Monday, May 02, 2016
Love, Marriage and Contracts
Hello. I would like to thank Prawfsblawg for inviting me to blog this month. My book Buying A Bride: An Engaging History of Mail-Order Matches, will be published June 6th and therefore, I thought it would be fun to spend this month blogging about love and marriage and particularly about unconventional relationships. Given this goal, I was excited to read Slate journalist Rebecca Onion's recent marriage article Toward A New Theory of the Bad Dad and Husband. In the article Onion discusses the terrible dads and husbands of literary history, men she refers to as "art monsters." Art monsters are defined as men (and occasionally women) who rail against female restrictions, defined as requests for time, attention, financial support and the expectation of conformation to social norms. As examples of art monster mentality, Onion includes Faulkner's cruel statement to his 12 year-old daughter, "No one remembers Shakespeare's children," Baudelaire's complaint about the "unendurable pestering of the women I live with," and Einstein's contract with his first wife Mileva Maric in which he makes a number of demands including three meals a day served in his room and the right to have Maric immediately stop talking to him upon request. For Onion, all three examples demonstrate how creative men frequently used and abused their wives and families. However, Einstein's contract with his wife strikes me as different than the other examples used in the article.
Nothing new on the federal constitutional or succession front. The story is settling in for a recount under Nevada law--although I welcome election-law folks to offer thoughts about the state process, under which a sample of votes are recounted and if it is closer than a certain margin--Meyer needed t0 pick-up 512 votes--there would be a statewide recount.
The great lawyerly moment was over the effect of a comma on a ballot on which the voter had scrawled "Fuck Selina Meyer." The O'Brien people insist it is an O'Brien vote, the voter expressing disdain for Meyer; the Meyer people insist it is a Meyer vote because there is a comma in there ("Fuck, Selina Meyer"), the voter expressing "earthy but unambiguous enthusiasm for Selina Meyer." The election official counts it for Meyer. [I am trying to find an online photo of the ballot]
Actually, I read it a third way--indicating resignation ("Fuck, nothing better, [throwing up hands], might as well vote for Meyer"), which still would have produced the same result of a vote for Meyer.
JOTWELL: Walsh on Blackman and Wasserman on marriage equality
The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Josh Blackman and my The Process of Marriage Equality (Hastings Const. L.Q.), which explores some of the procedural issues underlying marriage-equality litigation leading to and after Obergefell. And which appears to be something that is not going away.
Sunday, May 01, 2016
Happy May Day.
Thanks to our April visitors, who may linger for an extra day or so. It's been a great month, particularly with Chris FAQ posts, which reflect the spirit of what Dan was trying to start here so many years ago.
And welcome to our May visitors: William Berry (Mississippi), Megan LaBelle (Catholic), Kate Levine (headed for St. John's), Ray Partain (Aberdeen), Andy Spalding (Richmond), and Marcia Yablon-Zug (South Carolina).
I hit a bit of a block at the beginning of the month trying to figure out what to blawg about, which sent me down an unproductive path of trying to figure out the goal or purpose of blawgging. I never figured it out, exactly. But I thank Howard for the opportunity to give it a shot and the community-at-large for engaging with my efforts. Sometimes being a law prawf can be an isolating experience, but it's spots like this that allow us to break out of geographical and subject matter boundaries. I hope to have a chance to do it again sometime.
Friday, April 29, 2016
Is Mrs. Palsgraf upset with Yeshiva University over the name of its law school?
The Law of LAWn Signs
A final post of thanks and a quick follow up. First, thank you to Howard and the Prawfsblawg family for the opportunity to share my ideas this month. I look forward to joining you again in 2017.
In an earlier post I mentioned that our LAWn Signs idea had a potential serious legal implication after the Tenth Circuit Court of Appeals decided United States v. Carloss. At issue in Carloss was the impact of an ordinary “No Trespassing” sign on the Fourth Amendment rights of the defendant. In his dissenting opinion, Judge Neil Gorsuch criticized the majority’s position and offered his own version of what an appropriate Fourth Amendment sign might look like. In honor of him, and our larger FourthAmendmentSecurity.com project, Stephen Henderson and I went ahead and made a sign for him. So, if you live within the Tenth Circuit, this sign might actually have constitutional significance.
Complete Junior Law Prawfs FAQs Series
It has been such a pleasure to guestblog at Prawfsblawg this month and to do this Junior Law Prawfs FAQs Series on how to become a voice in one's field. I have learned so much from your comments, your Twitter conversations, and your very thoughtful emails. I appreciate the time the PrawfsBlawg community has taken to crowdsource answers to these frequently asked questions. Based on the emails I've received from other junior (and aspiring) law professors, many others are also grateful.
For ease of reference, here is the complete list of questions (with links) to the frequently asked questions we covered this month:
Thursday, April 28, 2016
Are we more like Argentina or Russia?
A question I have been mulling for a while now is whether the US is likely to make a serious attempt at some point in the future to hold former government officials accountable for sanctioning arguably unlawful interrogation techniques undertaken as part of the “War on Terror.”
The jury trial is dying. Plea bargains resolve approximately 97% of criminal cases in federal courts and 94% of cases in state courts. In civil cases, the percentage of jury trials is even lower. In federal courts, less than 1% of civil cases are resolved before a jury. In state courts, the percentage of jury trials is only slightly higher. Perhaps not coincidentally, citizens have stopped showing up for jury duty. Juror no show rates in some jurisdictions have reached 85%, leading to the postponement of serious criminal cases (including murder trials). Law students can graduate from law school, excel in practice, and become judges without ever having the opportunity to try a case before a jury. As an institution, a civic responsibility, and as part of our legal system, juries remain unloved.
I have expended some scholarly effort to change this reality. I love juries, and it is not just because I have been trying to promote the best book ever written on jury duty – Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (okay, so it is the only book written for jurors on jury duty). But, for several years now I have been trying to make juries relevant. I have written about the George Zimmerman/Trayvon Martin case, I wrote when Charlie Sheen and Donald Trump got jury duty, I have tweeted, facebooked, blogged and littered the comments section of various discussions. I even wrote a national CNN op-ed on the Fourth of July with the audacious title, “What is the Most American Thing You Can Do?” (answer jury duty). But, the reaction of every one of those attempts to recognize this fundamentally democratic and constitutional institution was pretty much nothing. My love was unrequited. I couldn’t even generate outrage. Worse than being hated, I was just ignored.
SEALS Prospective Law Teachers Workshop
Each year, the Southeast Association of Law Schools (SEALS) hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Omni in Amelia Island, Florida, on Thursday, August 4 and Friday, August 5. On Thursday, there will be mock interviews between 8 and 10 AM with CV review sessions from 10:15-11:00. On Friday, mock job talks will take place from 8 to 10 AM. And at 1:00 on Friday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will dispense advice about getting hired in this “new" market. There are also several excellent panels on Friday and Saturday that are targeted to new law professors, which prospective law professors will also find helpful.
If you are interested in being a participant in this year’s workshop, please send your CV to professor Brad Areheart at email@example.com. Applications are due by June 1, 2016. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at diverse schools, ranging from Tulane to South Carolina to Louisville.
Useful, Relevant Scholarship
Following up on Chris Walker’s discussion of useful, relevant scholarship, I wanted to announce that Professor Ron Wright at Wake Forest Law School has taken over the direction of the Getting Scholarship into Court Project. This project, the brainchild of Jack Chin, Margaret Colgate Love, and myself and supported by a wonderful group of Academic Advisors has partnered with the National Association of Criminal Defense Lawyers (NACDL) to identify legal scholarship that should be read by lawyers and judges involved in actual criminal cases. For several years now the Academic Advisors have selected the “Must Read” articles produced by legal scholars that would be of use to practitioners. Summaries of these articles are published in “The Champion Magazine” and distributed to thousands of NACDL members every month. Ron is now in charge of leading this project into the future.
Wednesday, April 27, 2016
Old injunctions and new statutes
The recently enacted anti-LGBT legislation in Mississippi includes a provision allowing public officials to recuse themselves from issuing marriage licenses to same-sex couples if doing so conflicts with their sincerely held religious beliefs. On Monday, lawyers for the Campaign for Southern Equality ("CSE"), an LGBT-rights organization, sent a letter to Mississippi's governor, attorney general, and registrar of vital records , arguing that this opt-out provision potentially conflicts with the permanent injunction barring all state officials from enforcing the state's ban on same-sex marriage. The plaintiffs interpret this to require state officials to "treat any gay or lesbian couple that seeks to marry the same as any straight couple that seeks to do so." The letter demands a "full and complete explanation" of the steps that will be taken to "ensure that gay and lesbian couples are not impeded or delayed when seeking to marry." Slate's Mark Joseph Stern praises this "clever exercise in civil procedure," enabling the organization to challenge the new law without a formal lawsuit.
But does it?
The injunction only protects the named plaintiffs. The named plaintiffs include two female couples, who presumably already received their licenses; the caption does not indicate this was a class action. Formally, the injunction does not obligate the defendants to do anything as to anyone else. If the plaintiffs are trying to use the injunction and enforcement (or threatened enforcement) of the injunction as a shortcut to halting the new law, it should not work because the injunction does not formally obligate state officials to do or not do anything as to anyone else. The twist is that CSE is also a named party, presumably having sued on behalf of its members, which theoretically includes every LGBT person in the state who wants a license. If so, this procedural move has a better chance, since CSE (and its members) is protected by the injunction and since state officials are prohibited from enforcing the law against CSE (and its members).
My best guess is that the state, the plaintiff, and the court will find a way to resolve this by creating reasonable opt-out methods, as has happened in other states. Still, this move requires careful consideration of the proper scope of civil-rights injunctions, something that is often overlooked.
Am I Asking the Right Questions? (Jr. Law Prawfs FAQ)
Before turning to this final question, I was going to do one more post (on writing casebooks and treatises) to wrap up the Jr. Law Prawfs FAQ Series for this month. But after Michael Rich's courageous Hard Prawf Choices post earlier this week, I thought I'd skip to the last question I included in my initial post: Am I asking the right questions?
The short answer, I think, is: probably not. Put differently, there are "good," "better," and "best" questions, and these types of questions likely fall in the "better" camp.
Additional thoughts on Heffernan
SCOTUS on Tuesday decided Heffernan v. City of Paterson, holding 6-2 that a public employee stated a First Amendment claim when he was demoted on supervisors' erroneous belief/perception that he was engaged in protected political activity, even if he was not. Justice Breyer wrote for the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Thomas dissented, joined by Alito. I analyzed the opinion for SCOTUSBlog.
A few additional thoughts on the decision and the case after the jump.
Tuesday, April 26, 2016
Rethinking Law Review Podcasts (Jr. Law Prawfs FAQ)
Last week I questioned the value of law review-sponsored podcast programs, predicting that they'd be the next Betamax (as opposed to the next iPad). Based on the comments, Twitter responses, and emails, a line from one of the most ridiculous and ridiculously funny new shows on TV comes to mind: "But what if it wasn't."
In particular, it seems like there are a number of really terrific law podcast series out there, including Oral Argument and The Week in Health Law. These podcast series are not sponsored by law reviews, and seem to have carved out a niche audience with field-specific content. So I'm still skeptical that just generalist law reviews doing podcasts on the diverse articles they publish would be a recipe for success, as you need to build subscriptions and an audience.
Accordingly, if I'm the editor-in-chief of a major law review, I see two main paths forward:
Monday, April 25, 2016
Hard prawf choices
A little less than three years ago, I was diagnosed with metastatic kidney cancer, a disease that does not lend itself to optimistic prognoses. I have been fortunate to be able to continue prawfing since then, but it has changed the way I understand my job and interact with my students and the prawf community.
One of my first challenges was deciding how much of my situation to share with my students. I pride myself on treating my students as much like adults as possible. So, the first semester after my diagnosis, knowing that treatment would interfere with their class schedule, I shared with them the general diagnosis (cancer) and let them know that it would require flexibility on their part. I also reconfirmed my commitment to them to do my best and to be available when I could. That semester was challenging, but the students were incredibly generous and forgiving. Since then, however, I've tended to share less and less with my students. I don't tell them I have cancer. I simply explain cancellations by pointing vaguely to medical necessity. The change didn't came about because I trust these students any less than the others, but because the process of disclosure was hard and I don't want to add my problems to the preexisting stress of law school. Moreover, my current set of treatments are not as disruptive to class schedules as the first ones were. I wonder sometimes if this is right decision -- if I value setting boundaries between myself and my students too much -- but fortunately my students have continued to be flexible and generous.
Another challenge has been whether to disclose my disease broadly. I shared things with close friends, but I didn't go fully public on Facebook for fear of losing professional opportunities. Would folks be hesitant to invite me for speaking gigs if I might not be able to fulfill them? Would schools be uninterested in hiring me? Again, I'll never know if this was the right choice or not. The hiring market hasn't exactly been active in the last three years anyway, and speaking invitations don't overflow my inbox. Obviously, though, I've now changed my mind. My change of heart came about because my priorities have changed. Honesty about an issue that has impacted me personally and professionally now trumps concerns about even short- and medium-term opportunities.
Finally, it's been interesting to change the timeframe of my planning. I don't wonder how to construct a career for twenty years from now; rather, I want to make an impact now, or at least soon. In the first year after my diagnosis, I was fortunate enough to get an offer to teach at an excellent school outside of the United States. Because of concerns about my access to experimental medical treatment there, I ultimately made the extremely difficult decision to decline the offer. When I did, I decided to recommit myself to my current institution, not because it's perfect, but because it gave me an opportunity to make an impact. I worked hard on curricular changes at the expense of my own research interests. I do not regret my choice, but I do wonder how things might have panned out if I had put my focus elsewhere. Service, after all, does not give rise to notoriety outside an institution like scholarship does.
Anyway, I share these thoughts, because I've also learned that my life before my diagnosis was actually more unusual that my life since. Before, my life was relatively straightforward and free of complications, but I've come to realize that most lives are complicated, even if the nature of the complications differ greatly from person to person. So perhaps discussing the hard choices that complications forced on me will be useful to someone else.
The Future of Predictive Policing
The Wall Street Journal has an interesting, if reductive debate on the value of predictive policing out today. Is Predictive Policing the Law Enforcement Tactic of the Future? http://www.wsj.com/articles/is-predictive-policing-the-law-enforcement-tactic-of-the-future-1461550190.
I have been writing about the subject for a few years now, exploring first the Fourth Amendment impacts of the technology, and then the larger doctrinal impacts of big data policing. The issues are fascinating will soon be coming to a courtroom near you.
My latest article – Policing Predictive Policing – is just up on SSRN this week. It avoids the binary (good/bad) choice suggested by the WSJ debate, and seeks to situate the predictive policing debate within the work of scholars who have been thinking about predictive technologies for decades now.
For people curious about the issue, the subject of predictive policing will be a topic of discussion at the May 12-13 Penn Law Quattrone Center Symposium. https://www.law.upenn.edu/newsevents/calendar.php#event_id/52170/view/event. It was also a focus of Alvaro Bedoya and Paul Butler’s wonderfully successful Georgetown Law symposium this month on The Color of Surveillance.
Any thoughts on the draft article are welcome.
NOMOS LVI ("American Conservatism") is out
NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy." Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented. Get your copy here! My own contribution, "The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism," is included. Here is the abstract:
A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.
That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.
Many thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!
Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work? (Jr. Law Prawfs FAQ)
My guess is that today's FAQ takes a slightly different form based on one's field of research. For me it first presented itself as a request to join a law professor amicus brief. Since then these requests have included drafting white papers and participating in other advocacy projects.
So the question, framed broadly, is: What is the value to one's scholarly research agenda, especially as a junior scholar, in engaging in legal or policy advocacy within one's field?
As I indicated last week, I am going to blog about VEEP's storyline of an Electoral College tie. Mild spoilers (and direct quotations from the show's unique dialogue) after the jump.
Saturday, April 23, 2016
Body Worn Cameras in NC
I expect a majority of the attention on the North Carolina General Assembly during its upcoming short session will focus on the "will-they-or-won't-they repeal it" drama surrounding House Bill 2, i.e., the bill that folks in the media insist on referring to by the maddeningly reductive moniker, "the bathroom bill." (It's maddeningly reductive because while the bill does enshrine anti-transgender discrimination in law, it also does far more sweeping harm by, for instance, eradicating any state law employment discrimination claims.) But those of us lucky enough to live in North Carolina know that the General Assembly must have more well-considered lawmaking in store for us.
With that in mind, I point you in the direction of a legislative proposal recently made by the Joint Legislative Oversight Committee on Justice and Public Safety Body-Work Camera Subcommittee. It's an interesting proposal on a question I find really challenging: to what extent should body-worn camera (BWC) footage be made available to the public? The main thrust of the bill is that it leaves disclosure up to the "head law enforcement officer" of the law enforcement agency with custody over the footage. Then, if this officer decides against disclosure, then the person seeking disclosure can file suit in NC state court to seek disclosure.
This is a limited victory for transparency with respect to BWC footage, but only because the way existing laws in NC have been interpreted make disclosure unlikely. As it currently stands, most BWC footage would likely be exempt from disclosure either because it is a confidential "personnel record" under NC law or because it falls within the law enforcement record exemption to the NC public records law. So, the proposal at least creates some avenue for disclosure.
But from the standpoint of videos of controversial police-civilian interactions, it's hard to know how the proposed approach would shake out. One thing seems certain, though: given the "squishy" standards that both the head law enforcement officer and courts are supposed to use to determine whether footage will be released, the release decision will likely depend on political expediency and not on any underlying commitment to transparency. As such, the proposal is unlikely to lead to much in the way of fulfillment of the promise of BWC that they will increase the accountability of both police and civilians.
Friday, April 22, 2016
VEEP returns amid constitutional chaos
VEEP returns to HBO on Sunday night (with a new showrunner) where it left off--an Electoral College tie; a likely tie in the House of Representatives; Selena Meyer's running mate, Tom James, likely to win in the Senate, then become acting President with the House in stalemate; and the running mate/new VP/new acting President asking Meyer to become his VP. This commentator argues that the show cannot narratively go back to Meyer as VP, although it can draw the uncertainty out well. In advance of the episode, I repeat my argument that the show cannot constitutionally go back to Meyer as VP, because James will only act as President and will not have the power to appoint a Vice President.
I hopefully will have some comments on the episode on Monday. Maybe I will try bloggging the constitutional and succession issues for the season.
Criminal Law Class Materials Request - Update
Back in January, I imposed on the Prawfs community for some suggestions about materials for a few stand-alone class sessions I was hoping to integrate into my standard first-year Criminal Law course:
A Criminal Law class-materials requestConsulting the blawg-oracle: I'm doing something new (for me!) in my first-year Criminal Law course, and I would welcome very much some help. I made some cuts in my usual coverage, and freed up three classes (75 mins each) for what I'm describing as "special" or "current debates" topics. I was thinking of (1) the "mass incarceration" phenomenon; relatedly (2) the "overcriminalization" debate; and (3) policing. As we all know, each of these topics could take up an entire course (and more) and I'm proposing to put together simply a 30-pages or so handout for each, for the purpose of just one in-class discussion (although, of course, these topics come up, in other contexts, throughout the semester).Take it away! Revise my syllabus!