Saturday, July 31, 2010
PrawfsPuzzler: Law Trivia Sudoku!
Here's the deal, this sudoku puzzle is quite hard ... unless you correctly answer the questions below about the law. Answers fill in blanks, helping you solve the sudoku. If you get all the answers, solving the rest of the puzzle should be no problem. Hey, you didn't go to law school because you were good at math!
This works just like a regular sudoku, except that instead of using the digits 1 through 9, as most sudokus do, in this puzzle we'll do it computer-programmer style and start with 0, going up through 8.
Instructions: Fill the blank spots in the grid so that each column, row, and bolded square contains one and only one of the numbers 0, 1, 2, 3, 4, 5, 6, 7, and 8.
A The Magnuson-Moss Warranty Act was enacted in 19__.
B This rule allows the exclusion of relevant evidence on the basis of unfair prejudice.
C This is the most recent amendment to the U.S. Constitution.
D This section of the Securities Exchange Act of 1934 allows recovery of short-swing profits by officers and directors.
E This rule allows motions on the basis of the pleadings.
F This title of the U.S. Code concerns patents.
G This title of the U.S. Code deals with the judiciary.
H The Voting Rights Act of 19__ prohibited the administration of literacy tests.
I This rule permits testimony by experts if scientific, technical, or other specialized knowledge will assist the trier of fact.
J This chapter of the Bankruptcy Code allows individuals to save their homes from foreclosure.
K This title of the U.S. Code sets forth crimes and criminal procedure.
L The Copyright Act of 19__ forms the basic statutory framework for current copyright law.
M This rule defines relevant evidence.
N This rule permits summary judgment.
O This title of the U.S. Code concerns immigration, aliens, and nationality.
Happy trails...I have enjoyed this extended stay on Prawfs over the summer. Thank you for having me! A happy, healthy, and productive 2010-11 to all.
Signing Off & ThanksThis is my final day as a guest on Prawfs. Thanks to Dan Markel and everyone else at Prawfs for allowing my guest stint. Thanks to all of you who read my posts. If I can be informative or helpful to any of you in the future, feel free to contact me at firstname.lastname@example.org.
Friday, July 30, 2010
Where do you write?
Before entering the academy, I had a job with heavy travel demands. The travel forced me to write documents in airports, on airplanes, in hotels, hotel lobbies, windowless conference rooms, in cabs, in parking lots, on trains, the Bridgeport-Port Jefferson Ferry (too windy on top deck), coffee shops, and yes, even in a bar. I even wrote the first half of a presentation at a Texas Rangers game until the client arrived with his family.
Unfortunately, I think these work habits have rendered it difficult for me to write in a sterile environment. I say "unfortunately" because writing in my comfortable office just doesn't happen. Short, tidy tasks are fine, as are class prep and student meetings. If I want to get a stretch of writing done during school hours, I sneak out to the undergraduate coffee shop.
Also, I can't bring myself to ignoring a knock on the door of my office, even when I am on a roll. A decaying sign scotch-taped to a prolific professor's door during my law school years blared in bold black marker, "Professor [X] writes in the mornings. Do not disturb him." I admired the clarity and third-person nature of the admonition, but I'm not quite as accomplished as he. (That sign almost could have read, "Professor [X] writes a book each morning. Please do not disturb him.")
During the summer, I get most of my work done at some amazing coffee shops here in Portland, Oregon. Nobody knows me, but there is plenty happening.
On C-SPAN, one of Brian Lamb's regular questions of non-fiction authors is: "Where do you write?" One eminent professor emeritus of history informed Lamb that he wrote in his backyard shed every morning... in the nude. Even the unflappable Lamb broke a grin.
Where do you get your best writing done, aside from your work or home offices- or a library? (I don't think we want to know your state of dress.)
Final July 2010 Posting on Nazi-looted Art Trafficking
A document I recently saw for the first time really opened my eyes to the amount of trafficking in Nazi-looted art into U.S. museums. It was a report completed by art historian Laurie A. Stein that was mentioned in the final report of the Bergier Commission, an Independent Commission of Experts established by the Swiss Parliament to study the role of Switzerland in trafficking during World War II. The Bergier Report came out in March 2002. To my knowledge, Ms. Stein's report has never been published, but last year was given by the Swiss government to Raymond J. Dowd, a claimants' lawyer in the Bakalar and Grosz litigation, which he discusses often on his blog. Because of how sensitive this is, I will use quite restrained language.
Ms. Stein's report indicates that research to date has only scratched the surface of the "extraordinary breadth of traffic in art to the United States that was occurring in the Nazi era." Ms. Stein stated that "the myths of American museum directors and collectors purchasing art in the 1930's through Swiss sources, in order to rescue it from the National Socialists, need to be reconsidered." She added: "It must be remembered that while Europe went to war, America was still conducting business as usual, even in the cultural arena--defining new museum collecting policies, mounting exhibitions, and building private collections from the best possible art available on the market."
The report focuses mostly on art channeled into U.S. museums via Nazi sales of "degenerate art" taken from German museums to auction in Switzerland (as advertised in Art News in New York) to raise foreign currency. Some art world insiders could not resist the temptation to scoop up a masterpiece for a bargain despite knowing that the net effect would be to "transform works of art into armaments." Many of those masterpieces eventually would come to be sold or donated to U.S. museums. There are some big names implicated by the report as having handled or ultimately received this art - the Museum of Modern Art, the Fogg Art Museum, Curt Valentin, "this country's most influential figure in the development of modern art", and Joseph Pulitzer, Jr., to name just a very few names recognizable to a wide cross section of Prawfs readers.
The report supports the hypothesis that the high-profile dealers and collectors who facilitated the transactions likely are many of the same individuals who trafficked in Switzerland in art taken from Jews in forced and duress sales. To highlight the breadth of the issue, Ms. Stein wrote: "The range and constancy of recently-arrived works being offered and acquired by Americans evidences that the United States became a welcoming homeland for confiscated and looted art, and Switzerland became probably the most important conduit country for the rush of American art collecting during the era." According to the report, "[i]t is clear that there was much more dealing between American-based buyers . . . either in front of the auction block or behind the scenes, than has been recognized up until now."
So, in conclusion, the Nazi-looted art problem will not disappear any time soon. As heirs become aware of their possible claims and start to research, we can expect more litigation. One can only hope that the Nazi-looted art commission about to be born within the Department of State has an extraordinary impact within the United States and beyond in terms of truth and justice. There is still a long road ahead, but we owe it to Truth and Memory to continue.
The New Realities of the Legal Academy...
But times have changed. When the Association of American Law School’s created the annual Faculty Recruitment Conference (or FRC) and the associated Faculty Appointments Register (or FAR), the landscape of the legal academy was forever changed. The change was slow in coming. For many years, candidates were selected for interviews at the FRC on the basis of the same old credentials and connections, but at some point (many would say the early 1980s), the rules of the game began to change. In baseball, a similar change is associated with Billy Beane, the manager of the Oakland Athletics, who defied conventional wisdom and built winning teams despite severe financial constraints by relying on statistically reliable predictors of success. The corresponding insight in the legal academy (developed by hiring committees at several law schools) was that the best predictor of success as a legal scholar was a record of publication. It turns out that law school grades, law review offices, and clerkships are at best very rough indicators of scholarly success. But those who successfully publish high quality legal scholarship are likely to continue to do so. This foreword explores the implications of the new realities of the legal academy for candidates seeking to become law professors.
Thursday, July 29, 2010
FBI training mess
It never fails to amaze me when the government pushes organizational compliance programs on corporations, but then does a relatively poor job backing up its own compliance efforts. Last year, I reported on the DOJ's Office of Professional Responsibility, whose reporting suggested that OPR was more reactive than proactive, and seemed to intervene only in the worst of situations, thus setting itself up for compliance failure.
Today, the Associated Press reports on the FBI's surveillance training program. Apparently, agents receive training in the agency's procedures relating to surveillance (including standards which Director Mueller himself seemed to have difficulty articulating in Congressional testimony), and then are supposed to take a 51-question test verifying and demonstrating their knowledge. It appears that some FBI agents (including very high level supervisors) may have outright cheated on the test, whereas others may have unintentionally violated FBI rules by discussing the test as a group when they were in fact supposed to take the test without help. Although senators inquired of Mueller how widespread the cheating and related problems were, he was unable to answer those questions with specificity.
At the very least, this sad episode demonstrates a lack of thought and care in the design and implementation of an important compliance-related program. Agents should have clarity both as to the importance of the training and test, as well as to the means by which such test is to be administered. Cheating should lead to some level of discipline or punishment, depending on the circumstances, and to the extent it is widespread enough to trigger the Inspector General's involvement and questions from the Senate Judiciary Committee (as in the case here), it ought to be a high priority of the Director. This isn't rocket science; it's Compliance 101.
Were such shortcomings revealed within a corporation's compliance program, government prosecutors would sternly warn said corporation's management to clean up its act. As the Inspector General's cheating investigation unfolds, it will be interesting to see how high-level officials, at the FBI and elsewhere, respond.
Leib & Serota on Statutory Interpretation at YLJOMy recent essay with Michael Serota on the virtues of dissensus in statutory interpretation is now live at The Yale Law Journal's frontpage. While you are there, check out my recently published YLJ essay with Don Dan Markel and Jennifer Collins on family status and criminal justice. And if you want your brain as trifurcated as mine has been recently, my Emory Law Journal piece -- Contracts and Friendships -- has also just gone live.
Not Obvious to Me
Let me gently disagree with Eric's post below, which argues that "[o]ur system of justice is absurdly complex and time consuming," and that this is a problem that is generally unnoticed or unaddressed by the legal profession, including its academic arm. In particular, Eric argues that "[e]ndeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive."
First, I don't think this problem is either unnoticed or ignored. Eric agrees that none of this is news, but says it is so apparent that we don't pay much attention to it. Of course, some people may not pay attention to it because they think it's not a problem; more on that below. Others do think it is a problem, and although I think there ought to be more scholarship on the relationship between law and complexity, it is certainly out there.
Second, I think there are two levels of "what do you mean we?" response available to Eric when he says "our" system of justice is absurdly complex. First, I'm not sure whether Eric is talking only about the United States. But ours is not the only system of justice, even of common-law justice. Many other nations have made great strides in legal reform, and should not be ruled out of the conversation. So have many local jurisdictions within the United States. Second, much depends on what Eric means by "our system of justice." For the most part, he appears to be referring to the courts. That's not the only place that either the legal system or legal reform takes place. Some of those places look worse than the courts -- say, the immigration system. Others look much better. And in all these places, as well as in the courts, some reform is happening all the time. I do tend to think the United States is more hidebound and less serious about legal reform than other countries may be, but we should not ignore the fact that it does occur, and not only through the courts.
As to complexity itself, we must be clearer on when and why this is a bad thing, and we mustn't lose sight of the responses to complexity that have been offered. It is true that no lawyer can go through life anymore with just a copy of Blackstone by his side. But we don't live in Blackstone's world. If law has gotten more complex, surely that is because human affairs have gotten vastly more complex. Unless one believes that life's complexity can be reduced to a set of "simple rules," as Richard Epstein has argued, then the mere fact that law has gotten more complex is not reason enough for a lament. Moreover, I think that in emphasizing the "explosion" of technology and wealth and what it has contributed to law's complexity, Eric undersells the degree to which the same resources have been deployed to respond to that complexity. There is vastly much more law than there was 200 years ago. But our systems of researching, retrieving, and communicating within and beyond the law have also gotten much more sophisticated. For all its flaws, Westlaw makes it much easier to marshal effective legal resources, even in a complex and law-filled world. Nor does Eric give enough weight to the ways in which law has responded to factual complexity. Much of our legal doctrine in and out of the courts, from the whole body of administrative law and particularly the Chevron rule to the post-Daubert era decisions on scientific evidence, are designed to respond to these issues. And, oddly to me, he criticizes the fact that more resources may be spent on high-stakes litigation than on small-stakes litigation. This, too, strikes me as a reasonable and market-driven response to law's complexity. In short, we cannot effectively judge law's complexity unless we take into account the full panoply of responses to it.
Nor can we effectively judge whether law's complexity is a problem without making some kind of comparative and/or normative assessment about whether we would be better or worse off with less complexity. Simplicity is not a virtue in and of itself, nor is complexity necessarily a vice. The question is not whether law is "complex" or "simple," but whether it brings the right resources to bear on the right problems. That may call for more complexity in some areas and less in others. The real question is whether law is appropriately responsive to social problems, not whether it does so simply or complexly.
Along those lines, I have argued elsewhere that constitutional doctrine, and particularly First Amendment doctrine, is often influenced by, and harmed by, "the lure of acontextuality" -- by the urge to come up with doctrinal rules that are largely indifferent to context, that employ primarily legal rather than prelegal and functional categories in carving up the world, and that therefore risk becoming either unresponsive to real problems or, to the extent that they carve out numerous contextual exceptions without abandoning the general urge to acontextuality, becoming incoherent. If I am right about that, then we might see this as an instance where law's preference for a particular kind of simplicity has made it less capable of keeping up with factual complexity and institutional diversity. The solution to this, however, is not necessarily for law to become more complex. It is for law to come up with better categories and better tools. In some cases, it will mean focusing more on functional categories other than the legal categories the law currently uses -- to accept that sometimes and in some areas there ought to be a "law of the churn," in Holmes's mocking words, or that there are salient differences between the institutional press and the "lone pamphleteer." In others, it will mean having law do less work -- as in a system of reflexive law, new governance, or democratic experimentalism, where law's function is to coordinate the self-regulation of complex entities rather than attempting to regulate them directly.
It is obviously an open question whether these reforms will be preferable to our current state. But they don't turn on either complexity or simplicity: they turn on whether law is doing the right job, with the right tools, and in response to the right stimuli. None of this means that Eric hasn't identified a possible problem, or that he is wrong to complain about how poorly the law fares in particular areas. But I think, with respect, that he is wrong to pin the blame on "complexity," or to pin our hopes by implication on "the opposite of complexity."
Wednesday, July 28, 2010
The Huge, Obvious Problem with the Law
There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it's not there. It's so large as to be beyond overwhelming.
The problem is this: Our system of justice is absurdly complex and time consuming.
I know - it's not news. But that's the rub. The shadow cast by this cloud is so vast that our eyes adjust to the darkness. Several aspects of the Big Problem are shocking to 1Ls and stub-year associates. But eventually, we all become desensitized. Nonetheless, the legal profession ought to take a hard look at the ugliness. If we cared to do something about it, I think we could.
There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.
Why is this so? The basic features of our courts, our procedural law, and our means of recording and organizing substantive law were designed in an era of quill and parchment. And the biggest changes since then arose in an era of typewriters - before there were photocopiers, even. Since that time, an explosion in population, technology, and wealth has overwhelmed the law's operating system. It's like trying to run new, bulky software on a really old computer. It's slow as heck.
To appreciate the absurdity of the burden we've imposed upon ourselves, it's helpful to get some context. Let's compare civil litigation to health care. A medical problem costs nearly the same amount to treat for a rich person as it does for a poor person. Sure, there are always more tests you can run, wallet willing. But in health care, the key variable is the disease.
That's not true at all for civil litigation. The key variable in a lawsuit is the amount of money at stake. The exact same ambiguous contractual language could cost mere hundreds of dollars to litigate or well into the tens of millions. If you think about it, that's crazy. The cost of a civil dispute scales directly with the dollar amount on the line. That's why plaintiffs' lawyers can sensibly charge straight percentages of a contingent recovery. The mathematical relation is bankably certain.
Sadly, to the extent anyone has tried a real game-changer here, it has been binding arbitration. Instead of trying to fix our courts, whole sectors of industry are just doing without. And that turns out to be very undesirable for a lot of reasons - at least in my opinion, and I know many agree. With arbitration, particularly when it comes to consumers, convenience is often obtained at the price of fairness.
For all the codes and rules and hortatory language of “professional responsibility,” our profession ought to take responsibility for the law as a whole - and the mighty swamp we've made of it.
A Different Kind of K-2 High
I saw an interesting article out of Ft. Wayne, Indiana today about K-2, a synthetic herb that is sold for aromatherapy purposes and as incense but is also "marketed" to teens as a way to get high (supposedly it has marijuana-like side effects--but see below--and has a much more powerful high than THC, marijuana's active ingredient). K-2 was originally created in 1995 by a chemistry professor named John Huffman, for the potential treatment of nausea and glaucoma and as an appetite stimulant. The recipe for Huffman's compoud was allegedly published in a scientific journal, where manufacturers in Korea and China adapted it and turned it into a liquid that is sprayed onto a herbal blend. The creator of the active ingredient used in K2 warns that side effects can include hallucinations and delusions, elevated blood pressure, vomiting and even seizures. These side effects are not typical for marijuana users.
K-2 is banned in most of Europe. Some states such as Iowa, Missouri, Kansas, and Kentucky have banned the substance. Legislation is pending in Alabama, Georgia, Missouri, and Tennessee, and Illinois, Louisiana, Michigan, New Jersey, and New York are considering bills to outlaw K-2. It is still legal in other states, including Indiana. Ft. Wayne is considering a bill to ban the sale and use of this substance; it is currently sold in several local gas stations and is sold as incense. Stores in Texas and Oklahoma, however, only sell to patrons over 18.
Opponents are saying that K-2 is a safe alternative to alcohol. Last month, however, someone crashed his car into a private home after smoking K-2 and said that he saw a "3-D cartoonish character" before the accident.
It seems a "no-brainer" to me that if marijuana is illegal, then synthetic substitutes for it should be as well. It's strange to look at these issues from a parent's perspective--I'm glad my kids are all under the age of 3 (one of the few contexts in which I can say that!).
Jeff Lipshaw: Things You Ought To Know If You Teach Contracts
I'm going to follow Paul Horwitz's lead and mix resources with opinion. This is simply one person's view; reasonable minds may differ and I invite debate!
- Contract creation (offer and acceptance, reliance, electronic contracting)
- Contract performance and interpretation (parol evidence, implied terms)
- Defenses (statute of frauds, unconscionability, duress, mistake, impossibility and frustration)
I'm not a coverage junkie, but even in a four-credit course, I'd try to make sure I did something in each of those units; depending on how fast you traverse the material, in a six-credit course you could even get to assignment and third party beneficiaries.
2. Consideration or remedies first?
The basic dichotomy in teaching contracts (and hence the approach of the casebooks) is whether you teach "legal enforceability" or "remedies" first. This is right up there with other crucial decisions like "paper or plastic." There's a rationale for each: teaching consideration first appeals to the theorists because it plumbs the question why and under what circumstances the state gets involved in enforcing promises at all. Teaching remedies first highlights the different aims of contract law – reliance interests, expectation interests, and restitution interests. Some of the most popular casebooks (Knapp, Crystal, and Prince, for example) take the former approach; the latter approach is classically Kingsfield because you start with cases like Hawkins v. McGee (what is the value of a good hand?) or Groves v. John Wunder (do you measure damages by the actual harm to the non-breaching party or by the literal terms of the contract?)
3. How much UCC and CISG?
This probably depends in part on whether you have a four-credit or six-credit course, and whether your curriculum (like Tulane's, for example) explicitly calls for teaching the UCC either in the second semester of the first year or as an upper level course. This is a matter of personal preference; there are some contracts professors who eschew much of "classical" contract law in favor of the UCC, even in the regular contracts class. I think there are some pieces of the UCC that you almost have to teach, like the battle of the forms under 2-207 (particularly as it now applies to shrink wrap or electronic contracting).
I'm going to go public and say that teaching the U.N. Convention on the International Sale of Goods (the international equivalent of the UCC) is, in my view, a "nice to do" but not a "gotta do." This is a somewhat politically incorrect view.
4. How much real world?
I'm also willing to go on record (having done it already) to say that nothing highlights the tension between the legal academy and the practicing profession as much as the subject of contract law. You can graduate from law school and actually use the doctrine you learn in torts, civil procedure, criminal law, etc. That is far less true of contracts. First, contract law as taught is really about contract litigation, not contract creation. Moreover, you can go thirty years in practice and never see a case or a transaction that invokes the law of consideration, offer and acceptance, duress, etc. I am generally disdainful of contract doctrine as a means of explaining what is actually going on in the business world. (See my article Models & Games, for example.) Although there are some admirable casebooks out there that attempt to do so (e.g. Epstein, Markell, & Ponoroff, Making and Doing Deals), my concern is that pushing traditional contract doctrine into a real business setting is a square peg in a round hole (the metaphor is apt for all sorts of reasons). You don't really teach the business world, and you don't really teach traditional doctrine. No, were it not for the bar exam and inertia (i.e., Langdell was a contracts teacher), we probably wouldn't bother with most of contract law as we presently teach it. Or, as I have often said, practice is 5% doctrine and 95% interpretation; the course is usually 95% doctrine and 5% interpretation.
I do not have a good answer for this. My inclination still is to disabuse students of the idea that what they are learning maps on the real world. It is more helpful to think of contract law as the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. Hence, teaching the subject, by my way of thinking, requires a jurisprudential approach, one that says "what you are about to learn is a particular way of modeling human interaction." Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No - an integrated law of contracts, if one exists, is a figment of the Langdellian or Willistonian or even the Corbinian or Llewellynian imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).
Having said that, particularly if you have the luxury of a six-credit course, interjecting classroom exercises that tie to the doctrine seems like a really good idea. There is a burgeoning industry in such exercises; see Resources below.
- Sign onto the list serv of the AALS Section on Contracts. Carol Chomsky at the University of Minnesota is the list serv administrator.
- Make sure that you are on the desk copy mailing list for contract law materials at Thomson West (West and Foundation Press), LexisNexis, and Aspen. You can only use one casebook, but the other books are rich with resources.
- Get the RSS feed for the ContractsProf Blog, edited by Frank Snyder at Texas Wesleyan, and ably assisted by Miriam Cherry (McGeorge), Meredith Miller (Touro), Keith Rowley (UNLV), and Jeremy Telman (Valparaiso).
- Immediately find out who Tina Stark (Emory) is, and why she is one of the most forward-thinking and innovative transactional law teachers in the country. Get yourself access to the Emory Exchange for Transactional Training Materials, which includes tips for integrating real world situations into the first year contracts course.
- The Legal Information Institute of the Cornell Law School maintains an online and cross-linked version of the UCC. (Note: the Cornell license doesn't include the comments so you have to get them elsewhere).
- The Pace Law maintains an online full text version of the United Nations Convention on the International Sale of Goods.
- Order a copy of Contract Stories, edited by my classmate Douglas Baird (Chicago), which contains essays providing the context of many of the chestnut cases.
- Attend the annual Spring Contracts Conference, an event instituted by a group of committed contracts professors, including Frank Snyder and Keith Rowley. I don't have a link for the upcoming conference to be held February18-19, 2011 at Stetson University (perhaps somebody can provide a link in the comments).
- Plan to attend Suffolk University Law School's March 25, 2011 daylong symposium in Boston to mark the thirtieth anniversary of the publication of Charles Fried's iconic "Contract as Promise. After reflections from Professor Fried, some of the academy's foremost contract theorists will offer papers and commentary, with ample opportunity for questions and discussion. Participants presently scheduled include the Honorable Richard Posner, Randy Barnett, Barbara Fried, T.M. Scanlon, Jean Braucher, Richard Craswell, Avery Katz, Henry Smith, Lisa Bernstein, Seana Shiffrin, Daniel Markovits, Juliet Kostritsky, John C.P. Goldberg, Rachel Arnow-Richman, Curtis Bridgeman, Nathan Oman, Roy Kreitner, Gregory Klass, Carol Chomsky, Jody Kraus, Alan Schwartz, and Robert Scott.
- You may or may not want to get familiar with some of the supplements. Brian Blum's Examples and Explanations (Aspen) is very popular. Keith Rowley's Questions and Answers: Contracts (LexisNexis) has lots of multiple-choice questions. I know there are lots of other good ones, and invite recommendations in the comments. (I try to keep an arm's-length relationship with the supplements, mainly because I don't want to have to try to explain what another professor means about a subject in addition to what I and my casebook are saying.) One huge benefit of getting on the desk copy mailing list is that you get these resources as well.
- One of the most helpful things for me was the session at the AALS Workshop for New Law Teachers on pedagogical methods other than Socratic or lecture (e.g., brainstorming or "pair-square-share).
Hungary's Nazi-looted Art Restitution Record & the Herzog Family
The heirs of Hungarian banker Baron Mor Lipot Herzog, one of the most well-known art collectors of his time, have filed suit in the United States District Court for the District of Columbia against Hungary and some of its museums seeking restitution of their art. The heirs have sought restitution out of court from Hungary and its museums for over twenty years. The Iron Curtain prevented much restitution discussion for almost fifty years after the end of Word War II, of course. Hungary has one of the worst restitution records of any nation.
The heirs also have had a case pending in Russia since 1999. Russia's record on restitution is abysmal. It has labeled art taken back home by troops as "trophy art" to serve as cultural restitution for Nazi destruction of evidence of Slavic culture in the East. Its argument fails to take into account many compelling reasons to return the art, including that much of the art was stolen from Jews before being acquired by the Nazis. When I visited the Hermitage Museum in St. Petersburg, two rooms full of "trophy art" were on display.
This year, Germany restituted a number of pieces to the Herzog heirs, including a painting auctioned for $8.5 million earlier this month. The proceeds of that auction will be used to fund the litigation. Some people are saying that the Herzog heirs' claim is the world's largest unresolved Holocaust art claim; at least $100 million is at issue in the law suit alone. Here and here are two informative articles.
It is essential for the United States to exercise leadership concerning Holocaust asset restitution if we are to expect Eastern European nations to honor undeniably meritorious restitution claims. Over one-half millions Jews were killed in the genocide in Hungary during World War II. Don't the survivors, who lost everyone and everything, at least deserve their property back?
Tuesday, July 27, 2010
"We're Here to Help": Another Constitutional Problem With Arizona's "Mirror Image" Immigration Enforcement Theory
Arizona's new immigration law, SB 1070, raises many issues, but one question that has been central to the litigation and much of the public policy discourse is whether states can pursue more aggressive immigration policies so long as they "mirror" federal law. In the Arizona context the principal scholarly (Kobach) and political (Gov. Brewer, Sen. Pearce) proponents have made this argument repeatedly, and it has been made in the current litigation as well. The argument has taken many forms: "federal enforcement of current federal law is inadequate, and we are just here to help," "what is the problem with more enforcement of the laws that 'you' (the federal government) has passed?," "SB 1070 was designed to 'mirror' federal law and provide 'cooperative' enforcement."
We have previously noted that the description of SB 1070 as a mirror of federal law is descriptively inaccurate. The crimes in the state bill do not simply repeat federal law, some are entirely new (e.g., those that punish workers, not employers), and even when they rely on a violation of a federal provision, they provide different punishments. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1617440 But now we see a more fundamental constitutional problem in this structure--one that has not been raised in the litigation but, if we are correct, would be fatal to the criminal provisions in the Arizona statute. The particular problem we see is the use of state criminal law to achieve solely federal ends.
While the principle of dual sovereignty recognizes that many things can be both state and federal crimes, that principle, says the Court, "will be found to relate only to cases where the act sought to be punished is one over which both sovereignties have jurisdiction. . . . [It] has no application where one of the governments has exclusive jurisdiction of the subject-matter, and therefore the exclusive power to punish.” Therefore, an "offense against the public justice of the United States" is "within the exclusive jurisdiction of the courts of the United States." If, as the Court has said, immigration is an exclusively federal power, to the extent that a state crime punishes a non-citizen for the manner or status of immigration, it is a wrong, if at all, to the nation rather than any particular state. It is precisely the embrace of federal law and powers, without an independent state basis for criminalization, that creates the problem. In other words, we believe the explicit theory on which SB 1070 is based is wrong; "We are just helping the Federal government" is a confession, not a defense. Cracked Mirror: SB1070 and Other State Regulation of Immigration Through Criminal Law.
This point is critical to the Arizona law, but also larger than Arizona: several states have passed new criminal laws intended to aide in federal immigration enforcement, and many additional such laws have been proposed. So, are we right?
Colin Miller: Things You Oughta Know If You Teach Evidence
The following is a list of resources which you might want to consult if you teach Evidence:
·EvidenceProf Blog is a blog maintained by Colin Miller of The John Marshall Law School. Co-bloggers are Joelle Moreno of the Florida International University College of Law, Myrna Raeder of the Southwestern Law School, and “blogger emeritus” David Leonard, formerly of Loyola Law School Los Angeles. The blog contains entries regarding recent precedent, scholarship, and laws relating to evidence. You can keep up with new posts by following the blog’s Twitter feed.
·The Federal Evidence Review is a monthly electronic legal journal that highlights recent federal evidence cases and developments for subscribers. You can subscribe by clicking here (subscriptions are $295). The Review also maintains the free Federal Evidence Blog, which highlights recent cases and issues involving the Federal Rules of Evidence and other topical evidence matters.
·The Confrontation Blog is a blog maintained by Richard D. Friedman of the University of Michigan Law School. The blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004), and the Confrontation Clause.
·Tillers on Evidence and Inference is a blog maintained by Peter Tillers of the Benjamin N. Cardozo School of Law. The blog covers news and developments relating to evidence, legal theory, and legal education.
·The Evidence listserv is maintained by Roger Park of the University of California Hastings College of the Law. On the listserv, Evidence professors discuss current issues relating to evidence law. To subscribe, send an e-mail message to email@example.com. The message should have no subject line. In the body of the message, include: “subscribe evid-fac-l [your first name] [your last name]”. Make sure there is a single space between each word, and do not include the brackets.
·Snitching Blog is a blog maintained by Alexandra Natapoff of Loyola Law School Los Angeles. The blog is a comprehensive resource on criminal informants: legal developments, legislation, news stories, cultural reactions, commentary and more….
·The Teaching Materials Network is a contact list of law professors offering to share their teaching materials with peers teaching a class for the first time. The Network is maintained by Susan D. Rozelle of the Stetson University College of Law. Several evidence professors have offered to share their materials on the Network.
·SSRN has an Evidence & Evidentiary Procedure eJournal. Its current Editor is Chris Sanchirico of the University of Pennsylvania Law School. The eJournal’s scope encompasses the traditional concerns of Evidence scholarship, including hearsay evidence, character evidence, expert witnesses, and privileges. You can subscribe by going to SSRN’s page of Journal Offerings, scrolling down to Evidence & Evidentiary Procedure eJournal, and clicking on the “Subscribe” tab.
·The International Commentary on Evidence is a peer-reviewed journal on evidence law and theory. Its Editor-in-Chief is Craig Callen of the Michigan State University College of Law. You can subscribe by filling out this form (subscriptions are $175).
Sorkin says Goldman is telling the truth about hedging
In case you don't read the New York Times' Business Section on a routine basis, on the left-hand side of page B1 today is Andrew Ross Sorkin's column, in which he reports that recently released emails demonstrate that Goldman Sachs was telling the truth when it argued that it considered itself hedged against what could have been AIG's collapse. For months, we have heard that the government's bailout of AIG was precipitated by Hank Paulson's desire to save his former firm, Goldman, who had too much exposure to AIG. But according to Sorkin's summary of the excerpted documents, AIG already had posted $7.5 billion in collateral, and Goldman had sought insurance hedges and collateral from over 30 banks for the remaining $2.5 billion at stake. Although the Times previously had reported Goldman's exposure at $20 billion, Sorkin reports it at just $10 billion. (huh? big difference, no?)
Now, would Goldman have suffered had AIG gone under? Sure, all financial institutions would have been affected by an AIG implosion (and the stock market would have tanked even more) and Goldman, like everyone else, would have lost money. But the argument to date has been that Goldman obtained a unique benefit from the AIG bailout, thanks to its supposed ties to government officials. The evidence reported by Sorkin simply does not support this.
So here's my question: Why is this story on page B1 of the Times (with some of the more important quotes buried on page B8), whereas the Times found it necessary to put this story on the front page last week?
More things to know if you teach civ pro
Scott's post on civ pro provides great information about the many resources for civ pro professors (and scholars) to learn the subject, keep up with new developments, meet fellow travelers, and publicize work and ideas in the area (all stuff I wish I had had in one spot when I started). In the spirit of Paul's post on organizing and teaching con law, I want to offer some additional "what you should know" thoughts, focusing on organizing and teaching civ pro.
1. Much depends on how much time you have. Your teaching experience will vary greatly depending on where you are teaching and how civ pro is structured. Civ pro seems to be the course that has not yet fully made the transition to the typical one-semester/4-credit course across the board but is rapidly moving that way--judging from my time at the AALS Mid-Year meeting, this is a subject over which civ pro professors spend a great deal of time fretting. You may have anywhere from 4-7 required hours in one or two required semesters; you may have 4 required hours and a strongly recommended 3 hours in a second semester. You may have to cover both Rules/Procedure and Jurisdiction, or you may only have to cover one or the other. Jurisdiction may be required or may just be part of the optional second course.
2. Rules v. Jurisdiction first does not matter, students will complain either way. The other never-ending debate in civ pro teaching (particularly in the compressed 4-credit class) is whether to start with pleading/rules or jurisdiction (and, if jurisdiction, subject matter or personal). At the end of the day, I am not sure it matters. I have heard good pedagogical arguments for each way. And students complain about either one. I am a rules-first guy, because I think it is more important for them to get the overall framework of litigation, then to fill-in the content of the rules. I am swayed by that and so are many others. Others think choice-of-forum should come first because that is the first consideration when filing (students are swayed by this one). Others (including one of the best teachers I know) believe that personal jurisdiction, grounded as it in reasonableness, is a good, instinctive place for 1Ls to begin. Again, I am not sure there is a right answer. So do what you feel comfortable doing.
3. A little history does not go as far as it used to. Trying to cover history is essential, but increasingly difficult in the shorter course. There no longer is time to get into long details about the evolution from causes of action to code pleading to notice pleading. But some overview remains necessary. Similarly, just as Paul suggests that one cannot understand modern Commerce Clause doctrine without talking about pre-Lopez cases, one cannot understand modern pleading doctrine without talking about pre-Twiqbal cases. And consider how important is it to teach Pennoyer and pre-International Shoe (or even pre-World Wide) cases in depth, in light of these new time constraints. For what it's worth, I do a quick overview of Pennoyer and Shoe, then get into the real meat with World Wide. This is a balance. Some history is necessary, but probably not as much as in the past.
4. Find a practical balance. When teaching the rules, some practice orientation is necessary and more effective than using cases. Use sample pleadings to show what complaints look like--how they are structured, what joinder of claims and parties looks like, how much detail to include, etc. Distribute discovery documents (production requests, interrogatories, etc.). Distribute summary judgment motions and supporting documents. You can do this with independent documents or by using a case companion ("A Civil Action" or one tied to Jones v. Clinton). Use big in-class hypotheticals (even if unrealistic) to show how the various joinder rules fit together--I use a great one from Glannon's. This is a central concern underlying the uncasebook that I former GuestPrawf Hillel Levin and I have discussed.
5. Make use of the opportunities to teach statutory interpretation (especially if you are do the rules first). At the very least, impress on them the importance of, you know, bringing the rulebook, having it open to the applicable provision, and reading along during the conversation (surprisingly hard to get them to do). Impress on students that preparing for a class with statutes/rules means reading and parsing the text of the rule--it means reading so they can explain, in plain English, what the rule/statute means and how it operates. It can be a good introduction to some principles of statutory interpretation. And you can emphasize the connection among statutory text and interpreting decisions--and the difference between statutory interpretation and common law rulemaking. Civ pro is a unique opportunity to teach this--one of the few such opportunities in the 1L curriculum.
6. Rely on other parts of the curriculum to fill-in gaps. Civ pro is a spring-semester class at FIU, so I get the benefit of the second semester of Legal Writing, where the students do summary judgment motions and appellate briefs, based on a full record created by the professors in the program, including sample pleadings, depositions, etc. So they see sample litigation documents through this class. Similarly, rely on other courses to cover stuff that has been pushed out by the shrinking of civ pro. For example, I cover Federal Question jurisdiction only in broad overview in civ pro; I save the detailed stuff (Grable, complete preemption, etc.) for my Federal Courts class. Some have argued for saving Erie for Conflicts (I don't, but that is because I like teaching Erie).
7. Introduce and overview concepts in the details of other cases. Again, this is a product of the shrinking civ pro class. For example: I cannot cover post-trial motions in real detail. But one of the major Erie cases, Gasperini v. Center for Humanities, involves the appropriate standard for Motions for New Trial in diversity cases. So I start teaching the case by providing an overview of the post-trial processes; students at least are introduced to FRCP 59 and have heard of it, even if we cannot get into a lot of detail. Similarly, you can teach personal jurisdiction through an enforcement-of-judgment case and talk about the process and limits of enforceability.
REQUEST: Faculty Responsible for Promoting Entry-Level Law School Alumni
Prawfsblawg, for purely public-minded reasons, has served as a clearinghouse for a variety of information about the teaching process and the job market. I wonder if I can solicit information about another key aspect of the teaching market. Many schools assign one or two faculty members to be responsible for mentoring and encouraging their alumni who are entering into the teaching market. They not only offer advice to those students, but maintain and disseminate lists of promising entry-level candidates who graduated from their school. But the names of those individuals change from year to year and are not always widely available or publicized.
Would anyone who has information about which faculty members currently or in the next year are doing this job please provide them in the comments section? I'm sure many students would like to know -- and, as co-chair of Alabama's hiring committee, I know that I would like to know. Thanks.
Things You Ought to Know if You Teach Constitutional Law
I have been teaching constitutional law for about eight years now, both a long version (two semesters, six credits) and a shorter version. Herewith I offer some opinionated views about what one may want to know before teaching constitutional law. Unlike Scott's post on civil procedure, this one will be light on resources and heavy on opinions. Others may differ in their views, and I welcome comments. This post is intended primarily for new teachers of constitutional law rather than experienced ones. In the interest of discouraging folks who have Googled "Alanis Morissette," I have used "ought to" rather than "oughta" in the title.
1) Your class goals should be same as the goals for other classes. The most frequent complaint I hear from law students, and not just those in my class, is that after one semester or one year of law school they have gotten a sense of how the law and legal doctrine work, and constitutional law has nothing to do with any of that. In the other classes, they learn "the law." In constitutional law, they learn history, political science, political theory, and so on. Anything. Everything. Just not the law. They're wrong, God love 'em, but it's important for new constitutional law teachers to understand and respond to this complaint. Law students don't always realize just how much "law" is thrown into constitutional law along with all the highfalutin theory; and they don't always realize how much theory is implicit in what they learn in other courses, although the long and seemingly stable course of common-law development in those courses may lead them to think that there is a single "law of torts" or "contract law." You might tell your students that just as the law in those fields developed slowly over time, such that it now often seems relatively stable, but along the way took on and continues to deal with many basic policy and theory disputes, the same thing is true of constitutional law, albeit at a rate that is so rapid by comparison that the policy debates float more visibly on top. Still, what they're doing in this class is still "law," whatever the hell that is.
2) But, um, different.
On the other hand, as a structural foundation for the government that underlies and makes possible much of the rest of the law school curriculum, constitutional law is also particularly a forum for discussion of fundamental and conflicting values. To understand that, it is useful to think about it in terms of broader questions of government structure, history, and political theory. That doesn't mean that those who start with no such background are at a tremendous disadvantage; that gap narrows pretty quickly. But students who want to understand constitutional law as a matter of legal doctrine need to understand some of the competing values that launch the whole enterprise. Those students may be comforted to know that the time they spend on those kinds of questions will pay off in a better ability to engage in doctrinal analysis, especially in close cases.
3) Avoid cynicism. Because of law students' (false, in my view) belief that other areas of law have a clear and stable doctrine while constitutional law is just politics by other means, it is easy for them to become cynical about constitutional law. That's fine and reasonably well-deserved, but a little cynicism goes a long way. Constitutional law is about politics, but it's a constrained form of politics. Those students who think it's all made up should at least realize that it is not made anew every day. The same fundamental arguments and premises come up again and again, recurring in different contexts. I am still not crazy about the second chapter of the Sullivan/Gunther casebook, which just teaches McCulloch and U.S. Term Limits, the results of the latter case having almost nothing to do with anything else we learn in class. But they do serve as evidence that the same questions and positions about sovereignty manage to survive and go at each other as much today as they did 200 years ago. Don't pretend to your students that constitutional law is devoid of politics -- of course, it isn't -- but don't encourage them to achieve heights of cynicism that aren't yet merited by their relative lack of knowledge and experience.
4) Choose your book wisely, although it won't help. Complaints about the casebook are legion in constitutional law as they are in most subjects. I won't say "ignore them," but I will say don't worry about them. But do think carefully about what kind of constitutional law course you want to teach, because the casebooks vary widely in their approach. Do you want to teach a historically oriented course? One that takes place largely inside the courts or one in which constitutional law is also something that takes place and is shaped outside the courts? Do you want lots of cases or just a few? Lots of scholarly references or almost none? Students tend to prefer case-based coursebooks that are light on note cases, squibs, comments, theory, and so on. In short, they prefer Chemerinsky or Cohen/Varat. There are benefits to taking that approach. But you must decide what you think is important for teaching con law and choose your casebook accordingly. The Brest et al. casebook does some of the best work of mixing constitutional law with constitutional history, for instance, and both Gunther/Sullivan and Stone/Seidman/et al. are terrific on references to other cases and to theoretical discussions. Figure out who you are and what you want out of the course before you select a book -- and then live with the inevitable student complaints. As a Chemerinsky-related addendum, most students love his treatise, and for good reason. But please remind them that it's their job to learn your course as you see it, not as he sees it, and that his treatise, although fair, certainly has a point of view.
5) In your beginning lies your ending. In keeping with the eternal return of standard themes in constitutional law, you should figure out what themes or issues or explanations you think tie together the constitutional law course, and bring them up early and often. Con law students read a lot of cases and many of them can seem disparate. It's up to you to impose some order on the material so that your students are engaged in a process of cumulative learning and can see how one case and one theme relates to the next across different areas. Choose a starting point that reflects this. I have found for the past two years that Heller, although overemphasizing history for my purposes, is a good introduction to many of the issues we touch on in my course. I then turn to the Articles of Confederation and the constitutional text itself. Please, please devote at least one class session to the constitutional text, if for no other reason than to point out occasionally how little of the rest of the course has anything to do with it.
6) Beating up John Marshall is not an effective use of class time. Of course, the starting point for many con law classes is Marbury v. Madison, and for years a debate has raged among con law professors about whether that case ought to be taught at all. There are obvious reasons to teach it, but really I blame William Van Alstyne, whose article on Marbury is an invaluable lifeline and must-read resource for con law professors teaching Marbury for the first (or third or fourth) time. Despite subsequent work calling into question some of his premises (see, e.g, Pfander's work), Van Alstyne still provides a perceptive and helpful guide to the many problems with Marbury. It can be fun, especially for an insecure beginning con law teacher, to spend a class session or more using Van Alstyne to beat up on the problems and inconsistencies with Marshal's opinion. There's something confidence-building about this exercise, for students but especially for new teachers. But it takes up a lot of class time, and it's not clear to me anymore that it's worth it. Among other things, it risks missing the forest for the trees: seeing what's lousy about Marbury and not what's great (or terrible) about it. I'm not saying (yet) not to teach Marbury, but don't let it define your course or swallow your time. And remind students that any exam answer that discusses Marbury is probably a canned answer and a waste of everyone's time. At this point, I think we can take judicial review for granted, more or less.
7) Rights are boring. Many constitutional law scholars got into the field so they could write about individual rights. I certainly did. But it turns out that, at least in my view, the rights cases are slightly more exciting to teach than stereo instructions. I recall early on in my teaching career talking to a colleague who was teaching Lawrence v. Texas and described quickly running into a point where he felt there was little of value to say; he might just as well have thrown up his hands and walked out of class. I appreciate that point a lot more several years later. The structure cases are where it's at, at least from a teaching perspective. Don't slight them. And don't treat them as distinct from the rights cases -- in many respects they raise the same issues, and of course are themselves at a meta-level about rights too. If the rights cases are interesting at all, they may be most interesting as occasions to discuss the capacities and limits of courts, not for broader discussions about what individual rights we ought to enjoy or about contested issues of personal liberty. In a short-form con law course, consider teaching fewer rights cases, and skipping the First Amendment altogether.
8) Teach arguments, not results. Law students often believe that they are learning what tort or contract law "is" in their other courses. I doubt they're right. In any event, con law is less about learning particular results than it is about learning methods of acceptable constitutional argument -- the difference between forms of argument that will be accepted in court and those that will be ignored or laughed out of court. That lesson should start from day one of your class. Whether you're talking about formalism vs. functionalism or about Bobbitt's modalities of constitutional argument, what you're teaching is how students can use existing methods and lines of argument to frame ideas and desired results in a way the courts will understand and incorporate. The results are strictly secondary. I think that is more true in the other courses than they realize, but it is certainly true for con law.
9) Pre-Lopez matters. When I learned constitutional law (from the great Professor Louis Henkin), the story of congressional power was a simple morality tale that focused on the pre-New Deal era and ended in the triumph of flexibility and expanded constitutional power, with everyone joining hands and dancing in a circle. Lopez purported to ruin that narrative, in emphasis if not in reality. The pre-1995 cases are ever more compressed in the casebooks. But it's difficult to understand what goes in in Lopez and the cases following it unless you understand what went on before them (again, constitutional law is fundamentally the story of the eternal return). That's especially true because, most of the time, the law that decides a Commerce Clause case will only nominally be about Lopez; really, it will be about New Deal-era precedents and premises. Alison Eid has a lovely article on why the pre-Lopez cases matter, and I urge you to read it and recommend it to students. Another thing I'll say about the Lopez and post-Lopez cases is that law students often want to see Lopez as announcing a sharp four-part test (once you get to the substantial effects portion, at least) that is as firm as anything they learn in their private law courses, something they can apply mechanically. This can lead to a false sense of security and fairly absurd results on exams. All law is about learning some practical judgment in applying doctrine, and the Commerce Clause is no different. Caution your students against the idea that Lopez gives them a test they can apply mechanically, and advise them to see it as being as much about attitudes (and signaling to Congress) as it is about specifics. Finally, the Commerce Clause materials are just the beginning of a long set of cases dealing in broad terms with the question how many escape hatches Congress has for unfettered lawmaking, and whether and how much the Court is willing to close off those escape hatches. By the time they get through the CC, the Tenth Amendment cases, the Spending Clause (especially the Spending Clause!), the Eleventh Amendment, and then finally the congruence and proportionality cases, they ought to be thinking about all of these cases as pieces of one puzzle. There ought to be a "Prestige" moment (viz. the Christopher Nolan movie) where all of these pieces come together and the broader outline of what is going on becomes clear. John Noonan's book on these subjects, despite whatever flaws it may have, remains useful in guiding you in this endeavor.
10) There are three branches, not one. Again in keeping with law students' path-dependence and desire for doctrinal certainty, the tendency is for law students to focus on what is going on in the courts. This has ruined many a student's study of separation of powers, in particular; case-focused separation of powers teaching just doesn't work that well. Students should be aware just how much constitutional law takes place outside the courts and just how many areas of constitutional law are unlikely ever to be seriously or usefully discussed by the courts. If they have absorbed some of the basic themes of the course, they ought to be comfortable applying those themes to any con law issue, including those that arise outside the courts (although it is not clear that methodologies developed for use by courts are necessarily the best or only methodologies to use outside the courts). And they ought to develop some sense of how courts -- and other branches -- are likely to respond to these issues: in an iterated series of relationships with and messages to each other, a series of near-confrontations that never quite end up in an actual judicial opinion, let alone resolution. Although I betray my generally non-textualist and non-originalist views here, students ought to be comfortable with thinking of the Constitution not in terms of what it says in absolute terms, but what it sets in motion. Nor need they stop at the three branches! Constitutional law also takes place elsewhere -- in public debate, in the role of mediating institutions, and in other places.
11) Your students are probably more libertarian than you are (the usual suspects excepted). Unless your name is Ilya or Randy, I'm guessing your students will take a more libertarian approach to constitutional law than you do. It may be a generational thing or a regional thing, although I've taught in many parts of the country. But it does seem true to me. Certainly most law students don't resemble my classmates at Columbia in the early 90s, who had fairly conventional triumphalist views about state (by which I mean federal) power; nor do they resemble the standard caricature of students arguing in rights cases on a liberal-vs.-conservative line, ie. pro- or anti-affirmative action. I have no particular problem with those politics, and it always makes Wickard fun to teach. But it can also sap the life out of the class. If the answer to everything is always "no," or always "yes" for that matter, the discussion doesn't really fully come to life. Happily if inconsistently, many of your libertarian students will also be populists and semi-judicial skeptics. They need not think that the government ought to be able to do everything or that it ought to do anything in particular. But they should be encouraged to think about the law in terms of "who decides" -- the courts, the duly elected legislatures, "the people" (whatever that means), and so on. Outcomes, again, are boring. Who gets to determine those outcomes, why, and on what absolute or comparative basis, is much more interesting, and those questions need not break down in terms of libertarian views or their alternatives.
I hope this is helpful for new con law teachers. Additions, reservations, praise and criticism are all welcome. For what little it's worth, feel free to contact me if you're starting to teach con law and have further questions.
We Have a Winner!
The winner of the PrawfsPuzzler flip-flop puzzle contest is Marquette Law School's Bruce Boyden, who e-mailed all the correct answers last night. He will receive the grand prize of Chippers - chocolate-covered potato chips from Widman's in Grand Forks, ND. Chippers balance the sweet and the salty automatically, so there's no need to fumble around with a premium chocolate bar and a bag of Lays at the same time. Is it a real time saver? As we say up here in North Dakota, you betcha!
An argument for waiting to go on the academic market
Years ago, when I was contemplating going on the academic market, I did what lots of people do: I called my friends, visited with mentors, and consulted the law prof blogs. If you are new to this world, then you might as well start with Brad Wendel's piece, which includes a number of links to additional articles and blog posts that offer helpful advice for those interested in academic teaching.
Meanwhile, I want to put up some advice for folks who are thinking about filing a FAR form next week, but maybe ought to hold off. This post is not intended for those of you who are in the second or third year of your designated VAP program or fellowship, who have planned carefully for this moment and have vetted your form with your mentors and friends, and who have a job talk ready to go. No, this post is mainly for the practitioners out there, many of them less than five years out of law school, who think they might like to be an academic, but have not decided for sure what they should do. Let me give several examples of what I would call premature market-participation:
1. You just want to see what it will be like. So maybe you are in your third or fourth year of practice. Or you are just entering the first year of a multiple year VAP or fellowship program. You know you will go on the market in a few years, but you kind of want to test it out this year. You're nervous and you want to see what the Marriott is really like. After all, this will give you an idea of what to expect when you go on the market "for real" in a few years, right? Wrong. Yes, there are many people who successfully enter the academic market more than once, but most of the folks are doing that not out of choice. If you enter the market prematurely, you may rack up interviews with a number of schools before you have given sufficient thought to your scholarly agenda and academic course package. Some of those schools have memories, and if you have a lousy interview now, you'll have a more difficult time wowing them later. Far better to go and put your best foot forward when you have matured as a scholar and as a candidate.
2. You have not written anything yet. (Notice, I did not say "published" - if you have a paper that is in draft form and has been circulated and/or accepted for publication, you do not fall in this category). Yes, you were at or toward the top of your law school class. You were on law review too. Your professors loved you -- and you clerked for a terrific appellate judge too. Now, you work for a fabulous law firm/government job. You don't have a complete manuscript, but you've got a killer outline and you're planning to turn it into an article really soon. Surely, you will get a job, right? Well, maybe (probably) not. I have no doubt that there are a few successful candidates out there who took this route (more likely Supreme Court than appellate clerks), but I would gather that they are shrinking in number with each passing year. You will be competing with both VAPs and PhD's on the academic market (not to mention a few practitioner types who manage to bust out an article in their free time) and all of those competitors will have writing that demonstrates their scholarly potential. Even if you have an amazing idea that your mentors have praised, the costs of waiting a year and developing it into an article are relatively slim compared to the costs of going on the market prematurely.
3. You're not sure you want this job. I'm not sure how much I can stress this last one: if you are at all unsure that you want a tenure-track position at a law school, then wait before you go on the academic market. Academics want to surround themselves with like-minded people, who feel driven to sit in their offices on a beautiful sunny day and figure out how public choice theory might illuminate the problem of excessive prosecutorial discretion (okay, that last one is just me, but you get the general idea). If you are at all hesitant about becoming an academic, it will show in your interview. Your demeanor and the tenor of your questions will all suggest that you view pretenure requirements as onerous obligations rather than career milestones for which you would strive in any event. If you are unsure whether this is the life for you, talk to some trustworthy friends or mentors, read some scholarship, and go to some of the larger conferences if you can. But do not use the market as your testing ground.
These are three reasons I can think of for waiting to go on the market. I'm sure there are many more that I forgot -- feel free to post them in the comments.
Monday, July 26, 2010
Kagan, the Court, and Religious Liberty
Here is an op-ed of mine, which appeared in today's edition of USA Today, about the Court's recent (and upcoming) religious-liberty decisions, and about the way that a Justice Kagan should approach such cases. A bit:
. . . What does Kagan's embrace of both judicial responsibility and restraint tell us about how she would have approached, or will approach, such cases? We know that she will, in general, be a reliably "liberal" or "progressive" voice on the court, but will she follow in Justice Stevens' footsteps when it comes to religious liberty?
As she told the Judiciary Committee, the First Amendment ensures that religion "never functions as a way to put people, because of their religious belief or because of their religious practice, at some disadvantage with respect to any of the rights of American citizenship." "You are a part of this country," she insisted, "no matter what your religion is." She was right. Our Constitution protects religious liberty and welcomes religion in public life, but the criteria for membership in our political community are secular. Clearly, courts have a role to play in policing these criteria and making sure that "rights of American citizenship" are never made to depend on religious professions or practices.
But what is that role, and how should it be exercised? The ability of unelected judges to identify those government actions that actually "establish" religion is limited, and so is their authority to second-guess others' policy decisions. It is not just the responsibility of judges, but also of legislators, public officials and voters, to be good stewards of our "blessings of liberty" and to guard against political exclusions on religious grounds. . ..
I'd welcome your thoughts.
More Flip-Flop Puzzles - For Fun and a Fabulous Prize!
Here it is! Another set of prawf-themed flip-flop puzzles! (Previous installment here.)
[UPDATE: We have a winner!]
And this time, I'm giving away a prize! The first law professor to e-mail me with the correct answer to each of the three flip-flop puzzles below will receive a box of CHIPPERS - chocolate-covered potato chips made right here in North Dakota at George Widman's candy shop in downtown Grand Forks!!!
Open to all U.S. resident full- or part-time law professors who are willing to have their name and school announced here on PrawfsBlawg. (Puerto Rico welcome. Void where prohibited. Contest ends when a winner is declared, July 31, 2010, or whenever I stop feeling like giving away candy, whichever occurs first. For a full list of rules, draft something, and I'll take a look at it. N.B.: Hand delivered entries will be composted for next year's sugar beet crop.)In case I don't get a winner right away, I will provide new clues each day by revising this post, around midday. If you want to see the answers, come back after I get a winner.
Instructions: Using the clues provided, complete the blanks below to create a chain of words, where the next word in the series is formed by adding, deleting, or changing a single letter from the word before. So, for the clue "a musical floor swab," the answer could be "HIP HOP MOP." For "despise discussion of headwear," the answer could be "HATE HAT CHAT."
a testamentary instrument expiring upon the testator's attainment of substantial stature:
_ _ _ _
_ _ _ _
a contest over illuminated billboards under the First Amendment:
_ _ _ _ _
_ _ _ _ _
what a patent attorney must do for an inventor of a rotating machine part for harvesting bivalves:
_ _ _ _
_ _ _
Pentagon Papers II?: Wikileaks and Information Control in the Internet Era
Wikileaks.org obtained and released six years worth of Pentagon reports on the progress of the war in Afghanistan, and today stories based on the leaked information appear in the New York Times, the Guardian, and Der Spiegel. It is impossible to read of this new "leaks" case without thinking of the 1971 Pentagon Papers case, when Daniel Ellsberg released documents, specifically a 47-volume government report, concerning U.S. involvement in the war in Vietnam to the New York Times and the Washington Post. When the New York Times began publishing stories based on the leaked documents, the Justice Department went to the courts to seek an injunction against further publication; in the meantime, the Washington Post began publishing materials from the Pentagon Papers, and the Justice Department again sought an injuction. This ultimately triggered a showdown in the United States Supreme Court, which issued an opinion only five days after the crisis began. Although every member of the Court wrote a separate opinion in the Pentagon Papers case (New York Times Co. v. U.S., 403 U.S. 713 (1971)), the brief per curiam issued by the Court sent a clear signal that the Executive Branch cannot use injunctions against the media to prevent leaks of embarrassing documents simply by invoking national security justifications. Today, however, the legal lesson of Pentagon Papers regarding injunctions is almost beside the point.
It is technology, even more than law, that makes it nearly futile to pursue injunctions against publication of leaked documents today. Consider two "modern" cases involving attempts to enjoin publication of leaked documents on Wikileaks.
In the first, a federal judge learned the hard way the difficulties associated with the granting an injunction against the disclosure of allegedly commercial secrets on Wikileaks. Someone posted on Wikileaks confidential documents allegedly showing that Julius Baer Bank and Trust, based in the Cayman Islands, engaged in hiding assets, laundering money, and evading taxes. The bank filed suit in federal district court in San Francisco against Wikileaks.org and Dynadot, the site‘s domain registrar, seeking to shut down the site. The judge issued a temporary restraining order forbidding further distribution of the documents. Dynadot, a company that leases domain names to website operators for a fee, agreed to the entry of an injunction requiring it to disable the Wikileaks website. News of the order shutting down the website set off a furor on the Internet and among mainstream media. As part of its plan to avoid legal interference, Wikileaks maintained mirror sites in Belgium, Germany, and the Christmas Islands registered with companies other than Dynadot, and those were beyond the court‘s jurisdiction. Fans of Wikileaks used the Internet to widely publicize the addresses of those sites and the fact that the material remained available there. Lawyers for public interest groups, Internet watchdogs, and mainstream news organizations filed motions to intervene or appear as amicus curiae. They argued that the order was akin to closing down a newspaper, and that there was no precedent in prior restraint jurisprudence for shutting down an entire outlet because of one item it published. After just three weeks, the judge rescinded the order. See Bank Julius Baer & Co. Ltd v. Wikileaks, 535 F.Supp.2d 980, 36 Med. L. Rptr.12 1473 (N.D.Cal.2008). The judge ended up concluding that the injunction had exactly the opposite effect as was intended. The private, stolen material was transmitted over the internet via mirror websites which are maintained in different countries all over the world. Further, the press generated by this Court‘s action increased public attention to the fact that such information was readily accessible online. The judge also noted that he probably lacked subject matter jurisdiction because diversity jurisdiction does not extend to suits between aliens. The bank was organized in Switzerland and based in the Cayman Islands. A lawyer who appeared on behalf of Wikileaks said the domain name was owned by an Australian citizen who lives in Kenya.
In 2009, a British judge enjoined The Guardian newspaper from publishing leaked documents regarding an oil spill involving a multinational corporation. See Noam Cohen, Twitter and a Newspaper Untie a Gag Order, N.Y. Times, Oct. 19, 2009. The judge also ordered the newspaper not to reveal the existence of the injunction. Despite the injunction, Wikileaks obtained and published the documents. As a result, a member of Parliament questioned the Prime Minister about the documents. The Guardian ran an article about the parliament member‘s question, noting that it was barred from identifying him. Readers picked up the story and began using social media such as Twitter to distribute it widely. Finally, under the glare of public scrutiny that resulted, the multinational corporation at the center of the controversy agreed to release the documents that were the subject of the injunction.
Open Wounds after War
A UN-Tribunal convicted and sentenced Duch today, the first major Khmer Rouge figure defendant to be brought to justice. I believe post-war prosecutions for human rights violations are beneficial for victims, but that there are risks as well. When people who have committed heinous crimes get less than the maximum sentence, I think it is foreseeable that many victims will be hurt again. On the other hand, if every defendant gets the maximum sentence, the tribunal will not appear to be objective. Then, there are other ways to deal with post-war open wounds, such as truth commissions and civil litigation, which may occur in courts beyond the borders of the nation that experienced war (often internal civil war). I would love to hear others' viewpoints about these issues. What do you think is helpful for the individual victims and the nation and why? Should U.S. courts hear post-war claims? If so, when and why? Should it depend on the location of victims who fled a murderous regime or their property or on whether significant remedies are available in the nation where the war occurred? Should it depend on a green light from the executive branch?
I am currently exploring the intersection of the "open wounds" idea and the cultural property arena. For example, Tuol Sleng, the prison where Duch tortured and murdered so many innocents, is now a museum. Part of its roof collapsed last week. Some people said the souls of the dead were crying out for justice. Certain types of property, real property and chattels, has meaning that transcends finances. Caring for it thoughtfully can help heal post-war wounds, whereas its destruction can feel like new wounds to wartime victims.
Another example of the intersection of human rights, war and cultural property concerns terrorism and antiquities found within the borders of modern-day Iran now located in U.S. museums. The U.S. Congress passed ineffectual, “sound bite” anti-terrorism legislation that has foisted conflicting jurisdictional mandates upon the federal courts, sucked terrorist victims into a vacuous, exhausting drama with no chance for justice, and interfered with the President’s ability to conduct diplomatic relations in the Middle East. One group of victims is mired in multiple jurisdictions trying to enforce an extremely large default judgment against the Islamic Republic of Iran by forcing auctions of antiquities collections housed in Harvard University, the Oriental Institute at the University of Chicago, the Field Museum of Natural History (Chicago), and the Museum of Fine Arts (Boston), among others. Congress in this political posturing has triggered the Department of Justice to participate in the litigation counter to the victims’ interest. The victims likely feel ignored and maligned by their own President, while Congress all along was the master puppeteer of their false hopes. Here's a draft article on the subject.
No one believes that dealing with property ever will bring back the dead or afford full "justice" to victims, but many of us believe that the symbolism of such property is significant. Do you have thoughts on these issues? Can you provide other examples of post-war wounds that need redress to allow healing to occur?
Sunday, July 25, 2010
In case you missed it . . .Today's New York Times charts the conservatism of the Roberts Court.
Saturday, July 24, 2010
People Are Not Institutions -- or Tests
Sandy Levinson calls the question of whether President Obama will nominate Elizabeth Warren as head of the new Consumer Protection Agency "an acid test as to whether the Obama Administration really does have backbone." Brian Leiter agrees.
I have no position on whether she ought to be appointed -- not because I have any reason to think she shouldn't, but because it's way outside my wheelhouse. But I have doubts about using any individual appointment as an acid test of anything. Some individuals have probably been the making of some great institutions, but the Consumer Protection Agency will not be a staff of one, and the test of any administration is not whether it appoints any single individual but what its patterns of appointment and administration are in the aggregate. I yield to no one in my (uninformed) respect for Professor Warren, but surely our focus should be on the overall health of the particular agency, and also of how well the administration balances the value of any single appointment against the overall effectiveness of its political and administrative goals in the long term, not on any single figure. The same is true, of course, of Supreme Court appointments, any one of which could be filled by multiple and equally qualified people. It mattered far more what Obama's short-list for the Supreme Court was than who he actually picked.
Of course, focusing on Warren as an individual figure makes more sense if our goal is not one of overall public policy but of politics and rhetoric. Then it makes sense for any constituency -- conservatives or "progressives" -- to treat each nomination as a crisis point, and each individual as a make-or-break test of the political beliefs of the administration in question. Sometimes that test may involve both policy and politics, as in the case of an administration nominating someone who is obviously unqualified to an important position. But when the choice is between more than one qualified nominee, and when it is viewed across the whole of the universe of appointments made by an administration rather than by treating each nomination as the only data point, then the political and rhetorical character of this argument -- its role in determining whether an administration is "really" conservative or liberal, and which constituency will find itself either listened to or symbolically thrown under the bus -- becomes apparent. That's fine, I suppose; there are lots of interest groups, including ideological interest groups, that have a lot of capital invested in this question. My own view is that an administration should be judged by its overall policies and competence in administering them, and that I don't much care whether either progressives or conservatives are galvanized or disheartened by particular actions. Nor, if it is a matter of personal loyalty, am I concerned overmuch; I think loyalty, and especially personal loyalty, is a somewhat overrated virtue in politics.
Not everyone agrees, and they may view the stakes differently. But we should see this nomination and all others like it as a political acid test, not a policy acid test. The two are definitely not the same.
Friday, July 23, 2010
Scott Dodson: Things You Oughta Know if You Teach Civil Procedure
The "Things You Oughta Know if You Teach ___" Series
A couple weeks ago, our guest blogger extraordinaire, Eric E. Johnson, put up a helpful post entitled "Things You Oughta Know if You Teach Intellectual Property." Eric's post inspired my former con law study partner and now one of our young prawfy readers to ask, hey, there oughta be a whole freakin' series of these written by folks in different fields. So, with that smart idea in mind, I'm taking names of volunteers who would like to write the field specific post that does for your field what what Eric did for IP, something along the lines of: "hey, if you're new to the teaching of [criminal procedure], you should know about the following resources, conferences, list-servs, casebook overviews, etc." Feel free to indicate which one you'd like to do in the comments or email me privately but if you email me b/c you'd prefer to do it anonymously, please also list the course in the comments (anonymously) so we don't get duplicates.
By the way, this is a bit different than our "Research Canons" archive of a few years ago, but that's also a resource new and old prawfs might want to check out. If you're wondering what kinds of topics we could run, see below the list of the research canons and feel free to volunteer in the comments which one you'll do the "teaching" equivalent of.
- Civil Procedure - 9/6
- Contracts - 9/7
- Criminal Law - 9/11
- Criminal Procedure - 9/12
- Property, Real Estate & Land Use Law - 9/13
- Torts - 9/14
- Evidence - 9/15
- Constitutional Law - 9/18
- Administrative Law - 9/19
- American Indian Law - 9/20
- Antitrust - 9/20
- Commercial Law / Bankruptcy - 9/21
- Admiralty/Aviation Law - 9/22
- Corporate Law - 9/25
- Dispute Resolution - 9/26
- Employment and Labor Law - 9/27
- Energy Law - 9/28
- Education Law - 9/28
- Election Law - 9/29
- Feminist Legal Theory - 9/29
- Environmental Law - 10/2
- Family Law / Children & the Law - 10/3
- Federal Courts/Civil Rights - 10/4
- Health Law - 10/5
- Human Rights Law - 10/5
- Immigration & Naturalization - 10/6
- Intellectual Property - 10/9
- International Law - 10/10
- Law & Economics - 10/11
- Law & Philosophy - 10/12
- Legal Research & Writing - 10/13
- Law & Race Relations - 10/16
- Law & Literature - 10/16
- Legal Ethics/Professional Responsibility - 10/17
- Legal History - 10/18
- Legislation/Statutory Interpretation - 10/19
- Local Government Law - 10/20
- Securities Regulation - 10/23
- Tax - 10/24
- Trusts & Estates - 10/25
- Conflicts of Law - 10/26
- Comparative Law - 10/27
Again, pretty far from my topic, but I was wondering what people think about this:Rape Conviction and Prison for Lying about Ethnicity in Connection with Sex. The article is scant on the full facts, but what do you think?
Thursday, July 22, 2010
Cultural Property Headlines
Here's my top 10 (or so) of headlines from the past two days or so in the fast-moving field involving objects often thousands of years old:
1. Settlement of the first modern-era Nazi-looted art case, a civil forfeiture claim to Egon Schiele's Portrait of Wally. The Leopold Museum (Foundation) will pay the claimants, the heirs of Ms. Bondi Jaray whose Vienna gallery was aryanized, $19 million.
3. Italy receives another $19.5 million worth of seized antiquities from Switzerland.
10. Boston church theft.
Wednesday, July 21, 2010
A Proposed Constitutional Amendment: Protecting the Right to Enjoy Governor Scandals
It's really nice to see Rod Blagojevich back in the news. That man is an American gem. But it's not the same now that he's no longer a sitting governor. I'm still mad at Illinois for impeaching and removing him. It was like the end of the first season of The O.C.; you just stare at the television trying to come to terms with the fact that it's really over.
Dang it! I am sick and tired of governors resigning or getting impeached just when they create fabulous national news. Enough is enough!
Look, news of oil spills is horrible. It's important, of course, but it's not a lot of fun to watch. The same is true of most news. But scandalized, out-of-control, going-rogue governors – that's delicious stuff.
When a state gets rid of a sitting governor who has become a scandal magnet, that state gains. Sure. But the other 49 states lose out. The last days of the Blagojevich, Sanford, and Spitzer administrations were halcyonic. And with Palin, it looked like that investigation was about to heat up and things were just about to get interesting, and then she ended it.
Even though Palin and Blagojevich have had an afterlife on cable talkshows and the internet, at their best, they're merely amusing. But when they were in office, they pushed the needle to en fuego. You just can't refudiate that.
Thus, I propose the following as the 28th Amendment to the Constitution of the United States: No governor of any state may resign or be removed before the end of the term of office unless two-thirds of cable television audiences so consent.
(Palin photo CC-BY,
How Do We Go From Off the Wall to On the Wall? With the first jump...
If you've not seen it yet, head over to Balkinization and check out Jack's interesting take on Randy Barnett's constitutional activism. Sharing ambition to engage in a form of constitutional "innovation," though disavowing any suggestion that I'm making a "frivolous" argument, I've persuaded myself, more or less, that the best understanding of some recent Supreme Court cases requires some radical restructuring and review of punishment under the Eighth Amendment. For instance, not only do I think the "penal agnosticism" of Ewing has been overruled or at least substantially constrained sub silentio, but I now also think that minors may not be retributively punished--at all, or at least absent some larger transformation of individualized inquiry into competence and non-infancy in other contexts. Of course, that doesn't mean juvenile justice closes shop. Rather, the structure for addressing juvenile wrongdoers must be non-retributive: focused on containment of risk and rehabilitation of the person to the extent possible.
This is all tentative and subject to future disavowal, of course, when my own children eventually throw these pages in my face before they are 18...in the meantime, I'd be grateful for any reactions via email to this exceedingly short piece, now on SSRN, and slated for publication in the October 2010 issue of the Federal Sentencing Reporter. That issue will include other folks' reflections on the recent SCOTUS case in Graham from a stellar group of scholars including: Richard Frase, Rachel Barkow, John Stinneford, Alice Ristroph, David Gray, Eva Nilsen, and Youngjae Lee. Kudos as always to Michael O'Hear for organizing the conversation with such panache.
Direct to Consumer Genetic Testing - The Need for Early Filtering of Genetic Information
Genetic testing for adult onset diseases used to be mainly a medical service. In most cases a person who had a certain genetic disease that was prevalent in her family would go to test fo see if she carries the genetic mutation. For example, a woman who had several cases of breast cancer in her family would test for the breast cancer genetic mutation BRCA1/BRCA2 to see is she carries the mutation and has a high probability of getting the disease. But, the proliferation of direct to consumer genetic testing changes the nature of the service to a consumer service. Companies like 23andme and Pathway Genomics (who was planning to start selling its kits in Walgreens) offer consumers the option to buy packages of tests (ranging from 25 to over a 100 conditions). Consumers often buy the tests to satisfy their curiosity or they may even receive them as a gift. People purchasing the testing packages usually do not consult a medical professional when deciding to undergo the tests and receives the results alone by accessing a website.
Yesterday I spoke before the FDA, which is considering regulating direct to consumer genetic testing. My presentation was based on a symposium piece I am working on. I argued for the need for a medical professional to guide people throughout the process and advise them not just on the interpretation of the results but also earlier in the process to determine what genetic information they actually want to have.
Interpreting the results of genetic tests is not easy. Unlike other over the counter tests, like a pregnancy test, which gives a clear positive or negative result, genetic tests are about probabilities. Even a person who tests positive for a certain mutation may still not get sick depending on other non-genetic factors. People have a hard time understanding the results of genetic tests and for that reason there have been many calls to require the guidance of a medical professional for the delivery of the results.
But I believe focusing on the interpretation of the results is only half the issue. It is important to have professional guidance also at the outset to determine what tests to undergo. A medical professional should guide individuals and tailor the panel of tests to the individual who desires to test. Why is that? Well, first of all, some people, if they get a chance to give it some thought, may not want to know all their genetic information. For example, a person may prefer not to know that he is likely to get Alzheimer's at a young age. Secondly, not all genetic information is made equal. Some genetic tests do not convey that much useful information. For example, a positive result in some tests may only demonstrate a slightly higher likelihood of getting the disease than the probability in the general population. Eliminating such tests at the outset will facilitate the interpretation of the results. It would be possible to focus on the truly important positive results at the end of the process.
To achieve all this it is important for the law to require the guidance of a medical professional who is not a representative of the genetic testing company. A medical professional working for the genetic testing company may have good knowledge of the tests, but could have an interest in having the consumer purchase as many tests as possible. This could place him in a conflict of interest with the consumer who could be best off by purchasing a more limited panel of tests tailored specifically for him.
The "Culture Wars": A Dialogue
While I'm on the topic, those who are interested in the so-called "culture wars" may enjoy a couple of posts on the wonderful Law, Religion, and Ethics blog. The first is from my friend Steve Smith at USD, who worries about the culture wars. I find the comments on his post quite revealing; is America really "rotting from within?" I doubt it -- or at least, I see nothing more in the current supposed "rot" than the eternal changes and disputes about those changes inherent in a living culture -- but others, no doubt on both sides of the political divide, seem convinced otherwise.
The second is my response to Steve, arguing that there is little reason to worry about the word "culture" in the phrase "culture wars" and some reason to worry about the word "war." Having dashed it off a little quickly, I end a little didactically, which is unfortunate, but otherwise I'm pretty comfortable with the post. Enjoy, and feel free to take sides.
Reactionaryism, Reynolds, and the Journolist Story
I try to avoid political posts -- these days, as I try to finish my books, I try to avoid posting altogether -- but occasionally something will get under my skin. The last couple of days have given me a couple of log-sized splinters.
The first was a recommendation by a Facebook friend whom I respect for a post by Glenn Reynolds. Now, I don't generally bother reading Instapundit, but on the strength of that recommendation I turned to Reynolds' post. Here is a salient except:
WHAT TO DO? In response to this piece by Angelo Codevilla on America’s ruling class, readers wonder what to do. Well, a few things suggest themselves.
First: Mockery. They are very mockable, and they are very thin-skinned. That leads them to erupt in embarrassing ways. Use their sense of entitlement against them. . . .
Third: Money. Codevilla writes: “Our ruling class’s agenda is power for itself. While it stakes its claim through intellectual-moral pretense, it holds power by one of the oldest and most prosaic of means: patronage and promises thereof.” The coming budget crisis — already here, really, but still largely denied by the rulers — is an opportunity to defund a lot of this patronage stuff. They’ll try, of course, to cut the muscle and preserve the fat, but that won’t work very well if they’re closely watched (see above). Cut them off in other ways, too. Don’t support the media, nonprofits, and politicians who support them with your money. . . .
Fourth: Organize and infiltrate. Take over party apparats from the ground up. Create your own organizations that can focus sustained attention — the “ruling class” relies on others having short attention spans while it stays focused on amassing and protecting power.
My Facebook friend called this a "great" post. My reaction was different. It is a remarkable post, I would say. But it is remarkable because it is so extraordinarily reactionary.
Leaving aside the accuracy of any description of America's "ruling class" -- a description that may have germs of truth but that is so protean that it ultimately serves as a proxy for one's own political views -- what is startling about this post is that it is so substantively empty and procedurally amoral. It is substantively empty because it proposes no program other than reaction, no values or precepts of its own. I have nothing against mockery -- although I prefer self-mockery to any other kind -- but one must note that the great value of mockery, to the mocker, is that it reveals nothing about himself except, perhaps, his own wit. This is a clever strategic and rhetorical move, but also a substantively empty one. (Incidentally,everyone in politics is thin-skinned. If Reynolds is trying to suggest that the populist right is not thin-skinned, he is of course mistaken.) And it is procedurally amoral in that there is no sense whatsoever in Reynolds' post that there are right or wrong ways to do things -- only effective or ineffective ways. Anyone who looks occasionally at conservative blog comments will see copious references to Saul Alinsky's Rules for Radicals. Sometimes, the point of those comments will be that there is something insidious and wrong about the Administration ostensibly using Alinsky as its guidebook. But it should be clear from posts like these that the real voice here is one of envy and admiration, even if it is envy and admiration of a fiction. Among other things, Reynolds here also gives the same advice that was long a byword of the radical left: make the long march through the institutions. Is there any sense here of what procedural propriety, the demands of civil society, or any other system of integrity demands? No. I cannot easily come up with a more definitive combination of reactionaryism, substantive emptiness, and amorality.
The other thing that is interesting is the series of stories in recent days taken from the email traffic of Journolist, which was a listserv of generally liberal and left-leaning journalists. Jim Lindgren provides an example on today's VC, and the New Republic's blog has a reasonably good response to yesterday's Journolist stories. (I don't agree with all of it.) The gist of these stories is that left-leaning journalists revealed their true colors by suggesting a variety of actions intended to shut down the right and aid the Obama campaign.
I am not defending that email traffic. I dislike it. It would help if the stories about Journolist -- which, not coincidentally, were printed by an openly and programatically conservative web site -- had reprinted the entire exchange, not least so we could see how representative those comments were and how many journalists on the list either ignored or disagreed with them, and whether anyone acted on those suggestions. The actual evidence suggests that many people on the list, notwithstanding the fact that it already was tilted leftward, disagreed either silently or vocally with such suggestions and in any event did nothing to advance them. But I am no fan of this kind of talk, especially from journalists. I don't like it when memos come from on high at Fox News telling reporters how to spin the news, and I don't like it when the same thing comes from the left.
On the other hand, the people who made those remarks were, for the most part, partisan journalists and commentators, not mainline reporters. It is no more shocking that Spencer Ackerman, when in the company of friends, rants in favor of the left than that Rush Limbaugh might rant from the right. Didn't we already know that? Don't many of the voices now promulgating this story actually believe that what we need is more opinionated journalism and less "objectivity?" What we have learned from this email traffic is that people who trade in ideologically charged opinions in public also do so in private. Was this a surprise to anyone? And can anyone who believes that the modern media would benefit from more opinionated journalists have any grounds for objecting to this as a factual or tactical matter? Shouldn't they be applauding?
Again, I'm not defending the emails themselves. I am one of those who believes in the possibility that there is room in professional journalism for, well, professionalism, including the kind of professionalism that is more interested in following norms of attempted neutrality than in simply stumping for one side or the other. But it seems to me that those who believe otherwise have no grounds for complaining about these emails.
Indeed, they are not really complaining about them. They are using them, amorally, as a rhetorical tactic. They hope to convince us that if some self-described commentators and/or ideological journalists are what they say they are, then every other journalist must be what he says she is not. That one does not follow from the other should be obvious. That those who favor opinion journalism have no cause to complain that some people will actually have opinions should not stop us from disliking that whole line of journalism. But it should lead us to ask those who have used the Journolist story a simple question, instead of allowing them to conceal their own views from within a position of "mockery": What do you actually want -- from both sides? Do you have an end in mind? And does it have anything to do with a set of procedural rules that should bind every journalist, including both opinion-mongers and straight reporters, those on the left, those on the right, and those who are interested in neither? Or is this just another example of the right wing having bought far more copies of Rules for Radicals than Alinsky could have hoped to sell to the left in two lifetimes -- and actually reading and following it?
Professor Wasserman, why do you hate freedom of speech?
The Senate yesterday passed the latest version of federal libel tourism legislation, the SPEECH ("Securing the Protection of our Enduring and Established Constitutional Heritage Act"*) Act, which now goes to the House, where passage is expected. The bill has bipartisan support in both the House and Senate, which is always a bad thing. I wrote about an version of this bill here and here; here is the Senate's 2009 version, the Free Speech Protection Act.
The version that is gong to become law makes a couple of significant changes. I still am not sure any of this necessary or a particularly good idea, but this is a dramatic improvement over earlier versions.
First, it fortunately drops the clawback provision, under which a U.S. judgment-debtor could bring a federal claim to recover the amount of the foreign judgment as damages, treble damages, and consequential damages from the foreign judgment. Clawbacks are bad policy and bad diplomacy; they also indirectly raise some troubling Petition concerns. So I am happy to see this provision go. There still is a federal cause of action for the judgment-debtor, but only for declaratory relief.
Second, it permits removal any state-court enforcement action on minimal diversity. Helpful, but not strictly necessary, since most enforcement actions at issue are bilateral claims by a foreign judgment-creditor against a U.S. judgment-debtor and already are within federal jurisdiction. The only thing that I can see it doing is eliminating the forum-defendant limitation on removal (a diversity action is not removable if any defendant resides in the forum state). So, under current law, when a Saudi judgment-creditor seeks to enforce a foreign defamation judgment against a NY judgment-debtory in NY state court, the New Yorker cannot remove; under the new law, she can. But I am not sure how applicable that is to these cases. The theory of diversity/alienage jurisdiction is that the Saudi is not going to sue a New Yorker in New York state court; he is going straight into federal court anyway.
Third, it makes foreign defamation judgments unenforceable in three situations, including one new one: 1) the foreign defamation law does not provide the same level of protection for speech as does U.S. defamation law; 2) the U.S. speaker would have been liable for defamation even under U.S. defamation law; or 3) (the new one) the exercise of personal jurisdiction by the foreign court did not comport with Due Process and the U.S. regime of personal jurisdiction. I am somewhat troubled by this as a policy matter, but I can live with it.
Fourth, it drops a potentially problematic provision that would have made the foreign judgment-creditor subject to personal jurisdiction in the United States (on anti-enforcement claim by the judgment-debtor) solely for having sued a U.S. speaker or for serving any documents related to the foreign lawsuit in the United States. I am not sure such a jurisdictional provision would have been valid. The new bill replaces this with provision for nationwide service of process, including any district in which the judgment-creditor transacts business. This still could be some due process concerns, depending on the facts of a given case.
Again, at the end of the day, I remain unconvinced that any of this is necessary. These judgments typically are never enforced in the United States, because every state has a public-policy exception to its enforcement doctrines and most recognize First Amendment concerns as part of that public policy. The federal exclamation point is nice, but ultimately more symbolic than anything else.
* Think these members of Congress remember that this enduring and established constitutional heritage includes speech attacking even our most sacred symbols, really offensive comments, anti-war protests within earshot of those who make public policy, and dirty words?
Doug Rendleman (Washington & Lee) writes to say that he hates freedom of speech more than I do--he even criticized these laws in a law review: Collecting a Libel Tourist's Defamation Judgment?, 67 Wash. & Lee L. Rev. 467 (2010). Doug and I were part of a panel on libel tourism at SEALS last summer.
MLEA Annual Meeting October 8-9, 2010, at University of Colorado Law School
FoP Scott Moss just reminded me of an unusual way to celebrate John Lennon's birthday (and mine) in glorious Boulder. See after the jump for the CFP. I won't be able to make it -- baby #2 is slated to arrive just after then and that same weekend FSU's hosting a big ol' hoe-down which I hope the public law folks can join us for -- but Wendi and I were just in Boulder with Scott this past Friday, and all I can say is: if you've not been there before, you should certainly exploit this travel opportunity attend this serious academic gathering. And if you have been there before, well, there's no need for further persuasion.
Dodd-Frank and whistleblowers
As noted in the National Law Journal and in the Workplace Law Prof Blog (which in turn quotes the analysis of the Employment Law Group's Whistleblower Blog), a portion of the Dodd-Frank Act attempts to shore up whistleblowing incentives by offering between 10-30% of the proceeds, at the discretion of the SEC, of any monetary sanctions in excess of $1 million for instances where whistleblowers come forward with "original information" derived from the whistleblower's independent knowledge. [This also applies to the CFTC, but I'm going to refer only ot the SEC for convenience].
Although the SEC has maintained a whistleblower program until now, it has rarely paid out rewards under that program. Congress apparentlly assumes that the SEC is not offering enough money for whistleblowers. Accordingly, it has upped the payout. This may or may not work, depending on the signal it sends. See this forthcoming article by Orly Lobel and Yuval Feldman in the Texas Law Review for an experimental and comparative analysis of bounties and other enforcement mechanisms.
It seems to me that bounties, however large, simply do not address the concerns of many employees who are aware of wrongdoing but choose not to report it.
I would think that the key impediments to whistleblowing are as follows (in rough order):
1. The potential whistleblower is herself responsible for some of the wrongdoing (or believes she will be blamed for it) and fears that she will be punished, potentially with criminal sanction such as imprisonment.
2. The potential whistleblower did not participate in the wrongdoing, but fears that disclosure will result in such harm to the company that she loses her job, or otherwise substantially undermines her future job prospects. For example, one need not worry about anti-retaliation if and when the company goes out of business. Similarly, one's boss cannot offer a stellar reference letter for promotion if one's boss is preoccupied with avoiding (or serving) a jail term.
3. The potential whistleblower is afraid of both formal and informal retaliation by her peers.
Theoretically, anti-retaliation laws can curb fears of formal retaliation (such as firings and demotion), but they cannot counteract fears of informal retaliation by peers (although punishment of formal retaliation may create some beneficial spillovers). Perhaps bounties overcome the sting of isolation from one's peers, but for some employees of particularly close-knit organizations and industries, the bounties will do little to dislodge their well-honed loyalty to their peers.
Nor can bounties solve the problems outlined in #1 and #2.
If, for example, the potential whistleblower has engaged in criminal wrongdoing as part of her job responsibilities, she may so fear criminal prosecution that she decides it is better to stay silent (at least until caught) rather than to confess wrongdoing to authorities. Moreover, even where the whistleblower has steered clear of personal misconduct, she still may conclude that the result of her intervention will be to harm her company, harm her prospects for future advancement, and possibly harm her friends. Are all of these (rather alarming and seemingly immediate dislocations) worth the potential bounty of 10-30% of the proceeds of an SEC sanction, a sanction (and process) that may be years away and over which the whistleblower has little to no control? I'm guessing the answer here is "maybe, but probably not." That is, in most situations -- and particularly in a bad economy, where new jobs are difficult to find -- I would expect employees to say nothing, even with an increased bounty for whistleblowing.
The caveat to this analysis is that rational employees will come forward and blow the whistle when they feel they have nothing left to lose - ie, when they believe they are about to be fired or that they will never be promoted anyway. Notice, then, that according to the rational actor account, the whistleblowers most likely to come forward are those that already have personal reasons for wanting to harm the company and the people with whom they work. Bounties do not solve this brewing conflict; instead, they exacerbate it.
Tuesday, July 20, 2010
Should U.S. Attorneys Have Offices in Courthouses?
In many places around the country, the United States Attorney's office is in the same building as the federal courts. I've never liked this arrangement. Sure, it's convenient. And it probably saves the taxpayers money in many cases. But in a field where much is said about "avoiding even the appearance of impropriety," it is unseemly, I think, to have the government's advocates down the hall from the judges.
In a court case, "the government" always refers to one party on one side of the v. "The government" is not inclusive of the court, the judge, and the clerks. So why put them under the same roof?
Of course, I personally am not worried about our third branch being able to maintain its integrity despite being roommates with the U.S. Attorney's office. But I'm a law professor. I know a few federal judges, a few federal prosecutors, and a slew of ex-clerks. Whether I am worried is irrelevant. The question is, do these office arrangements cause any regular people on the street to have some inkling of doubt about the independence of the judiciary? I think the answer is, of course they must.
We seem to agree that appearances matter when it comes to the courts. Judges wear robes. Courtrooms look grand and dignified. There is copious use of granite and marble. And on and on. It just seems like the right thing to do is to have all attorneys and litigants walk through the same doors.
Tenth Circuit gets ministerial exemption right, appellate procedure wrong
A decision from the Tenth Circuit last week, dealing with the ministerial exemption to employment discrimination laws, got the jurisdictionality question exactly right, holding that it determines "whether the First Amendment bars [that plaintiff's] claims," which is a merits question and not a question of judicial subject matter jurisdiction. (H/T: Christopher Lund, from a debate on the Law and Religion listserv). Unfortunately, it and the parties seem to have botched an issue of appellate procedure (although with no harm or effect on the outcome).
Sued by a former employee of violating Title VII, the ADEA, and the Equal Pay Act, the Diocese raised the ministerial exemption on a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The district court converted that to a 12(b)(6), then to a motion for summary judgment when it considered submitted affidavits beyond the pleadings. The district court granted summary judgment on the federal claims and declined supplemental jurisdiction on state claims. When the plaintiff appealed the summary judgment ruling, the Diocese filed a cross-appeal, insisting that the district court erred by converting the motion from a jurisdictional one to a merits one.
Relying on prior circuit precedent and a decision from the Third Circuit, the court held that the ministerial exemption from Title VII, like the broader "Church Autonomy Doctrine," serves as a "barrier to the success of the plaintiff's claims," but does not affect the court's adjudicative authority. The court likened the ministerial exemption to executive qualified immunity from constitutional claims, which similarly defeats claims on the merits without depriving the court of jurisdiction to hear and resolve the case. The court's decision and explanation are spot-on.
The discussion on the listserv (which Chris has forwarded to me) has turned to whether the ministerial exemption (and church autonomy generally) should be characterized as "jurisdictional." My argument is that it is jurisdictional, but not in the sense that many people use the term. The exemption, properly understood, does not limit the jurisdiction of the courts to adjudicate (to hear and resolve the case). Instead, it limits the jurisdiction (the authority) of Congress to legislate--what we can call prescriptive or legislative jurisdiction/authority. The ministerial exemption is a First Amendment doctrine and any attempt by Congress to legislate in derogation of the exemption would be unconstitutional and any such law would be invalid. That is, the First Amendment has imposed a limit on Congress' prescriptive authority to create legal rules that regulate or prohibit certain employment by the Church as to certain employees. Thus, the plaintiff's attempt to sue the Diocese under federal law fails because there is no valid enforceable legal rule to be enforced, because the First Amendment limits the scope of existent federal law. That failure is on the merits; federal law does not prohibit the conduct of which the Church is accused by this ministerial employee. But this does not affect the court's authority to hear and resolve a case that, although unsuccessful, plainly arises under federal law (in the sense of asserting a right existing because of federal law). This conflation of adjudicative and prescriptive jurisdiction is at the heart of the current circuit split over the ministerial exemption. And it is at the heart of much jurisdiction/merits confusion.
On the other hand, the Tenth Circuit seems to have made a mistake of appellate procedure. The court allowed the Diocese to cross-appeal to argue that the ministerial exemption is properly understood as a limit on the district court's adjudicative jurisdiction and that the 12(b)(1) should have been granted. But I am not sure that a cross-appeal was proper or necessary here. The general rule is that a party only can appeal a judgment or order if it is "aggrieved" by a judgment that is adverse to its interests. Winning on grounds different than the ones urged in the district court does not provide the basis for a cross-appeal. A prevailing party can argue any grounds that appear in the record in support of the favorable judgment, without a cross-appeal.
Moreover, no cross-appeal is required (or permitted) when a district court has resolved the case in the defendant's favor on the merits but the defendant wants to urge a jurisdictional dismissal. Because subject matter jurisdiction can be raised at any time, the prevailing party can argue that as a different basis for affirming the judgment. That clearly is the case here--the district court rejected the claims on the merits, while the Diocese wanted to prevail on jurisdictional grounds. No cross-appeal should have been necessary. This case is somewhat unusual because the same argument--ministerial exemption--is being used both to convert the lower-court judgment and to defend it. But that should not make a difference. The point is that the Diocese was arguing to an appellate court that the trial court reached the merits in a case in which it (according to the Diocese) lacked subject matter jurisdiction. No cross-appeal should be required.
Interesting, a cross-appeal is required in the converse situation--where the district court dismisses a case without prejudice on jurisdictional grounds and the prevailing defendant wants to convert that dismissal to one on the merits, which would be with prejudice and would have res judicata effect. Such an argument is deemed to change or modify the nature of the judgment, which requires cross-appeal. Of course, had the Diocese prevailed on its cross-claim here, it would have converted a judgment having res judicata effect into one not having res judicata effect. As the case stood, the district court's ruling precludes the plaintiff from refiling her federal claims. Had the dismissal of the federal claims been on jurisdictional grounds, on the other hand, the plaintiff could have refiled those claims in state court. In other words, the Diocese's argument, while allowed on cross-appeal, actually would have put it in a less-advantageous position in this case.
The with-prejudice/without-prejudice line is an overlooked aspect of jurisdiction/merits confusion. By trying to characterize lots of issues under federal statutes as jurisdictional, defendants actually set themselves up for having to relitigate these claims in state court (where there is concurrent jurisdiction). Here, because the court treated the ministerial exemption as a merits issue, the Diocese does not have to worry about any of the plaintiff's federal claims again. You would think that is a benefit the Diocese would not have wanted to give away.
Historical Context of Holocaust-era Assets Claims
What judges think of their function and task undoubtedly informs their understanding of their power or jurisdiction. In the most recent Nazi-looted art appeal of Grosz v. MoMA, No. 09 Civ. 3706 , 2010 Westlaw 88003, at *22 (S.D.N.Y. Mar. 3, 2010), the district court viewed itself as confronted “with a legal, not a historical, question.” This view is a false dichotomizing of the judicial function. Judges cannot be expected to know intimately the historical context of all cases that come before them, but should not ignore widely accepted historical facts when deciding whether a claim arguing that a seemingly voluntary transaction was, in fact, made under duress is “plausible” under Iqbal, Twombly and their progeny.
From the very beginning of the Nazi era, law and jurisprudence became a strong component of justification of regulations that deprived “enemies of the State” of their liberty and property, and these deprivations led in turn to mass murder. Indeed, as documented in Martin Dean's book, Robbing the Jews, the “legalized” grand larceny became a form of financing the mass murder.
The Führerprinzip demanded unquestioning loyalty to the concentrated power of a “unitary executive.” Both legislators and judges in Nazi Germany participated in the normalization of practices of State grand theft that were engineered to make involuntary transactions appear “ordinary and legal” from the very first weeks of the Nazi regime early in 1933, even before the infamous racist Nuremberg laws of “blood and honor” in 1935, and the final push to a “Final Solution.” The U.S. Consul General in Vienna immediately after the Anschluss of Austria in March 1938 poignantly observed: “There is a curious respect for legal formalities. The signature of the person despoiled is always obtained, even if the person in question has to be sent to Dachau in order to break down his resistance.”
Jews were systematically excluded from professions and forced to compile inventories to streamline the despoliation of their property from 1933 to 1942 when Jews had little or no property left to rob, and when the focus turned to “cost-efficient” mass murder in the death camps of occupied Poland. It is a gross distortion of reality to suggest that the financial despair of Jews in 1933 during widespread, sporadic boycotts until the passage of the first Nuremberg law in 1935 resulted from a series of isolated private set-backs brought about by generalized, severe financial conditions akin to the Great Depression. The National Socialist platform, adopted as official German state policy as of 1933, was committed to driving Jews and other “enemies of the State” out of economic life.
This is the historical context in which modern claims to Nazi-looted art should be viewed. Too frequently, some of our judges seem to have forgotten history. In knee-jerk fashion, some seem to assume that claims 70 years old simply can not be viable. This reaction is contrary to history and U.S. executive policy, which I outlined in a previous post. I should add here that the Department of State Bulletin stated in 1951: "For the first time in history, restitution may be expected to continue for as long as works of art known to have been plundered during a war continue to be rediscovered." Ardelia R. Hall, The Recovery of Cultural Objects Dispersed during World War II, 337, 337 (Aug. 27, 1951). The executive branch has not deviated from this position to date.
Monday, July 19, 2010
The Dodd-Frank Act
If you're interested in the Dodd-Frank Act, Congress' 2300-page behemoth legislation which is intended to avoid another economic and financial crisis by regulating financial institutions and various aspects of corporate governance, you can find plenty of interesting commentary on the professor blogs today. The Conglomerate is hosting a "master's forum" devoted to the topic, and Peter Henning has a nice summary up on New York Times' DealBook: White Collar Watch.
Of interest to me (with many thanks to Peter for pointing it out): Although Dodd-Frank does not create new statutory criminal liablity (Congress already did that last year when it enacted FERA, which is the Fraud Enforcement Recovery Act), the Act does urge the federal Sentencing Commission to review its recommended sentencing ranges for securities and financial fraud to ensure that the ranges properly reflect the full scope of harm caused by such crimes. In other words, Congress would like the Sentencing Commission to consider increasing the offense levels that correspond to given instances of fraud. Higher offense levels result in higher recommended sentencing ranges.
Peter rightly questions whether higher recommended ranges are necessary given the extremely long sentences that judges are already doling out. No-one needed the Sentencing Guidelines to convince Judge Chin that Bernard Madoff's crime was as horrific and harm-producing as any murderer's. (Others, however, questioned that analogy - see Ron Colombo's comment to Jayne Barnard's Conglomerate post from last year). Moreover, where judges believe lenience is warranted, the fact that the Sentencing Guidelines are recommended means only that judges will start from a higher baseline before finding some reason to depart or vary the sentence downward.
In any event, none of this is new. Pursuant to the Sarbanes-Oxley Act, the Sentencing Commission increased the offense levels for fraud, even though it had just revised offense levels to reflect the seriousness of harm caused by fraud. For an excellent retelling (and criticism) of that episode, you can read this article by Frank Bowman. If you want speculation that one day, Congress will go so far as to enact mandatory minimum statutory sentences for federal white collar crimes, see this article by Stephanos Bibas. I figure we are (hopefully) at least one crisis away from such an occurrence.
And in keeping with my previous admiration of law firms that provide free summaries and analysis of complex legislation, here's a link to Mayer Brown's 129-page summary of Dodd-Frank.
The Mystery of Arizona's Racial Profiling Provision-Solved
Kevin Johnson and I wrote an op-ed in the Washington Post reflecting our surprise that anyone who has read SB1070, Arizona's new immigration law, and is familiar with the relevant cases, would read it to prohibit racial profiling when it clearly allows for it. SB1070 provides that law enforcement officers “may not consider race, color or national origin . . . except to the extent permitted by the United States or Arizona Constitution.” (italics added) A.R.S. 11-1051(B) (e.g., p. 1, lines 32-36; the language also appears elsewhere, e.g., A.R.S. 13-1509(C), p. 4, lines 1-4). The exception invokes the Supreme Court holding that "The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in evaluating reasonable suspicion under the Fourth Amendment. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975). Arizona courts agree that "enforcement of immigration laws often involves a relevant consideration of ethnic factors." State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982). That the exception is in SB1070 when it could have been omitted seems to preclude a claim that SB1070's policy is not to consider race.
So how can UMKC Law Prof Kris Kobach, a principal drafter of SB1070, argue that "S.B. 1070 expressly prohibits racial profiling"? By misquoting it. He simply omits the key language. He writes:
In four different sections, the law reiterates that a law-enforcement official "may not consider race, color or national origin" in making any stops or determining an alien's immigration status.
Kris W. Kobach, Defending Arizona, National Review, June 7, 2010, at 31, column 2, para. 2 of the PDF on his website, or on line. The critical exception is not included the description of the statute, thereby implying that a law that adopts Brignoni-Ponce instead rejects it. Arizona's Governor, certain legislators and perhaps others who also mistakenly claim that SB1070 prohibits racial profiling may well have relied on the expert opinion of a professor-drafter for the meaning of complex terms. This mistake may be at the root of widespread misunderstanding about SB1070.
Undoubtedly, the misleading quotation reflects Prof. Kobach's honest recollection of the law, and is what he expected to be enacted into law. If so, it should be simple to arrange for his clients to announce that this error will be corrected. On the other hand, on the off chance that the law was actually intended to codify rather than repudiate Brignoni-Ponce and Graciano, it would be candid for those involved to acknowledge that.
Friday, July 16, 2010
Dispatches from the front, circa 1989
From Fred S. McChesney, "Economics, Law, and Science in the Corporate Field: A Comment on Eisenberg," 89 Colum. L. Rev. 1530, 1530 (1989):
As American history demonstrates, the colonization of one territory by inhabitants of another creates at least two problems. First, the colonizers and colonized usually do not speak the same language, and thus must learn to communicate. Ordinarily, the language of the colonizers comes to dominate, a development rarely pleasing to the colonized. Second, patterns of property ownership will likely be disrupted, as colonizers acquire (often by force) rights previously held by the colonized.
The colonization of some fields of law by economic analysis fits this historical pattern. Economics provides a powerful “tool kit” with which to analyze law. It has proven difficult, however, for some adherents of more traditional approaches to law to come to understand the different form of analysis that the use of economic methods entails. Moreover, the economic approach has reduced the value of lawyers' more traditional but less powerful methods of legal analysis. Not surprisingly, many lawyers have objected to the intrusion of economic analysis into law on both grounds.
Law Prof Interview Gaffes
In celebration of Friday, here is a fun post. With the FAR form due date not far off, and talk of hiring committees in the air, I thought it might be interesting to focus on academic interview gaffes--relatively minor things that go wrong that while embarrassing at the time become funny in retrospect.
I remember once I was at dinner with potential colleagues after completing a day-long academic job interview. The table ordered a steamed artichoke as an appetizer. When it came, I--neophyte artichoke eater extraordinaire--pulled off a leaf and popped it into my mouth. And chewed. And chewed. For a long time I fielded questions while trying to disguise the fact that I was masticating a large, seemingly indestructible husk. I was laughting by the end, and finally had to fess up. Apparently artichoke eating skills were not a requirement; I still got an offer.
Feel free to share!
Thursday, July 15, 2010
A good weekend for Goldman
In case you missed it, Goldman Sachs has settled its case with the SEC for 550 million dollars, pending approval by Judge Barbara Jones. Given the fact that the media pundits had previously speculated that Goldman would pay as much as 1Billion or far more, this has to be a good weekend for Lloyd Blankfein, particularly since the firm is not even required to admit the SEC's allegations other than to say that it regretted that its marketing materials were "incomplete" in that they failed to disclose that John Paulson was shorting the synthetic collateralized debt obligations (CDO's) that Goldman was marketing.
As for the SEC, it gets to say that this is the largest SEC fine in history levied against a financial institution.
Forbes, and the WSJ online have both suggested that the episode has damaged Goldman's reputation. Sorry, but I'm not buying it. A fine that is half of what the media speculated, paired with no significant admission of wrongdoing, does not tarnish Goldman's reputation one bit with either its customers or its investors. A recent report by Andrew Ross Sorkin in the New York Times Dealbook suggested that most of Goldman's customers were staying put. As for investors, consider this: as a result of after-hours trading, Goldman's stock is currently trading in the neighborhood of $153 per share, up from $140 just one day ago. True, the stock was trading at $182 in April, before the SEC filed charges, but Goldman will now be able to credibly claim that the worst of their troubles are behind them.
Is this a good or bad thing? Depends on your view of the underlying conduct. I myself have always been partial to the claim that these were sophisticated clients and the fact that there was a short matching the long should not have been so surprising to anyone. Moreover, some of the information that CNBC reported following the filing of the complaint undermined claims that Goldman was misleading anyone (see Kim Krawiec's reaction to that information here, at Faculty Lounge, which links back to several of her very thoughtful posts on the topic).
My own intuition has always been that this case was fueled 50% by allegations of fraud (stoked in large part by NYTimes reporting), 10% by concerns about the extent of Goldman bonuses (an example of which is referenced here in Huff Po), and 40% by anger connected to the AIG bailout (notice the criticism cited, toward the end of the NYT's article, that the settlement represents a "fraction" of what the US taxpayers paid to bail out AIG). Thus, for me at least, the charges have the appearance of being pretextual: that is, that the SEC was at least partially filing charges for one set of reasons when in fact the "true" impetus for punishing Goldman was connected to a different set of reasons. Years ago, Bill Stuntz and Dan Richman wrote an article that identified some of the problems with pretextual prosecutions in the criminal sphere. To quote their SSRN abstract: "Far too little attention is given to the strong social interest in non-pretextual prosecutions, and to the ways in which identifying a defendant's true crime promotes prosecutorial accountability and deterrence." The transparency, accountability and deterrence concerns that Stuntz and Richman raised in the criminal context should apply equally in the regulatory enforcement sphere. Indeed, today's settlement only heightens the transparency and accountability concerns, since we will never know for sure what actually happened.
In any event, it's a good weekend for Goldman, a decent weekend for the SEC, and a very very good weekend for the exhausted lawyers who have been working on both sides of the case. Maybe they can all get some much deserved rest.
Why Giving Up on Sperm and Egg Donor Anonymity May not be as Good as it Sounds?
Use of sperm and egg donations is common practice in the United States. Couples or individuals who have trouble conceiving or lack a partner resort to use of donor eggs or sperm. The donors are usually young, often college or medical students. Many donate for financial reasons and some for altruistic reasons. But the one thing many of them share is the lack of a desire to form future ties with the born offspring. Thus, unsurprisingly, a strong norm of anonymity has prevailed. Most children born of sperm or egg donations are not told they are conceived through such a donation. And even more importantly the donors are guaranteed anonymity and thereby protection from future contact from the conceived offspring.
But all of this is changing now. Eleven jurisdictions worldwide including: Sweden, Austria, Switzerland, the Netherlands, Norway, the United Kingdom, New Zealand, Finland and three Australian states have prohibited donor anonymity. In these jurisdictions a child can find out who is the person who donated the egg or sperm that lead to his conception. In the United States the anonymity norm still prevails. Yet, important voices, including Professor Naomi Cahn, in her new book: Test Tube Families, call for adopting the prohibition on anonymity in the United States. The main argument for prohibiting anonymity is the conceived children's need for the genetic information in order to develop their identities.
Advocates of prohibiting donor anonymity realize that prohibiting donor anonymity can deplete sperm and egg resources as fewer individuals will be willing to donate. But, they argue that the effects are only short-term and in the long-term donations are unaffected. I decided to dig deeper into the empirical data in three representative jurisdictions in which anonymity was prohibited: Sweden, Victoria (an Australian state) and the United Kingdom. The overall picture emerging from the empirical data reported in my study revealed a disconcerting scenario of dire shortages in sperm and egg supplies accompanied by long wait-lists. Faced with acute shortages the fertility industry in these jurisdictions tried to recruit older donors who tend to be less inhibited by the disclosure requirement. Yet, this strategy did not fill the gap for sperm. As for eggs it could not be effective because eggs donated by younger women are more likely to result in a successful pregnancy. As a result, individuals and couples pained by infertility are increasingly engaging in fertility tourism to countries in which anonymity is not prohibited. I believe that the picture emerging from these three jurisdictions points to the need for great caution in adopting a prohibition on donor anonymity in the United States.
Making even Iqbal look good
I have not had much good to say about Iqbal, but here is one small thing to recommend it: It did not impose true heightened pleading (or pleading "with particularity" a la Rule 9) in civil rights actions and it trumps any attempts by lower courts to do so.
Pre-Twiqbal, the Supreme Court had insisted in three cases that civil rights cases were governed by the ordinary pleading rules of Rule 8(a)(2), not 9(b). Despite this insistence, the Eleventh Circuit had continued to require fact pleading in § 1983 actions against individual officers involving qualified immunity (which is to say most § 1983 damages actions). Because none of SCOTUS' pre-Iqbal decisions had involved a § 1983 claim against an individual defendant raising a defense of qualified immunity, the Eleventh Circuit had continued to insist that there was no binding precedent and it remained free to decide that the policies of qualified immunity (early rejection of nonmeritorious claims and protecting officers from protracted discovery and litigation) demand heightened pleading.
But in Randall v. Scott, the Eleventh Circuit finally got the hint that civil rights claims, even ones are not subject to special pleading beyond what goes for other claims (other than those enumerated in Rule 9(b)), which is to say they are controlled by Iqbal and its two-step approach. Of course, the circuit court went down fighting. The court did a thorough review of Iqbal and concluded that, while it involved general pleading standards under Rule 8(a)(2), it "specifically describes" those standards for actions involving a deprivation of constitutional rights in which individual officer defendants raised a qualified immunity defense on a 12(b)(6) motion. In other words, it had no choice. But you get a sense from the opinion that if Iqbal had been less explicit about its context, the Eleventh Circuit would have tried to find a way to keep its old pleading standard (unfortunately, the only possible distinction--Iqbal was a Bivens action while this is § 1983--could not pass the laugh test).
Randall confirms that Iqbal, while certainly more demanding than Conley and requiring some facts, is not the same as the heightened pleading. It requires less than what Rule 9(b) requires for fraud claims and less than the Eleventh Circuit had been requiring for civil rights claims. This hopefully sends a strong signal to lower courts in the Eleventh that Iqbal is not the strictest possible standard. Courts thus should be less demanding of § 1983 complaints, particularly those claims involving allegations of state of mind, conspiracy, and other information uniquely in the defendant's control.
Of course, even if Iqbal is not the most-demanding standard, all is not well in Mr. Randall's world. The court went on to say that his claim fails even under the less-demanding pleading standard, thus the dismissal was proper. Randall had been fired from his job as chief of staff to the DA because he ran for Chair of the County Commission against his boss' husband; Randall alleged First Amendment retaliation. The court agreed that he had some First Amendment liberty to run for office free from public retaliation (where there was no government interest for firing him), but that the right to run for office was not clearly established.
So the plaintiff still loses, although this loss can be chalked up not to problems with the pleading rules, but with the rules of qualified immunity.
More on the FCC's indecency ban
The following is by my colleague Hannibal Travis, who writes on telecom law.
The FCC warns broadcasters that it is illegal to program indecent programming or profane language during certain hours, and that a fine or loss of the station’s license may be imposed as a result. But it refuses to define indecency in clear terms, which violates the principle of the rule of law and, as the Second Circuit held, the First Amendment. As Howard points out, the Supreme Court upheld the FCC's fleeting expletives policy last year, in a decision that may well result in CBS being fined $550,000 for the Janet Jackson partial nudity charge arising out of the 2004 Super Bowl. Justice Scalia maintained that the policy was needed to prevent the coarsening of the culture. The majority invited the Second Circuit to review the case for First Amendment violations, and the Second Circuit's ruling was the result. The Second Circuit's opinion tracks the analysis of the swing justices in the controlling opinion in FCC v. Pacifica Foundation, which said that the FCC's regulation of indecency may not amount to roving censorship or the banning of isolated swear words. Four justices dissented last year and argued that the FCC’s rule would chill the coverage of local public events on live television. Even Justice Thomas, though in the majority, attacked the opinion of the Court for relying on cases explaining that the FCC may constitutionally regulate television content for decency and political balance, in part because it allocates scarce frequencies to private operators, while excluding non-owners of FCC licenses from broadcasting altogether.
Thus, the implications of the decision seem significant enough for the Supreme Court to take the case. The result may be difficult to predict, in that a majority voted last year to find the FCC's policy basically reasonable (or at least not arbitrary), while remanding for a free speech analysis. Justice Thomas, part of the five-justice majority, strongly suggested that the FCC’s policy is unconstitutional. So if this decision is appealed and decided, he and the four justices who voted that the FCC's fleeting expletive policy violated the First Amendment as explained in Pacifica may strike down the policy and mandate a more liberal rule permitting expletives or occasional indecency on over-the-air television.That being said, media regulation today is a much more complex tapestry than the media coverage on this case would suggest. Past racial and ethnic discrimination in the allocation of FCC licenses, mergers and acquisitions , ownership regulation, intellectual property, advertiser contracts, and expectations, coordination of similar editorial and journalistic standards across media organizations, and negotiations with governments over security threats likely play a much greater role in shaping public debate than indecency or fleeting expletives rules.
The Court may take the opportunity to undertake a historical analysis of the freedom to speak indecently as of the era in which the Constitution was ratified. Nearly 40 years ago, Justices Douglas and Brennan argued that the First Amendment was a product of a licentious time in which offensive publications proliferated. Other justices, of course, will catalogue draconian obscenity and indecency laws enacted in Congress and the states from the eighteenth century until today. Much of that history also reflects anti-homosexual persecution of the type rejected by the Court in Romer v. Evans and Lawrence v. Texas. Elizabeth Glazer of Hofstra's law school has written a foundational paper on how the present framework of obscenity and indecency regulation cannot withstand scrutiny under the principles of individual autonomy and respect for privacy set forth in those cases. If the fleeting expletives policy makes it to the Supreme Court on constitutional grounds, it may be a good opportunity to revisit that framework in light of the original understanding and evolving conceptions of freedom and dignity. Perhaps even the broader jurisprudential question will be raised, whether the theory or the practice of the founders and ratifiers of the constitution controls when defining the outer boundaries of our civil rights.