Sunday, January 31, 2010
Rotations and sundry
It's time for rotations! I'm very grateful to all of our January guest bloggers and I'm very excited to welcome (back) a great new crew of folks for February. Joining us for the first time, we have Robin Effron (Brooklyn Law); Darren Rosenblum (Pace); Aaron Bruhl (Houston); Andrew Coan (Wisconsin/Michigan); and Ian Bartrum (Drake). Returning for a reprise visit, I'm thrilled to welcome back some close friends of Prawfs: Brian Galle (FSU en route to BC via GW); Jack Chin (Arizona), and Lesley Wexler (FSU). You can learn more about these folks on the sidebar.
On other issues:
I was wondering what others thought of POTUS chewing out Scotus at SOTU. Adam Liptak's coverage in the NYT made me think that it was probably a bone-headed move, regardless of whatever short-term political gains Obama made (and regardless of the not insubstantial merits of the critique). After all, why would a sitting SCOTUS justice ever agree to come to the SOTU spectacle again if there's a risk of being dominated like that especially without a right of reply of any sort? And I bet even some of the Fab 4 on the left felt a bit sorry for their colleagues. My guess is that Souter, had he been there, would have thought: no wonder I spend my summers in a NH cabin.
Last: Michael Yelnosky at Roger Williams has updated his very useful (though not without problems) survey of faculty productivity as measured by publications in leading journals. You can find the rankings of the schools surveyed there, along with notes on methodology, etc. Btw, if your school is in the top 50 and you've done a similar self-study, I know some people who are interested in gathering that data. Leiter did a similar sort of survey ten years ago, but has not updated it since, unfortunately.
In any event, and delightfully, FSU comes in #2, just a mite behind San Diego. Those two faculty emerge a good bit ahead of all other schools outside the top 50 on USNWR, and indeed, a substantial amount ahead of a # of very good schools in the top 50 that were surveyed, including BU, BC, and UConn. Go Noles.
Undoing Citizens United
Last week, I wondered what Congress might do to undo the effects of Citizens United and considered some ideas, mostly sounding in changes to corporate law.
Ian Ayres and Bruce Ackerman have an op-ed and blog post with a different, quite interesting proposal: Making federal contracts contingent on contracting corporations agreeing not to engage in electioneering speech--sort of a contractor analogue to the Hatch Act prohibitions on government employees. They argue this would reach almost 75 of the largest 100 publicly held corporations, while leaving most media companies and smaller (and non-profit) corporations unregulated. They also argue that the government could defend this on a genuine anti-corruption rationale (something it could not do with the blanket ban on corporate electioneering: Prohibiting all contractors from directly or indirectly currying favor with the elected officials who decide on contracts and, conversely, protecting them being coerced into supporting candidates as a condition of further contracts.
There is a lurking unconstitutional conditions concern here. But, as they point out, individuals already are subject to these types of restrictions. Their proposal simply treats corporate persons the same as natural persons. [Update: Sandy Levinson weighs in, calling this a textbook example of unconstitutional conditions, the type that would outrage liberals if it were attached to, for example, NEA funds).
Saturday, January 30, 2010
Jeff Yates signing off and giving thanks
I have really enjoyed my time guest-blogging here at Prawfs and I'd like to thank Dan and the rest of the Prawfs gang for inviting me to join them for a while. I am a loyal reader of the blog and I think that it provides a lot of useful information, valuable insights, and fun entertainment. If you'd like to check out some of my scholarship, then you can find most of it here. You can check out more of my posts on my home blog. Thanks so much for reading my posts and comments - Prawfs is a wonderful place to share ideas and fun.
Charity Challenge for Haiti
Update: The Charity Challenge time is almost over but so far Slate's Dahlia Lithwick and some other profs (including Orin Kerr and some of our own permaprawfs) and students have responded to the challenge. Please give generously.
It's not always possible that this blog will jump on major news events, but I'm a bit sorry we haven't had more discussion on the devastation in Haiti or what to do, if anything.
For what it's worth, Wendi, Benjamin, and I want to make some effort to alleviate the suffering and at least right now, we intend to do so financially. With this post, we're issuing a challenge. For now, our family will match contributions until they sum up to total of $1200. So please make a donation between now and the end of January to one of the organizations below and send me some kind of confirmation from the entity via email (markel at law.fsu.edu) and we'll match it.
Feel free to issue your own charity challenge in the comments with information on how people can reach you, and whether you'll adopt the same charities or different ones.
Below the fold are the charities we've selected; feel free to give to any of those 3 for our charity challenge. Of course, you can find and select others for your own challenge up on the NYT site.
AMERICAN RED CROSS
Text “HAITI” to “90999″ to make a $10 donation.
2025 E Street, NW
Washington, D.C. 20006
(800) REDCROSS (733-2767)
AMERICAN JEWISH JOINT DISTRIBUTION COMMITTEE
JDC Haiti Earthquake Relief
P.O. Box 530
132 East 43rd Street
New York, NY 10017
PARTNERS IN HEALTH
P.O. Box 845578
Boston, MA 02284-5578
Law School Hiring Thread, 2009-10, Thread Four: The Last Phase?
This thread will be moved to the front every ten days or so.
Please add comments to this thread, not Threads One, Two, or Three (where comments are now closed).
This thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding:
a) whether they have received a callback from a law school and/or accepted it and
b) whether they have received an offer from a law school and/or accepted it; feel free to also leave details about the offer or info about teaching loads, research leaves, etc. Please note that a school listed as "offer accepted" may have made more than one offer, and may still have some of those slots open. The aggregator will try to keep track of these (to the extent people let the aggregator know) all the way to the right, in the "offer notes" column.
Law professors may also choose to provide information that is relevant to the entry-level or the lateral market.
Bear in mind: if you don't want your contact information displayed, please just enter in firstname.lastname@example.org or something like that as an email address.
We will continue our spreadsheet approach: All information should still come in through the comments. Our generous aggregator will continue to use a spreadsheet to aggregate the information (we have started a new spreadsheet for callbacks and offers, which appears below). As before, only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded version below.
As always, please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.
Friday, January 29, 2010
FIU College of Law Symposium: Whither the Board? The National Labor Relations Board at 75
On Friday-Saturday, March 26-27, FIU College of Law and FIU Law Review will host a live symposium, Whither the Board? The National Labor Relations Board at 75. The program was put together by my colleague Kerri Stone, and marks the installation of R. Alexander Acosta, a former member of the NLRB, as FIU's Second Dean. The Review has put together a terrific program, including current NLRB Chair Wilma Liebman and many of the top labor law scholars, incluing Prawfs' own Matt Bodie.
Thursday, January 28, 2010
"Well-Motivated" Government Actors and Bright-Line Rules
I interviewed once with a DOJ bigshot who looked at my resume and said: “I see you’re into philosophy. Well, around here, we don’t sit around pondering the philosophical implications of the Fourth Amendment.” Turns out we do: a lot of agents really like to ponder the philosophical implications of the Fourth Amendment, and it doesn’t take much to get them going. I’ve spent less time with local police, but I would imagine the impulse is the same.
I’m teaching criminal procedure this semester, and while I was thinking about the ethical/jurisprudential impulse to impose bright-line rules, I read Rick Garnett’s post, below, on Cass Sunstein and his “cognitive infiltration” proposal, and the interesting comments from readers. Professor Tushnet comments that while you can never escape the problem of bad-faith government actors (“Of course, it could be that the risk that the government will not be well-motivated is high enough that on rule-utilitarian-like grounds we ought to preclude the practice entirely”) that possibility (I think this is his point) should not necessarily be sufficient justification for a flat prohibition on some category of government action that might be carried out by “well-motivated” government actors. And Dave argues that “[a] posture of distrust of the government is only rational if Greenwald's empirical assertion about the government's inherent badness is accurate,” adding that many of us may be wearing ideologically-tinted glasses when we theorize about the limits of legitimate state power, “identify[ing] as typical of government only that state conduct you dislike.”
Below the fold I have some thoughts on the manifestation of this dilemma in criminal procedure. In a nutshell, I think it’s interesting to consider the development of modern Fourth Amendment doctrine as a instance of such “selection bias”: when we think about constitutional rules, do we see the worst police conduct, or the best? More broadly, I think the development of modern Fourth Amendment doctrine is a useful case study in the consequences of foundational disagreement about the nature of justice and happiness– the foundational disagreement posited by Alisdair MacIntyre as fatally undermining the possibility of a successful modern virtue ethics.
The details of the search rules are an eye-opener for the students. When they put together Whren, Atwater, Robinson, Bertine, etc., they get a startling lesson in the scope of police powers that most of them have never even suspected existed. A cop who lacks any basis for believing you've committed a crime, can simply follow you as you drive until you inevitably violate some traffic law, no matter how minor. At that point he can pull you over and arrest you, even if the maximum penalty for your offense was only a fine, and even if he wasn't interested in that offense in first place. Then he can fully search your person and clothing for whatever he wants, and then he can impound your car and do a complete inventory search of all its contents.
And if he's like the intrepid Bart Turek, you will argue to no avail that he’s a thug who’s mad because he tried to pull you over for a seatbelt violation two months earlier but was stymied because you were wearing your seat belt– and one must assume that that’s not the whole story of Bart Turek’s motivation. If anyone knows the story please fill me in.
(I was teaching in Texas when Atwater was decided, and one of my students said she was from Lago Vista and knew Turek, but for some reason I never followed up on that lead. My t.v. version would go something like this: Bart loved Gail in high school, but she turned him down when he asked her to the prom and then started dating some big-shot college boy while Bart was stuck in stupid old Lago Vista, but then Gail and college-boy got married and moved back to town, and Bart got on the cops and he thought, oh, boy, I'll show you who gets to to say no now. (Think of that scene at the beginning of "Garden State.").)
This realization freaks them out: “Oh my god, what kind of country do we live in? What can we do about this?” “Given Atwater and Whren, what protection does the Fourth Amendment still offer us?” (This is LA, so they have to drive home.) There’s no easy answer, and in thinking about this question I am reminded that one reason I am finding the teaching of law so satisfying is it really is in many respects the practical instantiation of philosophical concepts and dilemmas.
For years I tried to engage students in the opposition in ethical theory between the approaches of Kant and Aristotle– rules vs. character. In a nutshell, Aristotle thought the object of ethics was to produce good people by developing good character, which means dispositions to act in certain (good) ways; Kant thought the object of ethics was to set forth bright-line rules, the self-conscious adherence to which constituted right action. For Aristotle, a person who fights against his dispositions but overcomes them is not as virtuous as a person who has good dispositions to begin with and doesn’t experience good action as an internal struggle. For Kant, dispositions are morally irrelevant at best: action has moral worth only if it is done through self-conscious rule-following– that is, done both in accordance with the rule and because it is in accordance with the rule. Kant famously said that Aristotelian virtue ethics (inculcating virtuous character) was like the euthanasia of moral sensibility, because it assumed the desirability of the alignment of inclination with reason. Most people have probably spent some time pondering the opposition between these two absolutely incompatible ways of thinking about morality.
You really ponder it when you're teaching the cops and robbers stuff, because you're forced to ask: what should we be focusing on, as citizens, lawyers, prosecutors, if we want ethical, responsible policing? Is there any set of bright-line rules, however elaborate, that will protect Gail Atwater from Bart Turek? Seems like there are two basic approaches: We could say: “Let's not have too may rules, and let's not have any bright lines; let's just have dedicated, smart, public-spirited, good people be our cops.” (This is, I guess, the Tushnet/Dave position on Sunstein’s proposal.) Or do we say: “Hah! That's impossible! What we need are rules, lots of rules, clear bright lines.” (This would be Greenwald’s, Garnett’s, and A.J. Sutter’s position on Sunstein’s proposal.)
The Supreme Court has usually opted for clear, bright lines. To be sure, there are exceptions, but the argument that “We need a bright line for law enforcement” is very often a winner. Both sides make it. I’ve made it myself, and I’ve seen the utility of bright lines when working in law enforcement.
But in trying to explain the basis for their appeal in a way that goes beyond football analogies (you know, the cops are like the linemen: you need them to have a set procedure on each play, and stick to it. You can’t have them out there improvising on every play. You get one improviser, and that’s the quarterback (the prosecutor, of course...)), I wind up with two possibilities: We need bright lines because either:
(a) we'll never get dedicated, smart, public-spirited, good people to be our cops, or
(b) we just can't agree as a society about the specification of those terms.
In other words, are we assuming the worst of our cops, or are we trying to come up with rules that can fit a world in which “worst” and “best” just have no agreed-upon meaning? Proposition (a) would probably be endorsed by, say, Kant, Jeremy Bentham, and maybe William O. Douglas (or you can fill in whatever modern polemicist you want). Proposition (b) is associated paradigmatically now with Alisdair Macintyre, building on a seminal essay by Elizabeth Anscombe called “Modern Moral Philosophy” that I bet most readers of this blog read in an undergraduate philosophy class way back when. Anscombe argued that virtue ethics had become untenable and would remain so in modern societies that embraced social/ethnic/religious/political/ideological pluralism.
Here’s why I find this question interesting. The point of the bright-line rule the Atwater dissenters wanted (no arrests for fine-only misdemeanors) is that Bart Turek was not a dedicated, smart, public-spirited, good person. He was just harassing this woman for his own private reasons, whatever they ultimately were. I think at least most of us would agree that if (a) above really came to pass, the Atwater case would never have arisen, and that Atwater is not an instance of (b). That is, we do agree that a dedicated, smart, public-spirited, good person would not have done what Bart Turek did. We just, presumably, have reconciled ourselves to the fact that Bart and people like him will sometimes wind up on our police forces.
The Atwater majority agreed that Turek was “at best, exercising extremely poor judgment,” and that his actions were “foolish” and imposed “gratuitous humiliation” on Atwater, who suffered a “pointless indignity.” But they didn’t think that this bad behavior warranted imposition of a rule– because most cops are not like Turek and some situations really might justify misdemeanor arrests. In other words, we don’t need Kant; we can rely on Aristotle here (as the Court put it: “the good sense . . . of most . . . law-enforcement officials”).
Contrast this to the Warren Court’s ethical assumptions that underlie cases like Katz. David Sklansky has a great article on the unspoken toilet-stall-peeping backstory to Katz. He makes a really compelling case that proposition (a)-- the cops’ “good sense” cannot be trusted, because they are spending their time soliciting gay sex on the streets and peeking into toilet stalls in public bathrooms-- played a big part in the Supreme Court's thinking in the 60s.
I can buy it at the time of Katz. And I remain sympathetic to that general concern in certain contexts (e.g. racial profiling in some regions), though I think its normative force has faded with the truly enormous gains in the diversification and professionalization of police forces that have occurred since then. There are bad actors and bad acts, to be sure, but I agree with Sklansky that the professionalization of policing is one of the central ways in which our society has progressed since the 60s. Sklansky indeed suggested at conference here at Southwestern back in October that professionalization has altered the social landscape against which the leading exclusionary rule cases were decided, and that with increased professionalization comes decreased need for bright-line Fourth Amendment exclusionary rules.
I have spend a fair amount of time, as I noted above, talking about this issue with law-enforcement agents. Here’s what most of them say (this is just my experience, not any kind of survey), and I think it’s right: No bright-line procedural rules can lead to orderly, reasonable, and respectful law enforcement if the police aren’t well-motivated, to use Tushnet’s phrase, and conversely, if they are well-motivated then the rules aren’t (so) necessary.
Paradoxically, perhaps, my experience working in law enforcement is that most cops and agents are well-motivated, public-spirited, dedicated, and honest– and that they also want and work very well with bright-line rules; they can learn them, internalize them, follow them, and self-police.
So the question is a chicken-egg one, I think. “Professionalization” has certainly occurred on an extraordinary scale since the 60s; at the same time, a generation of cops has grown up accustomed to bright-line rules. Is “professionalization” a consequence of judicially imposed bright-line rules, or an independent development? When we talk about a professionalized police force, do we mean “one that strictly imposes bright-line procedural rules”? Or do we mean “one that has internalized a culture of rule-following and respect for bright-line rules”? (These are not the same thing, as Charlie Beck has been stressing here in LA.) Or do we mean more broadly one that is getting “public-spirited, dedicated, honest, ‘good’ people” to be cops? Some of each, I suppose. Maybe the latter two sets will be largely coextensive.
But there’s still MacIntyre’s problem: sure, we agree about Bart Turek, but when you consider other hot-button cases that rile people up (think Whren and Bostick, say)– or Sunstein’s “cognitive infiltration” propoosal– the social consensus evaporates. When we make the problems a little more complicated, a lot seems to depend on our substantive, subjective definition of “dedicated, public-spirited, good person,” or in Tushnet’s terms, “well-motivated.”
Proposition (b)– MacIntyre’s thesis– is put dramatically on display by cases like Whren or “cognitive infiltration.” All right, you don't like narcotics cops going after drug dealers for "pausing too long at a stop sign." Okay. But do you oppose all target investigations? Do you oppose busting Scooter Libby for lying but not charging the leak? Do you oppose busting Martha for lying but not charging the insider trading? But do you oppose going after Al Capone for tax evasion because they couldn't make the murder and racketeering case? I'm not sure we have a clear societal intuition on pretextual enforcement, assuming (as with Whren and Capone) that there's no problem of proof on the pretext bust. But intuitions probably cleave in a lot of different places here, and I suspect that in many instances they cleave over substance not procedure. Thus it’s not that we assume the worst of the cops in these situations; rather, it’s that we just can’t, and may never, agree on what “the worst” or “the best” is. In that situation, I suppose a bright-line rule is better than no bright-line rule– but the point is, the existence of the rule won’t mollify anyone who has a substantive disagreement with the law being enforced.
Partisanship and Separation of Powers
Once again, where one stands on the political spectrum seems to dictate where one stands on the question of whether President Obama was right to call out the Supreme Court for last week's decision in Citizens United. The divide is less partisan over whether Justice Alito acted properly in mouthing/mumbling "No, that's not right" in response. So, from the right, e.g., Calvin Massey, Randy Barnett, Ann Althouse; from the right, e.g., Eric Muller, Jack Balkin (who adds a historical perspective), and Norman Williams' comments here. Refreshingly, Jonathan Chait of TNR can't understand the squeamishness from the left about a Republican disagreeing with the substance of a Democratic President's speech.
As usual, this is all silly. Of course the President (and any member of Congress) are entirely within the bounds of their structural powers and the doctrine of separation of powers to criticize the Court for its decisions. Especially when there is not much Congress can do to undo the decision. The other branches have largely ceded to the Court responsibility for constitutional interpretation; they cannot also cede the power to speak out about the Court's work. In fact, Obama's precursor about "all due deference to separation of powers" was unnecessary. Separation of powers assumes a conversation among the branches--they have to talk to one another, sometimes quite sharply. Plus, as Norman notes, no one has threatened to act against the Court--no talk of impeachment or court-packing, or jurisdiction-stripping; just "you guys got this wrong and that's a problem." And, of course, Republicans have been running against the federal courts for years (although at this point they are running against a straw man because the Court that Republicans have demonized no longer exists); so why should Democrats not call out what the Court really is doing?*
Is there an argument that this did not belong in the State of the Union Address? I don't buy it. The state of the union is affected by what the courts do. If judicial decisions are, in the President's view, making the state of the union worse, he is obligated to make that point. And as Jack Balkin's post shows, Obama certainly is not the first President to do this in that very forum. Now certainly the decision in Citizens United is not comparable in its broad policy effect to what the Nine Old Men were doing to the New Deal when FDR called them out in 1937, so the effect on the state of the union is not as great. This makes Obama's shot somewhat gratuitous, perhaps, compared to, say, the Supreme Court invalidating the individual mandate should health reform pass. But that is a matter of policy preference.
- I make this point as the somewhat-rare Democrat and Obama supporter who believes Citizens United was correctly decided.
Wednesday, January 27, 2010
RIP Louis Auchincloss
Lawyer/novelist, or novelist/lawyer, Louis Auchincloss is dead at the age of 92. The Times has a lengthy obituary here. (Appropriately enough, the name on the byline, Holcomb B. Noble, could easily have come from one of Auchincloss's own books.) It is a fascinating story. His was a well-born and well-lived life, so to speak. A "novelist[ ] of manners and a portraitist of the White Anglo-Saxon Protestant upper crust," as the obit says, Auchincloss chronicled a world that was disappearing, and that he knew was disappearing. Both the social milieu he wrote about and the specific world of white-shoe (and white, among other things) law firms that he both inhabited and described in his fiction was in the process of being blown apart, in many ways, by the times -- first slowly and then very quickly.
It was blown apart by people like my father, among many others, and I can hardly regret it. But he wrote about this world critically and austerely, if affectionately, and was wonderful at toting up the gains and losses that such a world and its disappearance brought. Of course, that world did not disappear completely, and in any event some of its habits were absorbed elsewhere. One need not look very far in the world of elite law firms or elite law schools for people whose backgrounds are highly diverse, but whose manners and insistence that certain norms be rigidly observed are not so far from the Gilded Age-era ways they purported to displace. In writing about this world, Auchincloss was not the keeper of a mausoleum, but a sensitive portrayer of the seismic effects of a changing era. Although his depiction of the world of the large law firms was decidedly pre-Finley Kumble, and some may feel it is scarcely recognizable today, I think his stories in the book Powers of Attorney still do a superior job of describing some of the cultural aspects of law firm life, even in our own time.
The obit has plenty of interesting details, for lawyers and others. It notes that although many assumed that the title character in his wonderful novel The Rector of Justin was modeled after Groton founder Endicott Peabody, Auchincloss himself said the character ("a man of great intellect and idealism who could be noble, generous and kind but also cruel, callous and arbitrary") was drawn just as much from Judge Learned Hand, "whom he regarded as the greatest man he had known."
The obit, and Auchincloss's own work, bears reading.
A few days ago, over at Salon.com, Glenn Greenwald put up this post, in which he described and criticized a 2008 paper (by Cass Sunstein (now, as Greenwald notes, the head of the President's Office of Information and Regulatory Affairs). Here is the SSRN abstract of the paper:
Many millions of people hold conspiracy theories; they believe that powerful people have worked together in order to withhold the truth about some important practice or some terrible event. A recent example is the belief, widespread in some parts of the world, that the attacks of 9/11 were carried out not by Al Qaeda, but by Israel or the United States. Those who subscribe to conspiracy theories may create serious risks, including risks of violence, and the existence of such theories raises significant challenges for policy and law. The first challenge is to understand the mechanisms by which conspiracy theories prosper; the second challenge is to understand how such theories might be undermined. Such theories typically spread as a result of identifiable cognitive blunders, operating in conjunction with informational and reputational influences. A distinctive feature of conspiracy theories is their self-sealing quality. Conspiracy theorists are not likely to be persuaded by an attempt to dispel their theories; they may even characterize that very attempt as further proof of the conspiracy. Because those who hold conspiracy theories typically suffer from a crippled epistemology, in accordance with which it is rational to hold such theories, the best response consists in cognitive infiltration of extremist groups. Various policy dilemmas, such as the question whether it is better for government to rebut conspiracy theories or to ignore them, are explored in this light.
Let's put aside (what seems to me to be) the fact that calls by a prominent Bush Administration official -- especially one with the "Information and Regulatory Affairs" portfolio -- to do what Sunstein urged (before he was in the Administration) in the paper be done would be met with howls of protest. Greenwald concludes:
It is [the] history of government deceit and wrongdoing that renders Sunstein's desire to use covert propaganda to "undermine" anti-government speech so repugnant. The reason conspiracy theories resonate so much is precisely that people have learned -- rationally -- to distrust government actions and statements. Sunstein's proposed covert propaganda scheme is a perfect illustration of why that is.
My first (and probably second and third) reaction to Sunstein's paper is like Greenwald's. That is, the idea of the government intentionally employing covert agents to infiltrate suspect web sites, online conversations, etc., and pose as independent experts in order to bend these sites and conversations more toward the government's liking -- even assuming (as Sunstein does) a "well-motivated government that aims to eliminate conspiracy theories, or draw their poison, if and only if social welfare is improved by doing so" -- seems deeply troubling.
And yet . . . it surely is in the government's -- or, the political community's -- interest that "conspiracy theories" be engaged and refuted and often government officials -- again, we assume "well-motivated ones" -- are often going to be in a good position to have "the truth of the matter." As I discussed in more detail in this paper, the notion that sometimes finds its way into free-speech manifestos and First Amendment opinions -- i.e., that it is none of the government's business what people think -- seems clearly misguided. Ideas matter. So, why is it that Sunstein's "infiltration" proposal is unsettling, even frightening? Is it because the enterprise itself is illegitimate, or because we worry that the risk of abuse is too great? If the latter, can the risks be reduced (in ways that do not require the assumption of "well-motivated government"?) Any thoughts?
'Tis the Season
Kaimi Wenger has a post on CoOp calling for information from law review editors about the upcoming submission season (when boards change, how to submit, formatting, etc.). Leave comments there or here.
I would love an answer to the simplest question--someone give me one date when the window opens.
Tuesday, January 26, 2010
Satellite VC Comments Now Open
Spy Magazine occasionally ran a Letters to the Editor of the New Yorker feature, back when the New Yorker didn't have a letters section. Because Jim Lindgren didn't set up the comments feature for this post, I think it's worth opening it up for comments here. Here's the key paragraph:
Obama went from being the lawyer for ACORN, to “the Senator from ACORN” (as he was sometimes called in Illinois in 2007 and 2008), to the presidency. He pushed ACORN’s agenda in the Illinois legislature, and he pushed ACORN’s agenda in the US Senate. It shouldn’t be surprising that he has taken up a more sophisticated version of the ACORN-SEIU campaign against bankers, just as he did as a lawyer in the 1990s.
In case anyone's shy (you know, that's the usual problem on the Internet -- shyness), I'll start. I've seen lots of what I would consider good and bad criticisms of President Obama on the Volokh Conspiracy blog, just as I saw plenty of good and bad criticisms or defenses of President Bush there. But they generally were accompanied by reasons. This paragraph does not strike me as coming close to meeting that (minimal) standard.
Monday, January 25, 2010
Setencing Guidelines Haiku
I am preparing a serious post reflecting on the continuing relevance of the dichotomy in ethical theory between emphasis on character and emphasis on rules (virtue ethics vs. deontology and utilitarianism) as one teaches criminal procedure. I will reflect on Officer Bart Turek and what insights we can draw from moral philosophy about what sorts of criminal procedure rules to adopt in a world of actual or potential Bart Tureks. I will also reflect on the bases for our intuitions about the propriety of expanding or contracting the scope of discretion given to cops and judges, respectively, at either end of the process.
That’s a lot of reflecting. So before getting there, I thought I’d share some poetry. Below the fold you’ll find some sentencing guidelines haiku. Share them freely! The world needs to appreciate the true poetry in the guidelines. I took to writing these, and solicited others from my colleagues, after seeing an offer made by a colleague in a fraud case that read as follows: “Official victim; used i.d. to make i.d.: ten to sixteen months.” I expect the full three-volume set will be published posthumously.
(I am the author of all of these but the last one, for which I supplied only the title.)
Judge Walton didn’t get
To sentence Scooter Libby
On abuse of trust.
“But I lied in an
Investigation that didn’t
lead to a charge!” Tough.
18 U.S.C . § 3553(a) and United States v. Gall, in two stanzas
If the Guidelines and
Are at odds, who wins?
5K3.1 and 18 U.S.C . § 3553(a)
Prime example of
Borders get fast track.
2D1.1(c)(3) and (c)(7)
A kilo of coke
Versus a kilo of crack:
Five years / fifteen years.
A kilo of weed
(Which will make a lot of joints)
Will get you six months.
The Parties’ Views of §3B1.2 in Border-Bust Fast Track Cases: a Dialogue
He did an hour’s work
For someone high above him
Who took the profits.
That’s not minor role:
The crime is importation,
And you crossed the car!
We hope you will not
Sentence above the range and
Give us an appeal.
Comparing 2B1.1 with 2Q2.1 from the perspective of the Southern District of California
Three pages describe
Offenses involving fish.
None for border lies.
Reports of our demise are greatly exaggerated
Gerkin Gerken (thanks, Paul) argues that sites such as JOTWELL are harbingers of the demise of student-edited journals (other than the top-tier journals), because they no longer are needed, given the increase in alternative places to publish.
I am not convinced. JOTWELL is a great site and a great idea, taking the article-sifting-and-aggregating process (done best by Larry Solum, as well as the individual lawprofessors network blogs) to the next level. But JOTWELL depends on articles already finding homes elsewhere, namely in student-edited journals; it does not displace journals, but publicizes them. It does not represent a new publishing forum.
So what else is there? Heather points out that there are not enough peer-edited reviews to fully displace the current regime. SSRN (and BePress, less widely) certainly offer a way to get ideas out there. But no one (yet) considers an SSRN-uploaded piece to have been "published," so as an author, I still need to find it a home--in a student-edited journal. On-line law review supplements are great new publishing forums (with much better turn-around times), although for different type of scholarship.
Is there some other publication forum that I am missing that supports Heather's argument?
On class sign ups, course caps, and drop/add
Having taught classes at three universities, I have yet to see a system of class sign ups, course caps, and drop/adds that comes anywhere close to being optimal. Perhaps the general way we approach these situations is flawed. Every semester some courses do not fill (some don't come even come close to filling) while others have a line for entry that could go around the block (if we still did the wait in line method, rather than online sign ups).
During peak times (about two weeks before winter break and a week after) I receive about 5-10 emails a day requesting an 'override,' ' variance,' or 'petition" - or whatever request process a given school uses. Most come with a very sad or urgent story attached. In some ways, this makes one feel a bit like the person handing out life jackets on the Titanic - and it seems that no one appears happy with the process. In some schools this situation is amplified by "shotgun" registration strategies whereby students only intend to take 9-12 hours, but sign up for 15-18 hours and then attend the first few classes and in the eleventh hour drop the 2 courses they like least - this usually results in a few spots being left open and no one willing to take them due to the late drop.
Don't get me wrong - in the larger world of annoyances, this one is actually pretty darn small. But it's hard to imagine that some bright academic or administrator (or student) hasn't come up with a better way of handling this process. Steven Levitt notes that NYU Law uses a Coase Theorem approach, although this particular system may have some of its own problems. What process does your institution use? How well does it work?
What next after Citizens United?
Immediately after last week's decision in Citizens United, President Obama called on Congress to do something (he did not say what) to undo the Court's decision and stop the feared influx of corporate special-interest money. Now given as how he is a former con law professor, I presume he realizes that this was a constitutional decision protecting corporate speech rights that Congress cannot directly undo by re-regulating corporate speech.
So can Congress or states do anything to limit corporate expenditures on political and election speech?
In a comment to my earlier post, Andrew Siegel wonders whether states could tighten their corporate statutes to define what corporations can do, expressly excluding electioneering. It seems to me the answer is no. Justice Kennedy considered the argument that corporate form carries state-conferred advantages so that the state could condition or limit speech to those who receive that benefit; he rejected the argument out of hand, saying that states could not condition the benefit on a surrender of free-speech rights. My guess is that position (sounding somewhat in an unconstitutional conditions mold) would carry in a challenge to any state effort to do what Andrew suggests.
In a different comment, Jeff Lipshaw suggests that states could find ways to empower shareholders to determine whether expenditures for speech (election or otherwise) are permitted. Jeff suggests that corporate codes could establish a default rule on the permissibility of electioneering (speech permitted unless the shareholders otherwise provide or speech prohibited unless shareholders otherwise provide), then leaving it to shareholders to agree to what that corporation will do. Jeff and I also agree that the statutory default probably has to be an opt-out; that is, the code must provide that the corporation can engage in electioneering unless the shareholders vote otherwise. This is consistent with what (I argue) the First Amendment requires in other areas. If so, I cannot imagine any First Amendment problem here. Indeed, as Jeff says, this has the benefit of empowering the "human constituencies" that make-up the corporation and that underlie the argument that they should be permitted to speak through the corporate form.
As a third possibility, perhaps states can do something to empower individual shareholders (as opposed to as a group, as in Jeff's proposal). For example, maybe state law could require that every individual (or institutional) shareholder be given the opportunity to opt-out of (or opt in to) electioneering expenditures with his shares. In other words, if Shareholder A does not want to fund electioneering but the remaining shareholders do, the corporation can engage in election speech, but somehow must segregate the money used for campaign speech so as not to include A's money. This basically gives shareholders statutory opt-out rights equal to those that union members and dues-payers have under the First Amendment. And it forces corporations to organize their accounts the same way unions do. This may be administratively unwieldy. It also may be functionally the same as a PAC requirement (electioneering money in separate entity, funded only by those who expressly agree) that the Court struck down.
An interesting related question would be whether Congress (rather than the states) could do this and, if so, under what power. Commerce, I suppose--regulating the composition and internal rules of entities engaged in interstate commerce--although it may run into the "corporations law is historically a state thing." A § 5 argument would be really interesting--Congress is seeking to "enforce" the First Amendment by protecting shareholders' free-speech interests, albeit with a more-tailored regulation that still permits the corporation-as-corporation to speak. Congruent-and-proportional? This is tricky, since the conduct prohibited by this statute--permitting corporations to compel unwilling shareholders to fund the association's electioneering speech--does not itself violate the Constitution (for lack of state action). It starts to sound a bit like Morrison.
Fourth, Heather Gerken argues that the decision may push reform in a new direction of "harnessing" the power of money. For example, she supports matching rules for small donors, which convert a $20 donation into a $100 or $200 donation, giving candidates an incentive to pursue smaller donors. Rather than leveling the expressive playing field by silencing some voices, government can level by enhancing the power of other voices. This suggests a greatly fluidity between expenditures and contributions.
Finally, I wonder if we might not start to move the whole way into full public funding of campaigns. That would not eliminate independent expression of the type at issue in Citizens United, including speech by corporations. But it would eliminate corporate (as well as individual) donations to candidates, since candidates would not need to spend (and indeed would be prohibited from spending) money beyond the public-funding pool--thus they also would not need to raise money. I ultimately doubt this is realistic, but it would be the cleanest system we could achieve.
Sunday, January 24, 2010
Writing a good casebook is a thankless task. If a casebook is well constructed, the professor using it will never give much thought to its construction. The organizational choices made by the casebook author/editors will seem obvious, the notes will seem insightful but unobtrusive, and the editing of the cases will be invisible. If a casebook is poorly constructed, however, the professor will curse the name of the author/editors every day all semester.
I've had a lot of occasions to curse. Since I started teaching, I've used fifteen different casebooks (not counting new editions): four in Professional Responsibility, three main and three supplemental in Torts, and one each in Mass Media Law, Advanced Torts, Constitutional Law, Jurisprudence, and Labor Law.
I'm thinking about this topic now because my co-authors and I are in the process of revamping/revising/rethinking a venerable Mass Media Law casebook for its eighth edition. There are numerous issues involved, though two in particular are plaguing me.
First, this casebook was venerable before I came on board in the seventh edition, but, like all casebooks, it has put on bulk over the years and needs to slim down. The question is how to slim it down without losing the underlying structure and coherence that those who currently use it appreciate. [I don't want users to say "it sure was a great casebook before they brought that Lidsky on board as a co-author."] I have been assigned the task of slimming the chapter on defamation from 110 pages to something more like 60 or 70. I find this task particularly challenging because I love defamation law, every little complexity and technicality and nuance of it. But defamation is nowhere near as important to media lawyers as it once was, and it is self-indulgent to spend three weeks of a course on defamation. So I'm trying to look with fresh eyes to decide what is absolutely essential. This is not easy.
A second issue is that the entire media industry is in upheaval. How do you reflect this seismic shift in the industry in a casebook, when it is not fully reflected in the law yet? You want the book to be modern and current, but you don't want it to be obsolete a year from now. In essence, you get cast in the role of prophesying how the field will change in the next five years, when even the answer to the most basic question--which actors count as "press" or "media" for legal purposes?-- is in doubt.
While grappling with streamlining the casebook and scrying the future, I'm also trying to be mindful of qualities I hate in casebooks. The author of my Advanced Torts casebook clearly has an encyclopedic knowledge of his subject matter and the coverage area is great, but he never met a detail he didn't like. I love the problems generated by the authors of one of the Professional Responsibility casebooks, but giving the students ten snippets of cases to try to answer them seems like asking a lot. The beauty of using the book is that it makes the professor seem really, really smart, but it also makes the students completely dependent on the professor to make sense of things. One of my Torts casebooks has the opposite problem. It makes things look so totally lucid and clear that the students always believe you're making things harder than they need to be. It also makes the exam a great shock.
I hate casebooks that have long series of cases edited to half a page or less. I hate it when authors eliminate the cases cited in a constitutional case. If the Justices cited Miami Herald v. Tornillo, I want to know about it because Tornillo is shorthand for a whole body of principles. The students may not appreciate that fact, but I do, and they will never appreciate it if they aren't exposed to it now and repeatedly. I also hate casebooks that eliminate the section headings from constitutional cases. I hate casebooks that cite cases in notes without explaining why they're cited. I hate casebooks that have more than about six or seven notes per case. I could go on . . .
Mickey Kaus and the Health Care Debate
Mickey Kaus is an extremely talented blogger. He gets the medium. He focuses on a few core issues and then keeps hitting them, over and over, so that you see events unfolding through his perspective. I think he has been spot-on about the health care debate from the beginning. His point is:
Obama could have proposed a bill that expanded coverage and raised taxes to pay for it. True, that would have pissed off voters who really don't like tax increases. Instead, he proposed raising taxes and instituting some ominously vague, to-be-determined, 'scientific' and anti-democratic restraints on health care treatments. This successfully pissed off voters who really don't like tax increases and voters--mainly older voters--worried about being denied treatments. The combination of losing the anti-government voters and losing seniors may prove fatal.
I think Obama's error is of the "best and the brightest" type. There was an elite consensus -- e.g., Atul Gawande and his McAllen, Texas example -- that in health care we're overtesting and overtreating and overpaying. But the solution -- at least, the solution proposed thus far -- is worse than the cure. As Kaus says:
Funny, I would think health care reform would be judged effective if, say ... all Americans, however rich or poor, can get the health care they need, including the latest advances in life-saving and life-enhancing treatments. If reform accomplishes that, but the health care sector winds up as 20 percent of GDP, will it really be a failure? Why? As long as it's paid for who is Al Hunt to tell Americans how much of their GDP they should spend keeping themselves alive?
After all, what should we be spending money on? iPhones? New cars? Kaus's position here is actually more progressive than the administration's.
I think Obama and his aides have really messed up the sales pitch on this issue. It's probably too late to go back. One question I have: where are the rallies of people who would benefit from this bill? If fears of a deficit or an esoteric "loss of freedom" can turn out thousands, why not people whose lives could actually be saved by this bill? Someone should be organzing those rallies. SEIU?
Saturday, January 23, 2010
So John Edwards is back in the news....
I may be alone in finding the paternity of John Edwards' baby a non-event. But I've long thought differences in punishment difference between attempted murder and murder were irrational.
But the far more interesting thing is, of course, the federal grand jury's consideration of whether any crimes were committed in the dealings with Edwards' illicit relationship. I am not an election law expert (by a long stretch). So I began to consider crimes unrelated to election law that may have been committed by Edwards and others as large sums of were solicited and used to support this enchantress, Ms. Hunter.
Here's what I came up with -- proving, just in case you needed another example, that the criminal law is drafted so broadly it can (and never should) be fully enforced.
Blackmail: If Hunter made it clear that being housed well (and, wow, was she ever) was a condition for her silence, then she's committed blackmail. One wouldn't think, certainly, that Edwards is guilty of this crime by paying her, but what if he solicits contributions to pay her off? What if he (and his conspirators) arrange for the money to come through a furniture company, so that there will be no money trail leading to Hunter. Has he aided and abetted her in concealing the crime, admittedly a crime committed against him?
Prostitution: This is the ever-thorny line between sugar-daddy and john -- and an extension of the blackmail question. If Hunter would have discontinued her relationship with Edwards unless given lavish accommodations and automobiles, does this qualify as prostitution? Technically, probably. But under that broad an application of prostitution, every fiance who insists on a ring of certain quality would fall into the category.
Embezzlement: Let's say campaign funds were used. As I say, I am not an expert on election law, but I am willing to wager that there's a provision of federal law that forbids the use of campaign funds to support mistresses. Just guessing here... But I am not sure you'd need such a provision. Certainly a campaign has a certain degree of flexibility in deciding how to use campaign contributions, but supporting mistresses seems to be a misuse of the funds donated to the campaign, even if the expenditure is necessary to prevent her from harpooning the campaign by going public.
Money Laundering: The funds from a major donor were channeled through a furniture store to avoid the transaction from being detected.
My hunch, however, no true bill.
PrawfsBlawg is prescient
At least that's what I'll claim in retrospect as the point of this post. We will miss you, Conando. Here's his last show; don't miss the last segment.
LLM in entrepreneurial law
There was an interesting story in the National Law Journal a couple of days ago about such programs and a developing trend of using the law degree (either JD or LLM) as good basis for starting companies rather than joining law firms. Here's an excerpt:
A handful of U.S. law schools are getting into the entrepreneurial spirit.
Duke Law School announced on Thursday that it will launch a new Law and Entrepreneurship LLM program next academic year, while the University of Colorado School of Law is awaiting approval of a Entrepreneurial Law LLM it hopes to debut in the fall.
Courses and clinics focused on entrepreneurship and emerging companies aren't uncommon at law schools, but these new ventures would be the first LLM programs in the United States to focus expressly on the skills attorneys need to advise start-up companies or become entrepreneurs themselves.
James Cox, a law professor and the faculty director of Duke's new LLM program, said the timing is right for these programs because students and lawyers are taking a broader view of their career prospects.
"You're increasingly finding more law schools graduates who want to go out into the business world rather than go sit behind a desk at a law firm," he said.
I wonder if another development in law schools might be more emphasis on law firm management, focusing on solo and small firm practice, as students become more entrepreneurial and independent (from large and medium law firms) in their choice of legal career paths. I also wonder whether developments such as these might make law schools less reliant on large firms in placing their graduates and less tied to such firms more generally.
Friday, January 22, 2010
Speech, politics, and the corporate form
I don't teach or write (or, frankly, know much of anything about) corporations and business organizations. So read this in that light. But Citizens United triggers a number of corporations issues (some of which Matt already touched on).
First, it seems that there is a public and political misconception about what a corporation is. Too often, we only think of GM or IBM or other big-businesses, ignoring smaller corporations and, in particular, not-for-profit corporations, including political advocacy groups. The latter serve, at least in part, as a means for individuals to aggregate their voices (and the resources they can expend on expression) and thus the reach and power of their message; de Tocqueville recognized the importance of voluntary associations as an integral part of American society. Thus the phrase "corporate special interests" that routinely gets thrown around becomes another empty political epithet. GM, Disney, Delmar Contracting, Inc. (they just redid my kitchen), the ACLU, and WRTL all are corporations with political interests--I hardly would group them together. Obviously the target of campaign finance reform is GM; but you cannot necessarily regulate it without regulating other corporate speakers.
Second, the floodgates concerns that many (especially President Obama and congressional Democrats) have been raising seem misplaced. The Court left in place the basic distinction between independent expenditures and contributions and the latter are still more limited than the former, although mitigated by "soft money" to political parties. So this case is not going to create some new level of corporations buying politicians--the connection is not necessarily there between the corporation and the candidate. It will create a new level of corporate-funded ads, movies, and other speech--but that does not strike me as a bad thing. In any event, corporations already get into bed because candidates are so dependent on contributions which, though limited, are still substantial in amount. Citizens United did not make that situation better or worse.
Third, going off something Matt argued: Are businesses (especially large GM/Disney/Eli Lilly types) going to engage in candidate electioneering (as opposed to issue advertising)? I can see Eli Lilly spending money to stop health-care reform (which is in its business interests); I cannot see it spending money regularly to elect anti-reform candidates in multiple congressional races. Especially in the face of objections from shareholders.
Bail and Punishment: Many Behind Bars Have Been Convicted of NothingMost Americans believe that if you are behind bars somewhere it is because you committed a crime. Kudos to NPR's Laura Sullivan for setting the record straight with her stunning multi-part story on bail and jail in America. Bottom line, thousands of Americans languish in jails accused of petty crimes but unable to meet usurious bond fees set by bondsmen (an ominous if old fashioned term for an industry comparable to the payday loan business) while in aggregate, local and state governments spend 9 billion dollars a year housing people who pose little threat and who have not been convicted by anyone but a police officer thus far. In today's piece, Sullivan's interviews with Shadu Green, a New York City resident arrested for being belligerent to the police, underscore how this invisible system of control processes many new convictions by forcing the arrested to choose between languishing in jail for months, or accepting a guilty plea that may get them out sooner.
While Sullivan emphasized the role of bail bond companies in lobbying local government to keep the current money bail system in place, this all too familiar circuit of enterprises exploiting the poor with the help of government needs to be seen in the context of the broader structure of fear based governing through crime. While bail bond enterprises may well be effective at buying cooperation from judges and county administrators, it is hard to understand why state legislatures, who control the ultimate statutory levers, would choose to leave millions on the table for benefit of local businesses. Like correctional officers and prison construction companies, self interested politics works because of a structure of beliefs about those arrested and processed by our criminal justice system that has become part of what sociologist David Garland would call the "common sense" of high crime societies (in the book, The Culture of Control).
1. Most people arrested by the police are criminals who are guilty of something (whether or not clever defense lawyers are able to get them off on technicalities).
2. The courts routinely let dangerous criminals out almost immediately, rendering the work of police largely futile.
3. While on the streets, these unconvicted criminals return to committing crimes, perhaps a faster clip to earn enough to pay off their defense lawyers.
4. No one in the community is hurt by the absence of these presumptive "predators".
As Sullivan's reporting shows, all of these assumptions are questionable.
Further thoughts on Citizens United
My first significant scholarly work (a senior-research paper, the writing of which convinced me, three weeks before graduation, I wanted to be an academic), published (as co-author) 12 years ago, argued all the ways that Austin was wrong and thoroughly inconsistent with important free-expression principles. So I was delighted, as a matter of First Amendment principle, that the Court finally dumped this precedent.
Some random thoughts.
1) I am not surprised the opinion fell to Justice Kennedy. He wrote a vigorous dissent in Austin itself, so there is some degree of vindication to write the opinion burying it. This also is one of the areas in which Kennedy's First Amendment passions come to the surface.
2) This opinion is broader than his Austin dissent. In the prior case, Kennedy seemed to keep his focus on the effect of a corporation-expenditure ban on non-profit corporations (such as the Chamber of Commerce)--it was Justice Scalia (also dissenting) who went on about the expressive rights of GM. He did some of that in Citizens--emphasizing that most corporations are small corporations and talking a great deal about nonprofit associations. But Kennedy more expressly owned that large corporations, many of which had amassed wealth in the market by virtue of the corporate form, would be able to spend money on speech. He (rightly so, in my view) did not believe it made a difference. He spoke of the potential effects of bans on (for-profit) media companies and the incoherence of a carve-out. And he spoke of corporate democracy as the response to the shareholder-protection argument. And he expressly and strongly rejected the equality/leveling argument that really is what Austin was about (although Austin called it corruption-by-distortion).
3) I am not necessarily bothered by the majority seemingly reaching out to overrule Austin. Of course, I am not a judicial minimalist and do not pretend to be one. And I never have entirely believed that Chief Justice Roberts is one, either. Kennedy did play a bit loose with some of the possible statutory arguments, particularly in treating a 90-minute historical documentary as the functional equivalent of express advocacy for or against a candidate. But the movie does contain enough voice-overs and commentary linking Clinton's past to the specific point of her qualification to be President that calling this a "feature-length negative advertisement" is accurate. I do see the merits to the argument made that the statutory arguments here would have been no less strained than the arguments in last term's Voting Rights Act case.
4) One part of the opinion that might have broad effect is the strong language Kennedy uses to establish the premise that restricting expression because of speaker identity (in this case, corporations) is as constitutionally problematic as restricting expression because of what was said. This has been implicit in many cases, but Kennedy makes explicit (I think for the first time, since he does not cite anything for the proposition) that "restrictions based on the identity of the speaker are all too often simply a means to control content" and the "First Amendment protects speech and speaker, and the ideas that flow from each." Underlying this is the necessary conclusion that the identity of the speaker affects the message, that content of speech takes into account speaker--the speech of a corporate PAC is not the speech of the corporation; and restricting the speech of only one raises First Amendment problems, the message of each is different.
5) Matt makes a few important points on the labor/corporations side of things that I want to latch on to.
5a) First, I found interesting Fisch's argument that corporate political activity is an important part of business activity. I had considered (but ultimately did not make) the argument that the so-called corporate social-responsibility movement should have opened the door to acceptance of broader corporate speech. After all, if we demand that corporations behave in a socially responsible way, corporations should have the liberty to engage in public debate and thus to influence what we mean by social responsibility. But the connection between corporate political speech and corporate business always has seemed obvious to me.
5b) We made the shareholder-control argument in the article. I think the notion of shareholders stepping forward in advance may allow them to wield more power than Justice Stevens suggests they can.
5c) Matt predicts that corporations seen as more ideological may run into some shareholder problems, while corporations that play both sides, quietly, will not. But I wonder whether we also will see some corporations become even more explicitly ideological in their expression, specifically to attract shareholders (not just customers) who share and want to support that ideology and speech in support of that ideology.
5c) The union situation could be interesting. Matt argues that unions benefit from engaging in political speech, just as corporations do. And today's decision frees unions, as much as businesses and the Chamber of Commerce, to spend general funds for electioneering speech, without having to funnel through a PAC. But one anomaly remains that makes corporations free in a way that unions are not. Union dues-payers (and maybe even some union members--I'm not sure) still possess their own First Amendment rights to opt-out of having their dues fund certain not-germaine-to-union-purpose expression, a constitutional right not enjoyed by corporate shareholders (who are not compelled to invest). Thus, as a practical matter, unions still must maintain segregated funds for certain expression, while corporations can run everything through the general treasury. At the very least, unions must create mechanisms for opt-outs, decreasing the money they can collect and use. I wonder if Congress or a state might level the playing field by giving shareholders similar opt-out rights as those enjoyed by union dues-payers and members.
Thursday, January 21, 2010
Two small thoughts on Citizens United
Just wanted to add these minor notes to the growing agglomeration of commentary:
- For a terrific take on the legitimate uses of corporate money to advocate for policy positions, see Jill Fisch's How Do Corporations Play Politics?: The FedEx Story, 58 VAND. L. REV. 1495 (2005). Fisch does a great job of showing how corporations need to play politics in order to manage their businesses. I think the same applies to unions, as I argued here.
- I predict Citizens United will lead to a new round of shareholder proposals designed to limit corporate political spending. Shareholders -- particularly institutional shareholders -- will want to limit the money that flows out through theoretically "non-business-related" expenses.
These two points are semi-contradictory. Here's an effort to reconcile them: those companies whose contributions seem more ideological (more populist? more conservative?) will find themselves targeted by institutional shareholders, whereas those who play both sides of the street, in a low-key manner, will probably not be.
After the Health Reform Crack Up: Govern through crime?
Fortunately the public is not as primed for a crime centered populist swing as it was in 1994 with the murder of Polly Klass driving the media. Still, it is hard to see where, other than in punishing despised criminals, the two parties can agree on strong sounding laws. In that spirit, and tongue only partially in cheek, look for the some of the following to take up all the extra time the Senate will have on its hands after health reform is off the table:
- A federal death penalty for insurance executives whose decisions can be shown to have shortened the life of an insured (now that's a "death panel" baby).
- LWOP for Bank executives who short their own client's position.
- Lifetime Sex offender registration and notification requirements for public office holders who commit adultery while in the District of Columbia.
Cross posted at Governing through Crime
How do you solve a problem like Iqbal?
Multiple ways, apparently. Ed Hartnett (Seton Hall) sent this compilation to the CivPro listserv (gleaned in part from Scott Dodson's New Pleadings, New Discovery), showing the multiple different proposals that have been made to undo Iqbal.
“Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).”
“A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.”
Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 Iowa L. Rev. (forthcoming):
Amend Rule 8(a)(2) to read: “a short and plain statement of the claim—regardless of its nonconclusory plausibility—showing that the pleader is entitled to relief”
Michael C. Dorf, Should Congress Change the Standard for Dismissing a Federal Lawsuit?, FindLaw (July 29, 2009):
“Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not deem a pleading inadequate under rule 8(a)(2) or rule 8(b)(1)(A) of the Federal Rules of Civil Procedure, on the ground that such pleading is conclusory or implausible, unless the court may take judicial notice of the implausibility of a factual allegation. So long as the pleaded claim or defense provides fair notice of the nature of the claim or defense, and the allegations, if taken to be true, would support a legally sufficient claim or defense, a pleading satisfies the requirements of rule 8.”)
Posting of David Shapiro to Civil Procedure Listserv, email@example.com (July 7, 2009):
“Except as otherwise expressly provided by statute or in these rules, an allegation of fact, or of the application of law to fact, shall [must?] not be held insufficient on the grounds that it is conclusory and/or implausible, unless the rules governing judicial notice require a determination that the allegation is not credible.”)
Posting of Art Wolf to Civil Procedure Listserv, firstname.lastname@example.org (Oct. 20, 2009):
Amend Rule 8(a)(2) to read “a short and plain statement giving [sufficient] notice of the claim upon which relief can be granted” or “a short and plain statement of the claim upon which relief can be granted so that a party can [may] reasonably prepare a response”)
Stephen Burbank, Hearing on Whether the Supreme Court has Limited American’s Access to Court (Dec. 2, 2009): (I previously wrote about Burbank's testimony and proposal).
“Except as expressly provided by an Act of Congress enacted heretofore or hereafter or by a Federal Rule of Civil Procedure effective hereafter, the law governing (a) dismissal or striking of all or any part of a pleading containing a claim or defense for failure to state a claim, indefiniteness, or insufficiency and (b) judgment on the pleadings, shall be in accordance with interpretations of the Federal Rules of Civil Procedure by the Supreme Court of the United States, and by lower courts in decisions consistent with such interpretations, that existed on May 20, 2007.”
Let me add two more.
First, Jonathan Siegel has proposed (to the civpro listserv) leaving the language of FRCP 8(a)(2) unchanged and adding more forms--including forms for antitrust, employment discrimination, and § 1983/Bivens claims. A potentially easier solution, until courts began using Iqbal to dismiss simple slip-and-fall cases that used complaints largely modeled on Form 11. The Forms are not on judges' radar (including SCOTUS), so such a change might not get noticed.
Finally, just because I like coming back to this one: Hillel Levin, also on the civ pro listserv proposed a version of the following: "When we gave you notice pleading, told you 'short and plain statement," and gave Form 11 as an example, we really mean it."
An interesting smorgasbord of proposals. Now let's see if any gets enacted.
Wednesday, January 20, 2010
Party school! - whoa, wait a minute ...
Having spent most of my adult life in a college town - either as a student or faculty member - I was pretty sure that I had heard just about every story about party colleges, and well ... partying. Nothing could shock me - I was "unshockable," and, in fact, many years ago I may or may not have even done some shocking myself. But during a long car drive I listened to an intriguing episode of Ira Glass's "This American Life" (itself a sign that I am well past shocking age). This episode explored the newly crowned #1 Party School, Penn State. I was absolutely floored. I can not do the podcast justice here - you will have to listen to the entire thing yourself.
One highlight is that a huge problem in Happy Vallley is drunken students breaking into local's homes so that they can sleep it off. This is not just an occasional problem; it apparently happens rather frequently. Another story involved a police officer who was waved down in his squad car by three drunken students who demanded that he drive them to their next location. He refused and one of them kicked his squad car. He got out of the car to arrest the student and the other two physically blocked him while the other ran away.
Again, I can't do justice to the whole podcast here; you'll have to listen to it. I also invite Happy Valley people stick up for PSU in the comments (everyone deserves a fair defense). There is a response to the podcast here by a PSU student, but frankly he sounds more embarrassed than defensive. If anyone can beat the stories told in this podcast, I'd love to hear them - it's kind of good to know that you can still be shocked.
The Yale "So"
I enjoyed the AALS conference a good deal (notwithstanding the registration fee!), but my one comment about it (actually, one of two, if I ever get around to writing about what Orin recently said on the subject) is a little less substantive. Judge Guido Calabresi, former Dean of Yale Law School, was the special guest and main luncheon speaker, and gave what I gather is a typically sparkling -- or should that be "twinkling" -- talk. When he took questions, naturally, Yale grads were in the forefront -- a mathematical certainty, given that according to some studies, everyone currently in the legal academy is either a graduate of Yale Law School or on the faculty of the Harvard Law School. One Yale grad (I'm assuming) got up and asked Guido a question. And the first word out of the questioner's mouth was "So . . . ."
I've written about the Yale So before -- the reflexive tendency to begin any question, comment, or answer, especially in workshop or job-talk circles, with the word "So, . . ." I have no particular problem with it. But like any such verbal tic, once you notice it, you can't stop seeing it (or hearing, I guess). Indeed, one of my colleagues -- a non-Yalie, by the way -- used it to open a question today at a faculty workshop. It seems to have become ubiquitous. I personally begin most of my workshop questions and answers with the word "Dude," but the numbers seriously favor "So" as the most popular opening word.
So I will ask again: What gives? Who at Yale is responsible for sending its graduates out into the world with this word springing from their lips? Are the Yale So-ers aware that they are doing this? When did it start? And, although I don't particularly object to it, when will it end? And what will replace it?
Government-Sponsored Social Media Sites and the First Amendment
Suppose State University Law School sets up a Facebook page whose stated purpose is "to allow all current law students to discuss law-school-related issues." The leader of the Law School Democrats and the leader of the Law School Republicans begin a heated discussion on the Law School's Facebook page about President Obama's policy of sending more troops to Afghanistan. The Law School Dean orders the school's Facebook administrator to remove the discussion on the grounds that it is not law-school-related. The Dean also orders several comments removed from the page because they contain profanity. Are the Dean's actions constitutional? What if the Dean sets up a Facebook page for alumni and students, which anyone may join, called "Fans of State University Law School" or "State University Law School Today"? Does he retain complete editorial control of these pages?
These questions ought to have easy and clear answers, but they don't. The answers require close examination of public forum doctrine and government speech doctrine, both of which are, to put it politely, lacking in coherence. The doctrines present government actors with a dilemma. It is clear that a government actor can create a Facebook page that is purely informational and retain complete editorial control over that page. In that instance, the Facebook page is purely government speech. However, that type of Facebook page utterly misses the point of social media and is unlikely to attract the desired audience. The point of social media, after all, is interactivity, but a government actor that creates a completely open and interactive Facebook page runs the risk of creating a designated public forum over which it has very limited editorial control. That's a fine result if that's what's intended, but my sense is that many state actors are inadvertently setting themselves up for embarrassment or even possible future First Amendment litigation in their zeal to jump on the social media bandwagon. Anway, I plan to examine these issues and more in an article I've just begun researching. If the degree of interest at my own university is any indication (see more below), there's a tremendous need for clear legal guidance regarding government use of social media.
On Friday, January 22, I'll be speaking on a panel entitled Social Media: Promises and Perils. The speakers include my former dean and privacy expert Jon Mills, UF Deputy General Counsel Barbara Wingo, UF Chief Privacy Officer Susan Blair, UF Relations VP Jane Adams and Human Resources VP Paula Fussell. The "live" audience promises to be well over 150 even though it hasn't been advertised to students, and the online audience is likely to be even larger. In case you are interested in these issues, the event will be webcast. Go to http://strategiccommunications.law.ufl.edu/seminar/. Topics include privacy issues, public records and Sunshine laws, public forum doctrine, libel, student disciplinary issues, academic freedom, employment-related issues, and many more.
More on Sabbaticals
In a comment to Lyrissa's interesting post on sabbaticals, Rob Vischer (buy his new book!) writes:
[W]hat exactly is the purpose of a sabbatical if not to delve more deeply into a single, sustained scholarly project? I'm sure that folks in many jobs would love six months off from their primary responsibility in order to learn a new language or get to know the various constituents in their place of employment better. Of course, with summers off and only three (or four) courses per year, law profs already have time to delve deeply into a single, sustained scholarly project. So can we still justify making our students take on more debt in order to let us take entire semesters (or years) off from teaching?
This is a good question, but I do think the answer is that it can be good for a lot of things besides a single, sustained scholarly project.
For one thing, the three primary elements of the academic life are teaching, scholarship, and service. Even if one is not teaching, I don't think it's illegitimate to use a sabbatical to engage in serious service projects. It's true that service is traditionally valued a lot less than teaching or scholarship, but that doesn't mean it's not a valuable -- indeed, a central -- part of the academic life. Moreover, in addition to the obvious institution-building aspects of engaging in a serious service project, it can have spillover effects for both one's teaching and scholarship. Say, for instance, that you engage in a significant pro bono representation that ends up feeding your future scholarship or forming the basis for a new class. I would look less favorably on a sabbatical project that was really about making money and did not contribute much to your general academic work, but I certainly would not categorically rule out service as a sabbatical possibility.
For another thing, if one focuses on writing, I'm not sure why Rob focuses on the idea of a single and sustained project. Why not several shorter projects? They take time and effort as well, and although one could finish any one of them while teaching, one certainly might not be able to do several of them while also shouldering a regular teaching load. Surely the focus should be on making significant scholarly contributions rather than on whether that contribution comes singly or serially.
Finally, although I appreciate Rob's suggestion that we would all value time off to engage in self-fulfillment, and thus that scholars should not view this time as a vacation, it seems to me that there are other things one could do that would have genuine value. Let's say you teach criminal law but have little practice background in the area, and so decide to spend six months shadowing prosecutors. Or you are a constitutional scholar with little background in history, and you spend six months engaged in extensive coursework across the campus. Projects like these aren't the same as, say, deciding to spend six months learning about Zen and the art of motorcycle maintenance. They are generally difficult or impossible to do while teaching and can have real downstream benefits to one's life as a scholar and teachers. I agree that the sabbatical should not be a time to master computer Solitaire, or to "refresh" oneself in an abstract sense. But neither does it have to be confined to the single category of working on a single major research project.
That said, I'm just coming off a one-semester teaching leave, and I loved it. I did engage in one single sustained project -- the first six chapters of my first book. I also did about a half-dozen other pieces, read a lot, and just occasionally tried to be a supportive spouse and parent. It was a great experience, and I am sure Lyrissa will do great things with her time.
Tuesday, January 19, 2010
On not wasting a sabbatical
I am in the second week of my second sabbatical, and I find myself beset by sabbatical anxiety. Ideally, I would be using the sabbatical to write a highly theoretical, paradigm-shifting monograph, an extended discourse pulling together the various strands of my previous scholarly works into one coherent and compelling whole. But that's not how I roll, I guess. Instead, I've got five projects going, and several of them promise to be largely doctrinal. I worry that this is a "waste" of my sabbatical. After all, shouldn't a sabbatical be used to think great thoughts or to try something new and different rather than to pursue business as usual? I even thought about postponing my sabbatical until the Muse spoke to me about what highly theoretical monograph I should write, but I felt very acutely the need for a break to re-invigorate my classroom performance.
My sabbatical anxiety is tied to a more global anxiety about the scholarly process. No matter how experienced I've become in this business, I still imagine that all you other scholars are out there cranking out page after page of brilliant thoughts in an assembly-line-like fashion. It is at times like this that I have to remind myself that not only is scholarship personal, but so is the process of producing it. I have known one and only one colleague and co-author who appeared to be able to come up with an idea, make a detailed outline of an article, and then simply follow that outline in writing the article. He is so brilliant and so efficient that I've often envied the process he uses to produce scholarship. But I will NEVER be able to follow that process. My process looks more like the following. Come up with an idea. Question whether it is a good idea or not. Talk to a few close colleagues about it. Agonize. Read the cases and the scholaship in the area. Agonize some more. Write the introduction to the article. Then re-write it roughly ten times until I'm sure what I want to say. Write the rest of the article, at every increasing speeds and with ever increasing fluidity. The last ten pages will be written at breakneck speed, and they will probably be the best ten pages of the article. By the time the draft is finished, it isn't really a draft, except for the introduction, which now has to be re-written. This process is not efficient, but (as I'm trying to remind myself as I embark on this sabbatical) it has served me well for 15 years, and it is probably too late to change it now.
I am sure that some of the readers of this post won't be able to relate. But for those who can, perhaps it helps to know that you're not the only scholar out there whose creative process isn't efficient. Regardless, I'd appreciate any sabbatical tips and tricks you have to offer.
Immigration Policy and the Law-Enforcement Benefits of Open Borders
Jonathan Simon's post on Haiti and security is a good reminder that immigration policy has got to be a component of any meaningful foreign policy, security policy, or drug control policy. The legislative process being what it is, we do one bill at a time, but this integration should be in the back of our minds, especially if we really are going to get a bill this year. Now that the administration has granted temporary protected status to Haitians in the US, we should ask ourselves what the pros and cons would be of a much broader expansion of the right of foreign-born people to live in the US. Haiti is a small contributor to the overall immigrant numbers, but it's significant enough that we might want to start asking: Okay, say we increase the Haitian quota, and say the sky doesn't fall, shouldn't we think about Mexico next?
Ilya Somin at Volokh quotes approvingly from a Wall St. Journal editorial saying let's let just let all the Haitians move here. It's interesting to me that an institution so strongly associated with the political right would be advocating a proposal that is generally thought to be associated with the political left (yes, I know that full-bore libertarianism sometimes scrambles the categories), and it reinforces my sense that a rational immigration policy really might emerge from the recognition by politically diverse groups of a common self-interest. And the terms of the status grant itself (it applies only to Haitians already here; it doesn't allow any earthquake victims in Haiti to come here) make the parallels to Mexico obvious: there can't be any solution that doesn't address the fact that in the Southwest, the U.S. and Mexico are already integrated economically, socially, linguistically, etc. to such a degree that the attempt to draw legal distinctions between people already here and people who will want to move here in the future is likely to be futile.
There's obviously a lot written on this, but less on the perspective I want to offer: a law-enforcement perspective on an open invitation for all Mexicans without criminal records to come and live and work in the United States. I have been pondering trying out an op-ed along roughly the following lines, and I'm curious what this audience thinks. I'm suggesting that whatever else one may say about the merits of an open-borders proposal (no-quota LPR status for any Mexican who moves here, with the usual naturalization and removability rules), it would likely allow us to better police our borders, reduce smuggling and associated crime, and catch and deport criminal aliens.
I'm trying for more of an op-ed voice, too, for what it's worth, so I'd love to get feedback on both substance and style. My draft is below the fold.
I was a federal prosecutor in a border district. Most of my work involved policing the border. I prosecuted drug smugglers, alien smugglers, and re-entering criminal aliens. I prosecuted people for assaulting border patrol agents, stealing identities, and using forged entry documents. Most of the efforts of the federal law-enforcement community in the Southwest border districts– the U.S. Attorneys’ offices, the Border Patrol, Customs and Border Protection, Immigration and Customs Enforcement, and the Drug Enforcement Administration– are focused on those crimes. We ought to ask whether we would enhance our ability to police those crimes-- and to focus on other crimes that don't get enough attention-- if the 99% of Mexican migrants who have no criminal history could come and go, work and live and pay taxes, freely, legally, openly, and within the system. There's a good case to make that this would make us more secure, not less.
Start with criminal aliens: We should deport them, and punish them if they come back. Crimes committed by recidivist deported aliens are a serious and legitimate concern, and we shouldn't back down from immigration enforcement against serious criminal aliens. But we need to ask whether the work of catching, punishing, and deporting those criminal aliens is helped or hindered by the policies that cover the 99% of Mexican immigrants who are not committing any crimes. Less than one percent of the people caught by the Border Patrol crossing the Southwest border have criminal convictions in the U.S. The manpower devoted to interdicting and removing non-criminal Mexicans depletes government resources, fuels professional smuggling organizations, and stifles immigrant cooperation with law enforcement. This impedes our ability to stop crime and catch criminals.
In the hard-to-patrol desert regions of the Southwest, we’ve quadrupled the number of agents on the ground, built walls and fences, installed sensors and cameras– and we still don’t catch everyone. Not even close. The demand for entry has fueled a well-organized smuggling industry, networks of footguides, safe houses, and drivers to get aliens to their destinations. The industry also relies on bribery, document forgery, and identity theft. The revenue stream for this industry comes mostly from migrants with no criminal record, going back and forth for work and family. But criminal aliens and drug smugglers use the same smuggling services, and and it's harder to catch them because enforcement resources are stretched thin when agents have to chase and remove large numbers of non-criminal, non-drug smuggling aliens.
High crossing volume means lots of processing work for Border Patrol agents. When an agent catches a group, he’s off the line for the rest of the shift. He’s got to transport the aliens to a station, then print and process the whole group. Maybe one in a hundred will have a criminal record, if that.
Suppose we had open borders for all Mexicans with no criminal record: come in, get in the system, live, work, pay taxes, naturalize after seven years. Say roughly 99% of would-be migrants are not criminals or drug smugglers. If all these people were allowed to come in legally and openly through ports of entry, they would. The demand for smuggling services would collapse, and the professional alien smuggling industry would disappear. So who would be left crossing through the deserts? Only the people who could not cross openly through ports of entry: drug smugglers and deported criminal aliens. And they'd be a lot easier to catch, because they couldn't blend in with large migrant groups, they couldn't rely on professional smuggling networks, and they wouldn't have ready access to documents or corrupt border agents. The smuggling organizations would vanish with the collapse of demand, when 99% of their customer base no longer required their services. And the Border Patrol would be spending more time patrolling and less time processing.
You'd see other benefits, too. Organized alien smuggling drives all sorts of crime. Aliens pay large amounts– $3000 is typical for a Mexican migrant– to be guided or smuggled across. They’re then held in load houses, sometimes for weeks or more, until their families come through with payment. When they’re assaulted or robbed, and they have no recourse, because they can’t call on U.S. law enforcement. And everybody cashes in on this cow-- U.S. street gangs have added alien smuggling to their portfolios.
The illegal status of non-criminal Mexicans also makes it harder to catch, prosecute, and deport criminal Mexicans, because non-criminal illegals don't report crimes committed against them, and don't cooperate with law enforcement, for fear of deportation. And the sanctuary policies of many cities prevent cooperation between local and federal agencies. If our goal is to find, punish, and deport criminal Mexicans, it makes sense to give status to non-criminal Mexicans.
I’ll leave to others the question of whether, leaving crime aside, we should invite all non-criminal Mexicans to live and work here if they desire. There are plenty of people who will argue that nothing I've said makes a difference-- we should just double down on interdiction and build bigger walls. As for me, I doubt the sky would fall with an open-border policy, and I bet a lot of people would be a lot happier. But I don't have any special insight there. My claim, for what it's worth, has to do with law-enforcement effectiveness: Do we want to catch and punish criminal aliens in the U.S.? Do we want to stop drug smuggling from Mexico? Do we want to eliminate a major revenue stream for violent gangs? If so, an open border policy with Mexico is an option we should think about.
Monday, January 18, 2010
The Paradox of Security in Disasters: Suffering, Looting and Delay in HaitiAs the days have passed since the devastating earth quake struck in Haiti a week ago tomorrow, two themes have dominated the media coverage: when will water and food reach the struggling survivors in the streets of Port au Prince and when will the violence start. I'm worried, and I hope I'm wrong, that our national obsession with crime as the number one threat (which we have spread to much of the rest of the world) is bringing these two themes together. Is the slow pace of aid being driven in part by the the priority that security is receiving?
I am not reassured by the quotes coming from American military personnel on NPR's Morning Edition today, questionable homilies about how law and order is the necessary prerequisite for all other aid. Is that right? The people of Haiti seem to have done a pretty amazing job remaining calm and dignified in the face of unbelievable suffering and death (generally demoralizing forces one would assume). The only violence reported in this morning's reporting by Damien Cave and Deborah Sontag in the New York Times, involved the summary execution of looters by Haitian police. Perhaps unchecked looting would lead to ever more violence, but the long delays in getting water to people has surely added to the potential for disorder when supplies finally reach the desperate.
I trust the military's own disaster specialists more than I do the US media which has been expectantly waiting for outbreaks of violence since the day after the quake. As we saw in the coverage of Hurricane Katrina and New Orleans, the US media looks for a crime story first; especially when a national drama is playing out in an urban area and when the protagonists have dark skin. In that case, a city's remarkable dignity and courage were obliterated in a near "white-out" of mostly false crime reports. Hopefully that will not happen again. Hopefully, the aid workers and the military's logisticians are listening to the reports from the ground and not the cloud of crime expectation.
Cross-posted at Governing through Crime.
More on Grades
The recent discussions on grades have been very interesting. They certainly suggest that many professors grieve over grades and want students to know that although they are important, they're not everything; some of the comments suggest that students didn't know this and may be reassured to learn that we feel this way. Other comments suggest that students would like (or think they would like, although sometimes they are less than thrilled to get what they think they want) better and more frequent methods of examination, and that the professors themselves recognize that there are less-than-adequate pedagogical explanations for the current system. To misquote Holmes, law professors find nothing more reassuring than doing something because that's the way it was done in the days of Henry IV. We can all recognize that it would be a good idea if this changed, and a number of the comments suggest that there are serious individual efforts afoot to do so, although they do not seem especially institutional in nature.
I would like to address another by-product or effect (or side-effect) of grades in law school, aside from what Lyrissa calls "emotional distress." It could be labeled anomie, or cynicism, or surrender, or resignation. I see this regularly, both after first-semester grades appear and especially after the first year in general. Students come in either convinced that they have something to contribute to discussion or convinced in general that they are smart enough to contribute or both. After grades come out, some conclude that they are not smart enough to participate, or to be deeply interested in the law as an intellectual enterprise. They become far quieter, far less engaged in the subject, far less likely to allow a subject to surprise them with an unlooked-for affinity for it, far more likely to treat themselves as "consumers" whose desired goal is nothing more than a set of credentials. The fight goes out of them, to some degree. Certainly the sense of law school as an intellectually engaging and rewarding enterprise in which they are fully entitled to participate does. The class begins to bifurcate into a small group of people -- many of whom got high initial grades and some of whom didn't -- who remain interested and active in participation, and a larger group of people who will speak when called on and do their work, but bring an increasingly disengaged, disenchanted, dispirited sense to their law school education.
I can understand how this happens.
I can also understand some of this as a by-product of law school itself -- both because some begin to feel that grades and exams are themselves more or less arbitrary, and because for some the whole enterprise of demonstrating the many ways in which law is uncertain and potentially manipulable help encourages this sense of disenchantment. We might think about these reasons more closely, including how we are responsible for letting this spirit loose among our students and what we might do about it, and also the extent to which this is an intellectually valid response to law and legal education. A certain degree of skepticism in response to legal education is a natural thing; a certain critical distance from legal education might be a natural response, either because it captures a truth about the law or captures a flaw in legal education.
But too much of this spirit can be corrosive. I am especially worried about those who, because of grades, seem to conclude that they are not "smart" enough to contribute in class and to remain engaged in their subjects, who seem to conclude that they are unworthy of the intellectual surprises and delights that law school might offer them, and so seem to switch off, or at least to treat law school as more of an instrumental enterprise than anything else. But I don't buy it. Law school may be difficult, but it ain't rocket science, and it can also be approached on any number of different levels -- doctrinally, historically, philosophically, and so on, responding to different tools or skill sets that different students may have and use to get into the material. Grades are perhaps not wholly arbitrary, but that does not mean that a student who fared poorly on an exam is unable to have good insights about that course or the next one, or to find something interesting and engaging about it. And of course some students take a while to get their sea legs. As I always tell my students, I was blase about law school in my first semester for other reasons, and did better and better over the course of my career as I learned to enjoy the law and legal studies more and more. Doubtless it would have been preferable to have done better in the first semester; but my career was not irreparably harmed, and certainly my capacity to find a great deal of intellectual sustenance in the rest of law school was not affected.
All I can advise is that students (and professors!) watch for this tendency. They should remind themselves that there are a host of different topics and approaches available to them in law school and that they should keep engaging with the material until they find their own way of taking joy in what they're doing. At the very least, even if they conclude that grades are arbitrary or that there's less intellectually to the law than meets the eye, they might at least remind themselves that they have paid a great deal of money to read cases and sit in classes, that class discussion if nothing else is a good place to try out ideas without any especially undue consequences (you may be embarrassed by a wrong answer, but your client won't go to jail and you won't be sued for malpractice), that they may find the course or subject that engages them on something more than a license-obtaining level, and that they may as well get their money's worth by participating intellectually in law school.
There is also a certain tension between the disenchanted view of law school and exams and the response that some students make to it. I usually advise students not just to think of exams as a system to be gamed. Of course, if one professor wants case names in exam answers and another doesn't, that's worth knowing. But I think and have argued here that most of the skills needed for a good exam answer transcend the requirements of individual professors, and that in the long run you will get better grades more efficiently by mastering those skills in general rather than treating each separate course and professor as a puzzle that has a "trick," a way of scoring high grades that has nothing to do with what you do in your other courses and exams. Among other things, I think this approach is corrosive of the joys I think can be found in law school in general -- even, perish the thought, in exams themselves. (And yes, having written my fair share of exams as a student, I still stand by this statement, although with full recognition that they're not a walk in the park.) It seems to me that if you think of grades as purely arbitrary, then you should think of these tactics as unlikely to have a strong yield, especially balanced against the amount of time it takes to treat each class or professor as a separate system to be gamed in different ways. On the other hand, if you think of grades as purely arbitrary, then you should have not much to lose by trying to think of law school exams as generally involving a trans-substantive set of skills (like clear writing) that are worth learning and applying across the board. If nothing else, you gain in efficiency.
More broadly, we might say that, even for those who have become disenchanted about law school, it might still be worth making a kind of Pascal's wager. If you remain engaged and invested in your courses, if you try participating in class, if you act as if you believe law school is intellectually rewarding and that you are fully smart enough to get a great deal out of it, even if you did not get the best grades in the class, it seems to me you stand to lose very little and just might gain a great deal.
Thoughts on cameras in the courtroom
Lots of commentary out there about the Supreme Court's order staying the effort by District Judge Vaughn Walker of the Northern District of California to have limited video broadcasts (live-streaming in five federal courthouses and recorded for posting to YouTube) of the trial challenging California's Proposition 8. In no particular order: Dahlia Lithwick of Slate, Emily Bazelon of Slate, Jonathan Siegel, Orin Kerr, Barry Friedman, and Tony Mauro.
My several cents after the jump.
First, I agree with Siegel that the majority's basic ruling and rationale were at least arguably correct, at least as a formalist matter. The district court really gave only about a week for notice and comment on the formal proposed rule (after first announcing a new role, then changing it to a proposal) and this is not a subject that falls into the "immediate need" exception to notice-and-comment requirements in § 2071(e). True, Judge Walker received more than 130,000 comments (overwhelmingly favorable) even in that short time. And everyone involved in, and watching, the case should have been aware of a) the Ninth Circuit's pilot program on recording proceedings and b) Judge Walker's statements to the parties back in September that he was considering broadcasting the proceedings. The Court also inappropriately criticized the court for issuing and reissuing web site postings and press releases, comparing that unfavorably with what Congress did back in 1995 to arrange for broadcast of the Oklahoma City bombing prosecutions. But notice-and-comment for local rules is never as formal as congressional lawmaking and the Court should know that.
But there is a sense that the district court was not entirely clear on what it had to do procedurally and seemed to be winging it; the majority accused it of changing its rules at the eleventh hour and treating this case differently. Thus, the majority (arguably a bit high-handedly) insisted that intervention was warranted to preserve systematic interests of "insisting that courts comply with the law, [thereby] vindicat[ing] not only the rights they assert but also the law's own insistence on neutrality and fidelity to principle." If nothing else, I was able to point this opinion to my Civ Pro students as an example in which local rules of procedure (and the process of making procedural rules) actually makes headlines.
Second, several commentators (as well as the dissent) have suggested that the majority reached out to decide a matter--local judicial administration--that is not its concern. This has triggered (for some) reminders of Bush v. Gore--because of the Court reaching out for a case, because of the ideological 5-4 split on the Court, and because in both cases, the Court was jumping in to enforce procedural formalism in the face of a perceived attempt by an inferior court to play too loose (or too practically) with procedural requirements.
Third, the purpose of the stay was to give Prop 8 supporters a chance to get the case before the Court, either on cert or mandamus. But it is difficult to imagine what the Court would decide on the merits. Perhaps a more detailed determination that the local rule change violated § 2071 and that the court must do it over again. It would be strange for the Court to rule, in this context, on the substantive validity or propriety of having cameras in the lower courts. Lower courts have statutory authority to make their own rules and policies, which only must be consistent with the Constitution, federal law, and the SCOTUS-enacted Federal Rules of Civil Procedure. I suppose the Court could enacted an FRCP (and FRAP) banning or setting narrow and precise standards for cameras--and any local rule must conform to that. But short of that, SCOTUS has no control over lower courts in making policy decisions such as these.
Of course, the majority strongly hinted in that direction, insisting that, procedural rules aside, this case is not a good one for the Ninth Circuit's camera pilot program, because it is a high-profile case involving "issues subject to intense debate in our society." The majority has been (rightly) lambasted for this assertion. After all, the suggestion seems to be that publicizing trial might be a good idea for informing the public about legal proceedings, except when the public actually cares about those proceedings. By all means, televise the diversity property-damage traffic accident, but not the case (and the legal, factual, and social-scientific evidence and arguments) that may edcuate the public and help decide fundamental political-social issues. That substantive view undergirds the procedural decision.
To the extent the merits of cameras now are in play, the issue long has interested me (during law school, I initially planned to write my journal comment on the subject, during the heart of the O.J. Simpson case). I never have understood the tremendous objection to, or fear of, video in courtroom proceedings, especially in light of the tremendous media (and blog) reporting that is going on anyway. A study conducted in 1998 (and cited in the dissenting opinion) found that video cameras actually improved the quality of witness testimony (probably for many of the reasons many argue for video-recording of interrogations). And it is hard to imagine small, unobtrusive cameras (functioning, utlimately, as three additional eyes in the gallery) being that distracting.
Moreover, everything that happens at the trial--including the identities of Prop 8 supporters and the content of their testimony and argument--is going to be reported and presented to the public anyway. But it all will be presented to the public through the filter of reporters (or through multiple filters, since many people will read the excerpts of the excerpts on an aggregation/commentary blog), rather than members of the public being able to hear and process the complete testimony or argument first-hand, if they choose. Barring cameras ultimately only empowers the institutional media (broadly defined), which gets to decide what portions of the trial the public can see and hear. As Lithwick argues, this is inconsistent with the insistence that the public should be able to decide the issue of same-sex marriage because it prevents the public from truly seeing and absorbing the information on which it can decide. Indeed, one of the benefits to airing such arguments at trial is that, given the restrictions of the Rules of Evidence limit demagogic arguments and other noise from all sides.
The threat (to the extent there is one) to the "sanctity" of judicial proceedings from media coverage is not live video, but 24/7 reportage, commentary, punditry, and general hysteria--what I have called "the media horde." It also comes from lawyers speaking and making their case to the public directly on the courthouse steps, because they can't do it inside. So we obviously can (and do) get all that noise without live broadcasting and it is hard to imagine that including cameras would make the problem worse--and might make it better.
Similarly, if pro-Prop 8 witnesses truly fear for their safety (a dubious proposition, since most of these people have been publicly appearing and speaking about this for months or years), that safety is just as endangered by their names (and photographs) being reported in The New York Times or CNN or the Huffington Post. In other words, barring video cameras is under-inclusive for handling the problem of witness intimidation or fear. To truly protect witnesses, the media would have to be barred from the courtroom, the witness permitted to testify anonymously (almost unheard of, particularly in a civil case), and/or his testimony sealed. No one has (or, I imagine, would) seriously suggest any of those steps is necessary or appropriate. The point is that broadcasting itself does not create additional problems beyond media coverage itself.
Stay tuned (no pun intended).
Sunday, January 17, 2010
The odd invisibility of slavery landmarks in the United States
Last Friday, while freezing in New Orleans for the AALS meeting, I had the unnerving experience of eating lunch in New Orleans' former slave exchange, in which Pierre Maspero's restaurant is now housed. The building's former role as a slave market is invisible except for a discrete historical plaque. The restaurant's menu, unsurprisingly, prefers to give much greater prominence to Andrew Jackson's and the Lafitte Brothers' meeting in the building to plan the defense of New Orleans: Anyone who has read Walter Johnson's searing account of the New Orleans slave markets can imagine that eating inside a slave market can have the chilling feeling of eating inside, say, a barracks at Dachau.
But the invisibility of Maspero's slavery exchange seems par for the course in the United States: Slavery's physical landmarks and artifacts seem mostly invisible in th realm of public history. The building that houses that old Franklin & Armfield slave market in Alexandria, Virginia (on 3115 Duke Street, in case any of you are curious) is, for instance, marked only with a small plaque and a National Historic Landmark designation -- this, despite its being on federal territory until 1846 (when Alexandria was ceded back to Virginia by the feds) and, therefore, at the center of the great constitutional controversy of the 1830s over the petition campaign to end slavery in Washington, D.C. There is no museum inside explaining its role in maintaining slavery. There is a small, family-run museum with slavery-related artifacts in Milwaukee, WI -- a credit to J. Justin & Gwen Ragsdale who maintain it, but hardly what one would call a nationally visible landmark on the beaten path of public history. There are several important museums of African-American history that include material on slavery but, to my knowledge, no museum devoted solely to the study and preservation of material on slavery itself -- its victims, economics, laws, customs, etc. Such a museum has been proposed for Washington, D.C., but, to my knowledge, Congress has appropriated no funds for the project.
Why not? There is something deeply odd about the absence of a major research and educational center about slavery in Washington, D.C., New Orleans, or elsewhere on the beaten path of tourism and public history. Have African-American organizations not made the creation of such a museum a priority? Or is the existence of our "peculiar institution" still too embarrassing and emotionally painful for us to make part of the standard docent's circuit on the Washington Mall?
Saturday, January 16, 2010
First year grades - the saga continues
It appears that first year grades and more specifically first semester grades are the topic of the day. In addition to Lyrissa Lidsky's wonderful post and the interesting comments here on prawfs, Michael Froomkin blogs on the release of first semester grades here and Orin Kerr provides a very thoughtful post here. I can't help but jump in with some thoughts. While my teaching experience is in political science, I can remember that first semester law grade experience and I now have some perspective on grading from the other side of the podium as a professor.
First, I propose some advice for professors - whether they are in political science or law - give people some practice along the way. This can be in the form of quizzes (as Lyrissa suggests) or possibly practice tests. In a class with a large number of people it may not be an efficient expenditure of time to provide detailed remarks on every test (and it's questionable whether students could read my pen marks anyway). Perhaps a good substitute would be to give a practice test and then dedicate a portion of the next class to going over model answers. Yes, this would take up some valuable class time, but I think that students would be forever grateful. I have found this practice to be very popular (although my test is actually graded). Second, something for the students - as lame as it sounds, I have to say it - this too will pass. If you're in that top 10 to15% then great - go out and celebrate (but not in front of your fellow students who didn't do well). If you didn't do as well as you liked, then your road may be different and perhaps more rocky than if you'd done well, but that is not necessarily a bad thing. I know that this can be a lot to swallow (especially when interview season rolls around), but believe me, you'll be okay -- in the long run.
But what about the process more generally? While some would blame profs and their grading, there is a harsh truth that can not be placed on the prof's shoulders - you fine students, who have always excelled in school and in life, are going to be ranked - from first to last and everywhere in between - and there is little that can change that. Whatever the grading procedures or processes might be, there are going to be "winners" and "losers" in this situation - in a group of people who have historically always been winners.
But what about the firms? Why do they place so much emphasis on first year grades? Well, they have decisions to make and it's a lot like the decision (by corporate execs) to hire prestigious law firms - they rarely get in trouble for hiring a prestigious firm and, likewise, hiring attorneys rarely get in trouble for hiring students with the highest grades. Does this mean that it works; that high grades equal good associates? Not necessarily - there is reason to believe that grades may only be marginally related to attorney performance. But, it's the reality of the hiring decision at this time - perhaps this will change as our ability to predict attorney performance improves.
Emotional Distress and 1L GradesMy 1Ls got their grades this week. This is always painful--for them and for me. Inevitably, there is a bright, eager student who had great insights in class whose grade doesn't reflect his or her abilities. Inevitably, there is a student I couldn't recognize in a line-up who makes one of the highest grades in the class. Year after year, I agonize over what to do to prepare students for the inevitable disappointment that 90 percent of them will feel with their 1L grades.
As a teacher, you want to tell students that if you work hard and do everything right, you will be sure to succeed, but in law school it just isn't necessarily so. Almost every 1L student works hard, but some just have a knack for the narrow analytical skill that law school exams prioritize. Some will eventually acquire the knack, but they need a little while to figure out what's being asked of them. Some are too intellectually creative to ever give AN answer on law school exams, and some are too concerned with providing THE answer. Many of these students can and will go on to be great lawyers, but not if the 1L experience so shatters their confidence that they never fully recover.
The situation is complicated by the fact that many of the students I teach had all "A"s before law school and are used to deriving their self-esteem from their accomplishments. I try to warn 1Ls of the dangers of this practice before exams. I've stolen the speech my Torts professor (and mentor and friend and co-author and hero David Anderson) gave to my class before our first exams. I tell students that the exam is just a four-hour snapshot of their performances on a given day on a given exam. It is a snapshot that may in no way reflect their knowledge of the subject or their abilities as lawyers. I also add my own riff on David's speech. I tell them that my lowest grade on my mid-term exams in law school was in Torts, and then ask them whether they think it means I wasn't capable of learning Torts, which usually gets a laugh. I tell them that I've had students with mediocre grades I'd hire as my own lawyer and students with excellent grades I wouldn't. All of these things I say are true, but I don't know if they actually help or not.
Moreover, I feel obliged to balance that advice by acknowledging that some prospective employers, particularly big firms, care about grades. I tell students that any one grade may be a fluke, but if a student is getting low grades in every class, he needs to look at his exam-taking skills closely and make great efforts to improve them. Consistently low grades in law school ARE a predictor of whether a student will pass the bar, and in this economy, it will be very hard to get a job with consistently low grades. It is a hard truth, and it pains me to be the one with the obligation to say it, but I do. What do you do?
Thursday, January 14, 2010
Real-Offense Sentencing, Prior-Conviction Enhancments, and the Meaning of "Most": A Post for People Interested in SentencingHere’s a small linguistic/sentencing conundrum that has bugged me for a long time, involving the meaning of “is,” and– in trying to settle that one– the meaning of “most.” This has nothing to do with sex, and I’ve put most of it below the fold because it’s only for people really interested in sentencing. It also involves an abiding query of mine, which is why appellate courts are so spooked by the possibility of “mini-trials" at sentencing, at which the parties would have to prove facts about a defendant's prior criminal conduct. For my money, proving facts should be the norm, not the bogeyman, of criminal practice. More on that at the bottom of the post.
Here’s the setting for our linguistic puzzle. The Sentencing Guidelines provide generally for increased sentences based on criminal history. In addition, one particular guideline, the one covering re-entry by deported aliens, also includes a big offense-specific enhancement if the defendant was deported after a conviction for certain crimes. The rationale is that it is qualitatively worse for a criminal deported alien to re-enter than a non-criminal deported alien. The crimes are listed at USSG § 2L1.2 Cmt. n. 1(B)(iii). The most common category for this enhancement is “crime of violence.” It’s defined as follows:
"Crime of violence" means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
In applying this guideline, the courts follow a 1990 Supreme Court case called Taylor, which is at 495 U.S. 575, and which established a method for classifying prior offenses for purposes of the Armed Career Criminal Act. This method was later incorporated into Sentencing Guidelines analysis, which was entirely sensible pre-Booker. (I think it no longer makes sense post-Booker.) Per Taylor, a particular state offense counts as an instance of a listed enhancement-triggering offense if fits the “generic” definition of that offense. But there is no official compendium of “generic” definitions of crimes. So Taylor gave us a standard: a state’s definition of a crime is generic if that state defines the offense in the way that “most” states do. 495 U.S. at 598. Burglary under California law, for example, “is” burglary if and only if California law matches the definition employed by “most” states. And because burglary does not include as an element the use, attempted use, or threatened use of physical force against the person of another, a conviction under any given state’s burglary statute triggers the enhancement only if it is “generic” burglary.
All right, we need to figure out how states define their crimes, so we look to statutes and caselaw. But when we look to caselaw, we need find only a single instance of the offense being enforced in a “non-generic” way in order to categorically (for Kant fans, that means “always and for all purposes”) eliminate the statute as a predicate for the enhancement. See, e.g., United States v. Aguila-Montes, 553 F.3d 1229, 1234 (9th Cir. 2009). We do not ask whether “most” prosecutions within a state are “generic.”
(There is one interesting outlier, a recent case in the 9th Circuit, Mayer, 560 F.3d 948, that applied a “most” standard to the intrastate analysis, but it concerns ACCA language (the second clause in 924(e)(2)(B)(ii), for those following along) that’s not used in USSG 2L1.2, and so won’t alter guidelines analysis. Still, it will be interesting to see if anyone tries.)
So we appeal to “most” in our interstate analysis, but not in our intrastate analysis. Why the difference? And what does the word mean, anyway?
First, the interstate analysis. Does “most” mean 51? 60? 67? Should comparative tallies take into consideration population differences among the states? The top ten states- California, New York, Florida, Texas, Illinois, Pennsylvania, Ohio, Michigan, Georgia, and North Carolina, have over half the country's total population. So “most” of the country’s population lives under the criminal laws of those states. And if the “most states” rule instead incorporates a one state-one vote model (as it seems to in practice), what is the theoretical basis for such a rule? Taylor itself doesn't tell us.
Second, the intrastate analysis. Why don’t we use a “most cases” standard to evaluate the intrastate question as well? There was a pretty good answer pre-Booker, and there’s still at least an articulable answer post-Booker for ACCA. But for a pure Guidelines question, post-Booker? I don’t see it. The Guidelines are advisory; the stat max isn’t implicated; the normal guidelines standard for sentencing facts is preponderance. Why don’t we ask: Is it more likely than not that this defendant committed the generic listed offense?
Here’s an example, to make this problem more concrete. “Burglary of a dwelling” is listed in the sentencing guidelines as a prior offense that triggers a 16-level enhancement in certain cases (re-entry after deportation, if you were deported following a burglary conviction). In California, “burglary of a dwelling” is defined in Cal. Pen. Code section 459, and provides that burglary of a dwelling means entry into a dwelling with the intent to commit a felony therein. The statute does not say that the entry has to be “unlawful.” “Generic burglary,” the Supreme Court has held (that’s Taylor at 598 again) requires that the entry be unlawful, because “most” states define it that way. So does California in fact require an unlawful entry? We turn to the cases. We find that there are two affirmed California burglary convictions involving defendants who peddled securities without a license, were invited into the houses of their victims, and therein persuaded the victims to invest in bogus securities: People v. Cole, 67 Cat. Rptr. 3d 526 (Cal. 2007), and People v. Salemme, 3 Cal.Rptr.2d 398, 402-03 (1992). (If you want to go all the way back to 1892, you can find a third case, albeit not a residential case, where the defendant entered a grocery store, during business hours, with the intent to shoplift. People v. Barry, 94 Cal. 481, 29 P. 1026 (1892).)
On the basis of those two cases, the Ninth Circuit has held that no California residential burglary conviction is ever a “burglary of a dwelling” for USSG 2L1.2 purposes. The reasoning is that California burglary is in some sense “not real burglary” because it lacks the unlawful entry element. But here’s the thing with the meaning of “most”: there’s no claim here, as in every Taylor case, that the particular defendant challenging the application of the prior-conviction enhancement didn’t commit a “real,” “generic” burglary. His only claim is that someone else, fifty years earlier, committed a “non-generic” burglary and was prosecuted for it in California.
Leave aside the question whether the con men cases even actually entail the lack of an “unlawful entry” element. (In that 1892 case, the court also said: “‘[A] party who enters with the intention to commit a felony enters without an invitation. He is not one of the public invited, nor is he entitled to enter.”) The question for us now is: Why use “most” in one context but not in the other? Pre-Booker, the answer was easy: the nature of the prior increased the stat max, so it had to be charged, and found by the factfinder beyond a reasonable doubt. If there was even one instance of the statute’s being applied non-generically, that creates reasonable doubt that the defendant’s prior was in fact generic.
Post-Booker, I don’t get it: the guidelines are advisory, so no guidelines findings increase the stat max. (For those wondering, even non-generic burglary pushes the 1326 stat max to 20 years because the statute references the “aggravated felony” definition in Title 8, not the more restrictive guidelines definition.) The standard for applying guidelines enhancements is preponderance. There’s no dispute about the fact of the prior; the only question is the likelihood that the defendant’s conviction was non-generic– that his “burglary” conviction was not “really” for burglary. Shouldn’t 999,998 out of 100,000 be enough for preponderance? So what is the logical/doctrinal basis for a rule that invalidates all California burglary convictions as predicates for the enhancement on the basis of two cases in a century (out of, say, 100,000 burglary convictions in that time)? And what is the logical/doctrinal basis for allowing such claims in the pure guidelines context when the defendant himself is not making any claim that his own burglary was not “generic”?
Moreover, consider what Taylor itself said when it rejected the suggestion that it apply the old common-law definition of burglary: “[C]onstruing ‘burglary’ to mean common-law burglary would come close to nullifying that term's effect in the statute, because few of the crimes now generally recognized as burglaries would fall within the common-law definition.” Id. at 594. Well, that’s what’s happened with every single burglary in California.
Why do we still use Taylor for pure guidelines analyses? As a matter of practice, because no court has ever held that Booker abrogates Taylor for pure guidelines findings. And it’s not an argument that the government has pushed. The courts seem to like Taylor– Judge Kozinski, dissenting from denial of rehearing en banc in the Mayer case cited above, extolled its “elegance,” and said any attempt to apply a “most cases” analysis intrastate would be a “train wreck.” But he didn’t explain why, if the “most” analysis makes no sense on the intrastate issue, it is so “elegant” on the interstate issue.
So for the die-hard sentencing crew who’s made it this far, here’s my idea, after having done hundreds of these things. Let’s just have real-offense sentencing for 2L1.2 priors, and settle it that way. If the guy says his entry in the house was with the owner’s permission and so it wasn’t generic burglary, fine! Let him get up and say it. I’ll go get witnesses and we’ll have a hearing. That’s what criminal lawyers do. I think that would be the truly “elegant” solution to the problem.
The Taylor court itself, like most people I’ve talked to about this, said: No way, man! The system will collapse under the weight of mini-trials about the conduct underlying the prior? I have two responses: “Really?” and “So what?” First, you need a defendant who’s actually going to raise the issue– in other words, one who will say, under oath, that his entry into the dwelling was permissive. Second, suppose the defendant does raise the issue: now you have to have an evidentiary hearing to decide the question. The FREs don’t apply, you can use hearsay, the burden is preponderance. What’s the big deal? You call the responding officer to report what the victim said. If you can’t call the officer, you put on his report. If the defendant disputes the victim’s narrative, you call the victim herself. Is that really such a big deal?
The point is we either believe in real-offense sentencing or we don’t. If we believe in it, then we should think that the prior-conviction enhancement for generic residential burglary ought to apply to all and only people who committed generic residential burglary. Maybe we don’t all believe in real-offense sentencing, but the guidelines system is predicated on the assumption that we do.
Finally, I understand the response that criminal re-entry sentences are just too high, and this is just one way for the courts to lower them. Maybe. But district courts already have full Booker discretion to disregard the guidelines, for any reasons they want, even policy reasons. I have no quarrel with those arguments, whether directed to the legislature or the sentencing court.
College sports and the higher education economic crises
The USA Today carries an interesting story today about the cost of college sports in the context of university economic struggles. I have blogged about this general proposition on the Voir Dire Blog here, but that was before the financial meltdown. Here are some intriguing excerpts from the USA Today story:
... More than $800 million in student fees and university subsidies are propping up athletic programs at the nation's top sports colleges, including hundreds of millions in the richest conferences, a USA TODAY analysis found. ...
... Taken together, the subsidies for athletics at 99 public schools in the NCAA's 120-member Football Bowl Subdivision grew about 20% in four years, from $685 million in 2005 to $826 million in 2008, after adjusting for inflation. At more than a third of those schools, the percentage of athletic department revenue coming from subsidies grew during the four-year period studied....
... Of the 30 public schools where the percentage of athletics revenue coming from allocated sources rose the most from 2005 to 2008, about half are from schools in the power conferences, often assumed to be self-supporting. The '09 reports, which might show bigger gaps because of the recession, are due Friday....
...Nebraska and Louisiana State were the only schools whose athletics programs reported receiving no subsidies in each of the four years studied....
If you'd like to see a specific school's revenue and expenses go here.
Sharing the Blame: Punishing Entities at BLSOur friends at Brooklyn Law School, which will be hosting the next Prawfsfest! this summer, are also hosting a neat symposium early next month entitled, Sharing the Blame: The Law and Morality of Punishing Collective Entities. Looks very interesting, especially if you're in the NYC area. Speakers include Professors Meir Dan-Cohen, Jayne Barnard, and Tom Tyler, among others.
Relatedly, I"ll be presenting a paper about retributive damages against business entities at Law and Society in May. I hope I get the chance to read these BLS papers before that happens. More on the LSA gathering in a separate post once the schedule for the CrimProf gathering organized by Alice Ristroph and myself congeals.
Update: I just saw, via the Tarlton Library update, that the new issue of the American Criminal Law Review has a symposium on the issue of corporate criminal liability, with contributions from a number of distinguished voices. After the jump, I've reproduced the table of contents for that issue.
Wednesday, January 13, 2010
Class Movie Night
Flying back to Miami last weekend on JetBlue, I watched (for likely a time in triple digits) A Few Good Men. And it struck me how great the trial scenes are for demonstrating a host of Evidence issues (rightly or wrongly) and that I want to this as a teaching tool.
Several Evidence books and materials use clips from this film (and others). But I am thinking of something more--watching the entire trial and evidence sequences and stopping the video at points to ask for comments about what they are doing at that point and whether it is admissible or permissible or not. The problem is that doing this would take up at least 1 1/2 class periods--and I already cannot get through everything on the Syllabus. So I am thinking of doing an end-of-semester Movie Night (or weekend day) at the end of the semester. If nothing else, it also serves as a review session for a big chunk of material. And it could be a nice class tradition.
Something to think about for next fall.
Tuesday, January 12, 2010
Vice President Biden's Eulogy to his Mom
Having briefly met the late Mrs. Biden, I personally thought it appropriate to pass along this wonderful tribute. Though I spent only a few minutes talking with her, it was immediately apparent that she was a class act. From Iowa, Biden's sister called her mom so that a voter could explain to their mother why he wasn't voting for her son. The unsuspecting voter was taken aback when he realized that he was, in fact, talking with then-Senator Biden's 90-year-old mom. I couldn't hear her side of the conversation, but she apparently made a pretty convincing case. When I met Mrs. Biden a couple of months later, she remembered the event well. I asked her what she had said to the voter. "I just told him why my son should be president." I realized that I had been given an amazingly human glimpse of American history. She was funny, smart, engaging, and charming -- and I offer the link to her son's beautiful tribute.
Will this post get me disbarred?
The Florida Bar has a new attorney advertising rule that aggressively regulates attorney speech on the Internet. Florida Bar Rule 4-7.6 Indeed, the new rule regulates attorney speech so aggressively that it might even apply to this blog post. Until recently, the Florida Bar considered all attorney websites and web communications as information provided upon the request of a prospective client and did not apply its attorney advertising rules to them. But now the Florida Bar has extended its substantive advertising rules except for its filing requirement to all "Computer-Accessed Communications" by Florida attorneys.
The first problem with the new Bar rule is its exceeding broad definition of "computer-accessed communications" as "information regarding a lawyer's or law firm's services that is read, viewed, or heard directly through the use of a computer." The definition includes "but [is] not limited to, websites, unsolicited electronic mail communications, and information concerning a lawyer's or law firms' services that appears on Internet search engine screens and elsewhere." Under that definition, if I write in this post that I'm a defamation expert, I'm giving you information regarding my services, and I could be subject to reprimand, suspension, or disbarment if I don't meet the substantive requirements of the Florida Bar's advertising rules. Rule 4-7.6(d). What are those substantive requirements?
The substantive rules provide, among other things, that an attorney website can't "describe or characterize the quality of legal services being offered." Rule 4-7.2(c)(2) Thus, I can't tell you in this post that I'm committed to using my legal skills to provide positive results for my clients (even though this is true). And I can't give you information regarding my past results, so I probably shouldn't tell you the true information that I lost a case I argued in a Florida court as cooperating counsel for the ACLU in a "John Doe" case. Rule 4-7.2(c)(1)(F). I also can't include testimonials; therefore, I request any former students or clients not to post comments saying what a wonderful lawyer and/or professor I am. Dramatizations and many other creative marketing devices are also verboten. Of course, my personal concerns about the new bar rules are trivial when set beside those of all the Florida law firms who must now spend vast sums of money to revamp their websites to try to comply with the new rules, not to mention the concerns of non-Florida firms that hire Florida attorneys.
In its zeal to rid the airwaves and the Internet of distasteful attorney advertising, Florida seems to have lost sight of some basic principles of First Amendment law. The First Amendment protects attorney advertising because it provides valuable information to potential clients to help them make informed and rational decisions. States may regulate attorney advertising if it is actually or inherently misleading, or if regulation directly and materially advances a substantial state interest and is no more extensive than necessary to accomplish that interest. The US Supreme Court has very clearly held that a state may not base regulation of attorney advertising on its concern for preserving attorney dignity or on its paternalistic desire to withhold information from consumers that is merely potentially misleading in some abstract sense.
Equally troubling is that Florida seems to have lost sight of whom attorney advertising results are supposed to protect, namely, consumers of legal services. Consumers' interests in learning about their legal rights and the range of legal services available to them are not served by paternalistic regulations designed to prevent them from receiving truthful and non-misleading information that they have sought to obtain. In adopting its new rule, the Florida Bar provided no evidence that consumers have been harmed by its prior practice of treating attorney websites as information provided upon request of a potential client. And the rule is not even effective at "protecting" Florida consumers from being exposed to dramatizations or testimonials or the like; it just "protects" them from being exposed to these advertising techniques by Florida lawyers, leaving them at a competitive disadvantage vis-a-vis out-of-state lawyers and non-lawyer competitors. Consumers interests are ill-served by a regulatory scheme that is totally out of touch with how modern consumers access information. I could go on in this vein, and have, at length, in an article Tera Jckowski Peterson and I wrote while these new advertising rules and more were still at the proposal stage. If you're still interested, see Attorney Advertising Article.
Alphabetical advantageYesterday I received a phone call from a reporter working for my university's student newspaper. She wanted to ask me about a report arguing that there has been declining minority enrollments in law schools over the last 15 years. (The report itself is here.) Given that I was trying to prepare for class and still had the last few changes on an article to finish up, the last thing I wanted to do was chat about such a sensitive topic about which I know very little--I hadn't read the report, don't teach in the area, and have never served on my school's admissions committee. Taking a chance, I asked the reporter how she got my name, and figured out quickly that it was because my name is the first on the list of faculty. I've received many such calls over the years from reporters or people looking for free legal advice or people with a question about the school and they figure that asking a faculty member will be more useful than someone else. (This last group I'm sure has been disappointed.) Their common interest in me is where my last name falls in the alphabet. I don't know how to deal with this situation (short of hiring someone earlier in the alphabet than I am, which shouldn't be the sole reason to push someone's candidacy), but it is interesting how this provides a snapshot of how outsiders think about us and what kind of help a call to a random faculty member can provide. I'm also sure that Todd Zywicki (George Mason) doesn't receive nearly as many such phone calls.
Monday, January 11, 2010
CELS conference announcement
While I'm guessing that many readers of this blog are "conferenced-out" from AALS, I did want to note that the Conference on Empirical Legal Studies recently announced its 2010 details. Below is the short version:
Conference on Empirical Legal Studies 2010 will be held in New Haven,
Connecticut at Yale Law School from Friday November 5 through Saturday
November 6, 2010. There will be multiple panel sessions throughout each
day, and each paper presentation will be followed by discussion. In
addition to the paper sessions, there will be a poster session and
quantitative methods sessions.
The submission deadline for papers will be Friday July 2, 2010, and we expect to send out acceptance notices on September 1, 2010. As has been the case in the past, there will be a program to help defray the cost of attending for presenters travelling from schools without budgets to cover conference expenses. Applications will be taken in September 2010.
Law Professors En Masse Are Scary
The AALS Conference reminded me how scary law professors en masse can be. I was 26 years old when I attended my first AALS conference. The only other law professors I knew when I arrived at AALS were my UF colleagues and my UT professors. Although most of my students and many of my colleagues would be surprised to hear it, I'm an introvert and find it very hard to go up and talk to strangers unless I have a very well defined role to play. I would like to say that I overcame that fear and made lots of contacts at that first AALS conference, but I didn't. Instead, I resolved that my written work would have to speak for me and didn't attend AALS for another few years.
In retrospect I understand how foolish that decision was. It really does pay to meet the other scholars in your field, particularly if you don't have people who share your scholarly interests at your home institution. It is great to have someone who really understands the subject area read your work before publication, especially if you are untenured. It is also great to know someone to recommend to write tenure review letters. Even better, conference invitations are more apt to come your way if someone both knows your work AND has met you and knows you're not a jerk. So if you're new to law teaching, let this blog post be an encouragement to you to put yourself out there. Go ahead. Overcome your fear. Email your draft to the five scholars you respect most in the whole world. At worst one or two of them will ignore the email. At best you'll make a connection that will aid you throughout your career.
Of course the flip side of this message is that established scholars should try to be less scary. I know you probably don't think of yourself as scary, but you are. Go out of your way to introduce yourself to new scholars in your field. When you read a new article you admire, email the author and let him or her know. Read drafts. Try to introduce your new colleagues to scholars in their fields, and lean on people you know to invite them to conferences. I can guarantee that the new scholar to whom you are kind will remember you and give special regard to your work for the rest of his or her career.
P.S.: If you're new to Mass Media Law, you know where to find me.
AALS aftermath and sundry
Happy Monday all. It was great to see so many of you (around 200 or so across the course of the evening) at the Co-Op/Prawfs Happy Hour this past Thursday in NOLA at the Whiskey Blue Bar at the W. Special thanks to Lane MacDougall, the bar's general manager, and his crew, including Brett and Madison, for helping the evening succeed.
As I think back to the few days in New Orleans and the surprisingly good panels I attended, I'm wondering if others think the intellectual content this time was a bit meatier. Also, feel free to share funny stories overheard or witnessed in the comments.
Two quick requests. If you told me that you were interested in guesting while we were in Nola, please follow up with an email to let me know which month works for you and I'll add you to the schedule. Also, as I mentioned at the Criminal Justice Section Luncheon, there are a few spots available for persons to appear as "readers" for a few book panels (on books by Wayne Logan, Vera Bergelson, Don Dripps, and Chris Slobogin) or as paper presenters in the shadow Crim Law conference, which Alice Ristroph and I are trying to facilitate, at LSA this May in Chicago. Please let me know if you are interested and not otherwise participating already at LSA.
It's a new semester at FSU as of today, and I'll be teaching a couple sections of crim law on T/W/TH. I did this "double up" last spring, and I think it worked out pretty well. I'm experimenting with some new pedagogical matters this semester and I'm curious to see how it goes. For instance, in the past, I've required students to write questions and respond to other students' questions pre-class on TWEN. This semester I'm giving them the option to do that, and providing an incentive to do so, rather than requiring it as part of their participation grade.
Harry Reid and the Third Rail of Race
Having just returned from a lovely time in New Orleans, I was reflecting on Harry Reid's latest gaffe and an adventure I had when I was a resident of the Crescent City.
First, it is interesting to me how thoroughly Reid is being slammed for his comments. It was the lead story on all the Sunday morning news shows. Time magazine did an article entitled, "Is Obama Black Enough?" Was Reid's sin then fleshing this out with a tad too much particularity, or using a term that has fallen out of use? Was he too comfortable in talking about something that makes most of us quite uncomfortable? (Surely whatever his comfort level in talking about race, the topic will now make the Leader uncomfortable the rest of his time in public life...) Along with the chorus of condemnations, there were observations of double standards from the Trent Lott gaffe.
I want to suggest that there's a very different double standard at play. We seem to want our politicians to avoid talking about race entirely, leaving very insightful commentaries on race to comedians. I think Chris Rock has had some fairly profound things to say about race relations that politicians couldn't touch with a ten-foot pole and maybe rightfully so. But to speak on a subject is to risk saying something wrong and when the penalty for coming down on the wrong side of the sensitivity line is as severe as it has been for Reid in the last 24 hours, politicians will just avoid talking through important issues about the subject.
Meanwhile, the rest of world is talking about race and at times in ways that should sometimes cause outrage. Being in New Orleans when the Reid issue broke reminded me of a Mardi Gras Ball I attended when I was a teaching fellow at Tulane about a decade ago. I was invited by my then-girlfriend and I was delighted to be a part of the Mardi Gras culture. There's a skit performed at each of these balls before the queen is presented -- they call it a tableau. This presentation harkened back to the 1880s Louisiana, not 21st century New Orleans.
The theme of the ball was "A Midsummer Night's Dream" but I never figured out how that tied into anything. As the skit opened, upper class whites in clothing from the nineteenth century were walking the streets of New Orleans. Street signs were clear and really well done to look like actual signs. Then, from stage left, a slovenly dressed group, all with painted black-faces and Afro wigs entered, one carrying a large boom box playing music that the entering group danced to. They went about the town changing street signs -- I don't recall all the changes, but St. Charles Avenue was changed to Ray Charles Avenue. (In addition to being bothered by the obvious things I have described, and am about to describe, I was terribly troubled that someone would find it a bad thing, under any circumstances, to have a Ray Charles Avenue -- there OUGHT to be a Ray Charles Avenue...)
So after a few minutes of this dancing, dixie was blown on a bugle off stage. Men in confederate uniforms entered from stage left and surrounded the dancers with black paint on their faces and took them to a mound in the middle of the stage with a sign that designated it as "Monkey Hill". (This in NO way is meant to mitigate how horrible this was, but by way of context, Monkey Hill is the highest elevation in New Orleans -- and it is at the New Orleans Zoo.) So the tableau ended with the confederate army surrounding the actors in fake black face and Afro wigs.
The reaction was mixed. As the partial standing ovation began, I was nearly escorted out when I said audibly enough to be heard by about half the audience, "What the hell was that?" I then left on my own accord.
As I began to recount this story to people who knew New Orleans culture much better than I did, I was told that this was nothing to be surprised at. In fact,this Saturday night I was telling this story to a native New Orleanian who, though she surely didn't approve, was not shocked at all. A decade ago, the only coverage in the New Orleans Times Picayune detailed the Queen's Court and it noted that the ball had the Midsummer's Night's Dream theme and said that the tableau "had a Puckish character." One of the regrets in my life is that I didn't write a letter to editor or try to get some press coverage on this thing I perceived at the time to be an outrage -- and still perceive it to have been. I felt dirty for having been in that room. And rather than describe it as the moral outrage I thought I had witnessed, the event was celebrated by the newspaper's social reporter as a great success.
What I witnessed at that ball was certainly an extreme case and, despite the lack of shock by New Orleanians when I tell the tale, I've heard of nothing else quite like it. My only point in telling this story is that there are truly offensive things that are directed toward racial minorities -- and, in the my example, even with a newspaper reporter covering the event, they go unmentioned.
But with politicians, it seems that nearly any discussion about race will be regarded as not just a gaffe, or an unfortunate choice of words, but as a potentially career-ending ten-second interlude. With virtually every other topic, people can just be wrong, ill-informed, or insensitive. It didn't end Howard Dean's presidential ambitions when he said on Tim Russert's show that we should have more troops in Afghanistan but when asked how many we then had there, he estimated 200-300,000 but said he really didn't know. Harry Reid's error of insensitivity seems to have a much longer shelf life.
Maybe if we were willing to let politicians be wrong about racial comments, then they would talk about race more, become more comfortable with the topic, and be able to communicate in ways that didn't offend. Some things still have to be out-of-bounds, no question about it. I'll never forget my only Mardi Gras ball, but not for any reason that I want to remember. But it strikes me that there's a zone of discussion about race that might be ill-stated, contain anachronistic assumptions, or simply be wrong -- that ought to be criticized but not career-ending. But I don't think race relations are advanced if any mention of race becomes the third rail of politics.