Monday, November 30, 2009
Why shouldn't the liberty of conscience extend to the racist JP?
Earlier this month, Keith Bardwell resigned as a justice of the peace in Louisiana, a couple of weeks after invoking his conscience as a basis for refusing to issue a marriage license to an interracial couple. I wish that the refusal had never occurred, but if it was going to occur, I wish it had happened before I sent the final galleys of my book on conscience to the publisher. Bardwell’s refusal provides a helpful glimpse into the complicated battle lines surrounding the right of conscience today.
Is it possible to take a right of conscience seriously yet deny it to a justice of the peace in these circumstances? I believe that it is, not because of the substance of the views, but because it is a public official acting on those views. For the same reason, I do not believe that Massachusetts shirks its commitment to liberty of conscience if it fails to accommodate the conscience-driven views of JPs who refuse to issue marriage licenses to same-sex couples. Though I consider myself someone who takes the liberty of conscience seriously, this places me on the opposite side of some of the leading lights on this issue. (E.g., Steve Shiffrin and Robert George, two scholars whose work I respect tremendously and who come from opposite ends of the political spectrum, believe that a right of conscience should encompass a justice of the peace’s refusal to issue marriage licenses, at least under some circumstances.)
In my view, the government can legitimately require its agents who are tasked with implementing its laws to, well, implement its laws. The more pressing concern, in my view, is to ensure that the government does not treat marketplace providers as a form of “public official” automatically subject to anti-discrimination laws. Further, we should resist the temptation to treat licensed marketplace providers as “public officials” by virtue of their licenses. In other words, the more interesting questions involve the expanding definition of “public official,” not the obligations properly shouldered by public officials. Licenses are assurances of competence, not evidence that a provider has become a de facto government agent. In cases where access to an essential good or service is threatened, the government may prudently take steps to attach certain strings to licenses, but those strings should be a last resort.
If you have interest in the rapidly evolving and intensely contested notions of conscience reflected in modern law, you might want to check out my book, due out in December: Conscience and the Common Good: Reclaiming the Space Between Person and State.
Today is my last day as a guest on Prawfs, at least for now. Many thanks to the Prawfs crew, particularly Dan Markel, for the invitation. If you've enjoyed my posts here, you can continue to follow me on my usual blog, Law Prof on the Loose.
Before leaving, I can't resist having a post about my eccentric hobby, which is following tax protestors. I'm not talking so much about members of the recent "tea party" brigades. Those, as I understand them, are mostly people who believe that taxes are too high, that the government spends our tax dollars on stupid things, and that the federal income tax in particular should be abolished or at least greatly reduced -- opinions which they are certainly entitled to voice. No, I'm talking about people who believe that, under current law, there is no legal obligation to pay federal income taxes!
Incredible as it may seem, there are a whole host of people who, for a whole host of reasons, argue that current law does not require most Americans to pay income taxes. Needless to say, these arguments are absurd, but that doesn't stop people from believing in them. I've collected some of the more commonly used arguments into a website about tax protestors.
Tax protestor arguments exhibit considerable range:
- They start with the basic claim that there's just no law requiring payment of income taxes -- according to this argument, we all pay taxes because we think such a law must surely exist, but if you try to look it up you find that it doesn't.
- There are more involved arguments such as that wages are not income because they are merely an "equal exchange" of an amount of money for its value in labor (and it's worth taking a moment to see if you can come up with the correct rejoinder to that one) or that the income tax applies only to foreign income.
- And there are true flights of fancy such as that the Paperwork Reduction Act eliminates your obligation to pay income tax because Form 1040 doesn't have a valid OMB control number.
My webpage provides legal responses to these arguments, although interestingly, if you show a tax protestor the law that requires payment of income taxes, they almost never say, "oh, there it is, I guess I was wrong!" Instead they just launch into new arguments, such as that the Internal Revenue Code is not a law, or that it's unconstitutional because the 16th Amendment was never ratified, or something equally absurd, so that arguing with them can be a little frustrating. But there's a middle group of people whom the webpage is designed to reach -- those who are tempted by tax protestors arguments, but are not so far gone that they can't understand the law if it's clearly explained. And in any event, the webpages may provide some amusement. Click and enjoy.
Collective Action in Copenhagen
This will be my last post for a while, and I want to thank Dan for this opportunity to guest blog in November. I'm on research leave this semester, so I can't complain about preparing and grading exams. But blogging was a welcome addition to my article writing this semester.
Before I sign off, I wanted to mention a post that Kenneth Anderson has over at Volokh Conspiracy on why the upcoming Copenhagen climate conference is doomed to failure. It seems there's just no way to overcome the inherent collective action problems in negotiating a climate treaty:
Well, I do not understand how this Copenhagen conference manages to overcome the collective action failure problems that have been encountered in Kyoto and every other exercise in this area. Extremely diffuse damage from a multitude of players, now and into the future; diffuse set of actors who must act in a coordinated way; individual states being tasked to take sacrificial actions that in the short and medium term at least are bad for their individual economies and their voting citizens; consistent record of failures not just in the nature of the promises made, but in their non-fulfillment even as they stand ... on what grounds does anyone plausibly think that Copenhagen might produce a different outcome?
Anderson is too pessimistic. After all, over 180 countries have already agreed to two prior climate treaties (The UN Framework Convention in 1992 and the Kyoto Protocol in 1997), as well detailed rules for implementation (Marrakech Accords in 2001), all of which are currently being implemented. The UN Framework Convention remains the organizing document for continued international efforts to address climate change, and the majority of industrialized parties to Kyoto are expected to comply with their Kyoto commitments by the end of the first commitment period, in 2012 (with some notable exceptions, such as Canada). The EU-15 are on track to exceed their Kyoto commitments by 2012. Reports of the death of Kyoto are greatly exaggerated.
So why would any country agree to, let alone comply with, obligations that impose near-term national costs but bring longer-term benefits to the globe as a whole? Let me count the ways:
- Self-interest in avoiding drought, sea-level rise, and hundred-degree summers
- A recognition that this particular prisoners dilemma calls for global cooperation rather than defection, coupled with the recognition that emissions monitoring can detect violators.
- A recognition of the historic responsibility of industrialized nations for the underlying problem
- Domestic political pressure not to tank a climate deal
- Reputational costs for major emitting countries for tanking a climate deal
- A recognition that a national commitment to energy efficiency and a low-carbon economy benefits national security and international competitiveness.
- The opportunity to participate in lucrative global carbon trading markets as a party to a post-Kyoto treaty.
- Translation of commitments made internationally into binding domestic legislation, as occurred in the EU.
I'm not saying that negotiations at Copenhagen will be easy, and few expect a final treaty to emerge from the conference -- just that the underlying collective action problems here are not insurmountable. I do expect a new international treaty to be concluded by the time the Kyoto Protocol's first commitment period ends in 2012. The price of every nation going-it-alone here is very, very high.
Goodbye and, BTW, Eight Circuit Reinstates ERISA Case Against Wal-Mart Involving Iqbal Plausibility Standard
Thanks to Dan and all for having me as a guest this November. I leave you all with the exciting world of ERISA/employee benefits and how the Iqbal/Twombley plausibility standard is impacting that part of the legal world.
Braden v. Wal-Mart Stores, No. 08-3798 (8th Cir. Nov. 25, 2009) involves a class action dispute, alleging breach of fiduciary issues in the way that Wal-Mart managed its profit sharing and 401(k) retirement plans:
The gravamen of the complaint is that appellees failed adequately to evaluate the investment options included in the Plan. It alleges that the process by which the mutual funds were selected was tainted by appellees' failure to consider trustee Merrill Lynch's interest in including funds that shared their fees with the trustee. The result of these failures, according to Braden, is that some or all of the investment options included in the Plan charge excessive fees. He estimates that these fees have unnecessarily cost the Plan some $60 million over the past six years and will continue to waste approximately $20 million per year . . . .
Braden alleges extensive facts in support of these claims. He claims that Wal-
Mart's retirement plan is relatively large and that plans of such size have substantial bargaining power in the highly competitive 401(k) marketplace. As a result, plansn such as Wal-Mart's can obtain institutional shares of mutual funds, which, Braden claims, are significantly cheaper than the retail shares generally offered to individual investors. Nonetheless, he alleges that the Plan only offers retail class shares to participants. Braden also avers that seven of the ten funds charge 12b-1 fees, which he alleges are used to benefit the fund companies but not Plan participants.
The case is significant because the Plan has over one million participants and nearly $10 billion in assets.
Wal-Mart had moved for a motion to dismiss under 12(b)(1) and 12(b)(6) and:
The district court granted the motion, concluding that Braden lacked constitutional standing to assert claims based on breaches of fiduciary duty prior to the date he first contributed to the Plan and that he otherwise failed to state any plausible claim upon which relief could be granted.
The Eight Circuit reversed and remanded. Specifically on the standing issue, the court held that that Braden made a sufficient showing on Article III standing and proving a cause of action under ERISA and that the district court erred in concluding that he lacked standing to maintain claims for the period before he began participating in the Plan:
In reaching this conclusion, the district court mixed two distinct issues. Whether Braden may pursue claims on behalf of the Plan at all is a question of constitutional standing which turns on his personal injury. Whether relief may be had for a certain period of time is a separate question, and its answer turns on the cause of action Braden asserts.
On the plausibility issue, the court took issue with the high standards the district court placed on the plaintiffs under Iqbal and Twombley:
We conclude that the district court erred in its application of Rule 8. Accepting Braden's well pleaded factual allegations as true, he has stated a claim for breach of fiduciary duty.
The district court erred in two ways. It ignored reasonable inferences supported by the facts alleged. It also drew inferences in appellees' favor, faulting Braden for failing to plead facts tending to contradict those inferences. Each of these errors violates the familiar axiom that on a motion to dismiss, inferences are to be drawn in favor of the non-moving party.
Braden's allegations are sufficient to state a claim that appellees breached their duty of loyalty by failing to disclose details about the revenue sharing payments. Braden alleges that those payments corrupted the fund selection process—that each fund was selected for inclusion in the Plan because it made payments to the trustee, and not because it was a prudent investment.
So, at this stage of the litigation, nothing of real substance has been decided as far as ERISA violations, but at least the court suggests that ERISA defendants will not be normally able to avoid more searching inquiries into their fiduciary acts in these fee litigation cases through a combination of standing and process objections.
Taking My Leave
Thanks again to PrawfsBlawg for having me as a guest this month. I'm on leave this academic year, and blogging was a welcome diversion from the research and writing grind.
As readers may have noted, many of my posts related to the types of public speech and assembly conflicts that I discuss in my book, Speech Out of Doors. In part because it seems to have become a common aspect of post-publication book marketing, but in larger measure because my interest in public speech and contention survives the publication of the book, I have started a blog devoted to speech out of doors. The blog is less about shilling the book than chronicling (what remains of) our traditional public speech culture. Others in the blogosphere provide excellent analysis of the doctrinal aspects of public speech and assembly cases. The blog will reach beyond doctrine. It will place public speech and assembly contests in social, political, and geographic perspectives. I also plan to blog about public speech and contention that occurs in other countries, a topic that I did not address in the book.
With that, I'll take my leave.
Information Asymmetry, Bruised Egos, and the Law Professor Job Market
Thanks again to the folks at Prawfs for having me this month. In this last post for this stint, I would like to comment on some of the discussions in the comments associated with the various law teaching hiring threads over the past month. I could have posted this in the comments, but I've got guest privileges so I might as well use them.
While I think that the threads are a valuable service to the community and fault no one for following them, my view is that the information contained therein is mostly useless. I realize that it is incredibly frustrating for law schools to have all the information, but that does not mean that candidates are aided by having the information.
I explain why below.
First, even assuming that all postings are accurate, the information is markedly incomplete. For example, the first day my school scheduled AALS interviews was long before it appeared in the appropriate thread. Additionally, we are listed as not yet making callbacks; this is simply inaccurate. Thus, information about the schools making callback, what areas, and when is full of gaps that make it impossible to know the completely true state of affairs.
Second, more broadly, the primary effect of this information is to bruise egos. The people getting the calls don't need the information, they got the call. Thus, the information's primary value is to convey to those not getting the calls that their time may have passed. There is some value to this information, as I discuss below. However, not getting the call is a real bummer. Here are some of the stages:
- Schools are calling, but not me. OK, this one is easy to accept; schools have different needs.
- Schools are calling in my area, but not me. This one hurts. Schools are calling people in my area, and didn't think of me. Well, maybe they only called one person in your area if they are a "best athlete" school, or maybe your background doesn't suit the school's needs. That said, I think that this stage is the toughest to swallow.
- Schools are making callbacks in my area, but not me. The same best athlete issues apply here, and even then, it is a really competitive market. Knowing this information hurts, especially when jobs are on the line.
- Schools have made offers, but not to me (assuming a callback). Though I wouldn't like it, my ego can survive losing out to other quality candidates in a callback situation - there are some really talented people out there, and they can't all get hired. Even so, the offer slams the door (unless there are two offers?).
My point is that sometimes ignorance is bliss. Where the information will not help get a job, not knowing that schools are interviewing in your area but passed over you might a good thing.
Third, this leads to an important point that I think gets missed in the discussion about appointments chairs not responding to calls and emails. There is an important norm that I have learned of in legal academia -- one that I do not follow but have learned to accept without judgment. It is this: people often don't respond to emails. Sometimes ever. And not because they don't like you. I've sent emails to friends in the academy -- even at my own school -- that go unanswered for days, sometimes weeks, sometimes forever. And that's OKAY.
It's unclear why this happens. Perhaps people are busy. Or they are disorganized. Or they get way more email than I do. Or they don't feel like responding. Or they yearn for control over something in their lives, and email is it. Whatever the reason, I've gotten used to lack of email response from people who I know and especially people I don't know. And it doesn't stop at professors - law reviews quite often fail to respond to publication submissions.
My point is that while it might be nice for appointments chairs to respond to you (I would certainly like a response if it were me), you simply cannot read anything into a lack of response. It may be that you are not in contention. It may be that there is no new information. It may be that they are busy. It may be that they lost your email and you need to follow-up in the future when you need information. It may be that they are rude. It may be that they are on vacation. It may be that they are at a conference. It may be that they are busy scheduling callbacks for others. It may be....
If you don't accept non-response as a fact of life, you may be in for a frustrating time, and you will certainly have a bruised ego.
Fourth, this leads to my basic point. Because of all the reasons why you might not be getting called, knowing that others are getting called adds little to the mix. You could be out. You could be on the B-team for later hiring. The school could be spreading out the process. You just don't know, and if you try to act on a guess, you risk looking foolish. Instead, you wind up suffering in silence, and that's not helpful.
That said, there is one time that you might need this information for something productive. My recommendation (which I am certain will be ignored, and which in fact I would likely not be able to follow if I were on the market) is that you only look at these threads at this one time.
That time? When you need to make a decision. If you have an exploding offer from School A, then it is helpful to know whether Schools B-D are making callback. Even then, you could probably just call the other schools, tell them you have an offer (this is information they might want to know) and ask whether there is a likelihood at their school. The information about callbacks helps assess the amount of waffling in the response and your likelihood of getting a callback or offer there.
In short, knowing where you aren't getting interviewed is the kind of asymmetrical information that is only helpful when you might lose a bird in the hand, and not before.
I enjoyed my time blogging this month, and wish you all luck on the market this year!
Is exam grading best approached as a sprint or a marathon?
As I contemplate the arrival of exam-grading season, I'm considering a change in my approach. Exam grading is without a doubt unpleasant -- it's a relentless monotony, but the worst sort of relentless monotony in that it requires my full attention. As such, I've always deemed it prudent to rip the band-aid off all at once, resulting in one (relatively) quick sharp pain, followed by a correspondingly quick turn to scholarship. I always begin grading as soon as the exam is over, and I don't stop until I'm done.
I can defend the "grade them all at once" approach by emphasizing the need to keep the other exam answers in mind as I grade, but I'm not sure how much that matters unless and until my short-term memory problems kick up a notch or two. In terms of my own sanity, though, I'm not sure if the "depart from civilization and enter the dark cave of exam grading" approach is very sensible. I'm beginning to suspect that grading exams for forty hours spread over three days is exponentially more unpleasant than grading exams for forty hours spread over two weeks. Have others experimented with both the "cave of darkness" and "remain in civilization and just dabble in the darkness" approaches to exam grading? If so, can you recommend one over the other, or does it all turn on a degree of psychoanalysis that calls for far more personal introspection than I'm interested in at this stage of the semester?
A "disgusting" case of mistaken identity...
The other day Larry Solum registered his reaction to Andy Koppelman's newest piece, Why Jack Balkin is Disgusting (forthcoming in Con Comm): "The title is over the top and in my opinion unprofessional. The reading of Balkin and his critics is surprisingly shallow." As I perused the piece today to see if I'd agree with Larry's assessment, I found that I was listed as one of Balkin's critics. I had one reaction: Huh? How did I get mixed up in this?
Well, according to the text accompanying FN 30 of the piece, I apparently wrote that Balkin “attempts to eliminate the rhetorical power of originalist arguments by making essentially everything an originalist argument.” Did I actually write that? Not quite. It doesn't sound that terrible but I didn't recall writing that. Turns out it was someone else, a person purporting to be named Orin Kerr. Easy mistake, right? And at least someone's citing, if not reading, my posts. But based on that gentle post, if anyone now cares, it's probably more accurate to label me as an anti-anti-Balkinite. Not a big deal, but fwiw I'd prefer in the future not to be quickly lumped with Ed Whelan and Matthew Franck, both of whom attacked critiqued Balkin in the National Review Online. I will do or say a lot in the name of intellectual pluralism, but I won't go *that* gently.
One last thought on L'affaire Koppelman: Balkin's got a great sense of humor (see, e.g., this), and a pre-existing relationship with AK (see, e.g., AK's citation of an email with JB making a (Straussian?) reference to the esoteric teachings of and connections between early and late Balkin), so my guess is that Koppelman got pre-approval from JB on the title. Based on his comments, I guess Larry thinks consent is no defense here. But, as a matter of "professionalism," would that be true, ie., assuming JB gave consent?
update: Sorry, Ed, didn't mean to suggest the exchange was less than cordial.
Should anyone really care about "ex parte blogging" or editorializing?
Over on Balkinization, Eugene Fidell has a post expressing sympathy with the idea that newspapers and others should forbear from trying to influence the Supreme Court on the same day that the Court is going to hear oral arguments in a case. Fidell seems to be persuaded by the gist of this student note in the Stanford Law Review, which raises ethical concerns with "ex parte blogging."
With no disrepect to the competent job in the student Note, I find myself boggled at the suggestion that newspapers or other writers (including legal bloggers) should abjure from weighing in on matters before the Court. After the jump, I excerpt the guts of Fidell's argument and some reactions.
I'm singularly unpersuaded by the arguments here, but I'm having trouble articulating why--feel free to weigh in with other reasons in the comments. It might be that I don't really accept the gist of limits on ex parte communications... but it is more likely the fact that a blog post (of the sort written or linked to via Scotusblog) or an editorial is a cheap way to get informed commentary out there and that the costs of regulation are likely to exceed any of its benefits. Indeed, informed observers (say, the musings on blogs by legal academics) are not necessarily going to be inclined to file an amicus brief in all cases where such expertise or information would be valuable. It might also be the case that the wealthy and powerful are more likely going to succeed in gathering amicus support than the poor and less powerful; thus if there is a perspective to be shared that might end up being helpful to supporting the "downtrodden" or less popular, I wonder if that's a reason to prefer fewer restrictions (whether based on legal norms, or just social ones).
In any event, less boggling is that Fidell wrote this blog post about the student note. As the Note reports, it was Fidell who passed on to his wife, Linda Greenhouse, former Scotus reporter for the Times, the tip from a blogger that the Court muffed its survey of American law in the Kennedy v. Louisiana case.
P.S. Out of disclosure, I should add that I've met Fidell and Greenhouse a couple times through DC lawyer and social circles, but I doubt they could pick me out of a lineup...
Sunday, November 29, 2009
Shrinking-wrapping NYC: How Neighborhood Activists Are Strangling a City
This last October saw a momentous zoning milestone (at least for land-use wonks like myself who regard zoning decisions as "milestones"): Bloomberg's administration pressed through their 100th re-zoning, coincidentally Right In My Backyard, in the Carroll Garden neighborhood of Brooklyn. These 100 re-zonings collectively amount to the most substantial alteration of NYC's zoning resolution since the momentous 1961 revision: They are the most lasting legacy of the Bloomberg Administration's agenda.
The City's Planning Department expects NYC to add a million residents by 2030. Accordingly, Bloomberg has called for the creation of 165,000 more units of housing to house 500,000 New Yorkers. Given this pro-housing policy, you would think that Bloomberg's re-zonings would expand or at least not contract substantially the City's "zoning envelope" -- the buildable residential space between the existing residential structures and the possible structures that could be constructed or renovated.
Think again. According to the uniquely comprehensive survey of NYC's tax lots performed by my colleague, Vicki Been, Bloomberg's re-zonings between 2003-and 2007 seemed to increase the supply of buildable land for residential structures by a trivial amount. Why? Vicki does not yet have sufficient data to explain causation, but one promising hypothesis is neighborhood activism: Existing residential owners and renters support many laudable causes -- traffic calming, affordable housing, historic preservation, etc -- the common denominator of which is simply to preserve the land-use status quo against new development. The effect is the strangulation of a great city's housing supply.
First, here are some highlights from Vicki's data. The survey of a quarter-million tax lots affected by re-zonings show that twice as many lots (53,000) were down-zoned than up-zoned (26,000). If the latter were larger than the former, these changes might still lead to an increase in housing supply. But, if one focuses on square footage in areas that are cheapest for building -- so-called "soft sites" developed at 50% or less of their zoned capacity -- then the actual gains in land for housing seem to be remarkably trivial: The net gain on soft sites amounts to roughly 25 million square feet. Apparently, down-zonings of soft sites simply canceled out much of the Bloomberg Administration's upzonings. Given that the City is predicting a million new residents by 2030, this inability to enlarge the zoning envelope is disturbing: If a popular and pro-business mayor could not ram more residential uses through a city council, then what can one expect from a politically wounded lame-duck mayor facing a recalcitrant council backed by the usual array of NIMBY neighbors?
The essential problem of political economy is that neighbors tend to rally to preserve the neighborhood status quo even when that status quo is pernicious for the city as a whole. Thus, neighbors are "shrink-wrapping" New York City by slowly drawing the zoning "envelope" to be co-extensive with existing uses. Historic districts are the extreme form of such shrink-wrapping, but ordinary zoning can accomplish the same end just so long as the zoning envelope destroys "soft districts" by making the permissible height, bulk, set-backs, lot coverage, etc, co-extensive with the dimensions of existing structures.
My nearby Carroll Gardens neighborhood is a case in point: The area's brownstones have extra-deep (more than 33') front yards as a result of the 1846 layout of the parcels. Under the City's old zoning rules, the resulting setbacks justify extra-high buildings (because the setback lets in more sunlight top the center of the streets). But the residents naturally would like lower densities, so they pressured the city to stop extra-tall buildings that are "incompatible" with existing uses. Whatever the merits of this aesthetic preference, the City's re-zoning managed to destroy some soft sites at which the supply of housing could be expanded. As usual, the city's planning department gave no thought to whether the costs of this aesthetic benefit in terms of lost housing exceeded the gains of greater architectural consistency. Thus does the tyranny of small decisions and parochial neighbors gradually strangle a great city.
I've been enjoying various books on CD during my daily commute -- hoping against hope that the officious Pollyannas that research driving cognition, or whatever, do not turn their intrusive attentions to the "dangers" of listening to books while driving. New York City, I was astounded to discover, has exactly one measly classical radio station -- it used to be owned by the New York Times but was recently sold, taking up an ignoble place way up the radio dial where you often can't hear it, and slowly adopting the kind of soporific aesthetic that is mass marketable (classical music -- "it's what you want when you need to RELAX and UNWIND"). Nothing says "I'm relaxed" like Puccini arias sandwiched between incessant reruns of the Pachelbel Canon and The Girl With the Flaxen Hair.
I'm listening to The Odyssey, narrated by Ian McKellan. He does a wonderful job with the Fagles translation -- one mark of a good narrator is that sometimes you actually forget that it's the narrator saying the words, and imagine that the words are really being said by the character portrayed in the story. McKellan can do that.
At any event, one facet of the story that I had not realized is so central is the theme of hospitality. Hospitality is in general an absolutely crucial ancient Greek virtue. Hospitality is of special importance to Zeus and acts of hospitality, or their absence, are a constant. Only utterly barbarous peoples -- the Cyclops, the Laestrygonians, the Lotus Eaters -- are brazen enough not to honor the importance of hospitality. The civilized world is steeped in the customs of hospitality -- to the point where hospitality is state policy. Telemachus receives it from all whom he visits when searching for his father, and Odysseus is greatly honored by the Phaeacians before being escorted home, with untold gifts. And, of course, a large part of the reason that the suitors are destroyed is their manifest lack of hospitality: they raid Odysseus's home, and when he returns (in the form of a beggar), they hurl footstools and invective at him. Then they all are killed mercilessly.
All of this emphasis on hospitality got me thinking about the virtue in this country. All in all, I doubt very much that hospitality is a virtue here. It is certainly not an official policy -- immigration law is particularly inhospitable. I understand that we live in a different time from Homer's, and that the demographics are radically different. Still, something important has, I think, been lost when Odyssean hospitality is not even a virtue to which we aspire, let alone achieve. For all of its barbarism, Homer's world was, at least in that respect, more humane than ours.
Thanks to Dan and the co-bloggers for their hospitality to me this month.
Saturday, November 28, 2009
Signing OffThank you to Dan and the PrawfsBlawg gang for the opportunity to blog here. I hope December brings with it painless exam grading and good cheer!
Unanswered Questions Indeed
As the news reports, there are "plenty of questions" after Tiger Woods got in a car crash that sent him to the hospital. According to the story, Tiger hit a fire hydrant and a tree right near his own driveway, and his wife Elin had to smash a rear window with a golf club to get him out.
But the story is asking the wrong questions. "Where was he going at 2:25 am Friday? Why was there no word from the Woods' camp for nearly 13 hours?" That's not what golfers want to know. There's only one question on golfers' minds:
What club did she use?
"San Diego" Shirt -- And a Lot More -- Banned
From The First Amendment Center comes news of an interesting student free speech case from the Fifth Circuit, Palmer v. Waxahachie Ind. Sch. Dist.. Palmer is another case dealing with the scope of students' rights to wear t-shirts that have statements printed on them. The student, Paul Palmer, wore to his high school a t-shirt with the words "San Diego" printed on it. After being told the shirt violated the District's then-existing policy severely limiting the wearing of shirts with messages, Palmer phoned his parents, who (for some reason) brought him a shirt that read "John Edwards For President '08." The principal prohibited that shirt as well, and Palmer sued. His motion for a preliminary injunction against the policy was denied without prejudice when the district informed the court that it had changed its dress code.
The case reached the appellate court after Palmer presented the school with three possible t-shirts (the two noted above, plus, in a nice touch, one featuring the text of the First Amendment) and the school nixed all three under the new policy. Under the new policy, which was more draconian than the earlier one, no messages were allowed on shirts except those relating to approved school clubs, "school spirit," and logos smaller than two inches by two inches.
The Fifth Circuit upheld the policy after concluding that it was content-neutral and constitutional under US v. O'Brien. Most notably the opinion rejected the argument that the policy was content-based due to its allowance of messages related to school activities and small logos. Instead, the court concluded it was content-neutral because it was not imposed because of disagreement with a particular message. In particular, it concluded that the allowance of those messages was motivated by a desire to provide students "with more clothing options" then they would enjoy under a complete ban. Applying intermediate scrutiny under O'Brien the court upheld the policy.
There are a number of interesting issues here. Is the court's approach really the right way to determine whether a policy is content-neutral? It cites Ward v. Rock Against Racism as the source of its inquiry, but that just raises the question whether Ward asked the right question when deciding whether the restriction on music performances in that case was content-neutral. One would think the policy has got to be content-based if it allows a shirt saying "support the school band" but not one saying "support McCain."
More particular to the question of student speech, the court, when doing O'Brien analysis, concludes that the policy satisfies O'Brien's narrow-tailoring requirement because students can wear what they want after school, and during the school day can make their views known in ways other than wearing shirts with messages. This is a strikingly deferential type of narrow tailoring analysis (even assuming that O'Brien narrow-tailoring is not really narrow tailoring in the normally understood "strict scrutiny" sense -- see, e.g., Ward). The idea that the school's policy satisfies O'Brien because students can wear what they want when they leave school is not too far from just bizarre. For its part, the idea that O'Brien is satisfied because students can speak what they want would seem to allow for all sorts of restrictions that one might have thought unconstitutional, for example, a (content-neutral) ban on armbands or stickers on backpacks. Indeed, it would presumably allow for a ban on any (otherwise justified) student expression on the theory that students can always speak to any interested listener at lunchtime or in the hallway.
More generally, cases like this, which focus on the importance of providing a good learning environment free from even the potential of disruption, reveal the difficulty of applying Tinker's basic principle. We all might agree (with the exception of Justices Black and Thomas) that students don't lose their speech rights at the schoolhouse door, but beyond that the analysis quickly gets complicated. Indeed, one problem with student speech cases is that they risk infecting other areas of First Amendment law with lax applications of general standards such as O'Brien. If if such applications are assumed to be appropriate in the school context, in the hands of careless judges they can be applied to non-custodial contexts as well.
Friday, November 27, 2009
Timing of Holidays
I just learned that Franklin Delano Roosevelt actually re-set the dates of Thanksgiving a week earlier in 1939-1940 to extend the holiday-shopping seasons in those grim economic years. This interesting WSJ piece lays out how FDR did it, and why, and the instantaneously horrible reception the move received. FDR took the position that the date of Thanksgiving was set by Presidential decree, not by statute, and therefore, he could do it, and would do it. Maybe the absoluteness of holiday-setting power was a tempting draw in the wake of a halted larger agenda. The public didn't take to this very well. 62% in a Gallup poll disapproved of the date change. "Don't mess with Thanksgiving, Mr. President," seemed to be the message.
Many states did not go along with FDR for the ride in 1939-1940. 23 states stuck to the old date for the state holiday. 22 followed FDR's decree. 3 states, Colorado, Texas, and Mississippi, took the third way, declaring a Thanksgiving holiday for both dates. (Imagine that! Two Thanksgivings?) Among the more voluble critics of FDR's move: administrators of high-school and collegiate athletic leagues. Moving Thanksgiving a week earlier caused them all sorts of havoc.
FDR's gambit paid no economic dividends. (Why would it?) The Thanksgiving experiment was abandoned and since World War II, it remains where it is. On December 26, 1942, FDR signed a bill into law that represented a slight compromise. Thanksgiving, by statute, (5 U.S.C. 876) is to be celebrated as a federal holiday on the fourth Thursday in November, which is usually the last Thursday, sometimes, the next-to-last.
As a commenter points out, this statute prevents the holiday from being celebrated on the 29th or 30th, part of FDR's goal. (In 1939, Thanksgiving would have been on the 30th, In 1940, the 28th.) FDR's original 1939-1940 decrees were that Thanksgiving be commemorated on the "next-to-last Thursday," which this year, would have put Thanksgiving on November 19th. (Sounds a bit early to me.) That part of FDR's decree was not adopted by statute. Though Congress passed this bill in October 1941, FDR's pen crossed the bill a few weeks after Pearl Harbor. It must have been important to settle this knotty problem, establishing uniformity and preserving tradition. Thanksgiving would certainly take on more meaning in the half-decade ahead.So, what do you think of moving President's Day to mid-March? Wouldn't it space out the year a little bit better? I will confess that after leaving high-school, President's Day usually presents itself to me as a disapppointing trip out to the mailbox. ("Oh, that's right! No mail today!") I've never since attended a school or worked anywhere that commemorated that holiday.
Flipping the Bird
Pittsburgh officials have tentatively approved a $50,000 settlement in the case of a motorist who flipped off a police officer (apparently not knowing at the time the offending gesture was made that the person was an officer). The motorist was cited under a state statute that prohibits obscene words and gestures. The county dropped the charges after the motorist appealed his conviction, but the motorist pursued the case to recover costs associatd with his defense. The settlement would also apparently require additional police training of some nature.
Some will undoubtedly find it absurd that the motorist will receive a settlement in this situation. But however offensive and rude it may be, "the bird" is expressive conduct. It may be bad judgment to flip off a cop (or anyone else) during a traffic altercation. But you cannot be punished for merely flipping someone off on the public streets (although the case may be different in the courtroom, the classroom, or the workplace). Imagine how busy our courts would be if the rule were otherwise.
Not a fact about law, but with all of the recent talk about the continuing decay of the city of Detroit, I was quite surprised to learn that Detroit is actually the 11th most populous city in the United States. (The link is to Wikipedia, but the data can be confirmed elsewhere; Wikipedia just presents the data in the most accessible form.) It clocks in ahead of San Francisco, Indianapolis, Boston, Washington DC, Atlanta, Omaha, and several other places I would have guessed were bigger. Of course, the surprising nature of the data derives in part from the fact that what we think of as the sociological unit of a city often includes a number of different municipal or governmental units all cobbled together (i.e., the "metropolitan area"). It would be interesting to see what systematic effects, if any, there are from that intra-city devolution of governance.
Thursday, November 26, 2009
Best iPhone apps for Prawfs?
Well, the turkey is brining, the stuffing and corn pudding are in the oven, the pies are done, and wine is flowing. Happy Thanksgiving!
Naturally, my mind is focused sharply on matters professional, and so I ask: what, do people think, are the best iPhone apps, for law-profs? I've found Yelp and Open Table crucially important, when arranging the all-important conference-connected dinners. What else?
Happy Thanksgiving, a note on Prawfsfest! 6, LSA CrimProf, and AALS hooch
Just a note to wish you and yours a wonderful Thanksgiving weekend. Here at Prawfs, we have so much to be grateful for--a spirited and respectful atmosphere for discussion, and a community directed at the promotion of ideas and transparency within the legal academy. So, many thanks to all of you readers, writers and co-permaprawfs for making this space so special!
By the way, we'll be going from virtual to live next week as Prawfsfest! 6 is coming to LA on Wednesday night through Friday afternoon. Dave Fagundes, wunderprawf and former MVP of Pfest 4, is my co-organizer there, and I'm really grateful to him and our decanal friends at Southwestern Law School for helping make this gathering possible. We''ll be fortunate to have about 9 presentations and a few discussants, and as always, the goal will be to incubate relatively early works in progress in the areas of legal theory and/or public law. I'll be presenting Taxing Punitive Damages, my paper with Gregg Polsky that I hope will be compete in the sexiest tax paper of the year competition next spring. Also presenting: Sonja West (UGA); Jack Chin (U of Arizona); Adam Winkler (UCLA), Caleb Mason (SW); Miriam Baer (Brooklyn); Carissa Hessick (ASU); Susan Kuo (USCarolina), and the inimitable Fagundes himself. We're fortunate to have Andy Hessick (ASU); Asli Bali (UCLA), and Chris Lund (Wayne) join us as discussants also. If you're a prawf in the LA neighborhood, and are interested in joining for either some of the papers, which need to be read in advance, or social activities (no pre-reqs), please drop me a line.
After the jump, I've also placed a reminder to those interested in a Law and Society CrimProf gathering that Alice Ristroph and I are reprising.
Last, inchoate plans are underway for a AALS happy hour in NOLA in January. Watch this space for more info.
"Cum Sancto Spiritu"
In a post below, Jonathan Siegel directs attention to the Third Circuit's decision in a case where a public school district thought that it would be educationally edifying to ban all music about religion during the month of December. I agree with Professor Siegel and with the court that this is not an Establishment Clause case, though I wonder a bit about his statement that there is a difference between banning the singing of religious music and requiring it. I would guess that banning any singing of religious music, year round and no matter the occasion, might well be unconstitutional -- perhaps it would be the emaciated post-Smith Free Exercise Clause that would be offended, or, if New Jersey has a state RFRA, a claim might be made on the old substantial burden/compelling interest model. And, at any rate, I think Professor Siegel and I would agree that there is nothing in the Constitution that would require schools, not only not to permit religious music, but also not to teach about it and cultivate the knowledge and appreciation of it.
Which brings me to what interests me here -- the school's decision that Vivaldi's "Gloria in Excelsio (Cum Sancto Spiritu)" would be properly excepted from the policy because it "does not have a religious orientation and it does not refer to a holiday." I wonder if Bach's B minor Mass would make the cut -- of course one would have to translate the title to Latin, or perhaps even French -- Messe en H-Molle meets this test too, I suppose. Even though it does of course have a religious orientation (slightly deeper than, say, Oh, Christmas Tree), the Latin gives it the special sanctifying smell of arcana -- no one knows any better. On the other hand, the MLK Gospel Choir was banned; they should have thought to translate their spirituals into Aramaic.
Coupled with the school district policy's stated aim to cultivate learning about cultural traditions, including religious ones, I am mystified by these decisions. Professor Siegel called them "churlish." For reasons I've written about here, I'd go much further. A few thoughts below the break.
Do we aspire that a public education will be a liberal education? Perhaps not. Maybe that just isn't feasible any longer, given contemporary realities.
But if we do harbor some such aspirations, religious learning will need to be confronted. A liberal education is neither safe nor neutral. It is risky, destabilizing, uncomfortable, and uncompromisingly open to the unfamiliar. And few areas of human experience are as disconcertingly mysterious to American cultural sensibilities as the potent claims of religion -- claims to obedience, faith, devotion, sacrifice, and authority, to name a few.
Do we hope that students will be engaged with and moved by music and art? That will require engagement with religious traditions as well. The pain expressed in the Stabat Mater -- including Vivaldi's -- is not the sorrow of a hypothetical everywoman mother whose hypothetical everyman son was executed. It cannot be understood adequately in those sterile terms. It is the apotheosis of that anguish, reflected in art that took itself to be divinely inspired and in turn aspired to beau ideal. The same is true for the spiritual hymns that I am certain the MLK Gospel Choir would have rendered with power and beauty.
A public education that does not even bother to figure out what Latin words mean, let alone what they signify, will indeed cultivate something -- an easy ignorance that sits perfectly comfortably within the grey, dreary, multiculturalist noblesse oblige whose highest aspiration is a kind of watery irenicism for its own sake. Whatever one may say about it, that is not education.
Public education is, I think, still exciting as an American cultural ideal. But if it wishes to be a liberal education, it will need to learn to wrestle with religious learning and, more importantly, it will need to face up to what makes a liberal education liberal -- not the ingestion of a premasticated code of conduct to get one through the day, and not an insipid, multicultural acqueiscence, but a deliberate intellectual engagement with past traditions that may be deeply alienating, startling, and challenging. On the other hand, I'm fully open to the possibility that that aspiration may simply not be politically possible today.
Wednesday, November 25, 2009
More on Amicus Briefs, With a Question
Will beat me to the punch. I think Orin raises some interesting points in his discussion at VC, especially in his responses to commenters. But I am not sure that the concerns he raises are ultimately all that great. I have three general points, and a question for Orin.
First, it seems to me that amicus briefs filed by members of Congress -- and like Will, I would insist that we not elide the difference between briefs filed by Congress as some kind of official institutional action, and briefs filed by members of Congress, no matter how numerous -- can provide all kinds of information that might be useful to the Court in deciding some statutory question. I can imagine briefs that would be less helpful -- briefs, for instance, of the ilk of those filed by some members in the Schiavo litigation, in which members simply say, we wrote the bill and this is what we intended, and you should interpret the statute accordingly. Even those like me who do not categorically oppose the use of legislative history might find this too cute a move, although of course the Court would be free to disregard such a brief. But congressional amicus briefs could offer all kinds of other, more useful information that is more within the members' own expertise and epistemic authority than the Court's: analysis of policy implications, a sense of how a particular statutory provision relates to the whole statute (although this is surely closer to the Court's own epistemic realm), highlighting particular evidence that came before Congress when the bill was being debated, and so on. I am not saying the Court must give undue weight to any of this. But I should think it would be as free to give some weight to it as it would be to consider information offered in amicus briefs by subject-matter experts or by institutions or interest groups affected by a particular piece of legislation.
Second, while I think Orin raises some interesting separation of powers questions, I am not convinced they ultimately amount to much. Amicus briefs are just arguments to the Court. They fully accede to and participate in the Court's own processes. They do not involve any action of a "legislative" character (or, I would argue, although I think Orin makes stronger points here, of a genuinely executive character). I should add that I also do not object to judges opining, at least in judicial opinions, that some particular statute is poorly drafted and should be revisited by Congress -- arguments that Congress is of course free to disregard. So perhaps my differences with Orin on the amicus brief issue track some broader difference of opinion.
Third, in his comment on Will's post, Orin suggests that because Congress has a good deal of authority to alter the operations of the Supreme Court and other federal courts, an amicus brief will carry some kind of implied intimidation or threat. But I don't see this as really raising any unique threat. Congress has that authority anyway, whether it mentions it or not, and the Court is already aware of this and always operates under the shadow of congressional ability to retaliate. I don't see how a member or members filing an amicus brief really raises the threat level beyond its present state.
That leads to my question. I wonder whether Orin thinks that amicus briefs in which a member or members of Congress urge the Court to follow a particular interpretation of a statute (and in which any threat of retaliation surely will remain unstated) raise different concerns than, say, a member or members taking to the floor of the House or Senate to suggest that the Court has erred in some area or had better not err in some area in the future, under threat of, say, a jurisdiction-stripping statute. If they are different, what is that difference? And if they raise the same concerns, which does he think is worse?
And, of course, happy Thanksgiving to all.
Amicus Briefs and the Separation of Powers
Orin Kerr recently wrote a blog post criticizing Congressional amicus briefs that attempt to influence the outcome of cases:
[T]he filing of briefs to try to influence individual cases seems to me to enter inappropriately into the core of the judicial process. Deciding cases isn’t Congress’s job, and it’s unseemly and inappropriate for legislators to step in and try to influence how the Justices exercise “the judicial Power of the United States” that the Constitution vests in the Supreme Court. It doesn’t help that the Congressional briefs tend to be substantively weak. . . .
I will leave aside the substantive weakness of the briefs, which is complicated in part by the fact that many amicus briefs have some influence because of the authority of their authors (or putative authors) rather than what their substance. I'm dubious about the claim that trying to influence the outcome of a case is an entry into the core of the judicial process.
It is true that "deciding cases isn't Congress's job," but of course it's not the job of the Institute for Justice or law professors or the Solicitor General's office either, and we don't think it's inappropriate for them to try to influence the outcome of litigation in which they are interested. A commenter raised that point in the original thread, to which Orin Kerr responded:
The role of the executive has traditionally been understood as including the duty to represent government interests in litigation: The power to represent the interests of federal law is part of fulfilling “[t]he executive Power.” That’s why there is a Solicitor General’s Office in the executive branch charged with defending federal law and federal interests before the courts. So when DOJ files a brief, it is not the personal brief of the SG, but rather an institutional brief representing the executive branch’s duty to represent the government’s interests in litigation.
Note that we now have an ambiguity about whether Congressional amicus briefs are an inappropriate infringement on the judicial power or on the executive power (or both?). I think that most people accept that when anybody other than members of Congress file an amicus brief, it's not an infringement on the judicial power, because interested parties are allowed to try to influence the outcome of litigation by filing briefs about it. So maybe the problem is that only the executive branch should do that?
Now, even this picture has some complications. Sometimes the executive branch declines to defend a statute that it thinks infringes on executive power, and Congress will intervene as an amicus to defend the statute. That happened, for example, in INS v. Chadha, where Congress intervened (see fn. 5) to unsuccessfully defend the constitutionality of the legislative veto. It's rare for the executive branch to decline to defend the constitutionality of a statute, but when it does, it's traditional that Congress has a chance to make its own, possibly different, views known. Indeed, there's a statute requiring the Attorney General to tell Congress whenever DOJ declines to defend a statute, and to make clear to the court in that case that DOJ's position is only "the position of the executive branch of the Federal Government." So while it's true that it's traditional for the executive branch to litigate in the name of the United States, that tradition has always had exceptions, especially for Congress.
And most importantly, Congressmen who file an amicus brief do not purport to represent the United States itself (nor do they even purport to represent Congress itself, usually). They're just government officials who care about how a case comes out. Most people who care about how a case comes out are allowed to file an amicus brief making arguments, even weak ones, without anybody suspecting them of trying to take over the judicial power. Why should Congresspeople be any different?
I mean that as a genuine question. I don't see any reason in the history and tradition of Congress's role towards the court, or in case law, or in the text of the Constitution, to think that Congresspeople should be uniquely wary of filing amicus briefs. And I don't see why Congress-- which exercises just as little judicial power, (i.e. none!) as the Institute for Justice or the governor of New Mexico does-- is "enter[ing] inappropriately into the core of the judicial process" when it files an amicus brief just like IJ or the state does. So what am I missing?
Newsflash: Marriage Illegal in Texas!(?)
So it (possibly) appears, according to this news report. Of course this interpretation of the law won't stick. But it does seem a fairly extreme example of sloppy drafting; even a quick glance at the offending provision (quoted in the article) reveals an easy fix. (Note: I have not looked at the full piece of legislation, so maybe the fix is already there, in some definitions or other section.) Of course it is sometimes hard to draft language that expresses exactly what one wants to say. But any student who has suffered through a poorly-written exam question will rightfully ask why people whose responsibility it is to draft clearly make such obvious mistakes.
That Holiday Spirit
With the holiday season officially kicking off tomorrow, an interesting decision arrives from the Third Circuit. The question: can a school district adopt a policy forbidding religious music in holiday celebrations, including school concerts?
The South Orange-Maplewood school district in New Jersey adopted such a policy in an effort to achieve religious neutrality. After receiving a complaint from a concerned parent following a holiday concert that included traditional Christmas carols, the district's Director of Fine Arts indicated that schools should avoid music representing any religious holiday of any faith and suggested instead secular seasonal selections of the "Frosty the Snowman" type. Needless to say, this decision raised concerns with different parents, who brought a lawsuit.
Although these kinds of issues have become excessively polarizing, this case has a fairly straightfoward answer, which all the judges (including appointees of Presidents Carter, Clinton, and G.W. Bush) reached. Although the court was handicapped by having to apply the somewhat tangled official doctrines surrounding Establishment Clause issues, the decision follows from pretty basic distinctions.
A school's decision not to have its students present religious music in the holiday concert is different from the decision to have the students sing such music. The school district can hardly be obliged to present religious music in school. If the school district's policy violated the Constitution, it would follow that an individual school's similar decision would too, with the impossible result that every school's choral director would be legally required to present Christmas music in the school concert, not to mention music requested by other religions represented among the school's families.
Of course no one is trampling on a parent's right to have their children exposed to religious holiday music -- and children will get ample such exposure. Just not in the South Orange-Maplewood schools. Just because you have a right to teach your children something doesn't mean you have a right to have the school teach that same thing, if it doesn't want to.
Sigh. I remember my high school holiday concerts fondly, with I and the other Jewish kids cheerfully singing Christmas songs and not worrying about it. The South Orange-Maplewood policy does seem unnecessarily churlish. But it's constitutional.
Tuesday, November 24, 2009
Connecting the Dots
"Connecting the dots," is a weighty metaphor. Oliver Stone abused the concept. The National Commission on Terrorist Attacks Upon the United States, emphasized the gravity of doing so competently.
With the information that comes to us in our profession, floods over the transom, we need to take shortcuts. I rely on the pithy e-mail that lands regularly in my in-box from the ABA Journal Weekly for basic updates on the profession. (If I have time for fun, I will read Above the Law as my news aggregator.)
ABA Journal Weekly forces itself on me on my iPhone quite frequently, though I would never unsubscribe to the update.
This week, the top four ABA Journal Weekly "stories of the week" were independently ho-hum unsurprising. Connecting the dots, a broader picture emerges that illuminates the legal industry structure. (Note: Though I use the term industry interchangeably with profession here, I recognize there is a difference.)
Again, on their own, no a-ha moments from each "story of the week," but taken together, I think we can see where this movie heads more clearly every day.
Or maybe we connect the dots differently? Here are the top four stories, and I will say nothing earth-shattering about them standing alone.
- Answer: What are the alternatives? Taking the MCAT or GRE? Backpack through Europe with an anemic dollar on Mom and Dad's account? (Not an option for most.)
- This is an easy thing for law departments to say in a survey. They would certainly like to freeze rates in a tough economy and a potentially deflationary environment. Do firms have the market power to prevent it? No freeze would be permanent with a dramatic economic uptick. But why should we assume that dramatic uptick is coming soon- or (shock) EVER?
- I have no doubt that in some jurisdictions this might upgrade the quality of legal representation, diversifying representation options and enhancing price competition. No doubt this competition will extend to price and breadth of choice. This would benefit the legal consumer and might be laudable.
- Is the death of the billable hour inevitable? Nancy Rapoport thinks so. So does Doug McCollum of American Lawyer. Other smart industry observers agree, but commercial traditions die hard. They die faster in dire times.
See after the jump for my version of connect-the-dots.
I can't leave out this article, although it did not appear in my daily digest:
This is nothing new as a tactic. I recommend the whole piece to those who are interested. But the piece is worth excerpting for these purposes, (my emphasis added):
Legal business consultant Jim Hassett writes that he learned of the price wars when he decided to throw in a “loss leader” question in an alternative-fee survey of AmLaw 100 firms. He included the question on just 15 surveys, and all 15 firms responded that they had seen the price wars, he writes on his blog.
Hassett asked this question:
“There is a lot of price pressure these days, and some say it is leading firms to bid on projects as loss leaders in a way that is not sustainable. Have you seen any examples of this?”
Hassett was astounded by the unanimous response. “I have never heard 15 lawyers agree on anything else before this,” he wrote.
One firm manager told of hearing stories about “well-established New York firms” telling clients they will not be underbid. [DF: This exactly mirrors the TV ad of a local car dealership.] ...
Some respondents said law firms were likely cutting prices to keep people busy, or possibly because they don’t know what they are doing. [DF: I constantly do things because I don't know what I'm doing. Can I throw stones? What the heck, why not.] ...
“And there are really only two or three answers as to why they [lowered prices / gave away services],” the manager said. “One is a loss leader. The second is sheer stupidity. And the third is a willingness to take an extraordinary risk.”
You would have to be pretty thick to see that these developments taken together are troubling for those who care about the profession.
1) On its face, the structural imbalance in the labor market for college graduates will encourage more applicants to law schools, as the LSAT numbers indicate. Law schools, being stuck for revenue in the current financial crisis, might be tantalizingly tempted to stuff their classes, US News be damned.
The incentive to steepen grading curves to encourage lower-performing students to consider other options could be weighed against financial and future applicant-recruiting considerations for the school. (One hopes that integrity would carry the day.) Even if the economy recovers, all new student entrants will be at a classic labor-supply disadvantage. Will law schools need to adapt to help place these students? Is the Carnegie Report the answer to placing these students? It depends on whether schools in geographic markets universally adopt it. If they do, the students aren't differentiated anyway. (Not to debate the merits of the Carnegie Report.) With downward pressure on starting salaries, as Above the Law commenters are quick to point out, how long will it be before schools are compelled to lower tuition (on net)? This is not a healthy dynamic for our avocation as professors, but why should we be immune to market changes? Will we have to teach more and be paid less? The ivory tower can indeed be stormed.
2) The rate freeze trend elicited from the survey is a natural response to demand depression. One can attribute some of this to the notion that many companies increasingly consider legal services to be a commodity and care much less about relationships than in days yore. Especially when the CFO breathes down the GC's neck about the legal "cost center." The dot connection? This development undercuts the employment financial prospects of the entering students. Across the board, firms are going to have to set the market rate lower for junior associates (should they hire them at all.) The fact that more graduates will be knocking on doors won't help them find remunerative opportunities.
3) The national bar exam. This reminds me of the proposal to let people buy health insurance across state lines. I am not sure how the health insurance proposal would practically work, (perhaps the subject of another post) but advocates say it will lower costs through competition. So would facilitating the provision of legal services across state line. This will be beneficial especially for retail consumers of legal services who live near state borders. It may also help law students, as the article points out, benefit from mobility in finding work. The dot connection? The latter may be a short-term justification that in the end, kills wages and legal-services pricing. Again, though, maybe lower pricing is laudable. Maybe this change makes legal services more accessible.
4) Flat fees. Any change in fee structure initiated by the buyer must be viewed with suspicion by the seller of services. Obviously the buyer is trying to save money. Maybe it's ultimately the best way to do things, but the net outcome for all involved is highly uncertain. The dot connection is clear.
Do we see the connections between the dots of these top stories? The supply problems are severe, yet more capacity than ever is coming into the pipeline. The legal profession is a burning building and people considering the profession are running in, not for rescue purposes, but because they think the burning building is safer than the alternative. Maybe waiting out the job market for three-years in school is a rational response? (Forgive the burning house metaphor.) Pricing is under pressure and the consequences may be permanent or long-term. New lawyers will have trouble making it. What's gonna give?
I think we all know what is going on, though, though we may strongly disgree about pieces of this. What are we going to do about this problem? Is there a problem or is this a hiccup? What are our moral obligations to the profession, to clients, and to those entering what truly can be a noble field?
I have some guesses, but I'll save them for another post. And thank you, ABA Weekly. I will always read your emails- and your articles when I have time.
Casual Empiricism and Data Quality
David Zaring has a short but interesting post over at the Conglomerate about different types of empirical researchers in the law. He describes the political science types, who study Supreme Court data, the quant types who study finance and accounting data in business schools, and the cross-over types who teach at law schools but use their inter-disciplinary PhDs for empirical legal research.
Finally, he describes what I would call the "casual empiricists" (and what I suspect the other three groups would call the "wannabe" or "fake" empiricists). I prefer "casual," of course, because I fall into this group. These law professors are interested in quantitative data but may lack the skills or training for hard core, PhD level quantitative analysis. For example, though rusty, I have plenty of econometric skill. I took the same basic graduate level courses given to economics PhD students and worked as a research assistant to an economist defining, running, and evaluating complex regressions. However, I never took the advanced data gathering and analysis courses, nor did I work on a dissertation. I suspect many of my casual empiricist colleagues are in the same boat.
As a group, we clumsily gather data about legal questions we want to study, and then run basic regressions on the data. Even so, there is something to be said about casual empiricism, and for reasons discussed below, I reject arguments that all casual empiricism is unworthy as legal scholarship. Of course, this is an old debate, even on this blog.
Part of the genius of the great empiricist is taking a large, generalized data set and analyzing it in new and different ways to yield answers to questions we previously thought unanswerable. Even better is the slightly smaller, slightly more tailored data set that gives us insight into bigger societal issues. Petra Moser's work studying World's Fairs data comes to mind.
But this type of study has its limits. It is almost always an indirect look at the question that is being answered. Sometimes indirect information is the best information available, and maybe even the only information that can be gathered at a reasonable cost. However, indirect information is necessarily incomplete in at least two ways.
First, there may simply be data missing. This isn't a problem if the missing data is randomly distributed, such that the results are unbiased. Knowing when you have enough unbiased data to reach a conclusion is a valuable skill.
Second, the data may not be sufficient enough support the inferences being made. Sometimes this is simply due to logical errors, such as assuming that correlation means causation. These types of errors are rare in quality scholarship, though, as most trained empiricists will avoid them or at least look for statistical ways to show that correlation is probably tied to causation. More difficult to assess is the incompleteness that comes from limited data. For example, much empirical patent scholarship involves the study of patents on publicly traded companies because, simply enough, data is available about public companies. The question, though, is whether the results can be applied to private companies. Recent private company survey results imply (to me at least), that the patent system may work very differently for private companies.
It is the second form of incompleteness that drives many casual empiricists. There are burning questions that large data sets just cannot answer. If they could, then chances are that some "real" empiricist would have looked at the question. Thus, the small, tailored data set leaves a niche for empirical work whose added value is the data gathering rather than the clever analysis of generalized information. Of course, trained empiricists do this data gathering as well, but they don't have the same large competitive advantage in this area.
I am working on just such a project, and it has taken an amazing amount of work (primarily by my dedicated research assistants and with grateful appreciation to my dean). I'm studying the ten most litigious non-practicing entities in patent litigation (you may know them as "patent trolls") and the underlying source of the patents that they are litigating. This has involved 1) identifying the NPE's, 2) identifying all the NPE's subsidiaries that may be litigating, 3) identifying all of the lawsuits, 4) identifying all of the patents involved in the lawsuits, 5) gathering data about those patents, including the initial owners, 6) gathering venture capital information about private owners, 7) gathering valuation information about public owners, 8) gathering incorporation data about the owners, 9) gathering generalized information about the owners, and 10) tracing the assignments of the patent from the original owner to the NPE.
There is no one database that has all of information in any of the above categories, let alone the combination of all of them. Thus, I expect this to be a really great data set when it is done, and will hopefully be a nice contribution to knowledge despite my casual status.
Of course, this is not intended to demean empirical work by PhD's, who quite often do this kind of data gathering and then do even more clever analysis of it than I could fathom. Indeed, others have suggested to me (and I agree) that for heavy-duty empirical work it makes sense for the casual empiricist to work with (or at least get input from) a trained empiricist. Nonetheless, there is some room for everyone at the table.
Monday, November 23, 2009
From Letters to the Editors of Mirror of Justice
Back when The New Yorker didn't run a Letters to the Editor section, Spy Magazine used to run a feature called "Letters to the Editor of The New Yorker." Since my good friend Rick's other blog, Mirror of Justice, doesn't have a comment section, for reasons I fully accept, let me use this space to call attention to and respond to a recent post of his at MoJ. Rick reprints a description of a recent lecture on Catholic voices in the public sphere by Helen Alvare, including the following passage describing the speech:
Alvaré suggested that we hammer home two points that ought to be obvious but aren’t: Most Americans are religious in some fashion, and few people are motivated by purely secular considerations to become . . . well, better people. This is why liberalism’s standard prescriptions for addressing various social problems—especially unwanted pregnancies, births out of wedlock, STDs, and family breakdown—just don’t work.
I have some questions about both of these statements. On the first score, I'm not sure what it means to say that few people are motivated by "purely secular considerations" to become better. I suppose it depends on what you mean by "purely secular," but I am not sure that it is true that few non-religious people are motivated by non-transcendent considerations to become better people. I take it, incidentally, that this is what Alvare means. If she just means that because most Americans are religious after a fashion, then sheer numbers dictate that few Americans are motivated to become better people by secular considerations, that may be true as a matter of mathematics but also fairly meaningless. It certainly won't tell us how many non-religious people, as a percentage of the non-religious, are motivated to become better people. It also does not tell us how many religious people are successfully motivated to become better people by non-secular considerations. Again, much of the work may actually be being done here at the definitional level, but if we take her comment more seriously than that, then I am not sure she is right.
The other proposition also demands some inquiry, I think.
To begin with, in fairness one should note that liberalism's "standard prescriptions" for addressing "social problems" are actually quite capacious and varied. It is not necessarily inconsistent with liberalism, for example, to advocate social norms against sexual promiscuity, a preference for sex within marriage, and so on, although not every liberal would agree with these norms.
Second, I'm not sure what the words "just don't work" mean here. Does this mean they don't work at all? Clearly that can't be so. Does it mean instead that they don't work well? I would still question this. One might argue that they however well they work, they also carry costs that outweigh their benefits; that, for instance, birth control has contributed to women's social emancipation but has also carried many unanticipated costs in terms of STDs, social anomie, and so on. That may be true, but it will take a lot more heavy lifting to prove this point than this excerpt seems willing to provide. It is also, of course, a point that can be generalized much more widely. We could say the same thing about the unintended consequences of, say, advances in electronics and industrial technology, which have been emancipatory but also had countless unintended consequences; but it would seem silly, or at least too hasty, to say that these advances "just don't work" as responses to social conditions.
Finally, if this proposition is going to be meaningful, it seems to imply some kind of comparison. The question should be, how well do liberalism's "standard prescriptions" work as against some other set of prescriptions? That strikes me, again, as a complex question. Some other mechanisms for social amelioration may (or may not) do better than "liberalism's standard prescriptions" at addressing "unwanted pregnancies, births out of wedlock, STDs, and family breakdown." But fairness dictates that we acknowledge that those non-liberal prescriptions may themselves result in other unanticipated consequences or costs. It might be that, say, strong non-liberal prescriptions in favor of binding marriages and against non-marital sexual congress will deal well with "births out of wedlock" and "family breakdown." But is also possible that the same prescriptions could lead to increases in marital and non-marital rape, child abuse, poverty, the subordination of women, job and wage discrimination, and so on.
I am not at all asserting that this is the case. And, of course, it is clear that most people who argue for non-liberal "prescriptions" for addressing "social problems" do not want to see any of these side-effects occur. (I take it by the same coin that Alvare would agree that the vast majority of liberals do not want to see unwanted pregnancies, STDs, family breakdowns, and so on.) My point is that asserting that the standard liberal prescriptions for social problems "just don't work" strikes me as an unwarranted strong statement. It is certainly one that cannot be met with a nostalgia for periods in which other mechanisms of dealing with social problems were employed, unless one is willing to fully consider and count the often serious side-effects that accompanied those prescriptions. Maybe that should make both sides more willing to see both liberal and non-liberal efforts at social reform as an ongoing, evolving, iterative and potentially cooperative process of social learning, instead of a forced, once-and-for-all choice between one or the other mechanism for addressing social concerns.
Foreign Contacts and the First Amendment
I am editing a paper concerning the relationship between territory and the First Amendment, which I hope to post to SSRN next month. The paper will examine a variety of restrictions on cross-border information exchange, including laws that limit contacts between domestic speakers and foreign audiences and organizations. It will also examine efforts to "export" the First Amendment beyond the nation's borders, as something akin to a universal norm.
Contacts between domestic speakers and foreign audiences, organizations, and would-be collaborators have obviously increased substantially owing to globalization and digitization. Many laws and regulations that impose restrictions on cross-border information exchange, including travel bans and trade laws, have been liberalized or repealed over the past few decades. This is not to say that we have "open borders" insofar as informational materials and foreign audiences are concerned. U.S. laws and regulations continue to impose significant restrictions on cross-border travel and information exchange, many of which would be problematic from a First Amendment standpoint but for the fact that they are imposed at the nation's borders. Cross-border information flow is affected by strict licensing requirements, subject matter review of certain materials, trade embargoes, and limits on the export (and import) of materials, data, and information that may implicate national security concerns.
Contacts between domestic speakers and foreign contacts can raise serious diplomatic and security concerns. Alien scholars and other foreign speakers have no First Amendment or other constitutional right to enter the country for any purpose, including what would otherwise be lawful speech and association activities. The government's power to determine who may enter U.S. territory is subject to few, if any, limits. Contacts between domestic speakers and foreign organizations that are believed to be involved in terrorist activity have come under increasing scrutiny. The State Department has the power to designate certain organizations "foreign terrorist organizations" (FTO). Charities and other organizations have challenged these laws, with relatively little success, on vagueness, overbreadth, and First Amendment grounds. In a case now pending before the Supreme Court (Holder v. Humanitarian Law Project), several domestic organizations that wish to collaborate with foreign organizations designated as FTOs are challenging federal laws that prohibit the provision of "training," "expert advice or assistance," "service," and "personnel" to foreign terrorist organizations. In their opening brief, the organizations argue that these criminal provisions suppress "pure political speech," including the "provision of training in the use of humanitarian and international law for the peaceful resolution of disputes." At the very least, the organizations argue that the Court should limit the statutory prohibitions to “"spech intended to further a group's illegal ends."
The proposed limiting construction would likely avoid the most serious First Amendment questions posed by the statutory prohibitions on material assistance. This route may well be appealing to a majority. But let's assume the Court reaches the First Amendent questions. Does the First Amendment apply with equal force to communications and associations involving foreign organizations, particularly those designated as FTOs? Some thoughts on this issue after the break.
The brief, which is very well written and argued, assumes that the First Amendment applies with full force to the communications and associations in question. In a paragraph on pp. 46-47, the organizations argue that the mere fact that the speech in question "implicates foreign affairs" does not take it outside the First Amendment. Fair enough. The organizations further assert that "self-government includes foreign as well as domestic affairs." No argument there either. Certainly, domestic speakers' comments regarding foreign affairs are protected speech. Finally, the organizations' brief states that "[i]nternational communications are a central aspect of the robust public debate that the First Amendment is designed to protect." Putting aside that some of the communications at issue may actually take place in domestic venues and be directed to domestic audiences, is it so clear that "international communications" and cross-border associations lie at or near the core of the First Amendment?
Courts and commentators have devoted little attention to this important question. Most of the theoretical work relating to the First Amendment seems to assume a domestic context involving speakers and audiences located within U.S. territorial borders. (Some theorists might simply assume that even speech directed primarily to a foreign audience will almost always reach at least some domestic audience as well.) Does the search for truth extend to international contacts and cross-border speech? Does self-government necessarily depend upon such things? If so, how can we justify allowing the government to limit alien speakers' entry -- perhaps even on purely ideological grounds? Might self-actualization alone support international contacts and exchanges? Or do we need a different justification or theory, one that accounts for globalization and digitization, for cross-border contacts and exchanges?
There is relatively little legal, historical, or precedential support for robust protection of cross-border contacts. The Supreme Court has only grudgingly assumed that the First Amendment is implicated by some restrictions on foreign travel. Trade laws continue to restrict a variety of collaborative arrangements involving foreign authors, artists, and scientists. Citizens and resident aliens have no First Amendment right to represent foreign missions in the U.S. In more general terms, the legal and regulatory infrastructure relating to cross-border information flow, which I alluded to at the beginning of this post, suggests that the First Amendment applies with less force to cross-border contacts and speech than it does to domestic speech activities. This is especially true where national security concerns are raised, as is obviously the case where FTOs are concerned.
In sum, the supposition seems to be that "international" contacts and communications lie closer to the periphery of the First Amendment than to its core. We need to think much more carefully about how and why the First Amendment applies to cross-border contacts and expression. That issue will only become more important as new cross-border channels of communication are opened.
How I Write?
Via The Faculty Lounge, here's an interesting story from the Wall Street Journal about how writers write -- where, when, how they plan their books, how they avoid writer's block, how much they throw away, and so on. We've talked a fair amount on this blog about the "why I write" question but less about the "how I write" question. I'd love to hear from people about how they get their most productive work done. Given that I'm in the process of writing two books, the question is of some urgency to me.
For myself, I would give a couple of answers. For most major projects, I (or a combination of my research assistant and I) transcribe all the little quotes, sections, and arguments, along with my occasional marginalia, from the articles and books I'm reading into a single document, with cites and page references noted, so that once I'm writing, instead of combing through all the work I've read I can refer to a relatively discrete document. (Although my "source notes" document can run to 80 or 90 single-spaced pages.) For the most part, I don't commit words to paper until I've gone through this process; I'm not one of those who can start writing with "fill in later" or "cite tk" peppered through the draft. My first drafts thus take quite a while to come together, and the process often fills me with a certain sense of nausea or of approaching an unclimbable hill, but they also tend to be fairly polished and in far less need of multiple drafts. There are second and third drafts, to be sure, but the first one is often quite close to the final result. Typically, for a longer project, I'll also do a fairly full outline for each section or chapter. Although I still often have to work my through the argument(s) in each section, I have a fairly strong sense by that time of what will go where and how the course of the argument will proceed. Although I can go for weeks without writing (and in a mire of self-loathing and borderline panic), once I start a lot can get written at a time.
That's my general approach, but I think there's some value in messing with your method now and again. It's fun to challenge yourself from time to time by trying something different. Maybe that means a new genre. Maybe it means trying some approach you've seen and admired elsewhere. Maybe, a la Peter Gabriel recording his third solo album without cymbals, it means aiming fairly deliberately and experimentally for some goal or other. (For example, can I write a piece without (excessive) commas? As you can imagine, this is one I usually fail, although striving for it helps to discipline my sentences.) Occasionally, and for the right kind of piece, it does mean trying the approach of just writing freestyle and then filling in the blanks later.
I really would love to hear what works -- or doesn't! -- for others. That goes especially for books. I'm enjoying writing these books immensely, but it is decidedly a different kind of challenge.
Sunday, November 22, 2009
Texting While Driving: Do Prawfs Do It Too?
The New York Times reported today on a new technology that will disable a cellphone (except for emergency calls) when GPS detects that the cellphone is moving at driving speeds. Drivers trying to kick the habit of talking (or texting) while driving can use the service to counteract their own impulses, and auto insurance companies are now offering discounts to drivers who use the technology.
This is a nice technological approach to a problem -- distracted driving from cellphone use -- that has cost countless lives. The states have been slow to address it. As the Times article reported, studies from the National Highway Traffic Safety Administration and the Insurance Institute for Highway Safety show that drivers are four times more likely to have an accident if they are talking on the phone — hands-free or not — while driving. Peer-reviewed studies of drivers in simulators show that talking on a phone while driving – again, hands-free or not – gives the driver the reaction time of a legally intoxicated person.
In my torts class last year, I took my own unscientific
survey on the prevalence of texting while driving. I asked my students if they have ever read emails or text
messages while driving, and about three quarters of the sixty students answered
yes. When I asked if they had ever
composed emails or text messages
while driving, about half answered yes. So much for tort-based deterrence of law students.
In my torts class last year, I took my own unscientific survey on the prevalence of texting while driving. I asked my students if they have ever read emails or text messages while driving, and about three quarters of the sixty students answered yes. When I asked if they had ever composed emails or text messages while driving, about half answered yes. So much for tort-based deterrence of law students.
So, PrawfsBlawg readers, how would you respond to
these same questions? Have your
thumbs ever danced across the keyboard while your fingers (or knees) held the
wheel? Are you one of the few who
has decided to go cold-turkey on cellphone use while driving? Have you ever been involved in an
accident attributable to your own (or another driver’s) cellphone use? Send in your stories.
So, PrawfsBlawg readers, how would you respond to these same questions? Have your thumbs ever danced across the keyboard while your fingers (or knees) held the wheel? Are you one of the few who has decided to go cold-turkey on cellphone use while driving? Have you ever been involved in an accident attributable to your own (or another driver’s) cellphone use? Send in your stories.
We need a legislative and cultural shift on cellphone use while driving similar to what happened in the 1980s with drunk driving. Eighteen states now outlaw texting while driving, and five states (California, Connecticut, New Jersey, New York and Washington) plus the District of Columbia outlaw talking on a cellphone while driving. President Obama, through an Executive Order issued in October, banned all federal employees from texting while driving on official business. ExxonMobil and other major corporations, concerned about tort liability, prohibit their employees from using cellphones while driving on the job.
This issue is not about personal freedom. Drivers who use a cellphone, and especially those who text and takes their eyes off the road, are externalizing risk to everyone else for their own personal convenience. We will undoubtedly see more legislation in the future. A recent poll showed that ninety-seven percent of Americans support a nationwide ban on texting and driving, and eighty percent support a ban on use of handheld cellphones while driving.
In the meantime, can't we all wait to get to the office to check email?
The Political Economy of Fear and Disgust; or, In Praise of 'The Housewives'
In a recent post, Professor Jonathan Simon makes the impassioned case that there simply isn't enough money any more for the state of California to invest in both education and imprisonment. Sure, when times were fat, we could support our wasteful fear habit. But today we must choose -- exactly by a kind economic compulsion -- between "fear" and "hope" -- investment in our future or the repressive and retrograde policies of the past. "Hope," of course, has been wielded spectacularly effectively as a political weapon -- it's what we've got now, and what the other guy didn't have and couldn't deliver. And now Professor Simon wants to imbue hope with a kind of economic hegemony too; we can invest in hope, but if we do, there's just no money for anything else left.
Professor Simon is infinitely more knowlegeable about all things Californian than I ever will be. Still, I wonder whether he severely underestimates the economies -- the money -- that can be generated by both fear and disgust. Indeed, it may well be that fear and disgust generate much more money than does hope.
But how to think about these economies practically? In the blue corner, representing the political economy of hope, we can imagine, for example, the current President, and there is no doubt that he has ably deployed "hope" to churn up great political excitement. That excitement has translated into a whole lot of cash, especially for the causes he champions. But in the red (or maybe, the black?) corner, representing fear and disgust, we've got...what exactly? Standing 6'11'' and weighing in at an awesome 280 pounds is the imposing reality television industry, with its endless celebration of schadenfreude, loathing, and abasing behavior. The feelings of fear, hate, and disgust that these shows are perfecting obviously generate piles of money, since they seem to be the most profitable future for TV entertainment. And atop the gloriously putrescent heap is, at least for me, the Housewives of Orange County.
The Housewives is that perfect combination of fear and disgust in a reality program, and both qualities are mutually reinforcing. The wastefulness, vapidity, and meanness of the Housewives' lives, in combination with their extravagantly (really, extravagant is too soft a term -- words fail me) lavish lifestyles, generates a kind of loathing fascination. Are they so wealthy exactly, and only, because they are so hateful? Or is it the wealth that has made them so despicable? These and other great mysteries vex the viewer, as he descends deeper and deeper into the intrigue. Given the popularity of the show, and the spin-offs in cities all around the country, hatefulness clearly sells, both in this Reality TV show and in so many others. There is an enormous and thriving political economy of disgust.
If disgust sells, why not fear? Thus far, Reality TV has not yet taken on the prisons (though there are some MSNBC shows that truck in this sort of thing), but I wonder whether there is not a real economic opportunity waiting for some shrewd producer to exploit.
At all events, I am not at all sure that Professor Simon is right to argue that there simply is not enough money to pay for both hope and fear. Fear and disgust generate shamefully, ostentatiously, large quantities of cash, quantities that in all likelihood dwarf whatever is stimulated, so to speak, by hope. If only we could siphon some of it off to pay some of the social cost for our 'fear addiction' -- a powerful dependency which Professor Simon documents so extensively, and so eloquently, in his posts on this page.
Communion and Consistency?
I post the following in the interest of stimulating thoughtful conversation on religion and politics, one of our specialties here. It turns out the Catholic Church has been urging Rep. Kennedy to avoid participating in communion based on his support for abortion rights. The story has been percolating intensely the last couple weeks but stems from a letter sent to Kennedy from a bishop based in RI back in 2007.
In response to this article, someone writes:
I suspect there is more to say than this provocative (incendiary?) comment, but I don't think I'm in a position informed enough to respond and would like to hear more about how these choices are made about which issues place politicians beyond communion, and which don't. For what it's worth, I don't doubt that other religions and religious organizations are regularly guilty of selective emphasis (aka hypocrisy), so blogging about this topic shouldn't suggest anything about my own inchoate views or that I think Catholics are occupying the field here. So, any thoughts in defense of the Bishop's choice or is this rank wrongness? Do people think (strictly from a normative/moral perspective, not legal) that isolating one group of persons is ok b/c the Church should be able to "regulate one step at a time"?
Now I'm not a Catholic, but this is despicable. The Church has never told supporters of the death penalty or the criminal wars not to receive communion. It has never denied communion to anyone who covered up the sexual abuse scandal. It has never linked communion to its own teachings on rich people and camels and eyes of needles. Hell, it has even gone out of its way to praise Pius XII and has a current pope who was a member of Hitler Youth. What more is there to say?
Now I'm not a Catholic, but this is despicable. The Church has never told supporters of the death penalty or the criminal wars not to receive communion. It has never denied communion to anyone who covered up the sexual abuse scandal. It has never linked communion to its own teachings on rich people and camels and eyes of needles. Hell, it has even gone out of its way to praise Pius XII and has a current pope who was a member of Hitler Youth. What more is there to say?
He Was It
On weekends, even law professor bloggers get to relax and think about less serious topics.
I caught Michael Jackson's new film, This Is It. What a pleasure. Not only is it your chance to see Jackson perform his greatest hits one last time, it's your chance to see a superb craftsman at work.
The film consists of Jackson and his backups and crew rehearsing for the tour he would have performed if not for his untimely death. The film shows that, once you get Jackson away from all of the hoopla, and weirdness, and scandals that surrounded his life, and put him in his true milieu, where he works on doing that for which he was celebrated, no one could match him. Even though he's not giving it his all in this movie, because it's just rehearsal, not actual performance, his dancing is still amazing -- miles ahead of his backups, who are probably more than twenty years younger than him. And he brings an intensity and intelligence to his professional work that you couldn't see in his interviews during life.
In this day of endless parades of not-especially-talented people who are celebrated for being celebrated, or for showing us the "reality" of their lives, it's a pleasure to see someone who truly had the talent to back up his fame. He wasn't the King of Pop for nothing.
Friday, November 20, 2009
Campaign Finance, Shareholders' Rights and the Chamber of Commerce
It's an interesting coincidence that the Supreme Court is considering what to do about corporations' rights to engage in political speech just as one of the main justifications for such regulation is getting at least a limited empirical test. As most people here probably know, the Court heard oral argument last September in Citizens United v. Federal Election Comm'n. That case may -- in fact, probably will -- yield a major decision on corporations' rights to engage in political speech. In particular, it may lead to the overruling of Austin v. Michigan Chamber of Commerce (1990), where a six-Justice majority upheld a state law requiring corporations to engage in explicit electoral advocacy only through a segregated fund -- i.e., not via its general treasury funds. Austin relied, at least in part, on a rationale that stakeholders in a corporation -- in Austin, the members of the Michigan Chamber of Commerce -- might feel compelled for economic reasons to remain members even though they opposed the speech in which the corporation was engaging. Thus, the Court reasoned, the state had an interest in protecting those stakeholders' interests in not being essentially compelled to subsidize speech with which they disagreed.
At the Citizens United oral argument, Chief Justice Roberts pressed Solicitor General Kagan hard on this point (at around page 58 of the transcript, if you're curious). He derided the paternalism implicit in the shareholder-protection rationale. It was clear that at least he wasn't buying it (as, presumably, were not Justices Scalia and Kennedy, who dissented in Austin).
What's interesting is that, right now, the U.S. Chamber of Commerce is embroiled in controversy over its position on global warming, with -- you guessed it -- members quitting in protest over the Chamber's speech. On the face of it, this example is pretty extraordinary; these are not small companies that are quitting, but major firms like Apple and Levi Strauss. Thus, it's not at all clear that this example says much about the ability of smaller chamber members to protect themselves from unwillingly funding speech. And of course it says nothing about the power of individual stockholders in companies, many of whom own shares via mutual funds, thus making exit even harder. (Solicitor General Kagan made this latter point as well, though again she was rebuffed by Chief Justice Roberts.) I'm sure the Justices are aware of this controversy, and how it fits in to the strength of the government's shareholder protection interest.
If the Citizens United opinion does in fact overrule Austin, it will be interesting to see what, if any, use the Court will make of this example. If I had to guess I'd say they wouldn't mention it; still, it would be awfully tempting to note, in the course of overruling Austin, that the national affiliate of the very organization to which the stakeholder protection rationale was applied in Austin is apparently experiencing the very exit that Austin thought was sufficiently problematic as to justify an infringement on corporations' political speech rights.
The University of California has put faculty and staff on furloughs amounting to an average 8 per cent pay cut, and yesterday voted to raise student by 32 per cent.
That's a huge increase. It's worth noting that, even after the increase, UC tuition will still be a bargain at $10,302 -- my own university charges a whopping $41,610 for undergraduates -- but still, a 32 percent increase in any price has to cause some severe sticker shock.
Professors have a funny relationship with tuition. On the one hand, I am stunned by the tuition my law school charges -- $42,205 -- and I feel we should at least show some restraint in increasing it. On the other hand, it pays my salary. My school doesn't have that big an endowment, so we are primarily tuition-dependent. If we want to restrain tuition increases, we have to restrain my salary too. So I'm caught in a conflict of interest.
Professors also have a funny relationship with furloughs. Thankfully, we don't have any at my school, but I wonder how professors at state schools are managing. An 8 per cent furlough presumably means that they're being instructed to take about 20 days off a year. (Apparently the actual number ranges from 11 to 26, with higher-salary employees expected to take more.) But given the way professors work, days off are pretty meaningless. We already have considerable control over our time -- apart from time when we're required to be in class, we work as much as we want to and take days off when we want to. I hasten to add that for most of us, including me, that ends up meaning working almost all the time, but the point is that getting extra time off doesn't take the sting out of a furlough. It's not like getting unpaid vacation time, it's just unpaid work time.
Of course, the life of a professor is so good that it's churlish to complain that furlough days probably won't actually get taken. I'm not expecting any sympathy with the fact that we already have so much flexibility that it's meaningless to give us more. But still, an 8 per cent pay cut has to hurt. My sympathies go out to the UC students and faculty.
Hope v. Fear
Could there be any better index of the relative strength of hope and fear in a polity than spending on universities and prisons? For the American "states", who have no armies, universities and prisons are the most concentrated and material manifestations of state sovereignty itself (other than the cluster of buildings that stand in their capitals, usually ignored by the public). In California fear had an early lead as San Quentin prison opened in 1851, just two years after statehood, and well ahead of the University of California which was chartered in 1868.
Both grew slowly over the next century, with a new prison at Folsom opened in 1880, and a southern branch of the University of California opened in Los Angeles in 1914. The second half of the 20th century saw a surge of hope after World War II that reached its peak in 1960 with California's famed "master plan." The University of California, projected to expand to nine campuses, would become the research arm of a comprehensive public university and college system guaranteeing nearly free four year higher education to the vast majority of the state's high school graduates. The spending unleashed by this hope was just cresting as I reached the gleaming Berkeley campus as a freshman in 1977. At that point, the state spent more than 17 percent of its discretionary fund on higher education, and 3 percent on prisons and parole. Fear was already building a head of steam with the crime wave of the 1960s and 1970s. Over the next three decades the state built more than 20 new prisons and a total of 3 four-year universities. The fact that California is, in good times, extraordinarily wealthy, made it possible to sustain a lot of fear and hope. But the recent financial crisis has made that impossible. California must now choose fear or hope for the future. Today prison leads spending on higher education with pressure on both. Tamar Lewin's front page article in today's NYTimes chronicles the recent travails of the University of California as fear shows its staying power and hope wilts.
Unfortunately, the recent days of protest at Berkeley and Los Angeles (the regents are meeting in the latter) have failed to focus on this choice and instead lashed out at the University's own administration for making the cuts and tuition increases necessary to survive. (for my critique of the strikers)
Best Practices for Appointments Committees
Though it's been a few years since I had to go on the meat market, I'm still pretty keen to make the process for newbies as relatively painless as possible, and this blog has been one way to try to facilitate that goal. I know a number of my perma-prawf colleagues are either veterans of or currently sitting on their schools' appointments committees (appcomm); the same is true for many guest writers and readers of the blog. To that end, I'd like to draw on the collective wisdom of folks here to compile a set of best practices for appointments committees for law school hiring, and to get the ball rolling, I've offered some thoughts below.
In no particular order, I can think of 12, some of which are drawn from the queries/complaints in the job market threads we've been running on the blog. They can be found below, after the jump.
1. Once you have asked a lateral candidate to see if they are interested in being considered, ask the person which three pieces represent their best work that they'd like the appcomm to read. Also ask which pieces signal which direction the work of the person is likely to take in the future. If the candidate is a rookie, ask the same thing if they have multiple pieces, and ask for a research agenda too.
2. If you bring a lateral or rookie candidate in for a job talk, follow-up with an email or call to a) thank the person for traveling and doing the job talk, and b) let the person know when they can expect to hear any news. Set a default rule: if you don't hear from us within X weeks or Y months, you can assume we've moved on to other candidates.
3. Backgrounding: This is something I'd like to solicit feedback on. Some schools probably check only the references provided by the candidate. Other schools are more aggressive (or perform more due diligence?), and many people (both on the committee and off it) will make phone calls to people who know the candidate. These reports are then shared informally or formally at the faculty meeting, leading to discussions of personality (or background--are they likely to come? do they have family or friends in the area?) that may go beyond whether the person would be a good colleague. How much backgrounding is enough or too much? How much prodding should people perform to see if the candidate? Are there good proxies to assess collegiality for laterals, e.g., the number of times they are thanked for reading other people's drafts? the number of times they've taught classes for sick colleagues?
4. If you are inviting a rookie, let them know that you'll reimburse the rookie for all expenses associated with the travel to visit the school, including meals, parking, and other normal incidentals, (including internet at the hotel?).
5. Before the meat market, Appcomm should ask all rookies they are interested in to send them a job talk paper to review before deciding whether to interview them at the meat market. Appcomm should be focused on whether the job talk paper is likely to impress their colleagues prior to deciding to spend 30 minutes of time with them in DC. Making sure the Appcomm only interviews people with papers prior to the meat market will also help Appcomm sift who is likely to be ready from day 1, at least from a scholarship and fire in the belly perspective. The offset to this point is that it assumes the transition rookies are making is from a place where they were able to prioritize writing. This is not true for all candidates obviously. But part of being a successful legal academic (qua scholar) is showing a passion for writing and ideas, and so if you're not in a position where you can write and read scholarship, it helps for you to find that time at the beginning of the day, or evenings, or weekends, etc. You'll often hear that successful scholars are the ones who are thinking of writing and articles in the shower or buying groceries...
6. Give people a reasonable amount of time to decide to accept the offer, but explain to them if you are budget-constrained or timing-constrained because you need to do a lot of hiring and can't necessarily wait for them. Consider the following strategy: Your offer (and proposed course package) is good for a month. However, if you can't accept within that period, check back with us later on, as we might still be interested, though if we are, it's possible your teaching package might have to be altered somewhat.
7. If your school is open to lateral hiring, it's probably better to assign the Appcomm responsibilities from Feb/March to Feb/March rather than July/August to July/August. This allows Appcomm to do a good job of setting hiring priorities before the spring semester is finished and allowing them to scout for laterals (or perhaps misplaced rookies) to bring in for late August, September and October. If the scouting has been done by June for laterals, it still allows appcomm to go through the sheets in August and select which rookies to meet with in DC.
8. If you're not in an intensely geographically desirable location for non-prawf spouses, consider hiring more couples (or trios, etc) on the market.
9. This is primarily relevant to point number one. If you are looking at a lateral candidate, it is probably best to first reach out and ask if they are interested in being considered by your school (in terms of subsequent reading of the person's scholarship), rather than appcomm reading first and then contacting, when the person might not have been interested in being contacted.
10. Related to 1 and 9: lateral prospects will be less offended about being declined pre-campus visit than post-campus visit. Equally important, it is far better for your colleagues to be spared the cost and time of bringing someone to campus if the committee is not already enthusiastic about the work before the on-campus visit is scheduled. In other words, if a lateral is being invited, it should be because the committee fully expects to support that candidate based on their own views of the work and/or teaching evals, etc--and not wait to form those views based on "temperature reads" after the on-campus visit. If the committee doesn't do its homework up front, it costs the school a substantial amount of time and money. My sense is that each on-campus interview requires at least 125 person-hours for a faculty of 30-40 people, including committee time, candidate time, time at the faculty lunch, time preparing to read the person's work, informal post-visit chats, formal post-visit deliberations. The committee, which is already heavily taxed in terms of its own time, should be leery of bringing in people with any unknowns that are knowable; that is, the committee should recognize that the patience of the faculty is thin and the currency of persuasion with the faculty is subject to depletion.
11. Related to 9 and 10: If you're contemplating looking at junior laterals, be clear up front about what your tenure clock rules are at your school and at the candidate's school. If your school requires time in rank before tenure of 5 years and you can't give more than 2 year's credit to the tenure clock, don't bother looking at people who are in year 3 or 4 at other schools. The odds are very high that they won't be interested in sitting at your school for an extra year or two, but chances are they won't want to broach this subject up front; perhaps they'll discuss it with your dean at the on-campus visit, but at that point, you've already potentially wasted 125 person hours...
12. If slots are few in number, it might make sense to have just one large faculty meeting after all the relevant callbacks have been performed, and then have some kind of cumulative voting scheme in place to measure faculty intensity and preferences (something Ethan mentioned the other day in a post) and to rank the candidates in order. If there are more than 4 slots available, chances are it will be fine to have several waves of offers and meetings should be more frequent.
Ok, I'll stop here. Tell me gently if you think I'm wrong, and please add others in the comments.
For Whom Do We Teach?
As the semester winds down and preparation for next semester gears up, I've had some thoughts about topic selection for my courses. For example, this year I cut "Defenses I" from the course - it was a survey of three really interesting defenses: reverse doctrine of equivalents, experimental use, and laches. They should all be really important defenses but for reasons I won't get into here, they just aren't. So, do I focus on what I wish the law would be, or do I focus on the topics that students are likely to encounter? In a perfect world, I would do both, but patent law is just too broad to do so in a 3 (or 4, or 5) credit course. This year, I decided to focus on the more likely defense: inequitable conduct.
I face the same issue as I plan for cyberlaw - many ask me if I teach any international aspects in class. Despite the growing importance of international e-commerce and social networking, I've made the judgment call that my students are far more likely to encounter the domestic "bread and butter" issues that I choose to cover. Unfortunately, this leaves little room in the course to address international issues, which are really interesting and potentially important. Indeed, cyberlaw is even more complex for me, as I often have several students from the engineering school's computer forensics program - the issues those students will face are different still from the typical lawyer's issues.
So, how do we decide these trade-offs?
I am increasingly siding on the student needs (rather than student interests or my interests) side of line. While I think many of the issues I could teach are really interesting, I can satisfy my curiosity through research. Indeed, the likelihood that I could cover any topic and its nuances in such detail the students will understand and retain is unlikely in any event.
The bigger question, I think, is whether to teach something that the students might find interesting, but that they are unlikely to encounter in practice. It seems to me that the answer depends on the type of class. In patent law, I take a relatively no-nonsense approach for a couple reasons. First, most of my students will not become patent prosecution lawyers. Those that will take patent drafting as well. Second, let's face it, patent law has few sexy issues. Thus, I try to make the basic stuff interesting and tie it to potentially interesting policy issues, like patenting of DNA or software.
Cyberlaw is a different story - there are all sorts of issues that students may find interesting, but that don't come up that often unless you specifically practice in the area. As a result, my cyberlaw course is mixed. I cover core topics like copyright, trademark, Communications Decency Act, and jurisdiction. I also spend some time on privacy and consumer protection, which I think they are less likely to see but have a lot of interest in.
I am certain that there are some classes that are all about the interesting policy issues rather than the practical nuts and bolts, and I also suspect that the mix differs by school personality, both because of teacher and student goals and interests. I also suspect that the Carnegie Report has something to say about this topic, though I reject the view that law school is merely a trade school and that all classes must be geared toward the practical use of information taught, even if I lean that way much of the time.
Work Email: "I Always Feel Like ... Somebody's Watching Me"
A new Wall Street Journal article suggests that is what exactly may be happening, but now there is some push back from employees and their advocates:
Big Brother is watching. That is the message corporations routinely send their employees about using email.
But recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically . . .
In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.
Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.
That was what happened in a case earlier this year in New Jersey, when an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent on a personal account wouldn't be read.
To be honest, I don't think this a new trend at all (though it makes a nice theme in a WSJ story). Since I was practicing management side employment law back in the late 90s, we would advise clients routinely that they had to have clear language in their employee handbooks that employees had no expectation of privacy in their computers, internet browsing, or emails.
Nothing new, but still a good practice for employers to follow if they want to avoid this type of lawsuit.
Hat Tip: Joe Seiner
Thursday, November 19, 2009
Widespread Employer Under-Reporting to OSHA
So finds a new astonishing and disturbing report released by the GAO this past Monday and reported on by the New York Times:
Employers and workers routinely underreport work-related injuries and illnesses, calling into question the accuracy of nationwide data that the Occupational Safety and Health Administration compiles each year, the Government Accountability Office said Monday.
The report, by the G.A.O., the auditing arm of Congress, said many employers did not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.
The report also said workers did not report job-related injuries because they feared being fired or disciplined and worried that their co-workers might lose rewards, like bonuses or steak dinners, as part of safety-based incentive programs . . . .
According to the G.A.O. report, 67 percent of the 1,187 occupational health practitioners surveyed had reported observing worker fear of disciplinary action for reporting an injury or illness, and 46 percent said this fear had some impact on the accuracy of employers’ injury and illness records.
It goes without saying that it is hard for OSHA inspectors to do their jobs if they are faced with this type of lying/gamesmanship. It also shows that previous reports that injuries in the workplace were declining during the conservative Bush era are a bunch of hogwash.
OSHA inspectors will now have to start with the presumption that employers may be holding back the truth as far as injuries and illnesses in the workplace and will have to interview individual employees to get information on what is really going on in the workplace: "In response to the report, which examined OSHA’s audits from 2005 to 2007, the safety administration said it would adopt the accountability office’s recommendations, which include requiring inspectors to interview employees during all audits to check the accuracy of employer-provided injury data."
And you wonder why regulation of the workplace is necessary? Because many employers (not all) cannot be trusted.
Hat Tip: Josh Pollack
The Joy of Casebooks
Marc's posting about legal textbooks resonates with me at this particular time because I'm hustling, with my co-authors, to finish the second edition of our First Amendment casebook. It's tough work, but exceptionally rewarding, and I find it unfortunate that writing casebooks seems to have fallen out of favor in the legal academy. The close case analysis that it requires, at least in a precedent-heavy area like the First Amendment, teaches one the law in a way that I think is unmatched by any other experience a law professor is likely to have, including writing other types of legal scholarship. Deciding how to organize the material, choosing and ordering the relevant cases, and, most of all, editing them can force you out of your own mindset into that of the judges; I can't think of a better way to learn what they are doing. Of course, not all casebooks are written that way. Some -- many, perhaps -- reflect the idiosyncrasies or agendas of their authors. But books that attempt, to the extent possible, to simply present the doctrine on its own terms offer their authors a wonderful learning experience.
This shouldn't be surprising. I tell my students, just like I was told when I was in law school, that the best way to learn is not simply to read someone else's outline, but to write your own. Writing the kind of casebook I describe above is, in essence, writing an outline about that area of law, with the editorial decisions you have to make constantly forcing you to consider what matters in the case and what turns out to be the foundation for the later cases. If that all sounds kind of conventional, it's still a lawyer's stock-in-trade. If done with care, it can be immensely rewarding. I hope newer professors -- and more senior ones -- will find a new appreciation for the experience.
Hear the Health Bill
Don't want to wade through the Senate's new 2,074 page health bill? Wait a few days and you can hear the whole thing online. It should be available at hearthebill.org , a website started in September by a group a voiceover professionals to lend their voice to health legislation -- literally. While we wait for the audio files to be posted, you can listen to the entire House bill as well.
Morning drive alternative to NPR?
Are (Catholic) law schools wise stewards of their students' debt?
On the assumption that a cross-post is better than no post at all, I offer this short contribution from Mirror of Justice regarding Rick's concern about the move toward more practical/technical legal education. (Note to self: November is a bad month for hiring chairs to volunteer for Prawfs duty.)
I agree with Rick that the legal profession's academic woes should not nececessarily reduce our commitment to the law as a humane discipline. However, I do believe that all law schools -- Catholic law schools in particular, I would hope -- should use this time as an impetus to think carefully about the concept of stewardship as it applies to legal education. It seems that Catholic law schools have largely been indistinguishable on this front, simply following the crowd in asking how much the market can bear in terms of tuition hikes, reduced teaching loads, swanky new centers, and the chase for LSAT/GPA profile rather than asking whether they are being wise stewards of their students' (not-yet-existent) financial resources. So I applaud a school like Washington & Lee for making an effort to connect their students more directly with the work they will do as lawyers. I am concerned about the pressure that places on other important aspects of the curriculum, especially the interdisciplinary aspects of the curriculum, but I applaud them for thinking seriously about whether the current model of legal education is in keeping with students' long-term interests.
To be clear, I am among those chasing the crowd -- I love reduced teaching loads, swanky new centers, and a class with an impressive LSAT/GPA profile. So I'm not exactly sure if and how law schools should look different -- after all, a higher US News ranking
allows me to bask in some reflected glory is in our students' long-term employment interest -- but when we think about new expensive initiatives, we should ask whether the initiative justifies increasing our students' debt load. One of the unfortunate results of the great rankings chase is that the students with the less rosy job prospects are subsidizing the education of the students with the rosier job prospects. Those same students are also paying my salary. So is it important that law students have the opportunity to learn and reflect on the insights that Rawls or Maritain have for law, politics, and citizenship? Absolutely. Should a Catholic law school be making "splashy" hires by letting a big name carry a three-credit-per-decade teaching load consisting only of their seminar, "Things Rawls and Maritain Might Say to Each Other if They Were in My Kitchen?" Probably not. Further, I'm not sure if Catholic law schools can justify relying on the market as an indicator that their tuition rates are in keeping with their students' long-term interests. There appears to be a bottomless reservoir of young people willing to incur huge debts for a degree that does not always make economic sense. Leading figures within the Catholic intellectual tradition have generally been unafraid to tell people when they're making decisions that are detrimental to their long-term flourishing. Catholic law schools, it seems to me, should pay attention to our students' long-term flourishing even when -- especially when -- they're willing to pay any price for a law degree.
Fifth Avenue Freeze-Out
The Second Circuit has upheld a NYC permit regulation that prohibits all parades on Fifth Avenue (15th to 114th Streets) "unless the parade was held at that location prior to the promulgation of these rules". The case, which was decided by a two-judge panel (then-judge Sotomayor was the third judge on the original panel), is International Action Center v. City of New York. The city's permit scheme does allow for the issuance of special permits for Fifth Avenue and other locations, for "celebrations organized by the City honoring the armed forces; sports achievements or championships; [and] world leaders and extraordinary achievements of historic significance." Absent a special permit, however, Fifth Avenue can host no more than the fifteen annual "grandfathered" parades.
The court held that the Fifth Avenue Rule is a content-neutral time, place, and manner regulation, which was justified by the usual concerns (traffic congestion, public order) and by the "over-saturation" of parades, particularly in midtown Manhattan. I don't question the court's reasoning or its disposition under current First Amendment standards (which I, like others, have criticized). The rule prohibits all "new" parades, regardless of content. Under the permissive intermediate scrutiny standard, it is justified with reference to the concerns stated above. The court found that the 100-block ban was sufficiently "narrowly tailored" and that other streets, although not "perfect substitutes," were available for parades.
The rote application of time, place, and manner standards obscures a couple of important concerns. The first is that the Fifth Avenue Rule privileges a select few organizations, those that managed to hold annual parades prior to 2001. These are primarily cultural parades or events. Yes, new events may qualify for permits on other streets. But as the court acknowledged, Fifth Avenue is a unique venue. It is arguably the most famous parade route in the city. Under the Fifth Avenue Rule, this traditional public forum will primarily host cultural events such as the Columbus Day, St. Patrick's Day, and Norwegian-American 17th of May parades. While it may not be "content-based," the Rule privileges cultural inscription over political and other types of public displays (particularly those that are spontanous). Why should "historic" parades receive an exclusive use permit for this venue? Why not a lottery, or some other system that does not simply ban all post-2001 events? The second concern is the level of discretion built into New York City's permit regulations. City officials have disregarded the Fifth Avenue Rule on certain occasions. And then there is the "special permit" regulation. What exactly constitutes a "sports achievement"? A Knicks winning streak? What are "extraordinary achievements of historic significance"?
Most will probably not be disturbed by the Rule. After all, who doesn't like Norwegian-Americans? But this disposition is of a piece with others that have limited political contention and public displays in some sacred venues. In New York City itself, protests on the Great Lawn have been limited to 55,000 persons out of concern for the condition of the lawn. Numerous public "beautification" projects are slicing up other historically significant public forums. And restrictive permit requirements have been proposed in recent years in response to public displays like the Critical Mass bike protests. The language of time, place, and manner -- "content-neutrality," "significant" government interests, "narrow tailoring," and "adequate alternative channels" -- typically fails to capture, much less halt, this erosion.
Wednesday, November 18, 2009
Voting your preferences in faculty governance contexts
Say your faculty has only one appointment slot to fill and you see six candidates for call-backs. Imagine that five of the candidates are appointment-worthy but you can only afford to pay one of them because of budget constraints, so the faculty must order its preferences for extending the one offer you have to give. How does your faculty aggregate its votes? Have you considered this question recently? I'd be curious what other faculties do: Do you use a "Borda count," essentially having all candidates rank each option and award points accordingly (with the lowest point total being the favorite who gets the offer first)? Do you use a system calibrated to assess preference intensity, like a cumulative voting system, so that the dean knows just how much of the farm to give away to the top choice before going to the second best? Do you use a Condorcet voting system? Each of these systems furnishes slightly different sorts of information and has different pathologies, so the context matters, of course. But I wonder if your faculty gives the voting system much thought and what they've come up with to deal with these scenarios. Is the faculty explained the system in use so that they understand carefully how strategic voting may or may not impact the ultimate decision made and how the aggregation mechanism may be conveying somewhat different information than the simple view that all these methods clearly pick out "the faculty's favorite candidate" all the time?
Should Law Students Get a “Cross-Platform” Text on Legal Reasoning -- Good for Many Different Substantive Courses?
Here’s a more longer, more elaborate version of the question: Right now, in most law schools, students have to buy a new, subject-specific casebook for each class. One for Contracts, one for Torts, another one for Evidence, yet another one for Constitutional Law, and so on. I’m not suggesting that this will change in the immediate future, although it certainly would be nice for law students to have a single text book -- or eReader -- which, like Harry Potter’s “Room of Requirement,” would appear and morph into whatever casebook they needed on any particular occasion.
But does it also make sense for law students to have an additional text or texts that they keep as they move from one substantive class to another -- a text on the legal reasoning and argumentation skills that transcend substantive boundaries? After all, not everything a student learns in Torts, Contracts will be specific to those subject areas. They’ll also (hopefully) learn how to spot issues in a complex fact pattern, how to analogize and distinguish cases, interpret a particular holding broadly or narrowly, or synthesize a legal rule from a line of cases. In fact, these general skills of legal reasoning and argumentation will often be just as crucial for doing well on a final exam as knowing the blackletter law covered in the course. So why shouldn’t law school faculty -- in addition to selecting individual subject-a specific casebook for each classes -- also choose one or two legal reasoning texts that students obtain when they start law school, and that professors in different classes can refer to as they help students refine legal reasoning and argumentation skills, and apply them in a new area of law?
Of course, as with any other proposal, there are downsides to this one. For one thing, it would require a school’s faculty to make a collective choice on a matter (textbook selection) where we are each used to making our own decisions. It may also require students to spend more money for yet another textbook -- although in law schools where students are already required to take a legal analysis or reasoning class, a book like this is already part of the package students have to buy during their tiem in law school. (It is also possible for a law school’s faculty to put together such a legal reasoning text on their own instead of asking students to purchase a particular one on the market).
Still, my sense is that, on the whole, this kind of proposal would be a good thing for students. It would help make the teaching of legal reasoning more systematic and explicit throughout law school (and not just in classes dedicated to legal reasoning and writing). In short, I think Steven Burton is right that, as things stand now, in substantive classes, law “[s]tudents are left largely to their own devices to extract worthwhile lessons about legal reasoning from examples and discussions.” (This is from his book, An Introduction to Law and Legal Reasoning).
Have schools already experimented with multiclass, one textbook approach described above? Do those of you who are teachers of substantive courses, like contracts and torts, familiarize yourself with the texts used in legal analysis classes, and refer back to them as you teach torts or contracts? (I know I asked this question before. But I’m still seeking answers to it.).
Two and a half cheers for Judge Sykes
Others have linked already to the Seventh Circuit's decision (per Judge Sykes) in United States v. Skoien, but it really bears close reading by anybody interested in substantive Second Amendment doctrine. The court determines that intermediate scrutiny applies, and then sends the whole case back to the district court for a second try, with a bit of a nudge:
Intermediate scrutiny tolerates laws that are somewhat overinclusive. See, e.g., Fox, 492 U.S. at 480; Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325, 327-28 (4th Cir. 1996) (recognizing that intermediate scrutiny in the commercial-speech context allows some latitude between the regulation and the governmental objective). How much is too much is hard to say; it depends on the scope and reach of the law and how much room it leaves for the exercise of the right. See Fox, 492 U.S. at 481 (noting “the difficulty of establishing with precision the point at which restrictions become more extensive than their objective requires”). We note that § 922(g)(9) is overinclusive on several fronts: The firearms prohibition exists indefinitely; it contains no exceptions nor any basis for potential restoration of gun rights; and it does not require an individualized finding of risk that the domestic-violence misdemeanant might use a gun in a future offense. On the other hand, the statutory definition of “misdemeanor crime of domestic violence” limits the applicability of § 922(g)(9)’s firearms disability to those who actually used or attempted to use physical force or threatened the use of a deadly weapon in a domestic disturbance. See 18 U.S.C. § 921(a)(33)(A)(ii). The statute thus targets a specific class of violent offender; only those who have already used or attempted to use force or have threatened the use of a deadly weapon against a domestic victim are banned from possessing firearms.
I'm not entirely sure that intermediate scrutiny, rather than strict, should apply, and I'm not entirely sure the government is entitled to a remand having failed to make their case the first time around, but the opinion makes a plausible case, and I can see why this seemed like the most practical way to resolve the case.
A few additional thoughts:
1: This is a very long opinion for Judge Sykes. When I opened the PDF file and saw that it was 27 pages, I just assumed that there was a dissent.
2: I wouldn't be too quick to rely on the fact that the statute applies only "to those who actually used or attempted to use physical force or threatened the use of a deadly weapon . . . ." Several circuits have held that the statute's reference to the use of "physical force" includes not just batteries, but any unauthorized physical contact, even if it is neither violent nor injurious. (The issue is pending at the Supreme Court this term.)
3: I think the federal statutes most likely to face a successful Second Amendment challenger are 922(g)(9) or perhaps 922(g)(1), which applies to people merely under felony indictment. Any Supreme Court resolution of that issue might modify the Heller dictum about felon-in-possession laws, opening the door to allowing as-applied challenges for non-violent felonies (as history and logic seem to dictate).
4: Are some of the gun-rights groups successfully coordinating with the federal public defenders and appointed criminal-defense bar? If not, they should be.
Yes, Virginia, There is Law in Cyberspace
One annoying feature of Internet law is "Internet exceptionalism" -- the assumption that everything must be different if it's on the Internet. For example, as CNN reports, Courtney Love is being sued for sending a defamatory tweet out on Twitter (she accused a clothing designer of being a drug dealer). CNN claims that the suit confronts "new and unaddressed areas of American law."
Hardly. Look, there have always been lots of different ways of spreading defamatory messages. The Marquess of Queensbury left his calling card with a porter for delivery to Oscar Wilde, and wrote on the card, "To Oscar Wilde posing as a somdomite [sic]." Because the Marquess wrote this allegation down, because the porter saw it, it was a public libel. The law deals with such things.
The Internet is exciting and new, but there is nothing "new and unaddressed" about the notion of being responsible for written defamatory statements. The statements can be in books, newspapers, letters, on calling cards, or, yes, on the Internet. Accusing someone of commiting a crime is libel per se. "I only did it on the Internet" is no defense. Let's stop imagining that everything must be different in cyberspace.
"Legally Binding" versus "Politically Binding" Climate Deal
The big news out of the APEC meeting in Singapore last weekend was the lowering of expectations for the upcoming climate change summit in Copenhagen. APEC leaders, including President Obama, endorsed the proposal by Danish Prime Minister Lars Lokke Rasmussen for a “politically binding” agreement on major principles that would be finalized as a “legally binding” treaty in 2010.
Then, speaking yesterday in China, President Obama said the aim should not be “a partial accord or a political declaration” but rather “an accord that covers all of the issues in the negotiations and one that has immediate operational effect.”
Do these semantic distinctions make a difference? Bloggers have jumped all over the
phrase “politically binding,” arguing that it is meaningless and a sell-out
worth no more than a politician’s promise. It seems to refer to a document that would not be a
formal treaty open for signature at the conference, but rather a short
statement of agreement on several core issues. Such a statement would not have “immediate operational
effect” in a legal sense, but perhaps President Obama is suggesting that
countries should immediately and voluntarily implement the commitments made at
Copenhagen, prior to negotiating a formal treaty.
No doubt, the failure to conclude a formal "legally binding" treaty at Copenhagen is a set-back. After all, the Copenhagen summit was planned five years ago, and the necessary preliminary political agreements were supposed to have been concluded in 2008 and 2009, in accordance with the Bali Roadmap. Time is rapidly running out for global action, and we can't afford yet another roadmap that leads to years of protracted negotiations.
However, the lowered expectations at Copenhagen may ultimately save a larger climate deal. If the summit were to collapse under expectations that a "legally binding" treaty is the measure of its success, both international negotiations and domestic climate change legislation could go down in flames.
Given where we are, three weeks away from Copenhagen, with conflicts over
most of the major issues in a future treaty, the real issue is not the
distinction between politically binding and legally binding, but the substance
of what can be agreed to at Copenhagen.
A strong “political” accord that has the tacit or formal assent of world leaders is better than a weak and hastily-concluded treaty that has little chance of ratification or entry into force.
At Copenhagen, the Big Three issues on which we need consensus are: 1) Levels of financing by developed countries to fund adaptation and climate mitigation in developing countries; 2) The level of binding emissions caps for developed countries; and 3) the low-carbon policy measures, if any, that developing countries will be obligated to take (major developing countries are adamantly opposed to binding emissions caps).
Resolving the Big Three in a document that contains hard numbers and commitments would be a strong outcome from Copenhagen. If that document is followed up within months (rather than years) by a formal treaty, Copenhagen might still be considered a success.
Haunted by Recidivists: Double Homicide in Berkeley Linked to Oakland Parolee
Virtually everyone who studies prison agrees that states currently incarcerate too many people, too indiscriminately, and generally for too long. California is the poster child for this problem, with huge budget deficits and federal court orders to both reduce its prison population and improve the quality of medical care in its prisons. But just when the fiscal and legal problems of the state seem to open the policy window for a discussion of reforming the system, a series of crimes come to public attention that remind everyone of the chief boogeyman that has haunted American justice at least since the end of the 19th century, the violent criminal who keeps coming out of prison and committing more crimes.
Over the summer there was the arrest of sex offender Philip Garrido, who had kept kidnap victim Jaycee Dugard for 19 years in his Antioch home despite being on parole and registered as a sex offender (read Maura Dolan's coverage of the case in the LATimes). Last month a Cleveland man with record of rape convictions was found in his home along with the corpses of some ten victims (WKYC.Com's coverage). Now comes Curtis Martin III (38), charged in Alameda County Superior Court yesterday with two counts of murder and special circumstances (making him eligible for the death penalty) for the murder of a 23 year old woman and her 17 month old son, Martin went to prison back in the 1990s for killing the three year old son of his girlfriend (read Henry Lee's coverage in the SFChron). To the casual reader all of these stories suggest men who received remarkably light sentences for past serious crimes (Martin served six years on an eleven year sentence for manslaughter; Garrido did less than ten on a federal kidnapping conviction), and who emerged from prison ready and willing to commit similar or worst crimes. If a lot of offenders are like Garrido and Martin, mass incarceration might seem a very sensible strategy indeed. The result may well be renewed calls for longer sentences, despite the obvious prison crisis we are having.
The public is less likely to notice several features of all of these cases. First, the seemingly lenient sentences that all three men received reflect sentencing laws from decades ago and in Martin's case, apparent proof problems that led to a manslaughter rather than murder charge. Two of the three were on parole supervision but undeterred from continuing to commit crimes. Finally, in all three cases, the suspects were detected by good police work (sometimes after repeated failures by other police agencies).
The last thing we need is a spate of longer sentences targetted generically at whole categories of offenders. Mass incarceration creates the conditions under which willful offenders like all three of these recent cases can operate with impunity, their violent crimes largely hidden amidst the blizzard of minor violations that dominate parole supervision. It also creates conditions under which young women like Zoelina Williams (23), whose body was found in Aquatic Park here in Berkeley (where my kids often play) get involved with older losers like Curtis Martin (see the forthcoming article by my collegues, Stephen Raphael and Rucker Howard on the effects of incarceration on AIDS infection rates).
The silver lining in all these cases is what they reveal about the effectiveness of good police work. In the Garrido case, a UC Berkeley police officer, maintaining public observance of a widely used public forum (Sather Gate), noticed the aberrant appearance and behavior of Garrido's daughters (with his kidnap victim). Curtis Martin was caught because an officer of the Berkeley police department ran into him on foot patrol in Acquatic Park, and noted down his name and license plate, facts that led to his arrest less than eight hours after the body was discovered. As my colleague Justin McCrary has shown, public spending on prisons has outstripped police by an overwhelming amount since the 1970s (400 percent increase of prisons, more like 20 percent for police).