Monday, May 31, 2010
Farewell Tidings and Gifts
Thank you to everyone at PrawfsBlawg for allowing me this month of public musing. I once again leave humbled by the creative and time demands of regular posting and with deep respect for those who do it not only more frequently but with far greater panache. I've made it through this month by the skin of my teeth, having overcome a computer meltdown (I end this month with a different computer than when I began it) and a sleep-depriving case of childhood croup (although, thankfully, no cell phones in the loo).
I'll leave with a few thoughts about law school gifts. As I'm sure others have experienced, upon learning that you are a law professor, people frequently presume a far wider range of expertise than most of us can reasonably claim. Usually this results in a request to offer a legal opinion on a knotty issue of substantive law on an unfamiliar subject in a jurisdication in which you are not admitted based on a recitation of facts that resembles a game of telephone (my friend says her uncle's friend who is an attorney told her...). But it also invites more mundane questions.
For example, I'm periodically asked to suggest a gift for a friend's friend/cousin/nephew/friend-of-a-friend who has recently been accepted to/graduated from law school. My stock reply is to suggest Black's Law Dictionary as the perfect addition to any law student or newly-admitted attorney's bookshelf. I've begun to sense, however, that this suggestion, always uninspired, is now not even particularly practical for a generation of e-students who would probably Google, IM a classmate, post on TWEN, and check on-line legal databases before going to the herculean effort of taking a book off the shelf.
So I would be curious to know if others have more inspired and/or practical suggestions about the perfect gift for the newly admitted or newly graduated law student? (One caveat . . . I have a niggling feeling this might have been written about before on Prawfs and if that is the case, please accept my apologies. I did run a quick search through the archives but came up only with a highly entertaining post about the perfect gift for law professors -- a Buddha water drawing board.)
LawPrawfs on the Arizona Immigration LawCarissa Hessick at Arizona State, and Toni Massaro, Marc Miller and I at the University of Arizona have written a summary and analysis of SB 1070, the new Arizona immigration law, available here. We welcome comments, suggestions and critiques of our views, particularly because the complexity of the statute necessarily makes our work preliminary. I may have a few additional posts on this issue in the coming weeks.
Ach! Achilles Achin'...
Thanks to Dan and the clan for allowing me to run on here while my ripped Achilles tendon heals (a job-related injury, of course -- don't you all incorporate a physical, trial by strength component into your final exams?).
Before I go, just a quick plug for the kickoff conference of our new Center for Law and Religion in Paris in about a week and a half, on the subject of "Laїcité in Comparative Perspective." An all-star lineup, including the great Douglas Laycock, the incomparable Winni Sullivan, and several other noteworthy international sorts -- more details here. The Center will have its domestic coming out party this fall with this conference. If you are in our neck of the woods, stop on by.
I'm outta here. Thanks, as always, to Dan for lending me a soapbox. And thanks to everyone who commented on or even just read my posts. It makes blogging a whole lot more fun when I know that smart people are giving some real thought to what I throw out there, and it's appreciated. Have a great summer!
Mark Your Calendars: Contract as Promise Symposium at Suffolk
My parting shot for my month at Prawfs is a teaser. Mark your calendars now for a dynamite symposium on Friday, March 25, 2011 to be held at the Suffolk University Law School in downtown Boston. We will commemorate the thirtieth anniversary of the publication of Charles Fried's iconic Contract as Promise with a day-long program featuring a host of contract theory and jurisprudence luminaries (I'm assembling the lineup now - look for details over the coming weeks and months), and kicked off by reflections from Professor Fried himself.
For almost thirty years, Professor Fried's book has been the seminal work on the moral or deontological justification for the state's enforcement of private promises. No scholarly discussion of the field can be complete without addressing its claims, whether one agrees or not with its original and provocative stand. The thirtieth anniversary of its publication is an opportune moment to step back, review the alternative approaches to contract theory that have developed since then, and to offer views about future doctrinal or inter-disciplinary developments, whether based in moral philosophy, welfare economics, sociology, or other disciplines.
An unrelated final (and somewhat soapy) reflection below the break.
This marks the completion of the my fifth annual summer guest slot on PrawfsBlawg. I regard this forum and its people with substantial affection, as I was invited to participate when I was a mere academic wannabe (albeit an old one), having managed the November before to snag ten meat market interviews and not a single callback. My first attempts at blogging here coincided with the 2006 Law & Society meeting in Baltimore, the first academic conference I ever attended, and the bar night at the James Joyce Pub near the Inner Harbor was where I first met a whole bunch of you. Thanks again for your friendship. And to other aspirants, particularly of the geriatric variety, in the unforgettable words of Jason Nesmith as Captain Peter Quincy Taggert, "never give up, never surrender."
Judicial Review of New Governance Regulation
One of the topics of the conference I blogged about last Thursday was New Governance. In thinking about my admin law class this last semester one of the ideas that I kept coming back to concerned the availability of judicial review over New Governance activities. A few years ago I wrote an amicus brief in Norton v. Southern Utah Wilderness Alliance, where the Court held (unanimously) that the APA's definition of "agency action" reviewable by courts did not include performance of an agency's ongoing responsibilities to manage certain lands in the west. Southern Utah is, in my view, an unfortunate decision, exactly because more and more, agency action is taking the form of exactly such ongoing management.
This is where the New Governance (and, by extension, my conference paper) came in. It seems that as the style of administrative regulation continues to evolve in the direction of such ongoing, programmatic activities, our traditional understanding of the availability of judicial review will come under pressure. This is even more the case to the extent agencies regulate by coordinating private party actions, rather than directly regulating themselves (another characteristic of New Governance).
In my paper I identify two major doctrinal hurdles to judicial review of New Governance activities: standing, and courts' resistance to reviewing the type of ongoing activity challenged in Southern Utah. I believe both hurdles can be overcome.
The standing hurdle arises from the indirect nature of New Governance regulation, which raises questions under current doctrine about causation and redressability. The paradigmatic example of the Court's resistance to allowing standing in a situation like this is Simon v. Eastern Kentucky Welfare Rights Org.. In E. Kentucky the Court held that indigent hospital patients did not have standing to argue that the IRS made it too easy for hospitals to retain charity status while limiting indigent care, thus injuring the plaintiffs, on the ground that it wasn't clear that an order to the IRS forcing them to tighten up their rules would in fact lead the hospitals to provide more indigent care. In the paper I suggest that reconceptualizing the injury in these cases to mirror what government actually does in New Governance provides a principled basis for tweaking standing law to allow judicial review, that wouldn't amount to a wholesale abandonment of current standing doctrine.
The Southern Utah issue is somewhat more intractable, in that it would require a more explicit change in judicial doctrine before courts would regularly review ongoing agency action. Still, I suggest in the paper that this move is called for in order for judicial review to be appropriate.
Obviously, this is a very limited summary of what I argue in the piece. If you're interested in this topic I encourage you to download and read the paper; it is short and (I hope) an easy read. I'd love to hear your thoughts and reactions.
Happy Uniform Gauge Day! How a 3-inch nudge destroyed American federalism
Today is the 134th anniversary of one of our most important yet most unrecognized constitutional events: On May 31st, 1886, the operators of Southern railroads began their famous two-day conversion of all southern railroad tracks from the five-foot gauge that the South had hitherto used to the (almost) standard 4-foot, 9-inch gauge of the Pennsylvania Railroad. (The actual northern standard was 4-feet, 8.5 inches, but Southerners decided to mesh with Pennsylvania's standard). The point of the conversion was to allow trains to move from north to south without the extraordinarily costly transfer of cargo from the North’s standard-gauge railroad cars and tracks to the South’s five-foot network.
Boring technical event, you think? To the contrary, I argue that this two-day conversion was the most important constitutional event between the end of the Civil War and the New Deal. The switch to the uniform gauge dwarfs precedents like McCulloch in practical constitutional importance, because it destroyed federalism by eliminating the states as serious economic policy-makers.
As mail-order goods flowed into every remote Southern hamlet along the now-accessible Southern tracks, local merchants were turned upside down by Montgomery ward and Singer sewing machines. The South fought back by flooding the North with cheap textiles, courtesy of cheap transportation. Both regions consequently lost control of their economic destiny, paving the way for the federal government’s Progressive Era takeover of economic policy. The Race to the Bottom (or Top, if you prefer) was born on May 31st, 1886.
I would also guess that SCOTUS's hastening of a national market through enforcement of the dormant commerce clause was inspired by the rapidity and efficiency with which the railway operators made the two-day switch to a uniform gauge. Is it a coincidence that, five months after the May 31st 1886 gauge conversion, the U.S. Supreme Court held in Wabash, St Louis, & Pacific Ry. v. Illinois that Illinois could not regulate rates for interstate rail trips? I doubt it: A breathtaking reversal of the Court’s 1877 precedents in the Grange cases, Wabash was legally indefensible but, once the nation was knit together by a single rail system, economically inevitable. Wabash was only the beginning: After the 1886 gauge conversion, the U.S. Supreme Court embarked on an aggressive campaign against non-discriminatory state regulation of goods and services, striking down non-discriminatory state taxation of traveling salesmen (Robbins v. Shelby County, March 1887) and the non-discriminatory interstate sale of booze (Bowman v Chicago & Northwestern Ry, March 1888). The Court became corporate America’s little helper, sweeping away communities’ regulation of the national market even when such regulation took the form of geographically non-discriminatory laws. Why? I suspect that even non-discriminatory subnational regulation was intolerable to judges impressed by the corporate achievement of standardized time zones, uniform grain grading, and the uniform gauge.
So enjoy Uniform Gauge Day. You can celebrate (or mourn) it by buying a cup of coffee at Starbucks, a book from Amazon.com, or some cheap clothes at Wal-Mart. Praise or curse these activities as your politics dictate. But take a moment to reflect on the birth of this market 134 years ago today, when tens of thousands of railroad workers, working feverishly over two days, simultaneously nudged steel rails three inches closer together and thereby (with a little help from SCOTUS) shoved states, towns, and counties off our constitutional map.
Sunday, May 30, 2010
Thoughts triggered by Law & Society
That was a great couple days in Chicago for Law and Society; I wish I could have stayed an extra day or two, but family calls. Otherwise, I was able to run along the lake, eat Chicago-style pizza (in the pleasant company of Dan, Wendy, and Ben), and spend an almost-perfect afternoon at the Place Where God Intended Baseball To Be Played (even if the Cubs lost because, well, they suck).
Our roundtable, Judges as Umpires, Umpires as Judges: Rethinking the Metaphor, went very well. We had a very good audience (particularly considering it was at 8:15 a.m. the first day of the conference) and a good conversation about sports, the nature of rules, and the nature of judging and adjudication.
But I do need a judge's ruling on this one. At the game on Friday, I saw a number of t-shirts reading "[Opposing Latino player] does my lawn," with an outline of a person in a straw hat pushing a lawnmower. So, for example, I saw a shirt in Cardinals colors that said "Zambrano does my lawn" and one in Cubs colors that said "Ozzie Guillen does my lawn." Is there any way of understanding those shirts that is not obnoxious and insensitive, if not outright offensive?
Finally, I saw an interesting panel on The Wire that featured each presenter showing one favorite clip, including the great trial scene (it only had one really glaring problem that I saw) that I used for my Evidence final this semester. It also had creator/producer David Simon via Skype with a very pessimistic view of American politics, institutions, and society.
Saturday, May 29, 2010
Congratulations to my Colleagues
A short, but heartfelt, shout out and congratulations to my colleagues Anne Bloom, Omar Dajani, Marjorie Florestal and Paul Paton for the University of the Pacific’s recent decision to grant them tenure and promotion to full professor. I was pleased that we all obtained this distinction in the same year. Also, I want to give my sincere thanks to the faculty and administration of the law school for their work during this process. I was very impressed with the depth and care taken during the process, particularly during this past year when five candidates were evaluated concurrently.
When I first interviewed for a tenure track position, I gathered some advice about the process from a number of law professors both inside and outside my institution. For those of you who have yet to go through the process, I’ve selected a few pieces of advice to pass along:
- Start building your tenure file during your first teaching year. It’s never too early. Your reviewers will want a sense of how you are perceived by peers, your students and the profession. You will probably never include all of the thank you letters or comments, but that is a decision that you can make at a later time.
- Know your institution. Law schools are built from a diverse array of personalities, but there are core priorities. And no matter what anyone tells you, you are not writing on a blank slate. Learn what you can about its history and values. You may wish to be a valuable countertrend, but you should be aware if lines are about to be crossed.
- Know your field. My institution allows tenure candidates to select some of the outside scholarship reviewers. This one is probably one of the easier goals to fulfill. When you are writing, you will naturally get to know others working in your area.
- Stay calm. This is arguably the most difficult goal to meet. I focused on providing my review committee with complete information, but after that things were out of my hands. Rather than burning time worrying, keep writing. Yes, your new piece won't make it into your tenure file after a certain point in time, but I find that it's far more productive (and absorbing, interesting) than nail-biting.
Additional advice from readers is welcome in the comments.
Friday, May 28, 2010
Test Drive: Why Governments Use Social Media and Why They Should
I'm heading to the Law & Society conference in Chicago tomorrow morning. I've been working on the paper I'm presenting Sunday morning, which is currently titled "Petitioning in a Public Forum: The Case of Government Sponsored Social Media." I fully expect this title to change before publication, but I can't seem to come up with a catchy title that invokes the concepts of public forum, petitioning, and social media. Anyway, I thought I'd use this blog post to test drive a very small argument identifying many of the reasons why governments use social media and why we should want them to.
Governments have numerous reasons to establish social media profiles. The most obvious one is that social media are where the citizens are. A recent Pew study found that almost half of all citizens use social media as an avenue for discourse. However, sheer numbers of users are only part of the picture. Government must speak in order to govern, and social media provide an inexpensive way for governments to bypass intermediaries and speak directly to citizens. Social media can “humanize”
government interaction with citizens, and make governments appear responsive to
citizen concerns. Social media may also
give government access to particularly desirable types of audiences. For example, social media users appear to
skew younger than, say, the citizens who might attend a public speech or
government meeting. Social media audiences
are also active consumers of government information, since they must initiate
contact in order to encounter the government’s message. From a government perspective, another
advantage of social media is the ability to reach a “niche” audience, such as
all citizens interested in sustainable agriculture or children's television programming.
Citizens, too, have reasons to support government efforts to embrace social media. A government-sponsored social media forum has the capacity to bring together citizens who might never encounter one another in the public square and to unite them along shared interests and concerns. Social media create a sense of community and foster engagement in ways that other media often do not. Social media also give citizens the opportunity to petition and get a timely response to their concerns from the government actors who are supposed to serve them. Indeed, social media have the potential to foster meaningful public discourse and give citizens more voice in how they are governed.
[And here's my thesis:] Currently, however, the murkiness of current public forum doctrines coupled with the Supreme Court's reliance on an outmoded model of government-citizen communication may deter realization of the social media’s full potential to foster First Amendment values.
Ivan Illich: "Radical Nemesis"
Signing off today as a guest blogger, posting from the Law & Society Association meeting in Chicago, where many prawfsblawg alum are presenting. As I sign off, I want to plug an upcoming event at my home institution, Western New England College School of Law (WNEC). On Friday April 1, 2011, WNEC will host a one-day symposium on grand theorist Ivan Illich, entitled Radical Nemesis: Re-Envisioning Ivan Illich's Theories on Social Institutions.
In the 1970s and 1980s Illich published foundational works including DeSchooling Society (1971), Tools for Conviviality (1973), Medical Nemesis (1975), and Gender (1982), examining social institutions ranging from schools to education to health care. Some viewed him as a radical visionary, others considered him a retrograde conservative. The symposium will consider whether Illich's work has renewed relevance today. Papers in progress address topics ranging from access to health care to educational equity, decarceration to racial justice. Confirmed participants include Martha Ertman of the Univ. of Maryland, Shannon Minter of the National Center for Lesbian Rights, Anthony Farley of the Albany Law School, and James Forman, Jr. of Georgetown Univ. Law Center. Organizing WNEC faculty include Bridgette Baldwin, Erin Buzuvis, Matthew Charity, Taylor Flynn, Anne Goldstein, Jennifer Levi, Sudha Setty, and Giovanna Shay.
WNEC is located in the Pioneer Valley of western Massachusetts, close to Amherst and Northampton, and within a short drive of Bradley International Airport. Abstracts are due to Prof. Erin Buzuvis by December 1, 2010, at firstname.lastname@example.org. The symposium web site includes details and the call for papers.
Is This Legal?
I used to work for a CEO who would regularly observe some oddity in the world and then walk into my office with the question: "is this legal?"
Yesterday, I flew from Traverse City, Michigan to Chicago for the Law & Society meeting via United Express on a regional jet. The first officer did the usual announcement, and I won't get the names right, but you will get the point. "Our captain today is Paul Davis, and I'm First Officer Tracy Jones Davis." I was sitting in the second row, and I asked the flight attendant, "Is that a married couple flying the plane?" She said, "yes." I said, "Is that legal?"
Howard Wasserman, who I finally met in person at the Prawfs gathering in the bar last night, on hearing this story, wondered if they had the usual arguments about directions, and whether they should stop to ask.
Tebbe and Widiss on Equal Access to Marriage
My colleague Nelson Tebbe and my erstwhile colleague (as a Brooklyn VAP, now at Indiana) Deborah Widiss, have written an article that has an interesting take on the debate about same-sex marriage. Their basic thesis is that claims to marriage rights should be evaluated against a rule of "equal access," which derives from the fundamental interests strand of equal protection. According to Tebbe and Widiss, due process claims for marriage rights are unsatisfying because marriage, as a civil institution, is not easy to analogize to other due process fundamental rights, which involve activities that can be performed without state assistance. Nor is the job done by standard, classification-based, equal protection-based heightened scrutiny for sexual orientation, although they seem to reach this conclusion more as a matter of what courts are likely to do than any intrinsic problem with using that doctrine.
Tebbe and Widiss argue that the fundamental interests strand of equal protection is a better fit for marriage claims. The suggest -- rightly, I think -- that as a doctrinal tool this theory has often been used to evaluate restrictions on activities that, like civil marriage, government has no affirmative obligation to make possible, in particular voting. Thus, unlike the essentially negative liberty protected by due process, the fundamental rights strand of equal protection protects activities that government itself provides but has no inherent obligation to make available. However, those activities are sufficiently important that if government does undertake to provide them, it has to justify a decision to provide them unequally (or, in the authors' terms, a decision to provide "unequal access").
This is a smart, interesting article. I can't say I buy into it 100%, largely because I still have a hard time finding a principled difference between due process fundamental interests and equal protection fundamental interests. I get the negative liberty/government provision distinction, but I'm not totally on board with that distinction marking the line between due process and equal protection fundamental interests (though I can see the logic). Nor do I really see what makes marriage qualify as an equal protection fundamental interest: if determining due process fundamental rights is a subjective enterprise, my sense is that determining equal protection fundamental interests is even more so, since protection of fundamental interests is at least arguably a secondary derivation from equal protection's central command. Certainly courts have not been clear about why they've done what they've done in this area. Similarly, it's not clear to me that simply calling marriage "really important" (my caricature of the authors' argument) does the trick, at least in a principled way.
None of this is a dig on Tebbe's and Widiss's piece; they've identified an interesting and potentially workable approach for addressing the marriage rights issue. It's a rare example of analysis that is both politically plausible and intellectually rich. It should be required reading for anyone who's seriously interested in the topic.
Thursday, May 27, 2010
LSA Happy Hour, Thursday May 27th @9pm. Bar Novo @Renaissance Hotel.
N.B. This has been bumped up to the front.
Just to follow up on the post from last week, we will be having one of our happy hours with friends from other blogs and law schools TONIGHT in Chicago. The fun starts at 9pm at Bar Novo, which is conveniently located in the Renaissance Hotel, the host site for the Law and Society Conference. In years past, people typically stay through midnight or so; if you can't make it right away b/c of the reception or dinner plans, I hope you'll swing by later.
The managers at Bar Novo have arranged some food and drink specials in honor of the gathering. There should be some 4$ beers, reasonably priced good wines, signature cocktails, and 5$ flatbreads/tapas. Feel free to bring others and please do share the info with your colleagues and friends. Over here, you can find a map and contact info. No RSVP required, though feel free to drop a line to give me a heads up if you can make it. Cheers!
Last minute call for David Simon fans
Fans of the Wire and Treme who are also attending Law & Society may want to check out "Roundtable -- And All the Pieces Matter . . . Thoughts on 'The Wire'". It's chaired by Susan Bandes, and the panelists are Alafair Burke, Bennett Capers, Jeffrey Fagan, and David Sklansky. Get there on time, as David Simon is scheduled to drop in on Skype. The roundtable will be held in the Renaissance's Grand Ballroom III today at 2:30 p.m. Central.
Dan's post referencing the conference format at Law & Society brings to mind a thought that I've had over the last couple of days, as I've attended a conference of Administrative Law scholars at Laval University in Quebec. The two-day conference here is in the manner of a roundtable, where a few weeks prior to gathering the participants (about 15 of us) exchange short papers on pre-determined admin law topics. At the conference itself each participant gets a couple of minutes to present his paper, after which the paper is discussed for 20 or 30 minutes. Sometimes two papers are presented and discussed together, either for time purposes or because they're good fits.
I have participated in conferences like this before, and I usually find it a great experience. Everyone has read the paper, and, indeed, may have written on a closely related topic, so all the participants are able to offer informed critiques. The relatively intimate nature of the attendance also makes it possible to get into some good discussions, while minimizing posturing or showing off.
Of course the format has its downsides. Most notably, it's inherently limited in terms of attendance. But it strikes me that other conferences -- most notably, AALS -- should consider some variations on the standard "five talking heads at the podium" format that predominates. That kind of format may be appropriate for a lot of the presentations at a large-scale conference, but it seems to me that a mix of presentation formats, such as the one I described above, can freshen up what otherwise quickly becomes an alienating and boring series of quasi-lectures. I have been to presentations at AALS where the speakers do try to open things up, but those efforts are rare, and not officially sponsored, so far as I recall. I hope the organizers of AALS and other large organizations start giving some thought to mixing up presentation formats, taking into account the natural limitations of a large-attendance event.
Reminder: Crim Prof Conference at Law and Society Today thru Sunday in Chicago
Thursday May, 27
8:15am to 10:00am
Police and the Courts: Judicial Management and Evaluation of Law
Enforcement Activity 1110
Building: Renaissance, Room: tba 10
Chair: Richard E Myers (University of North Carolina)
The Perennial Police Gaming Problem and the Need for
Articulation-Forcing and Data-Development Rules in Constitutional
*Mary D. Fan (American U/U of Washington)
GPS Tracking as Search and Seizure
*Bennett L. Gershman (Pace University)
Rethinking Reasonable and Articulable Suspicion
*Richard E Myers (University of North Carolina)
Judging Police Lies: An Empirical Perspective
*Melanie D. Wilson (University of Kansas)
10:15am to 12:00pm
Author Meets Reader--Juvenile Justice: The Fourth Option, by Mark
Fondacaro and Christopher Slobogin 1212
Building: Renaissance, Room: tba 12
Chair: Hillary B. Farber (Northeastern University)
Author: Christopher Slobogin (Vanderbilt University)
Reader: Tamar R. Birckhead (University of North Carolina, Chapel Hill)
Reader: Daniel Filler (Drexel University)
Reader: Melissa Hamilton (University of Toledo)
Reader: Giovanna Shay (Western New England College)
2:30pm to 4:15pm
Criminal Law 01--Children and Families in Criminal Law 1410
Building: Renaissance, Room: tba 10
Chair: Tamar R. Birckhead (University of North Carolina, Chapel Hill)
Competence and Compellability of Parents as Witnesses against Their
Children: A Comparative Perspective between the United States and
*Hillary B. Farber (Northeastern University)
*Catherine M. Grosso (Michigan State University)
Domestic Violence and State Intervention in the American West and
*Carolyn Ramsey (University of Colorado)
Chasing Science: The Troubling Case of Shaken Baby Syndrome
*Deborah Tuerkheimer (DePaul)
Discussant: Melissa Hamilton (University of Toledo)
Friday May, 28
8:15am to 10:00am
Criminal Law 02--Author Meets Reader--Bentham to Blackstone: The
Nineteenth Century Transformation of Criminal Justice, by Donald
Building: Renaissance, Room: tba 10
Chair: Carolyn Ramsey (University of Colorado)
Author: Donald Dripps (San Diego Law School)
Reader: Katherine Darmer (Chapman University)
Reader: Andy Leipold (University of Illinois, Champaign)
Reader: Wes Oliver (Widener University)
Reader: Ronald Wright (Wake Forest University)
10:15am to 12:00pm
Criminal Law 03--The Agents and Subjects of Criminal Law: Officers,
Entities, and Individuals 2210
Building: Renaissance, Room: tba 10
Chair: Dan Markel (Florida State University)
Torture and Cognitive Illiberalism
*David Hoffman (Temple University), Dan Kahan (Yale
University), Donald Braman (George Washington University), Ryan Goodman (New York
Punishing Entities (Civilly)
*Dan Markel (Florida State University)
Bill Stuntz and the Principal-Agent Problem in American Criminal Law
*Richard H. McAdams (University of Chicago)
12:30pm to 2:15pm
Criminal Law 04--Author Meets Reader--Victims’ Rights and Victims’
Wrongs: Comparative Liability in Criminal Law, Vera Bergelson 2310
Building: Renaissance, Room: tba 10
Chair: Anthony M. Dillof (Wayne State University)
Author: Vera Bergelson (Rutgers University, Newark)
Reader: Luis E. Chiesa (Pace University)
Reader: Brian Gallini (University of Arkansas)
Reader: Cecelia Klingele (University of Wisconsin)
Reader: Susan Rozelle (Stetson University)
2:30pm to 4:15pm
Criminal Law 05--Problem Solving in Criminal Justice 2410
Building: Renaissance, Room: tba 10
Chair: Eric J Miller (Saint Louis University)
Quasi-Crime and Quasi-Punishment: Criminal Process Effects of Immigration Status
*Gabriel Jack Chin (University of Arizona), Doralina Skidmore
(University of Arizona)
Another Glance toward the Mentally Ill Offenders: Should We Change Departments?
*Renata F de Oliveira (Universidade do Minho), Rui A. Gonçalves
(Universidade do Minho)
Supervision Courts: Rethinking the Rationale for the Problem Solving
*Eric J Miller (Saint Louis University)
Advising Defendants on the Immigration Consequences of Criminal
Convictions: Whose Role Is It, Anyway?
*Yolanda Vazquez (University of Pennsylvania)
Saturday May, 29
8:15am to 10:00am
Criminal Law 06--Criminal Procedure: Adjudication 3110
Building: Renaissance, Room: tba 10
Chair: Adam M Gershowitz (University of Houston)
Judging DWI Trials: The Case for Eliminating the Right to Jury Trials
for Misdemeanor DWI Cases
*Adam M Gershowitz (University of Houston)
Double Jeopardy and Mixed Verdicts
*Lissa Griffin (Pace University)
*Caren M Morrison (Georgia State University)
Big Law's Sixth Amendment: The Movement of the White-Collar Bar into
Large Law Firms
*Charles Weisselberg (University of California, Berkeley), *Su Li
(University of California, Berkeley)
10:15am to 12:00pm
Criminal Law 07--Punishment Theory 3210
Building: Renaissance, Room: tba 10
Chair: Marc O. DeGirolami (St. John's University)
Punishment, Permissibility, and State Intention
*Vincent Chiao (Harvard University)
Criminal Theory as History of Ideas: The Thought of James Fitzjames Stephen
*Marc O. DeGirolami (St. John's University)
Free Will Ideology and the Moral Status of Punishment
*John Humbach (Pace University)
*Jeffrey Renz (University of Montana)
Discussant: Matthew Lister (University of Pennsylvania)
2:30pm to 4:15pm
Criminal Law 08--Topics in Criminal Law Theory 3410
Building: Renaissance, Room: tba 10
Chair: Mark D. White (CUNY, College of Staten Island)
Modal Retributivism: A Theory of Sanctions for Attempts and Other
*Anthony M. Dillof (Wayne State University)
You Know You Gotta Help Me Out
*David Gray (University of Maryland)
The War on Drugs Turns 40
*Alex Kreit (Thomas Jefferson School of Law)
Tailoring Objective Standards to Individuals
*Kevin C. McMunigal (Case Western Reserve University)
The Law, Economics, and Philosophy of Double Jeopardy Protection
*Mark D. White (CUNY, College of Staten Island), Kaia Huus (CUNY,
College of Staten Island)
4:30pm to 6:15pm
Criminal Law 09--Race and Criminal Justice 3510
Building: Renaissance, Room: tba 10
Chair: Brooks Holland (Gonzaga University)
Masculinity and the Gates Arrest: Two Professors Share Their Experiences
*Frank R Cooper (Suffolk University), *Josephine Ross (Howard University)
Racial Profiling and a Punitive Exclusionary Rule
*Brooks Holland (Gonzaga University)
The North Carolina Racial Justice Act Study: Preliminary Findings on
the Role of Race in the North Carolina Capital Punishment System
Catherine M. Grosso (Michigan State University), *Barbara O'Brien
(Michigan State University)
Under the Influence: Implicit Bias, Proactive Policing, and the Fourth Amendment
*L. Song Richardson (DePaul University)
Discussant: Rick Banks (Stanford University)
Sunday May, 30
8:15am to 10:00am
Criminal Law 10--Author Meets Reader--Knowledge as Power, by Wayne Logan 4105
Building: Renaissance, Room: tba 05
Chair: Corey Rayburn Yung (John Marshall Law School)
Author: Wayne Logan (Florida State University)
Reader: Arnold Loewy (Texas Tech University School of Law)
Reader: Mary Kreiner Ramirez (Washburn University School of Law)
Reader: Monica Williams (University of California, Davis)
Wednesday, May 26, 2010
Civil Law and the Law School Curriculum
Last week, I attended a meeting of Pacific McGeorge's International Board of Advisors. This group includes a number of judges and lawyers based outside the U.S. During one of the meetings, the discussion turned to the degree to which U.S. law schools provide students with exposure to Civil Law legal systems. It occurred to me that, unless a students registers for an international or comparative law course, that grounding might not occur.
After the meeting, I looked around for some short, well-written resources geared for those familiar with the common law. I found this resource, A Primer on the Civil Law System, by James G. Apple and Robert P. Deyling, on the Federal Judicial Center's website. It's an interesting read. I particularly like the material in the Appendices, which provide a nice contrast between the French and German Civil Law systems.
Tuesday, May 25, 2010
Law & Society: Judges as Umpires, Umpires as Judges
For those of you attending Law and Society this weekend: On Thursday morning at 8:15, I will be doing a roundtable discussion called Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. We will explore the silly judge-as-umpire metaphor, instant replay, the nature of judging and sports officiating, and other links between judging and sports. The panel includes moderator Mark Graber (Maryland), Mitchell Berman (Texas), Chad Oldfather (Marquette, former Guest Prawf), Aaron Zelinksy (recent Yale grad and likely future prawf), and me.
It should be a great discussion and I hope any early-risers will stop by. I hope to post the audio here next week.
Plus, don't forget Happy Hour on Thursday evening. And on Friday afternoon I can be found at Wrigley Field for the first time since 2001--far too long.
Did They Run This By the Lawyers?
I was opening up a new box of Cetaphil soap (I need to baby my very tender skin) and I noticed a couple of odd things. First, the soap is "non-comedogenic." I thought that meant it wouldn't make me grow into a comedian (or make me any funnier than I am, which would be unbearable). But, no, it means it won't clog my pores. Second, there are directions for use as follows: "Apply to skin while bathing or washing. Rinse." Really!
Congressional Hearing on Stevens and the Future of "Crush Video" Legislation
Tomorrow at 10:00 a.m., I'm scheduled to testify at a hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, on the implications of the Supreme Court's decision in last month in United States v. Stevens, in which the Court invalidated the federal law banning the sale of depictions of animal cruelty.
- In refusing to add depictions of animal cruelty to the previously identified categories of unprotected speech, the Stevens majority signaled that future legislation seeking to destroy the market for crush videos will have to survive ordinary First Amendment analysis. Since such legislation is almost certainly going to be content-based, it will have to survive strict scrutiny.
- As importantly, Stevens is significant because of its implicit but undeniable reaffirmation of traditional First Amendment facial overbreadth analysis, even though such analysis had fallen somewhat out of vogue in the first few terms of the Roberts Court (in favor of narrower "as-applied" challenges).
- Given that traditional First Amendment facial overbreadth analysis will govern, the absence of any kind of intent requirement, or at the very least, a required connection between the individual who distributes the image and the underlying act of animal cruelty, will likely prove fatal to any future attempt to ban the distribution of depictions of animal cruelty.
Shaming Three StrikesIf we are to ever escape the gravitational pull of mass incarceration, we are going to need not just more jeremiads against our current regime, but positive accounts of pathways out. Emily Bazelon in the Sunday New York Times Magazine provides just such an optimistic account of an emerging challenge to the hegemony of California's toxic "Three-Strikes" law which is rapidly filling its prisons with expensive to manage (because largely hopeless) and permanent prisoners. Her account is especially interesting because it links up two elements generally missing in the discussion of whose responsible for mass incarceration which tends to focus on governors, legislatures, correctional officer unions. Bazelon focuses on the interesting alignment of a Republican District Attorney of Los Angeles (now running for Attorney General), and a law school clinic at Stanford aimed at challenging 3-Strike sentences through collateral appeals.
The 1994 law, enacted by a panicking legislature and then sealed in the Constitution by voters at the high-tide of governing through crime in California and the United States. The law's success was widely attributed to public revulsion over the murder of 12 year old Polly Klaas. But the kidnapping and murder of young girls was a rare event in any community then and now. As Frank Zimring and his coauthors suggested in their 2003 book on Three Strikes, Punishment and Democracy, the law was a really a vote of no-confidence in government itself. Coming, as it did, more than a decade into California's prison boom, 3-Strikes marked the fatal contradiction of governing through crime; that it makes people trust government even less over time.
Unlike most Three-Strikes laws that discharged the pent up populist punitiveness of that politically frustrated year (Clinton's promised national health program crashed and burned) in largely symbolic measures, California's law was designed to maximize the incarceration fall out by applying to non-violent, non-serious crimes (for the 3rd strike) and producing a doubling of the sentence for a second serious or violent crime. According to Bazelon's reporting:
About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early.
Efforts to reform the law, including a 2004 voter initiative, have been defeated by a coalition of law enforcement organizations and virtually the entire political class of the state.
Bazelon's focus on Los Angeles DA Steve Cooley highlights the enormous power that laws like 3-Strikes have given prosecutors in California and all over the country. In California, where parole release applies to only a handful of life sentence crimes (including 3-Strikers after 25 years), prosecutors have unique authority to decide how many people will go to California prisons and for how long. Any felony can warrant a state prison term, and thanks to the ratcheting up of sentence ranges over the years, relatively few even permit probation as an option. Three-Strikes operates as a kind of individual "nuclear option" that prosecutors can use at will against a very wide range of repeat offenders.
As Bazelon reports, Cooley has set himself apart from other DAs in the state by explicitly stating that three strikes should only be used against a select group of eligible defendants:
Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy. The L.A. district attorney’s office no longer seeks life sentences for offenders like Norman Williams or Gregory Taylor. The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs. During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent
Cooley, who would retain much of 3-Strikes prosecutorial power even under his reform proposal, is anathema to fellow DAs who have virtually unanimously rejected his modest reform proposal. Cooley's example suggests that much of the state's problem could be solved by a tacit alliance between the DAs of largest population counties even without a statewide fix but they would have to brave the antagonism of the organized DAs of the state. But it also underscores the difficulty of escaping mass incarceration when elected politicians with a built in incentive to campaign on tough sentences are effectively in charge of how much money we spend on prisons. Bazelon see's Cooley's possible election as Attorney General (he is the leading Republican contender at the moment) as a pathway to a statutory reform of Three-Strikes long the Cooley lines. But if his reform ideas would hardly address the powerful incentives to off-load local offenders into state incapacitative custody (and financial responsibility) that will remain with county level DAs. Indeed, as AG Cooley may well want to mend fences with his fellow DAs (if he ever hopes to be Governor), suggesting that his 3-Strikes proposals are likely to be his closing not his opening
This is why the other side of Bazelon's imagined coalition is so important. It may seem unlikely that a boutique clinic like Stanford Law School's Criminal Defense Clinic, could make much of a difference in this situation. As the founding director, Michael Romano, freely admits, they cherry pick cases to find the most sympathetic possible 3-Strikers, leaving scores of other inmates with little hope of relief. I had a chance to visit with Romano, Clinical Fellow Galit Lipa, and the spirited band of students who staff the nation's only clinic devoted exclusively to three strikes prisoners the Thursday before Bazelon's story appeared to talk about the broad picture of overturning mass incarceration in California.
Nobody believes this can be accomplished one case at a time. But the victories that the clinic has been winning, discussed in Bazelon's story, point to a possibility unlikely to surface this year (or any time soon) in the electoral political field, that is a sense of shame. The clinic's legal arguments are also factual ones. They present judges with the spectacle of individuals cast into a hopeless fate of likely permanent imprisonment based on the premise not that they deserve it for their crimes, but expressly on the grounds that our security requires their total loss of freedom, security, or hope. That is a trade off that has become far more politically visible since 1994 largely because of the war on terror. It is not that judges, let alone the broad public, is unwilling to make that kind of sacrifice (indeed the war on terror may have made us more prepared to do so). But judges and the public appreciate that to make this trade off without some basic guarantees of the quality of the risk assessment on which this individual is going to be cast into hell (not for his sins, but for his future dangerousness) is to deny the basic humanity and dignity of the individual. In the criminal justice system, that guarantee has to come from the adversary process; that reflexive exercise of prosecutorial discretion in the name of public interest and justice, and the vigorous contestation of the prosecutorial case for dangerousness by defense lawyers with resources and skills to assess criminal risk.
In this context three strikes is a disgrace. There is no pretense of an adequately investigated and tested assessment of risk. The entire system should be struck down as "degrading treatment" under Article 5 of the Universal Declaration of Human Rights (to which we are a signatory). The absence of an effective judicial remedy does not doom this human rights based challenge. As we have shown with climate change and with issues like obesity, Americans are capable of being embarrassed by their own excess consumption and supporting change. Three Strikes is to the consumption of security what McDonald's Happy Meals are to obesity and what the Ford Expedition is to climate change. Hopefully the work of the clinic, and possibly Steve Cooley's campaign (if he is forced to defend against attacks on his reform proposals) will begin to make more visible to Californian's just how shameful their consumption choices in criminal justice really are.
Cross posted at Governing through Crime
More on Kagan and News PhotosI was away from the Internet this weekend, largely because I couldn't watch Lost until last night and wanted to avoid spoilers, so let me finally get around to disagreeing with Dan's post about Elena Kagan and the selection of news photos. Dan argues that photos of her, especially in the Times, seem designed to present her in a bad light, and urges photo editors at the major papers to "exercise more taste when selecting photos of people who have served or are serving their nation with commitment and honor."
Dan and I may agree on some things, and we may agree on some larger cultural matters. I assume we both don't care how Kagan looks, whether she crosses her legs or not, and so on. We may be especially alarmed at what these kinds of views and commentary suggest about the disjunction between how we treat men and women in public office. In truth, standards of attractiveness are regularly applied to both men and women in public life, but it seems clear to me that those standards are applied more harshly to women than men. And we may both agree on the self-evident conclusion that photo editors should not deliberately edit or select photos in order to make someone look bad or to tell a phony story, whoever that person may be.
Beyond that, however, I disagree with Dan on a number of levels.
Although photo editors, like all journalists, are human, I think he attributes too much deliberate distortion to them. Photographers and photo editors, like print or other journalists, ideally try to tell the truth, or at least a truth, about their subjects. I won't rehash the debate over whether objectivity is possible in journalism. (In short: it's not, but that doesn't make it a worthless goal to shoot for.) But one can try to be fair in one's depictions, whether in print or photographs. That is the only goal worth shooting for (pardon the pun). I've never met Kagan and don't know what she looks like in person; nor do I care. But it is always possible that Kagan is not especially photogenic, depending on what one thinks being photogenic consists of. Whether she is or not should be irrelevant to her fitness for the office, or of anyone's fitness for office, man or woman. But that doesn't mean news editors should deliberately select her best photographs either; indeed, in some ways to do so would be to concede the social prejudice about attractiveness, which can be especially unfair to women, instead of treating it as irrelevant. To paraphrase Chief Justice Roberts, whether I agree with him in other contexts or not, to get beyond attractiveness we must stop thinking about attractiveness. The only thing a photo editor should be concerned with is whether a photo accurately tells a story -- even a mundane one, like "nominee meets with senators" -- not whether it presents its subjects in the best possible light.
I especially disagree with Dan's view that we should select photos to present in a good light those who "are serving their nation with commitment and honor." It did John Ashcroft little good, given his views, to photograph him against a gigantic bare-breasted Lady of Justice. But that photographic depiction, although easily prone to distortion and even unfairness, still told a story and accurately depicted events. A prima facie presumption against using such photographs for fear that they would make him look ridiculous would be as wrong as a prima facie rule against allowing public officials to hang themselves with their own ill-chosen words. We should resist the urge to be overly influenced by either ill-chosen words or choreographed photographs -- Obama standing in front of an array of photographs does not make him either a true patriot or a messianic and arrogant figure, and one or many gaffes or spoonerism don't make a public official an idiot. But neither should we deliberately encourage photographs to make our public figures seem more heroic or noble. Noble is as noble does, not as it looks. We already have quite enough reproduction of hierarchy and elite status without encouraging photo editors to actively join in the process.
Graham & "Preventive" Juvenile Justice
Thursday morning at Law & Society there will be a book panel on Christopher Slobogin & Mark Fondacaro's forthcoming book "Juveniles at Risk: A Plea for Preventive Justice." (A precursor article in appeared in the Iowa Law Review and is available on SSRN). Slobogin & Fondacaro's book is in step with aspects of the Supreme Court's recent opinion in Graham v. Florida, although the Court based its decision on traditional penological theories of deterrence and retribution, while Slobogin & Fondacaro argue for a new preventive model in juvenile court.
In Graham, the Court focused heavily on kids' ability to grow and change. "By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person's value and place in society," Justice Kennedy wrote. "What the State must do . . . is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."
In their book, Slobogin and Fondacaro do not rely solely on "diminished retribution theory," which they identified with earlier Supreme Court cases, most notably Roper v. Simmons. "Dimished retribution," they write, is too "easily characterized as merely a softer version of adult court." Nor do they rely wholly on a rehabilitative model, which they criticize as too tied to the welfare state, and insufficiently focused on reducing crime. Instead they focus on preventing future crime.
Slobogin & Fondacaro argue that their preventive model holds the possibility of building non-ideological alliances and reducing crime, while avoiding both extremes of open-ended parens patriae intervention and heavy reliance on transfer to adult court. Author Slobogin and readers will discuss the project Thursday at LSA.
Me on Balkinization on the War on Lawyers and the 2011 NDAA
Over at Balkinization, I have a guest post up about the extremely troubling anti-lawyer language in the current draft of the National Defense Authorization Act for FY2011, and Congress's attempt to chill the work of the Guantanamo lawyers...
Beyond the Double T-Squared Class Schedule
As part of a series meant to help faculty understand their associate deans better, today I'll talk about negotiations over class schedules. After you and the associate dean negotiate the courses you will teach for the next academic year, you will need to reach some agreement about the timing of courses. Different schools allow different amounts of faculty input. Some places allow little or no input on the schedule, while some in effect allow the faculty member to choose her own schedule or to veto any proposal from the dean. Most places, the schedule flows from a negotiation, with input from both parties.
Of Carts, Horses, and Climate Change
I teach an introductory Environmental Law class as well as two seminars on environmental topics, Global Climate Change and U.S. Law and International Environmental Law. Figuring out how to apportion climate change coverage between these courses proves a challenge. In part because of a diligent and successful public interest litigation strategy (that has forced the consideration of climate change under statutes ranging from environmental impact review to endangered species and clean water), climate change has both practical and legal ramifications under a host of environmental statutes.
I have long thought of hazardous waste site remediation as one of the few core areas of environmental law relatively unaffected by climate change (and thus a safe, climate-free topic for the introductory course). However, recent articles describing the projected climate change-related increase in the frequency of major (100-year) storm events as well as draft policy regarding green remediation issued by the New York State Department of Environmental Conservation (recommending, in particular, that hazardous waste sites be remediated with an eye to reducing associated greenhouse gas emissions), prompted me to think about ways that climate change may impact hazardous site remediation as well.
By way of general background, the primary strategies for remediating a hazardous waste site are to remove the contaminated materials and treat/dispose of them elsewhere or leave the contamination in place and either treat the materials in situ or impose institutional controls (such as deed restrictions) and/or engineering controls (such as caps) designed to limit future exposure. Leaving contamination in place with institutional and/or engineering controls is frequently far less expensive than removal, treatment, and disposal, and is thus often the remedial option favored by potentially responsible parties. However, one of the key considerations for environmental regulators in deciding whether to approve a remedy that leaves contamination in place is whether future exposure to the remaining contaminants may occur as a result of extreme weather events, like 100-year storms. (So, for example, where sediments are contaminated but have naturally been covered by a layer of uncontaminated sediments, will erosion during a 100-year storm event bring the buried contaminated sediment to the surface?) Similarly, one of the key considerations in the design and evaluation of engineering controls (containment systems) is whether they will withstand extreme events like 100-year floods and 100-year storms. For a description of how the EPA models storm events during site remediation, see EPA’s Contaminated Sediment Remediation Guidance for Hazardous Waste Sites. In light of the above, does climate change – and the associated increased frequency in extreme weather events – raise the bar for the selection of remedies reliant on institutional and/or engineering controls? These same considerations inform a related inquiry that looks backward instead of forward. Many sites have already been remediated pursuant to the terms of a consent decree that sets forth the terms for resolving the PRPs’ liability at the site, including describing the final remedy that the PRPs agree to implement (or pay for). Consent decrees generally include a provisions referred to as a reopener that allows the government to require additional clean up by the PRPs under certain conditions, as where "information is received after entry of the consent decree regarding previously unknown site conditions or new scientific determinations, and such information indicates there is an imminent and substantial endangerment to public health or the environment." Superfund Program: Covenants Not To Sue, 52 Fed. Reg. 28,038 (Jul. 27, 1987). Do predictions about the increased number and severity of storms provide grounds for the government to reopen existing consent decrees and require additional work? Notably, these remedies were approved based on now outdated modeling of extreme weather events; exposure to contaminants (and hence endangerment) could occur if institutional and engineering controls are not adequate to withstand such weather events. The above discussion highlights an uncomfortable paradox in this country's current response to climate change. On the one hand, we are convinced enough about the perils of climate change (at least as a legal matter) to have designated species as endangered primarily on grounds of climate change-related threats, require consideration of climate change in environmental impact review, and alter the way we remediate hazardous waste sites. On the other hand, the legal adaptation of our existing environmental statutes seems to have greatly outpaced the public and political will to meaningfully mitigate climate change by reducing domestic emissions. Designate species as endangered as a result of projected climate harms? (Cart.) Check. Evaluate projects and remediate sites with an eye to conserving energy? (Cart.) Check. Actually require significant reductions in greenhouse gas emissions? (Horse.) Errr, ummm . . . get back to you on that. Still debating in Congress as EPA (after a trip to the Supreme Court) begins the monumental process of developing regulations under the Clean Air Act subject to talk of a congressional override of its authority to do so.
By way of general background, the primary strategies for remediating a hazardous waste site are to remove the contaminated materials and treat/dispose of them elsewhere or leave the contamination in place and either treat the materials in situ or impose institutional controls (such as deed restrictions) and/or engineering controls (such as caps) designed to limit future exposure. Leaving contamination in place with institutional and/or engineering controls is frequently far less expensive than removal, treatment, and disposal, and is thus often the remedial option favored by potentially responsible parties. However, one of the key considerations for environmental regulators in deciding whether to approve a remedy that leaves contamination in place is whether future exposure to the remaining contaminants may occur as a result of extreme weather events, like 100-year storms. (So, for example, where sediments are contaminated but have naturally been covered by a layer of uncontaminated sediments, will erosion during a 100-year storm event bring the buried contaminated sediment to the surface?) Similarly, one of the key considerations in the design and evaluation of engineering controls (containment systems) is whether they will withstand extreme events like 100-year floods and 100-year storms. For a description of how the EPA models storm events during site remediation, see EPA’s Contaminated Sediment Remediation Guidance for Hazardous Waste Sites. In light of the above, does climate change – and the associated increased frequency in extreme weather events – raise the bar for the selection of remedies reliant on institutional and/or engineering controls?
These same considerations inform a related inquiry that looks backward instead of forward. Many sites have already been remediated pursuant to the terms of a consent decree that sets forth the terms for resolving the PRPs’ liability at the site, including describing the final remedy that the PRPs agree to implement (or pay for). Consent decrees generally include a provisions referred to as a reopener that allows the government to require additional clean up by the PRPs under certain conditions, as where "information is received after entry of the consent decree regarding previously unknown site conditions or new scientific determinations, and such information indicates there is an imminent and substantial endangerment to public health or the environment." Superfund Program: Covenants Not To Sue, 52 Fed. Reg. 28,038 (Jul. 27, 1987). Do predictions about the increased number and severity of storms provide grounds for the government to reopen existing consent decrees and require additional work? Notably, these remedies were approved based on now outdated modeling of extreme weather events; exposure to contaminants (and hence endangerment) could occur if institutional and engineering controls are not adequate to withstand such weather events.
The above discussion highlights an uncomfortable paradox in this country's current response to climate change. On the one hand, we are convinced enough about the perils of climate change (at least as a legal matter) to have designated species as endangered primarily on grounds of climate change-related threats, require consideration of climate change in environmental impact review, and alter the way we remediate hazardous waste sites. On the other hand, the legal adaptation of our existing environmental statutes seems to have greatly outpaced the public and political will to meaningfully mitigate climate change by reducing domestic emissions. Designate species as endangered as a result of projected climate harms? (Cart.) Check. Evaluate projects and remediate sites with an eye to conserving energy? (Cart.) Check. Actually require significant reductions in greenhouse gas emissions? (Horse.) Errr, ummm . . . get back to you on that. Still debating in Congress as EPA (after a trip to the Supreme Court) begins the monumental process of developing regulations under the Clean Air Act subject to talk of a congressional override of its authority to do so.
Professors' Revenge: Surfing Through Commencement?
We did commencement on Sunday at Suffolk in the Bank of America Pavilion out by the Seaport, highlighted by a speech from the remarkable and charismatic Cory Booker, the mayor of Newark, New Jersey (and an alumnus of Stanford and the Yale Law School).
It seems to me you have to be a cynic or a spoilsport not to be impressed with (even if you don't enjoy) commencement exercises. To borrow from Steve Winter at Wayne State, human beings are meaning-making machines. I always have the following thought in the faculty robing tent (in addition to wondering how many rabbits died to make the hood and gown of my colleague who has a Ph.D. from Cambridge). When my daughter was or four or five, we did a birthday party, but, as I recall, it was in an unusual venue (I think maybe the Cranbook Science Museum near Detroit). I asked her if we need the paper cone party hats. Her response was "Daddy, it wouldn't be a party without the hats!"
And every year about the time I have to put in my order with the registrar for the rented black doctoral gown (three stripes on the sleeves) with the purple (for law) and cardinal (for Stanford) hood, I think again that I would really like to wear the official Stanford gown, which I think is over-the-top bitchin' if you are going to do this sort of thing, but I can never bring myself to shell out the $800 or so to buy it for once-a-year use. When these things were invented, they were functional: to keep warm and to hide your flask of applejack. I'm thinking it would be pretty cool to teach in one of them. My friend and colleague (the recently tenured) Jessica Silbey has a nice compromise. She has a Ph.D. from Michigan in comparative literature, along with her law degree, and she ordered the very chic octagonal cap (she says to have one that fit), which gives an elegant beret look (of course, it may be uniquely Jessica who looks elegant in the cap; likely it's "dorky-trying-to-be-cool" on me).
What DID occur to me around the 450th graduate to come across the stage was how cool it would be if the entire faculty sitting up there on the stage whipped out matching white MacBooks, flipped them open, and started surfing the net. No, that's unduly churlish; in fact it's really a delight to catch the eye of a special student as he or she is walking across the stage.
Monday, May 24, 2010
The ACORN Case and the Bill of Attainder Clause
In a few weeks, the Second Circuit will hear argument in an important test case for one of the less-frequently litigated constraints on Congress's power--Article I, Section 9's Bill of Attainder Clause, which generally prohibits the legislative imposition of "punishment." (Section 10 includes a similar ban on state legislatures.) What's specifically at issue are the "de-fund ACORN" provisions enacted into various of the appropriations bills passed late last year (e.g., "[n]one of the funds made available under this Act may be distributed to the Association of Community Organizations for Reform Now (ACORN) or its subsidiaries.”).
In March, Judge Gershon of the U.S. District Court for the Eastern District of New York struck down these provisions, reasoning that they singled out ACORN for punishment, and that they could not be justified as serving a valid, non-punitive purpose. Whatever one thinks of ACORN and the charges that have been leveled against it, there's a fairly compelling argument that this is exactly why we have a Bill of Attainder Clause--to protect against the concern the Supreme Court worried about in Nixon, i,e,, “that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge or, worse still, lynch mob."
The Government's brief to the Second Circuit is here; ACORN's response is here; and I've co-authored an amicus brief on behalf of a handful of prominent constitutional law scholars (here). The briefs are worth reading in their own right, but I think it's safe to say that there are three critical questions at play:
- Does the Bill of Attainder Clause protect corporate entities, and not just private persons?
- What must Congress show to demonstrate that its purpose was not punitive?
- Can the deprivation of access to governmental benefits constitute "punishment"?
What's telling about this appeal is that the Second Circuit has already answered the first question--and in the affirmative. So if the Government is to prevail on that point, it would have to be either en banc or in the Supreme Court (as we note in our brief, both the limited case law and the deeper purpose of the Bill of Attainder Clause suggest that it should apply to any private entity susceptible to legislative punishment). And as for the third question, one of the few Supreme Court precedents on attainder--the 1946 decision in the Lovett case--seems to support the proposition that the denial of access to a benefit (there, government employment) can be "punishment." If so, then everything boils down to the second question, on which the case law is surprisingly unclear. If the standard is just rational basis review (i.e., does Congress have any plausible non-punitive purpose), it's easy to see both (1) what Congress's rational basis might have been here; and (2) why that would render the Bill of Attainder Clause all-but a dead letter. On the flip side, no court has ever suggested that strict scrutiny is the appropriate standard.
What we ended up arguing in our brief was somewhere in between, drawing an analogy to the "congruence and proportionality" standard articulated in Boerne. As we put it, "legislation challenged as imposing punishment on identifiable individuals or groups must not only have a nonpunitive purpose, but that nonpunitive purpose must itself support the singling out of the targeted individuals or groups." In other words, there's a tailoring requirement with respect to the relationship between the identified non-punitive purpose and the basis for singling out the group that is singled out. By that logic, here, Congress overstepped its bounds.
But regardless of the answer, my own view is that this question is the key, and so this case may be destined for the Supreme Court regardless of how the Second Circuit decides the Government's appeal. If, like me, you don't spend a whole lot of time (re: none) on the Bill of Attainder Clause in your Constitutional Law courses, this could certainly be a fun, intriguing, and potentially important diversion!
Sunday, May 23, 2010
Style points and exam-grading
This post is a follow-up to Bill's, from a few days ago ("The Very Mixed Blessings of Word-Processed Exams"). In first-year classes, what I do with exams is (I gather) pretty typical: word-processed, open-book, and word limits. Also (and maybe this isn't typical?), I tell the students in the instructions that a part (a very small part, as it happens, but still a part) of their exam score will be based on style, organization, grammar, syntax, and spelling.
I do this for (I think) three reasons: First, I hope to dis-incentivize, if only a little bit, some students' tendency to (as Bill put it) "power through" the exam-answer and simply type every doctrinal proposition they can recall. It seems to me that a student who is thinking about form and style might be a bit less likely to engage in this kind of outline-dumping. Second, I want to have some way to take account of the fact that the students who write a more elegant -- or just a readable -- answer are likely to have allocated some of their scarce answer-writing time to proof-reading and editing. Those who write word-salad had, in a sense, extra time on their answers. Finally (and in saying this, I do not mean to celebrate the mad-rush, in-class, everything-rides-on-three-hours law-school-exam practice), it seems to me that, now and again, in law practice, lawyers are required to do good work very quickly, and the fact that it has to be done quickly is not regarded as an excuse for doing it sloppily.
Any thoughts or reactions?
I've just finished up a JSD degree and thought it might be useful for some of this blog's readers to hear one person's perspective about whether it is worth it for those interested in law teaching jobs to pursue this course. A JSD or SJD is a degree offered by a few law schools, ostensibly aimed at and designed for people who are interested in an academic legal career. Admission always requires having completed an LL.M., sometimes at the school from which one is seeking admission to the JSD.
A couple of qualifications. These thoughts relate to candidates with U.S. JD degrees who are interested in a position in an American law school. JSD programs often attract foreign applicants who are interested in positions outside the United States (where a doctoral degree is required for obtaining a position), and those folks populate the ranks of many JSD programs. I'm not familiar enough with the academic hiring culture abroad to know what value a JSD is perceived to bring. My thoughts also are directed to people who are interested in the JSD at least in some measure to burnish a CV with a JD from a non-elite law school (say, a school outside the top 5 or 7). If you graduated with a JD from Yale and decided to pursue the Yale LL.M. and JSD too, this post isn't really for you (though they are rare, I've seen people who are in, if not this exact category, something like it).
One last point before the thoughts. I absolutely loved my LL.M. and JSD experience. It gave me just what I wanted and I will always look back with deep fondness on the faculty and friends I got to know, as well as on the extended period of study and reading. But there programs have benefits and risks, and I think it's right to be open about them.
1. Go for the professors. By far the most important reason to do a JSD is that you want to spend a significant period of time interacting with and having your work read and criticized by teachers whom you admire and who are interested in being mentors to you. This is the single greatest value of the JSD experience. One may ask, 'But how do I know who those professors are, in advance of applying for the JSD?' One way you will come to know is by pursuing the LL.M. at the same institution. If you are thinking about a JSD, you ought to use the LL.M. year to gather as much information about your prosepctive JSD professors as you can. That means that before you even apply for the LL.M., you ought to have a quite distinct idea about the field of study that you want to pursue, the range of courses (seminars, primarily) that you will take, who teaches those seminars, what those professors have written, how those professors are generally regarded by students, and, how those professors are regarded by their peers. You should have a sense for how important those professors are, and how strong the school's reputation is, for your chosen field. It's also a good idea to make contact with those professors before arriving. Chances are that they won't immediately respond to your inquiries, so keep after them. Try to get a sense for whether they are receptive to LL.M. students taking their seminars. Even shove a little bit of your writing at them, to see if they are open to taking a look. That's all before even getting to the law school.
All of this means that before you go, you ought to know what you want to specialize in, have read as much as possible in that field, know who the professors are at the University with whom you want to study, know and have read what those professors have written in the field, and know as much as possible about those professors and the academic reputation of the school in your desired area of expertise.
After you get there, recognize that you need to begin in earnest to connect with those professors and immerse yourself in the literature with which they are expert. In fact, it's better if you begin this immersion before you arrive at the school, because the moment you arrive, you will begin to need to impress. And that means, you will need to be presenting written work product, rather quickly and in a consistent stream, for them to evaluate. You will need their warm recommendation when you apply, first, for the JSD program, and, second, for a position later on.
2. Go to write, not only to read. The mistake that I think some people make with these programs is to think of them as a period where you can sort of just read for years in the subject of your choice, undisturbed and at your leisure. Deep reading within your particular, chosen field is an important component of the JSD experience. But if you want to get an academic position after the JSD, it is absolutely vital that you write, and write constantly. The reason is not only that you want to use the time to get published. It is also, and even more importantly, that you want to develop a scholarly relationship with your chosen mentors/professors. The only way really to do that is to be producing work in a steady stream -- that's the only way to cultivate a scholarly repartee with your professors, and it's absolutely crucial that they begin to think of you in these terms -- as young scholars, rather than as one of their JD students (or perhaps as something less than that) -- as quickly as possible after your arrival.
3. Only go to the absolute top schools in the country. Since you are using the JSD as a way to polish up what will be perceived as some ugly soiling on your CV, you must only go to one of the best schools in the country. I won't create some sort of artificial line of demarcation here, but Yale, Harvard, Stanford, Columbia, and NYU all have strong programs in graduate legal education. When I applied, I was under the impression that Chicago's JSD was open only to foreign graduates, but I just checked their site and saw that the LL.M. is open to domestic types and didn't see any limitation on their JSD site. At all events, since you will be using the JSD as a cleansing agent, you want to get as clean as possible. It is also generally (not universally, but generally) the case that professors at higher ranked schools have achieved a greater reputation among their peers. If you will be investing 4-6 years in this venture, you want to take advantage of all of that.
4. Do not think that the JSD is the equivalent of a Ph.D. It plainly and unequivocally is not. A Ph.D. trains you systematically in the methods and substance of a discrete non-legal field. A JSD does not do this. In a few JSD programs, there is some formal coursework related to legal history, legal methods, legal theory, perhaps even jurisprudence, but there is no standardized formal training that compares to the Ph.D. By and large, the person who should do the JSD is someone who already has zeroed in on a particular legal field and has identified legal scholars in that field with whom he or she wants to spend several years in an extended academic 'conversation.' By the end of a Ph.D., my impression is that graduates have command of an entire extra-legal discipline and thorough knowledge of a sub-discipline in that subject. By the end of a JSD, graduates will have deep knowledge of particular features or elements of a legal sub-discipline. The increasing specialization of legal knowledge, and the heightening pressures on entry-level candidates to be sub-sub-disciplinary experts from the get-go, make the degree worth pursuing for those with the time and inclination. But it isn't removely the same as a Ph.D.
5. Know that the JSD degree itself will not be universally respected by academic employers. Because it is not a Ph.D., some legal academic employers will not know what to make of the degree. It will be incumbent on you to explain why you pursued it and what you gained from it. In my case, it was without question the chance to work closely with and get to know the faculty that were my mentors -- to know their work inside and out, as well as the sub-disciplines of which their work formed a part, and to begin to think systematically about something large that I wanted to say in one or more of those sub-disciplines. It was also the chance to participate in the intellectual life of a law school -- to get to know its customs and manners of interaction. Perhaps unlike the Ph.D., this all needs to be spelled out clearly when one is coming with a JSD (or as a JSD candidate).
In all, I think the JSD experience can be a very worthwhile one. Time will tell whether it catches on for more domestic JD graduates. But it is definitely one that needs somebody with an internal motor and some-what laser-like sense of what one wants to get out of the experience, right from the get-go. It also takes a kind of willfully mule-like cheerfulness, because if you really take to heart all those people telling you that you'll never get a job with a JSD, you won't.
Welcome to France, Leave Your Fakes at Home
I arrived at Paris De Gualle airport on Thursday, a bit tired as I walked through customs after collecting my luggage. I couldn't help notice a prominently placed sign warning visitors that importing a fake watch or handbag could subject the carrier to up to three years in jail or a 300,000 euro fine. An example of a similar sign can be found here. Details (in English) are available from the French Embassy here. Apparently, a few other European Union countries have similar laws aimed at penalizing the owner of counterfeit goods, although not as harsh as these.
I couldn't help but be struck by the cultural and legal differences between the U.S. and France. In the U.S., trademark law protects items from copying if the logo or trade dress has been appropriated, but U.S. copyright law rarely protects fashion items. Recently, the U.S. Congress has created a Fashion Caucus, co-chaired by Reps. Diane E. Watson (D., Calif.), Jerrold Nadler (D., N.Y.) and Carolyn B. Maloney (D., N.Y.) to re-examine whether U.S. should pass legislation to protect fashion design. The former bill had proposed short-term (3 year) protection for particular types of fashion designs, and had been subject to heavy criticism. Unlike the French law, the proposed U.S. legislation was aimed at copyists and those who create secondary liability, rather than those who purchase counterfeit goods.
Saturday, May 22, 2010
How Not to Write an Article
I am very good at making my life more difficult than it needs to be, so much so that my good friend says of me that never was so much good advice wasted on one person. It tells you almost all you need to know about me in this regard that I intentionally had a baby the year before coming up for tenure. I am especially good at making writing more difficult than it needs to be. Thus, like a divorced person who issues marital advice, I thought I would share advice on how to make writing an article easy and efficient.
My first piece of advice is one I follow occasionally, but not nearly often enough: You should probably try to write about a topic you know something about either because you learned it in practice or have already written about it or have taught it. For example, if you are a defamation expert, perhaps you should consider writing about defamation. You should probably let other people write about jurisprudence or the public forum doctrine. Yes, you can write about these things, but you will have to absorb every bit of the case law and secondary literature, which tends to be a little time consuming. Being intellectually curious is fine, but being an intellectual dilettante is definitely inefficient.
The same general advice extends to learning a new body of non-legal theory to use in writing your article. If you've already invested in learning some aspect of cognitive psychology or literary theory, perhaps you should consider using it for more than one article. I know people who can sketch out a scholarly agenda exploring five different torts using, say, the sociology of Georg (not a typo) Simmel. After they write the five articles using the same theoretical foundation, they are able to turn the whole thing into a book with almost no effort. Aim to be like these people! Do not get bored on article number two or feel like you've said all you have to say on the topic. Keep going until you publish that lovely scholarly monograph.
My second piece of advice is one I actually follow most of the time: Do not feel compelled to read everything ever written on your topic before you begin writing. Try to force yourself to put thoughts on paper as quickly as you possibly can. Remember you can always go back and modify later. It is my experience that reading too much too early actually blocks creativity. I should caution, however, that there is a downside to this advice. Inevitably, when you are half- or even three-quarters of the way through, you will read an article and believe that you are preempted and that the author of the article has already said everything worth saying on your topic better than you could ever hope to say it. But you will be wrong. When you read the article more closely, you will realize that the author is saying something very different or that he has missed something important. Then you will deal with the article that made you have a heart attack and go on with your life!!
My third piece of advice is one I never, ever follow, unfortunately. You should not pay too much attention to style while writing the first draft. You should get all your ideas on paper and then worry about editing. In no event should you write and rewrite the introduction fifteen or twenty times until you have worked out in your head exactly what it is you want to say. In no event should you agonize over every word as you are writing and try to make the draft perfect on the first go. Trust me when I say that this is a very inefficient way to write.
My fourth piece of advice, which is one I've learned to follow over time, is to let your research assistant fill in the footnotes. Worrying too much about footnotes while you're writing not only slows things down but breaks the flow of your article. You can obsess about the Blue Book as much as you like later. [As a side note, you should obsess about the Blue Book before you send it out. It isn't fair to the law review editors otherwise.]
My fifth piece of advice is not to worry if you rue the day you ever decided to write on your topic by the end of the article. I'm pretty sure everyone feels that way by the end of a long,hard slog through the arcana required to produce a competent law review article. If you don't, I don't want to know about it.
If you are still reading at this point, my final piece of advice is the most important: Learn what your own process for producing an article is, and don't obsess about all those other people who can produce an article faster and more efficiently than you can. If you somehow manage to be productive writing in a completely inefficient manner, you might as well embrace your process. It works for me--most of the time.
[I'm tempted to write a follow-up post called "What Not to Do Before You Get Tenure."]
Lady Kaga Sings the Blues
Not sure if anyone else picked up on this from reading today's NYT, but I thought the photo appending Charlie Savage's piece on Elena Kagan and her views on executive powers was execrable. Why on earth would editors of a paper select a picture where the person has her eyes closed? Really! Are we supposed to believe that this photo was the only one available from yesterday? The fact that the pic was with Sen. Lautenberg is itself unconnected to the actual topic of Charlie's piece (ie., her views on executive power).
To my mind, the pic itself is just designed to say, Ha, ha, we're the press and we can do anything we want. What was the editor who selected this picture thinking? What was the photographer thinking when he passed it on as a shot to be considered for the story? And if you look at some of the other pics on the NYT Topics page, they're almost as bad (most of them have Kagan looking squinty as if the sun is in her eyes -- near Austin Hall at HLS it seems). Not as pernicious as this asinine softball playing shot that ran in the WSJ last week, but really, not a menschy performance. Charlie/Adam/John, on the off-chance that you guys are reading this, I hope you'll urge your editors to exercise more taste when selecting photos of people who have served or are serving their nation with commitment and honor.
"Trade is to Culture as Sex is to Biology"
That's a quote from an article by Matt Ridley in this morning's Wall Street Journal summarizing new theories about why human culture began to dominate (evolutionarily speaking) when it did. This should get the free market people pretty aroused. The theory attempts to deal with evidence that individual and small group capabilities existed before before and after the culture and technology explosion that began in Africa about 45,000 years ago. The thesis is that this change required "collective intelligence," the plausible conjecture that innovation occurs when ideas cross-fertilize, and that such cross-fertilization is more likely when people were or are "swapping things and thoughts" (per Brian Arthur of the Santa Fe Institute).
I'm not sure if it's a point to make in opposition to this, or if the two concepts can be harmonized (I think they can), but Josh Wright at Truth on the Market this morning gave a thumbs up to a new book by Peter Klein exploring the Austrian school of economics approach to enterpreneurship and innovation. Not surprisingly, this view emphasizes the individual and not the collective kind of intelligence necessary to make entrepreneurial or innovative judgments:
Why can't a central planning board mimic the operations of entrepreneurs? The key for Mises is that entrepreneurial appraisement is not a mechanical process of computing expected values using known probabilities, but a kind of Verstehen that cannot be formally modeled using decision theory.
Indeed, I do think these two views are consistent, and I will be talking about it at Law & Society on Friday morning (8:15 a.m., ugh) so feel free to stop by!
Friday, May 21, 2010
The Very Mixed Blessings of Word-Processed Exams
Having completed another round of exam grading (including, on an Admin Law exam, a delightful misidentification of Vermont Yankee v. NRDC as Yankee Candle), I am recalling a discussion on Prawfs some time ago of spelling and grammar on exams. I forget the details of that exchange, so maybe it was mentioned back then, but I was struck this exam cycle by the difference in eloquence between word-processed and handwritten exams. As any prof can attest, word processed exams often suffer from severe cases of misspellings and poor sentence constructions. I saw far less of this on the (admittedly few) handwritten exams I read this time around.
It's not that hard to figure out what's going on: students on word processors just power through sentences and paragraphs, since they can always correct the most egregious stylistic problems, even if they leave a lot of them uncorrected. By contrast, handwriters have to think before each sentence. It's an odd inversion of a wonderful Russell Baker "On Language" column from the New York Times Magazine back in 1987 or 88, which consisted of a series of sentences, all uncompleted, all of which were supposed to constitute the first sentence of an essay on how much easier writing had become since the word processor. Of course a writer of Baker's quality (and, of course, with more time than a student on an exam) would constantly rewrite that first sentence. Our students don't, at least on exams.
I wonder if this phenomenon affects student writing in contexts beyond exams. Do they get accustomed to writing poorly, because if they write poorly they can write quickly? Is there some step of mental processing that gets skipped when you don't take a moment to compose your sentence in your head before you commit it to paper or a screen? If there is a step skipped, does that skipping occur in other contexts? Does it even seep into their oral communication?
Maybe instant messaging and tweeting have far more impact on this effect, assuming it even exists. But I have to believe students are more serious about what's on their exam paper than what's in their tweets. To that extent, their willingness to turn in what I have been seeing more and more over the past few years is cause for concern. Perhaps technology calls for a rethinking of how we test; in particular, maybe we shouldn't be giving racehorse exams any more, or not making them so "racehorsey," if doing so in a laptop-heavy environment leads to the kind of mishmash we've all been seeing. Or we could just ban laptops on exam. But who wants to go back to deciphering hundreds of pages of rushed handwriting?
How Do You Spend Your Summer (Vacation)?
I woke up this morning and realized I had no compelling reason to go into the school today, so I didn't. I also had an appointment this afternoon in connection with one of my two (printable) pastimes, my last riding lesson of the school year.* I realized about noon that I had already started what is my particular pattern for summer days.
Not only do I get up early, but I find that my right brain seems to run better then as well. I do most of my writing between about 6 a.m. (after I've been awakened by a cold dog nose and made the coffee) and late morning, at which point, I'm usually brain-fried and so I go do pastime or exercise things for a few hours. I can work in the late afternoon, but then I'm better at left-brain stuff: collecting research materials, putting syllabi together, correcting citations, etc.
Any other tried and true methods for finding inspiration and committing to perspiration (mentally speaking) over the summer?
*Last December, I posted over at Legal Profession Blog on "Fear and Learning - Cantering and Law School." I can report that I have made quite a bit of progress since December, confirming that indeed learning is often about overcoming fear of the unknown.
The Cultural Cross
With the attention on Salazar v. Buono (a case that didn't resolve much of anything), Americans sometimes miss where the real action is on cross-related issues. That's Italy, and the decision of the European Court of Human Rights last year in Lautsi v. Italia. A parent whose children attend public school complained that the school ought to take down the crucifixes hanging in public school rooms, as they violated the principle of secularism and her freedom of belief and religion. Her complaint was dismissed by an administrative tribunal and made its way (for technical reasons) to the ECtHR. Ultimately, that court concluded that the practice violated Article 2 of the Convention.
Less interesting to me is this result than the arguments of the Italian government and the Italian reaction to the decision. The state claimed that the presence of the crucifixes was "natural" because the cross is "the flag of the Catholic Church," which is the only Church explicitly named in the Italian Constitution of 1948 (articles 7 and 8), and the cross is therefore a symbol of the Italian state. The administrative court similarly held that the cross is a symbol of Italian history and culture, and therefore of Italian identity. The legal obligation to display the cross in public schools dates back to a period before the unification of Italy, and at various points in Italy's history, Catholicism has been affirmed as the official state religion (e.g., Lateran Pacts). To this, the court said: "[These] are the heritage of a religious conception of the state that now clashes with its need to be secular and that ignores the rights protected by the Convention."
Italian reaction to the decision was overwhelmingly negative. Of course the Vatican was opposed, but so were a broad coalition of folks from a variety of political perspectives -- from right-wingers to leaders of the anti-Berlusconi opposition Democratic party: "An ancient tradition like the crucifix cannot be offensive to anyone." Socialists joined with rightist groups to affirm principles of subsidiarity in direct reaction to the ruling. "No one, and certainly not an ideological European Court," railed Italy's education minister, "will succeed in erasing our identity." From a report by Il Corriere Della Sera: "At the political level, perplexity about the decision was widespread and bipartisan."
One might think the reaction rather bizzare. After all, it's no secret that Italy, like most countries in Western Europe, is essentially non-religious now. Believing Christians are very hard to find. So why this reaction, rather than one of non-plussed acceptance? I believe that it is exactly because Italian religious believers are few and far between that the reaction against the ruling was so powerful.
It is because the cross has taken on overriding cultural, rather than religious, significance for many Italians that the ruling is being resisted so uniformly. As religious allegiance has waned, cultural and political allegiance has waxed -- that's what they've got left to unify them, and it is what they take to be threatened by the faceless, un-Italian European Court. It's only because very few Italians really believe in Christianity (and because this is well known to everyone) that these broad coalitions of non-believers of various ideological stripes were possible. Imbuing the cross with political and cultural meaning, and downgrading its religious meaning, enabled these groups to present a unified front in repudiating the decision.
Seen in this light, the Italian reaction to the cross decision is of a piece with the French ban of the burqa. Indeed, Mara Bizzotto, a parliamentarian for Italy's "Northern League," asked exactly why the European Court had banned the cross while failing to ban "veils, burqas, and niqabs." That's of course what Belgium and France are likely to do -- again, a cultural reaction (a state offensive) that is using religion as a way to get a bit of leverage on its own wounded sense of national and cultural identity. In Italy, we are witnessing a state defensive action in the cross case in the service of the self-same cultural re-affirmation.
Whether these are positive or negative developments from a political point of view is a complicated question that I am not qualified to answer (and not one I really am keen to discuss). But what these situations demonstrate for me is that simplistic, categorical statements that contested symbols are "primarily" religious or that they are only "secondarily" cultural (or vice versa) may well miss the underlying ambiguities and particular manners in which the symbol is really being used, even when we are dealing with a symbol as seemingly unambiguously religious as the cross.
Out-of-Theater Capture (or, Why Maqaleh's Narrow Reasoning Sweeps So Broadly)
Entirely appropriately, the big legal news of the day has been the D.C. Circuit's 3-0 decision in Maqaleh, rejecting the jurisdiction of the federal courts to entertain habeas petitions by non-citizens detained at Bagram. There's lots to say about Chief Judge Sentelle's opinion, much of which has already been said by others. I hope to provide more analysis over the weekend, but let me drive home one point off the top:
Although Sentelle's opinion reads like a very careful, nuanced treatment of Boumediene, and so may seem to be rejecting the extreme arguments made by both sides, there's actually very little middle ground in this case. The Court of Appeals relies heavily on the fact that Bagram is "in theater," and that this means that its analysis doesn't necessarily reach other places outside the United States where we might hold non-citizen detainees. While this is descriptively true, it belies the most significant facts of the case--that the three detainees were neither picked up in Afghanistan nor were they from Afghanistan. The fact that they were held "in theater" resulted only from the Government's decision to move them there. Thus, Maqaleh will stand for the proposition that location of capture is less important than location of detention--and that, so long as the latter is in a zone of active combat operations, there will be no habeas.
To be fair, the panel went out of its way not to decide whether the same analysis would hold in cases where the Government seemed to be moving the detainees deliberately to avoid judicial review. But (1) how would the detainee ever prove that? And (2) why else would the Government voluntarily move detainees into a zone of active combat operations? Put another way, if this isn't that case, what will be?
At the end of his dissent in Boumediene, Justice Scalia emphasized the perverse incentive that today's decision supports. As he put it, had the executive branch known that Guantanamo would be "special," "the
military surely would not have transported prisoners there, but would have kept
them in Afghanistan, transferred them to another of our foreign military bases,
or turned them over to allies for detention. Those other facilities might well
have been worse for the detainees themselves."
Update: Just to clarify, let me note that the one case this logic would not apply to is a case where the detainee is picked up somewhere where there would be habeas jurisdiction (e.g., inside the U.S.). There, precedent is fairly clear that the Government can't transfer to defeat jurisdiction. But any non-citizen picked up anywhere else in the world could be held in Afghanistan, and, according to the D.C. Circuit, beyond the process of U.S. courts.
Federalism and Libertarianism
Everyone is by now aware of Rand Paul's comments criticizing Title II (the public accommodations provision) of the Civil Rights Act of 1964, as well as his very quick walkback that he does not endorse repeal of the act and would have voted for the package deal had he been a senator in 1964. Mark Kleiman wishes Rachel Maddow had pushed Paul for his views on Title VII as well; after all, the logic of his argument ("I do believe in private ownership") means businesses have a right to discriminate in all their business dealings, customers as well as employees.
But I also wish Maddow had pushed him on a different issue: Whether Paul is criticizing not only the 1964 Act (as well as the ADA and, it follows, the ADEA), but also state and local laws prohibiting discrimination in public accommodations (as well as employment, etc.) Every state and most major cities has some form of legislation and they often are broader than federal law; in New Jersey, Little League Baseball is a public accommodation. When most people (certainly in the media and I believe most voters) think and speak in terms of overreaching government, they tend to think and speak in terms of an overreaching federal government--in other words, in federalism terms; that rhetoric resonates at a visceral and political level. I am not sure that most voters think and speak in terms of all overreaching government at any level and I am not sure that pure libertarian rhetoric would resonate at the same level. And certainly the media tends to discuss "government" as "federal government" only. So I would have liked Maddow (and other journalists, as well as his Democratic opponent) to push back on whether he is arguing for an unadorned liberty of businesses to discriminate as to their customers (and, it follows, their employees) and a prohibition on any efforts by any government to prohibit such discrimination, or only on a federalism-based liberty against federal efforts. I believe I know his answer. But I would like to have heard him make the argument. Because I am not sure the pure-libertarian argument would play as well politically with the public as the federalism argument.
By the way, I am with Bill that I do not think it is a bad thing that Paul is making these arguments as a major-party candidate for office. What is important is that the press, his opponents, and Democrats generally push him on the ideas not only for shock value (which is some of what has come out of the Maddow interview), but to give them a full airing and to give the voters and the public a real chance to hear them and accept or reject them.
Earned credits with deans
For the last three years, I've served a term as the Associate Dean for Academic Affairs at my law school. It's fascinating work. I'm not a newcomer to the school, but I saw a lot of new things as dean that I never saw as a faculty member: "Wow, I've been here for years and I never knew that we ... !" There's plenty of room for creativity in the work when there are surprises waiting around every corner.
LSA Happy Hour, Thursday May 27th @9pm. Bar Novo @Renaissance Hotel.
Governor Schwarzenegger and the "Devolution Solution" (to the Prison Crisis)I've argued for a long time that county government, with its more realistic view of crime and local knowledge, can hold the key to resolving our endless prison crisis if they can take back their prisoners and the resources locked up in state prisons. Hidden in the depths of his "May Budget Revisions" (the adjustments to the annual January budge proposal that is based on actual revenue returns during April tax season and thus considered far more realistic) California Governor Schwarzenegger has included a proposal to have some state prisoners serve their time at the county level.
To improve the success of felony probationers, and other offenders supervised or programmed at the local level, and reduce jail and prison incarceration,
the Administration proposes a system of block grants to provide evidence‑based
programming and other probation and jail services at the local level. The block grants
will be funded from a portion of state savings generated by having non‑sex offender,
non‑serious, non‑violent offenders convicted with sentences of three years or less
to serve their felony sentence in local jails. The state will provide the counties with approximately $11,500 per offender, to be allocated at the local level, for programs and services such as probation programming, drug courts, and alternative custody. A decrease of $243.8 million in 2010‑11 is associated with this proposal.
Not as splashy or as publicized as the Governators' January bizarre proposal to link prison and higher education funding, this idea reflects some of the best ideas in correctional reform including devolution from state to county and an emphasis on funding programs that can prove success based on empirical evidence (had we followed that model during the 1980s and 1990s, we would have stopped sending more people to prison long ago). As is typical in California in the era of Governing through Crime, the program comes wrapped in promises that it won't apply to prisoners the public really fears "sex offenders", "serious offenders," "violent offenders." These broad categories likely hold many individuals who could be managed more effectively (and more efficiently) at the county level.
If he gives the devolution (from state to county) solution more of his public attention and charisma, it could turn out to be the most important legacy of the Governator. Schwarzenegger deserves huge credit for, in effect, declaring the era of "Big Incarceration Government" over, but until now his forward proposals have lacked seriousness and vision. Perhaps the action hero knows that many failures can be forgiven in a strong ending.
The May Revise (as it is often called) also includes an intriguing note that the state is shifting its policies toward committing sex offenders serving state prison sentences to the state's violent sexual predator program of indeterminate confinement following prison with the result of fewer expected inmates in the program (which has become an expensive new death row with little prospect of release for its residents). As an adjustment to the mental health portion of the budget, the May Revise includes the following:
A decrease of $7.2 million in the Sex Offender Commitment Program to reflect anticipated savings in the Sexually Violent Predator Program primarily due to a shift in the type of referrals from the California Department of Corrections and Rehabilitation.
Cross posted at Governing through Crime
Reasonableness and Community
A few years ago, while looking for cases to recast as hypotheticals for my Torts students, I came across an interesting example of juror confusion about the application of a reasonableness standard in People v. Calitina, 2002 WL 31820336 (Cal.App. 1 Dist. Dec 17, 2002) (NO. A093378). Calitina is a criminal case where the defendant, Calitina, was out cruising with friends and got into a confrontation with people in another car. There was a bit of a chase and Calitina shot at the other car apparently believing that it was occupied by armed men who had previously threatened him. It turned out that the car was occupied by unarmed females, one of whom Calitina shot in the shoulder. Calitina argued self-defense.
The full accounting of the jury deliberations is complicated, but in short Juror No. 9 had difficulty interpreting the jury instructions about the difference between reasonable and unreasonable self-defense. The jury sent out a written question asking for the definition of a reasonable person and Juror No. 9 was ultimately brought into court and asked to describe her concerns:
Juror No. 9 asked for a definition of a reasonable person. The trial court recalled that she had asked how the law would apply as it relates to cultures and communities-it asked her to explain what she meant by this question. She asked if a reasonable person was one who reflected all the cultures of the country, if it meant what she would do, or if she should consider what people generally would consider reasonable in a specific situation. She found it difficult to determine what she, as a reasonable person, would do in a particular situation. She asked if she would be innocent if she did something that she thought was reasonable. She also asked if someone else would be guilty if they did something that appeared to them to be reasonable but would not be reasonable to her. She was uncertain what she might have done in the situation before the defendants-perhaps, she might have done the same thing that was done in this case, she told the trial court.
Juror No. 9 said that the jury had engaged in “a lot of discussing” on this issue and the others told her to “follow the law.” She told the trial court that she was trying to follow the law, but she was not certain what the law is. . . . She again requested a definition of what constituted a reasonable person. . . .
Juror No. 9 denied that her philosophy prevented her from following the law. She admitted having difficulty interpreting a particular phrase of the law to her satisfaction. The prosecutor asked her whether she would be prevented from continuing deliberations if the trial court could not provide her with more information. She replied that the question was not one of the charges in the case. Having thought about the underlying issue, she told the trial court that it was “almost as though [she had] to make [her] own interpretation of those words.” She thought that the standard to be applied should be one that reflected all communities, not just hers. Juror No. 9 stated that she was “not really sure” because it was a tough issue to resolve.
The court also questioned other jurors about the state of deliberations:
Juror No. 7 opined that Juror No. 9's personal experiences were getting in the way of her ability to make a decision in the case. Juror No. 7 reported that Juror No. 9 said she was unsure what went on in a defendant's culture and in his life to make him believe that his action was reasonable or not. Juror No. 7 believed that Juror No. 9 was unable to decide this issue because she thinks this reasoning is biased or prejudiced.
Ultimately, the trial judge removed Juror No. 9 and Calitina was convicted – his claim of self-defense failed. The Court of Appeal then held that discharge and replacement of Juror No. 9 during deliberations did not deprive Calitina of due process and a fair trial.
I’m curious to hear what others think about the questions that Juror No. 9 raised about how to assess whether conduct is reasonable. Does Juror No. 9’s confusion go beyond the difference between an objective and subjective standard and touch on more difficult questions about how to understand the “community” for purposes of assessing the reasonableness of conduct?
I come at this from the perspective of how Tort law defines the reasonable person standard. In Tort, the reasonable person is required to evaluate interests in accordance with the valuation placed upon them by the community sentiment crystallized into law; the reasonable person standard encompasses the values of the community and an individual’s idiosyncratic values (based on upbringing, etc.) are irrelevant. Juror No. 9’s questions can, however, be interpreted to ask a deeper question – which community defines the standard? (Perhaps criminal law provides a different or clearer answer?) It seems like Juror No. 9 sensed that her “community” was different from that of Calitina’s. Perhaps in Calitina’s neighborhood, the described car chase could support a reasonably apparent need for self defense while in Juror No. 9’s neighborhood it would not.
The Restatement of Torts, in discussing the reasonable person standard, references at different points the “community in which . . . conduct occurs” and what the “reasonable man at that time and place would know.” This suggests that the relevant neighborhood/community is Calitina’s. Although, by definition, isn’t a juror (peer) deemed part of the same community as the litigants? Or perhaps the location is simply a circumstance to be considered in assessing the conduct of a reasonable and prudent person “in like or similar circumstances”?
I welcome thoughts about Juror No. 9’s (and my own) musings.
Thursday, May 20, 2010
Rand Paul and the Civil Rights Act
The flash tempest about Rand Paul and the Civil Rights Act of 1964 suggests that we may be in store for some interesting constitutional argumentation in the run-up to the midterm elections. One might have thought that the most interesting issues were going to surround some of the (alleged) policy innovations of the last couple of years, from TARP to health care, innovations not just about policy but about the power of government. Maybe one way to put it is that the issues were going to focus on how much farther federal power (and maybe governmental power in general) should go. But the rise of an aggressive and vocal Tea Party movement may unleash suggestions of pushing back -- maybe significantly back -- on federal power as it currently exists.
The controversy over Paul and the Civil Rights is one example. But there could be others. For example, the Maine Republican Party's platform calls for abolishing the Federal Reserve. Of course, state Republican Party platforms have proposed some fairly extreme things in the past, too. And platforms are not policies, or even candidates' policy positions. But when those platforms are backed by a vocal part of the party, there's more reason to suspect that at least some of these arguments will be aired in public, and not just tucked away on the party's website where nobody reads them. These planks must be meaningful if the activists are motivated to junk the establishment's platform and insert the new one instead. We know from people like Rand Paul that candidates favored by these activists seem to think these ideas matter to their base.
I don't think it's such a bad thing for our democracy that once in a while fundamental assumptions are questioned. I happen to think that some of the ideas I'm hearing from the Tea Party are wrong, and frankly, scary. And I concede that I don't like the idea of seriously rethinking fundamental civil rights commitments we've made. But if we're serious about being a self-governing people, there's something to be said for signing off again on the basics of the New Deal, or the environmental or consumer movements, after having a vocal group argue the other side. I'd be delighted if every American did this in an instant, thinking to him or herself, "of course I support all that, we don't even need to think about it, do we?" But since most Americans don't think about these issues every day, or even every election cycle, it may make sense, maybe once in a generation, to air the issues and (I hope) reaffirm our commitment to some basic national goals and to giving government the power to accomplish them.
Fontana on the search for postradical liberal prawfs
David Fontana (GW) argues in The Chronicle of Higher Education that President Obama, Sonia Sotomayor, and Elena Kagan all were part of the postradical generation of law students at Harvard and Yale. Fontana makes two points from this. First, it explains the reputation of all three as more-moderate conciliators, who were influenced either by more-conservative faculty members or liberal-but-not-radical (i.e., non-CLS) faculty members. avid argues that most of the radical CLS crowd had left Harvard and Yale by the mid-to-late 1980s (when Obama and Kagan were there).
Second, David argues this explains why Obama has not been appointing more strongly, "theoretically ambitious," "truly liberal" judges--there are not enough of them, particularly among the legal professoriate. Many of today's liberal law professors (he cites Mark Tushnet, Robert Post, and Larry Kramer) have shifted to the popular constitutionalism movement, arguing that courts should stay out of the judicial-review business--a theoretical position that would not play well for a judicial nominee. Alternatively, many liberals are doing quantitative work, which speaks less to the work that judges do and thus makes them less attractive as judicial nominees. And even straight-up liberal doctrinalists largely saw their arguments fail in the face of resistance from the legal system, especially now that it is dominated by Republican-appointed judges. Necessarily implicit for this argument to work, I think, is that not only are law faculties not breeding grounds for liberal judges, but they are not producing theoretically ambitious law students who could be strong liberal judges.
This is an interesting take and worth a read. I am not sure of the empirics of the first point, although it makes some sense, given the timing of the departures of many CLS folks from Harvard and Yale and the general shift in CLS since its early days. I am not convinced on David's second point for several reasons.
First, there are a lot of us liberal doctrinalists out here who do not buy all-in to popular constitutionalism and who still believe in a liberal vision (what David calls the "Old Left") of the Constitution enforced in the courts. And students are learning that vision in law school. It may not overlap with the same vision of judicially enforceable "positive" constitutional rights (to education, health care, wages) as in the 1960s. But there is a vision of broad individual negative rights and broader congressional power to create positive rights. It seems to me Obama could find a whole bunch of these folks in and out of law schools.
Of course, Obama's highest-profile attempt thus far has been the nomination of Goodwin Liu to the Ninth Circuit, which has run into a ton of political controversy and faces a potential Republican filibuster. But this suggests that it really is about the politics rather than an absence of liberal constitutional theoreticians and scholars. For better or for worse, anyone more liberal than the current left of the current Court is tagged as "outside the mainstream," creating the "exceptional circumstances" that justifies a filibuster even among the Gang of 14.
Second, the Republicans recognized that the way to change constitutional law was to change the composition of the courts, which they have done over the past 30 years. That explains, in part, why the liberal doctrinal vision has heretofore failed. Of course, the way forward is to put more of these liberal doctrinalists onto the courts and see where things go in the next 30 years. Otherwise, this seems circular--many liberal constitutional arguments failed, so we have no liberal law professors and no pool for ambitiously liberal judges who might accept those arguments.
Third, I am not sure why the popular constitutionalists have, through their arguments, disqualified themselves from consideration for the judiciary. How many conservatives were appointed despite (or likely because of) a track record of arguing against "judicial activism" and judges overstepping their bounds? Why not in reverse?
The whole piece is worth a read.
Lord Devlin and the Veil: Revenge of the Fallen
Reasonable people today believe that H.L.A. Hart had the better of Patrick Devlin in the debate over the criminalization of homosexuality. An over-simplified little re-cap. Lord Devlin, one of the arch-legal-moralists of his day (though much of what he stood for was said earlier, and far better, by Sir James Fitzjames Stephen), believed in the vital importance of some common, fundamental moral agreement for the survival of a society. Conduct that violated this reservoir of common moral agreement ought to be criminalized, even if it did not violate Mill's harm principle. The coercive power of law ought to be used to protect and fortify this shared moral terrain, as a mechanism of social self-preservation. Hart's position in the debate (following Mill) was essentially to challenge the view that this sort of substantial moral consensus is necessary for the survival of a liberal state. Yes, the legal enforcement of certain moral values (life, property, public safety) was necessary; but it is wrong, as well as unnecessary, for the state to use the rough engine of criminal law to protect the moral reservoir outside of these areas. In the area of the criminalization of homosexual sexual relationships, Hart won.
But the veil controversies in Europe represent, I think, an impending victory for Lord Devlin, and perhaps one that portends other such victories in the future.
Here's a bit of Devlin to get warmed up: "There is [social] disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions." When a certain practice elicits a deeply felt disgust, a sense of revulsion by the common or reasonable man, then we have reached, for Devlin, "the limits of tolerance."
This is an important of the reaction to the veil now at play in certain Western European quarters. This opinion piece in Le Monde from a few days ago by Professor Jean-Louis Halpérin, expresses well the Hartian position with respect to the question whether the burqa should be criminalized. Note toward the end of the piece where Halpérin argues that the ban encroaches on private life and the right of people to choose their own 'life-styles.' This is a distinct echo of the Millian/Hartian view. And it is a view that has been thoroughly chastened by the opposition and a society that sees itself and its core values under threat. The burqa is only really an external symbol of that threat -- it isn't really what Western Europeans are concerned about. The no-burqa fine set to go into effect in the fall is quite modest; one assumes it would be a considerably more serious penalty otherwise. What they're really worried about is the loss of cultural cohesion that Muslim immigration represents. And they are right to worry -- the kind of immigration patterns that countries like France are witnessing portends nothing less than a dramatic change in the cultural make-up of Western Europe.
It's true that one might make the argument that this is really about public safety, and so bring it back within the sorts of values that Hart believed were the proper subject of criminal enforcement. But that argument is not powerful enough to explain the intensity with which the ban is supported -- it's not like we've witnessed an unrelenting rash of crime by burqa-clad hoodlums (though there have been some of these).
It may also be that Hart's view is in practice limited to the criminal regulation of certain forms of sexual morality -- perhaps only homosexuality -- I don't think we're anywhere close to seeing prostitution de-criminalized (though maybe the Europeans are closer). When we're dealing with egalitarian values, liberal states are more prepared to regulate (though still rarely, I think, with criminal sanction).
To me, the cardinal force at work here is clearly Devlinian. And given the nature of the politics now in play, immigration patterns, and the general cultural sensitivities taken to be under threat by an alien population, I predict more Devlin and less Hart in these and other future conflicts.
VOPA v. Reinhard and Ex parte Young: Why Cert. Should (and Will) Be Granted
For Federal Courts fans, one of the more intriguing cases in which a cert. petition is currently pending is a little-noticed lawsuit out of the Fourth Circuit, Virginia Office of Protection & Advocacy v. Reinhard. In Reinhard, the Fourth Circuit, in an opinion by Judge Wilkinson, held that state-created public agencies are not entitled to invoke the Ex parte Young exception to Eleventh Amendment immunity in suits against state officials in their official capacities--that sovereign immunity in general precludes the federal courts from resolving such "intramural" conflicts, even those arising under federal law.
To be blunt, such a conclusion is rather inconsistent with the doctrine of Ex parte Young (which has never looked to the identity of the plaintiff, but has instead turned on what Justice Scalia described in 2002 as "a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective."). More than just a problematic application of Ex parte Young, though, such analysis could also open the door for courts to identify additional previously unrecognized requirements for Young actions. With those concerns in mind, Reinhard first unsuccessfully sought rehearing en banc (with the support of the United States as amicus curiae), before filing a petition for certiorari. [Full disclosure: I co-authored an amicus brief on behalf of a group of federal courts scholars in support of certiorari.]
Rather than dispose of the cert. petition, the Court called in January for the views of the SG as to whether cert. should be granted. This maneuver was particularly curious at the time, since the Government had already taken a position in this case--arguing in favor of rehearing en banc in the Court of Appeals. Thus, whether or not the Court would be swayed by the SG's view as to cert., it seemed rather clear what that view would be.
But, although the government has yet to share its views, a little-noticed development three weeks ago probably sealed the deal: The Seventh Circuit, sitting en banc in Indiana Protection & Advocacy Services v. Indiana Family & Social Services Admin., expressly disagreed with the Fourth Circuit's analysis. Although Judge Easterbrook dissented from other parts of the opinion (which was otherwise 8-1), the Seventh Circuit was unanimous in concluding that state-created agencies may, in fact, invoke Ex parte Young against their own state's officers, especially to enforce the statute at issue in these cases--the Protection and Advocacy for Individuals With Mental Illness (PAIMI) Act. Indeed, as Judge Hamilton explained,
Indiana's use of IPAS's status as an independent state agency to support the State's late reliance on the Eleventh Amendment to block this lawsuit also seems, frankly, unfair. Congress gave each state the choice to establish a protection and advocacy system as either an independent state agency or a private not-for-profit entity. Indiana made the choice to set up IPAS as an independent state agency. If we gave that choice any weight in the Eleventh Amendment inquiry, we would be permitting Indiana to use its own choice to set up an independent state agency as a means to shield its state hospitals and institutions from the very investigatory and oversight powers that Congress funded to protect some of the state's most vulnerable citizens. That result would be strange indeed. The combination, moreover, of the state's choice to set up an independent agency and its failure to raise the Eleventh Amendment issue itself also makes it difficult to see how this lawsuit poses a serious threat to any special sovereignty interest of the state.
Whatever the merits, then, there is now a clear and sharp circuit split on a potentially significant--but usefully narrow--question concerning the scope of Ex parte Young remedies. Moreover, the split is among judges whose views tend to receive particular attention on the Court--Posner and Easterbrook in support of the Seventh Circuit's analysis (Posner penned a separate concurrence); Wilkinson in the other direction. Finally, the Supreme Court has not really taken a significant state sovereign immunity case since Justice O'Connor's parting gift in Central Virginia Community College v. Katz in 2006. It will be interesting to see whether the three new Justices (and by then, perhaps four) have views that materially differ from their predecessors. [In 2006, then-Judge Sotomayor wrote an opinion for the Second Circuit closely resembling the Seventh Circuit's analysis in IPAS.]
One last thought: Because the SG's office no doubt authorized the government's amicus brief in the Fourth Circuit, it's entirely possible that, if confirmed, then-Justice Kagan would recuse. I still don't think that hurts the chances for cert., though. After all, Justices Scalia and Thomas have repeatedly written in favor of the traditional understanding of Ex parte Young, and, of the current Justices, only Justice Kennedy seems more positively disposed toward Judge Wilkinson's approach.
All of this is a long way of saying that I suspect there will be some fun and serious heavy lifting later this year on the continuing meaning, relevance, and force of Ex parte Young. Future Federal Courts students, beware!
Wednesday, May 19, 2010
Ideoblog Merges With and Into Truth on the Market
Larry Ribstein, pictured left, whom I joined as a co-author on the fourth edition of Unincorporated Business Entities, the world's premier casebook on non-corporate business associations (note that I didn't simply say "my co-author Larry Ribstein" because it would unfairly reflect our respective contributions), has announced that he is shutting down his six-year old blog and joining Truth on the Market. Terms of the deal were not announced, but sources reported that TOTM paid a significant (some might even say infinite) premium over Ideoblog's current market cap. The rumors are also that Larry will continue moonlighting in television and motion pictures under his stage name, James Rebhorn (known for his recurring role as a sleazy (other than Tovah Feldshuh's character, Danielle Melnick, aren't they all?) defense lawyer on Law & Order and the wimpy defense secretary in Independence Day, pictured right).
Congratulations to Larry, and thank goodness Ideoblog wasn't organized as an LLC in which another member might sue him in a derivative lawsuit and incur his wrath not because of the merits but because of the form of the action. (That's an inside "Agency, Partnership, and LLC" reference.)
The Fair Report Privilege in NJ: "Misappropriate" = "Steal"?
In Salzano v. North Jersey Media Group, 2010 WL 1849852 (May 11, 2010), the New Jersey Supreme Court addressed important issues regarding the scope and application of its fair report privilege. First, the court held that defendants may receive the benefit of the privilege when repeating allegedly defamatory allegations taken from “initial pleadings,” such as a filed complaint in a civil case. Second, the court held, albeit by an equally divided vote, that defendants’ reporting regarding a civil complaint filed in bankruptcy court was fair and accurate even though it described the complaint as alleging that the plaintiff had “stolen” funds from a bankrupt corporation when the complaint actually stated that the plaintiff had misappropriated funds. The split on the second issue reflects a division amongst the judges on whether the dictionary definition of “misappropriate,” or its arguably less pejorative “street” definition, is the relevant benchmark for judging its rough equivalence with “steal.”
For those not familiar with the fair report privilege, some background is in order. The fair report privilege provides vital protection against defamation suits for journalists reporting on government affairs. The fair report privilege stems from common law or sometimes from statute, and it protects journalists or others who repeat “defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern.” Restatement (Second) of Torts Sec. 611. However, the privilege is only available if “the report [of the official action or proceeding or meeting] is accurate and complete or a fair abridgement of the occurrence that is recounted.” Id.
Three rationales underpin the fair report privilege. The narrowest rationale for the fair report privilege is the “agency” rationale. Since any member of the public has a right to attend a public meeting or obtain access to “open” government documents, the press is privileged to repeat accurately information from these sources because it is acting as an “agent” for the public in doing so. A second rationale is the “public supervision” rationale, which recognizes the checking function of the press in scrutinizing government conduct and providing the public information about what their government officials are doing. A closely related but potentially broader rationale is the “public information” rationale, which posits that the press should not be held liable for informing the public about matters of public interest, because such information is essential to intelligent voting and the formation of enlightened public opinion.
The scope of the privileges varies from jurisdiction to jurisdiction, depending in part on which rationale is applied. For example, some jurisdictions permit a defendant to invoke the privilege when the defendant reports information obtained from a “leaked” government document, but some deny the privilege because the defendant cannot claim to be acting as an agent in reporting on a document to which the public had no access. Likewise, some jurisdictions permit a defendant to invoke the privilege even if there is no attribution to the government source; some don’t, because the public cannot evaluate government performance if they do not know the source of the information.
In Salzano, the New Jersey Supreme Court concluded that all three rationales—agency, public information, and public supervision—supported application of the privilege to fair and accurate reports of initial pleadings in a civil case. In New Jersey, civil complaints are “public documents to which the citizens . . . have free access.” The court concluded, therefore, that the media must be protected when they act as surrogates for the public in reporting “on every aspect of the administration of justice,” including the filing of a complaint. In reaching this conclusion, the court rejected the argument that extension of the privilege to reports on filed complaints would promote the filing of frivolous lawsuits designed solely to put defamatory falsehoods into circulation. If such abuses occur, the court said, they can be remedied with sanctions on attorneys and parties as well as suits for malicious prosecution or malicious use of process. The court expressed faith that citizens have a “sophisticated understanding of the court system and [are] capable of evaluating information gleaned from a complaint;” therefore, pleadings do not need to be “sanitized” or “filtered through a veracity lens” before publication. Clearly one can question both the court’s faith in the sophistication of the citizenry and the efficacy of remedies against the filing of complaints filled with defamatory falsehoods. Moreover, one can certainly question whether extending the privilege to cover filed pleadings upon which a government official has not yet acted furthers public scrutiny of the administration of justice. Regardless, the extension of the fair report privilege to “initial pleadings” provides an important shield against defamation liability for anyone reporting on the court system and the Salzano decision places New Jersey in the modern trend toward giving the privilege broad scope.
Equally important is the leeway the New Jersey Supreme Court gave the media defendants in evaluating the fairness and accuracy of their reports on the complaint filed by the bankruptcy trustee. The complaint stated that plaintiff “unlawfully diverted, converted and misappropriated [the bankrupt corporation’s] funds” by using two checks from the corporation to purchase his residence and by using the corporation’s credit card for over $200,000 in personal expenses. The defendants published a story about the allegations in the complaint under the headline “Man accused of stealing $ 500,000 for high living” and asserted in the body of the story that the bankruptcy trustee’s complaint accused plaintiff of stealing. In evaluating whether the published stories involved “full, fair and accurate account of the official proceeding,” the court focused on whether the defamatory “sting” of the defendants’ reports was “essentially the same as that of the complaint.” With regard to the language regarding plaintiff’s “stealing” of funds, the court noted that the headline had to be read in the context of the whole article, which clearly indicated that the allegations of the complaint had not yet been adjudicated. The court then looked to the dictionary definitions of “misappropriation” and “steal” to reach the conclusion that “it is clear that the fair and natural meaning of the word ‘steal’ given by reasonable person of ordinary intelligence is ‘misappropriate.’”
What is fascinating about this conclusion is that the justices on the New Jersey Supreme Court were equally divided on the question whether an allegation in a civil case that the “white-collar” plaintiff “misappropriated” funds had as much of a defamatory “sting” as an allegation that he stole them. Justice Hoen’s concurring and dissenting opinion notes that the word “steal” “has the same meaning as misappropriate, but much stronger negative connotations.” According to Justice Hoen, the word “steal” “carries with it the clear connotation of a crime, together with its attendant evil-minded mens rea. None of that is faithful to the actual allegations made in the Bankruptcy Court by the Trustee.” Although the divide among the justice about the denotation and connotation of “misappropriate” seems purely semantic, the opinions in Salzano provide an interesting prism into contemporary attitudes about the culpability of white-collar “misappropriation” (in a civil case) as opposed to the simple “street crime” of theft.