a chance to chat more informally and review their CVs. Luke Milligan and Leah Chan Grinvald are again hosting the workshop this year on August 2 and 3. If you are a potential candidate and are interested in the SEALS workshop, you should contact Luke at firstname.lastname@example.org.
Monday, March 03, 2014
Partial Speech-Tort Remedies?
Thanks to everyone at Prawfsblawg for inviting me to guest blog this month.
One of the projects that I'm working on focuses on the ways in which courts resolve speech-tort cases, and on that note, I'd like to pose a question to the room. Most people are I think familiar with the Snyder v. Phelps case, where the family of a marine who had died while serving in Iraq sued the Westboro Baptist Church for IIED after it had picketed the marine's funeral. Although the jury deemed the church liable under Maryland tort law and awarded the Snyder family substantial damages, the Supreme Court held that the First Amendment completely barred any such liability against the church.
But let's say that the Snyder Court instead decided to adopt a more Solomonic approach--let's say that it found Westboro liable for IIED, but it held that the First Amendment applied solely to limit the damages to which the Snyders were entitled. Perhaps they were entitled only to compensatory damages for purely economic losses; perhaps they were entitled to nothing but nominal damages. The Court's rationale would be that while Westboro's speech has some value and thus should have some degree of First Amendment protection, the Snyders should have at least something to show for the social harm committed against them, even if it's only the purely dignitary benefits associated with getting a public pronouncement of IIED liability against Westboro.
Does this sort of partial-remedy approach appeal to you as a potential means for courts to resolve speech-tort cases, or would it bother you? Why? I'm posing this question in the abstract, not in terms of whether such an approach would make sense under the particular facts of the Snyder case. Otherwise, I'll leave the question vague; my sense is that people's gut reactions tend to differ widely on this, so I'm interested to hear everyone's thoughts.
In Why We Need More Judicial Activism (the subject of a great Green Bag micro-symposium), Suzanna Sherry identified the eight universally condemned Supreme Court decisions (Spoiler Alert: Bradwell v. Illinois, Minor v. Happersett, Plessy, Abrams, Buck v. Bell, Gobitis, and Hirabayashi and Korematsu). The unifying theme is that all have been, if not overruled, certainly discredited, such that none remains good law.
But are there cases that remain genuinely good law that are similarly disliked by both sides of political and constitutional debates and that both sides would like to see overruled? Two come to mind.
One is DeShaney. Liberals would like to see the Fourteenth Amendment impose affirmative obligations on government to protect the public; conservatives see affirmative government obligations to protect the public as a possible route to prohibiting abortion (my thoughts here were triggered by Steve's post about North Dakota's personhood amendment, which, as I said in the comments there, arguably overrules DeShaney at the state level and imposes some sort of affirmative obligations on government). A second, I think, is Slaughterhouse. Both sides would like a textually sounder basis for incorporation through Privileges of Immunities (although Due Process incorporation is so well-established at this point that the issue is more formalist). And since that was an economic liberty case, conservatives would like to see it come out differently.
What other cases might fit the bill? And am I wrong about these?
Entry Level Hiring: The 2014 Report - Call for Information
Time once again for the entry level hiring report.
I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information we will be aggregating.
Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at slawsky *at* law *dot* uci *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.
We will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.
If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.
This report follows in the tradition of Larry Solum's excellent work over many years.
All PrawfsBlawg entry level hiring report tagged posts.
[Originally posted 3/3/14]
An Empirical Analysis of the Infield Fly Rule
The third piece in my "Infield Fly Rule Trilogy," titled An Empirical Analysis of the Infield Fly Rule, is up on SSRN. As the title suggests, I (with the help of seven FIU students, who all seemed to enjoy themselves) conducted an empirical study of the past four MLB seasons to find out the frequency of Infield Fly calls and the effectiveness of the rule in avoiding dramatically inequitable cost-benefit exchanges.
Haters Gonna Hate
One of the most satisfying accomplishments of my career happened just a few weeks ago when I received my first slew of hate emails. They came all at once in response to my New York Times Op-Ed about post office banking and each one brought a smile to my face. (That’s not fully accurate—the three page hand-written letter I got from a prisoner in Georgia who informed me how difficult it is for him to even get stamps from the post office, let alone a loan, made me really sad). But I was cheered up when the Breitbart blog disparaged me and Elizabeth Warren in the same sentence—that just had me downright blushing. I was also flattered by the article that said that I was hiding my past as a high-powered bank lobbyist at Davis Polk—if only! Let me be clear, I’m not talking about nasty personal attacks that some of my friends have dealt with. I was just incredibly impressed by people who read the Op-Ed, disagreed with it, and took the time to write me a long substantive email. Although I did write each one back individually to thank them for their emails (except for the creepy ones), I would like to answer just a few general criticisms to post office banking here:
I have written about Post office banking in an article two years ago and more recently, in an essay on the HLR Forum so if you really want to disagree with me, those other sources will give you more to work with.
Sunday, March 02, 2014
Legrand and Werro on the Doctrine Wars
The following guest post is a contribution to the conversation continued by Rob Howse here earlier.
Professor Pierre Legrand teaches at the Sorbonne and has been visiting at the University of San Diego Law School and at Northwestern University Law School. Professor Franz Werro teaches at the Université de Fribourg and at the Georgetown University Law Center.
When It Would Have Been Better Not To Talk About a Better Model
So, the German Wissenschaftsrat — a government body concerned with the promotion of academic research (broadly understood) — suggests that legal scholarship should become more interdisciplinary and international. And the American Bar Association — a non-government body devoted to the service of the legal profession — opines that legal education should become more practical and experiential. These pro domo pleas featuring their own interesting history and having generated much debate already, we want specifically to address Professor Ralf Michaels’s reaction.