Tuesday, August 31, 2010
Hard to believe that the new month is soon upon us, and with it, the indisputable end to summer. Alas. One bright shining light amidst this gloom: rotations!
I'm thrilled to welcome for the first time at the blog Emily Gold Waldman (Pace) and Brendan Maher (OKCU); and to welcome back some familiar voices including Rick Esenberg (Marquette); Lior Strahilevitz (UChicago); Susan Kuo (South Carolina); and Colin Miller (JMLS).
I was delinquent in getting the rotations set up over the summer, so I owe a special thanks to Miriam Baer and Eric Johnson for pitching in overtime during August, as well as all our great July bloggers. Thanks again for all your posts!
My Devalued Marriage
I recently kissed my wife good-bye at the airport and took off for California, where, just days before, a federal district court had declared a ban on gay marriage to be unconstitutional.
Many of those who support the ban on gay marriage argue that marriage between a man and a woman will be devalued if same-sex couples are allowed to marry. "Huh?" you may be thinking. "How could that possibly be the case?"
I know, it sounds absurd. But amazingly enough, though it defies logic, I actually noticed the effect as soon as my plane crossed into California airspace. It was weird, but I could actually feel my marriage devaluing.
It doesn't seem like all that long ago that I married my wife Kit in Santa Monica, Calif. We had a caterer, a florist, a bunch of guests, a cake – all that stuff. Kit got her hair done and wore a special dress for the occasion. I wore a tux. At the time it seemed extremely special. But being back in California after Judge Walker's ruling, it all felt so ho-hum, so devalued. Riding the BART train from the airport, I found myself wondering if it would have helped if we had hired a live band for the reception. It was hard to know.
That night I actually had trouble sleeping because my wedding ring felt uncomfortable and foreign on my hand.
Here's the really weird thing – while I was experiencing all this marriage devalument, I wasn't even thinking about the court case! It didn't hit me until I was flipping around through the cable news channels. That’s when I figured it out: It was the Equal Protection Clause! That was why my marriage felt so dull and generally unspecial.
But how could this happen? How could two dudes (or dudettes) getting married to each other possibly affect my marriage?
Well, I was fortunate enough to see a person interviewed on one of the cable shows who explained it. This guy put it in language that I, as a law professor, could understand. He pointed out that counterfeit currency devalues regular currency. (I had to admit that was true.) So, he reasoned, gay marriage, as a kind of counterfeit marriage, devalues everybody's regular marriages.
The force of this argument is really undeniable. Tried though I have, I can not find even the tiniest hole in this guy’s analysis. In fact, the more deeply you think about what he was saying, the more sense it makes. It's really one of the smartest things I've ever heard anyone say. It shows an uncommonly strong grasp of economics, sociology, and some very basic rules of logical thinking. Wow.
Anyway, it got me to figuring, we should not only amend the Constitution to ban gay marriage, we should also take affirmative steps to strengthen the institution of traditional marriage.
(Images courtesy U.S. Mint.)
U.S. currency was strongest back in the 1960s when we were still on the gold standard. Ergo, we should put marriage on a gold standard. Think about it: If every married heterosexual could, at any time, freely convert his or her spouse into a specified quantity of gold bullion, then every person who is married would value their marriage more. Divorce rates would plummet. That's just logic.
A lot of the same conservative talk show hosts who are opposed to same-sex marriage are also enthusiastic supporters of returning America to the gold standard. That’s why it’s such a public service for radio talk show hosts to tell us about important gold investment opportunities. It is my hope that thought leaders like Glenn Beck and Sean Hannity will realize the synergy here and support the adoption of a marital gold standard.
My own personal story has a happy ending. I got through the whole trip without trying to hook up with any of the women around me. Now, that wasn't because my marriage felt like it was worth anything at the time. It's undoubtedly because I was attending a conference of law professors. That's its own libido kill.
Most importantly, now that I am safe and sound back home – outside of the jurisdiction of California – my marriage once again feels like it is valuable. (Granted, not as valuable as it would be if I could take Kit down to a federal reserve bank and turn her in for gold, but, you know, still pretty valuable.)
The Dude From Stratford-Upon-Avon AbidesI'm happy to say that the phenomenal Shakespeare-Coen Brothers mashup The Two Gentlemen of Lebowski, which I believe I posted about at some point, is going to be published in book form. More here. As if I needed to say more to recommend it, here is a stage direction from the work: Alarums. Enter Oliver and the two NIHILISTS, bearing a marmot.
Monday, August 30, 2010
Aspiring Prawfs: Go to Phoenix
Some of my peeps at ASU are hosting a cool conference on Oct 2 for those folks who are aspiring to get in the teaching law game. It's a pretty good setup, naturally, and more evidence of ASU bringing their a-game. (Yes, they're hosting Prawfsfest! 8 in December--how could you tell?)
Form and Substance in the Reform of American Legal Education
The reform-of-legal-education blogging bandwagon continues to roll. In the legal blogosphere, a good deal of attention has been paid in particular to Jason Mazzone's post at Balkinization suggesting the division of the law school into two physically separate departments, one focused on the study of law as an academic subject and the other on professional education in lawyering. It also features interesting comments from Jerome Kowalski, who also promotes a book of his on the subject and who laments the absence of some form of mandatory clerkship prior to bar admission. Both of these points have some validity, I think, but both of them also raise questions about what, exactly, we are debating in talking about reforming legal education, and whether we are confusing form for substance.
In my last post on the subject, I argued that a substantial, although under-recognized, component of the practically minded law teaching that many critics of current legal education call for already exists in our law schools. It is law as taught by adjuncts and clinical programs. Not all law professors are sufficiently familiar with the adjuncts who stream in and out of their own law schools, or even with the clinicians who are there full-time. Nor are all of them aware of the high enrollment levels in both these practically minded sectors of the law school. I suggested that there is good reason to think that these individuals deserve higher recognition and status than they currently enjoy. Somewhat to the contrary, Jason suggests that in his bifurcated vision of the law school, these individuals would not enjoy tenure, because they would not be writing and so would not need it. (I'm not sure where this leaves doctrinal scholarship in his picture.) If that's the case, it's a small move indeed from the current system, and with the added costs of transitioning to the system he recommends, not least constructing a new building for each bifurcation. Do we not already come close enough to his model to forego the added costs?
Mr. Kowalski argues that we ought to have some form of mandatory professional apprenticeship before taking the bar. He argues that under the current system and in the current economic climate, as clients refuse to pay for the work performed by first- and second-year associates, new law school graduates receive neither jobs nor training. As a Canadian law school graduate who completed mandatory "articles of clerkship" with a law firm before joining the bar, I should sympathize with his argument. I'm not sure I do.
The Canadian experience may not be sufficiently similar to the kind of program he envisions. But in my experience, the availability of "articling" positions waxed and waned with the economy just as surely as the availability of "permanent" associate positions in the United States. In lean years, it was understandably difficult for a greater number of students to secure articling positions at all. The number of firms willing to hire back their articling students also waxed and waned depending on the economy. The year before I articled, only a third of the students at my firm were hired back; the year I articled, it was just over 50 percent; within three years, firms were attempting to meet the demand by promising to hire back their students even before they signed on. It is true that those students ostensibly received "training," but I don't recall it being any different from the level of training received by first-year associates at firms in the United States. (I practiced on both sides of the border -- making me, by some lights in the current debate, an "experienced" law teacher.) It is true that we were not fully fledged members of the bar, but we performed the same tasks, ostensibly under supervision; the same is true of first-year associates at large firms in the U.S., whose work is supposed to be subject to supervision by higher-ups lest they face discipline under the rules of professional responsibility. I'm not sure how moving the title forward or backward a year alters the economics of the situation.
If these are the proposals, I'm not sure that they adequately describe what is wrong with the current system or how they really address whatever is wrong. I'm not arguing by any means that the current system is perfect. But the changes proposed above seem to me to be more about form than substance. A more substantive argument might charge that all lawyers ought to be professionally and practically trained, and only by experienced legal professionals. Perhaps that is what Jason wants or is getting at. That would satisfy many objectors to the current system, especially among law students and recent graduates; but another common complaint that often accompanies the complaints about theoretical law teaching is that there is not enough doctrinal legal writing, and Jason's proposal seems counterproductive on that point.
And, although I don't think this is the whole of their complaint, I think what many law students are saying is not so much that they want training as that they want jobs. Simply creating 200 professional law schools with professional training won't achieve that result if the demand for legal services is still lower than the supply of graduates; nor will mandatory articles of clerkship. (The former proposal would, to be sure, better train students to hang their own shingles, although it would not by any means guarantee enough work to sustain them all. Articling by itself does not actually create sufficient training to work on one's own; articling at my own large firm, I learned primarily how to work at a large law firm.) I suspect many of those students or recent graduates would be more than happy to accept theory-spouting professors, if they knew they could find remunerative work at the end of the process.
What this suggests to me is that we would answer this complaint better simply by eliminating a substantial number of law schools, regardless of the theory-vs.-practice debate. Perhaps that is the debate we should be having, rather than debates over practical vs. theoretical teaching or doctrinal vs. non-doctrinal scholarship. It is true that a more practical approach might better serve clients, but most of the discussion so far seems to have focused on what students and graduates want rather than what clients need. If our interest is in students rather than clients, then I should think that eliminating law schools, not reforming them, is closer to the remedy we ought to be seeking.
Not that I'm advocating this! There appears to be a great demand for law school spots despite the economy. Moreover, law professors are regularly told by law students (including many advocates of a "practical" approach to legal education) on legal blogs and elsewhere that the student is a consumer and an adult and should be free to make whatever choices he desires, including whether to show up for class at all and whether to use or refrain from using laptops in whatever manner she desires. If we actually believe in this anti-paternalistic principle, then I'm not sure why the current setup needs to change.
Tea Parties and the Ethnocentrism of the Left
The recent event to “restore honor” hosted by Glenn Beck before the Washington Monument provides an occasion to ask once more that question that occupied blogs and op-ed pages back in April: Are Tea Partiers or other attendees at these virtually 100% white and conservative events “racist”? My perverse inclination is to answer, “of course – and so are we all.” In the words, of the Avenue Q song, everyone – you, me, and, yes, the Tea Partiers – is all a little bit racist. The Tea Party’s critics are just more adept at making their targets feel self-conscious about their prejudices.
I’d qualify the paragraph above by stipulating that, by “racist,” I mean “ethnocentric” in Kinder’s and Kam’s sense of the term. The Tea Partiers – like everyone else – tend to divide human society into in-groups and out-groups and use those divisions to reinforce their own sense of identity and self-worth. (Donald Kinder & Cindy Kam, Us Against Them: Ethnocentric Foundations of American Opinion at pages 31-41). As Kinder and Kam note, ethnocentrism “is not a sickness”: “Ethnocentrism is normal.” (page 8). Indeed, its ubiquity suggests that it might be hardwired into our brains by natural selection, as a way of giving ourselves a sense of self-esteem and security. Henri Tajfel’s “minimal group experiments” show that people develop group loyalties and biases from the most transient and trivial characteristics – say, their estimates of dots on a computer screen (over-estimators consistently favor their fellow over-estimators and under-estimators favor under-estimators!)
It should not be a surprise that white, middle-class, suburban and rural evangelically Protestant Christian homeowners will develop a bias favoring similar people. Their polled values and beliefs regarding different ethnic groups, – hard-working or lazy, intelligent or unintelligent, etc – seem to reflect these biases. (Incidentally, Tea Partiers do not score exceptionally higher on such measures of ethnocentrism than whites in general).
But you, Gentle Reader, do you harbor any ethnocentric biases towards those Tea Partiers whom you deride as racists?
Maybe you do not use the “r-word” in your speech, but that’s just etiquette (Tea Partiers likewise avoid the “n-word”): Do you secretly -- maybe involuntarily -- think “redneck” (or “hayseed,” “hick,” “babbit,” etc) when you read about the crowds listening to Beck and Palin in front of the Lincoln Memorial? And does this sense of those Tea Partiers’ inferior rural-ness and otherness not re-enforce your own smug sense of self-approval, as a good cosmopolitan urbanite, free from the trammels of paranoia and ignorance to which these hayseeds are prone? If so, then your attitude is squarely ethnocentric, in Kinder’s and Kam’s sense of the term.
I would suggest that the critics of the Tea Party harbor deeply ethnocentric views of Tea Partiers as rural and suburban dimwits whose political views are the result of their ill-education and isolation from cosmopolitan commercial centers. Sometimes the ethnocentricity of anti-Tea Party screeds is unbridled – for instance, when blogs gleefully deploy the “r-word.” Sometimes the anti-rural/suburban bias is subtle – for instance, mockery of misspellings on signs at Tea Party rallies. But the general tenor of the attacks revolves around the ignorance and paranoia of Tea Partiers, stereotypes that are well-calculated to inflate the self-esteem of the resident of the college town or big city who deploys them. By contrast, Tea Partiers and fellow travelers press a different sort of stereotype of their opponents – not that their critics are ignorant or unpolished but that their enemies are grade-grubbing over-achievers whose arrogance disqualifies them from the right to exercise power in a democracy.
In short, everyone seems to be re-enforcing their identity by promulgating stereotypes of each other that actually reinforce their alleged opponents’ stereotypes of themselves. It is ethnocentricity mirroring ethnocentricity all the way down.
Is this mutual, self-re-enforcing ethnocentricity a bad thing? You tell me. I suppose that it is annoying to listen to folksy poor-mouthing by affluent suburbanites railing against the alleged political dominance of eastern elites. But it is also a mite irritating to listen to bloggers sneer at the dumb opinions of Tea Party types but give equally dumb Left views a respectful hearing.
Let us put aside these tedious normative debates for a much more (to me) interesting historical question of intellectual geneology: Whatever their merits, do our contemporary ethnocentricities mirror the ethnocentricities of the 19th century? To my ears, the recriminations of the Tea Party’s critics uncannily parallel the old attacks of Whigs and Republicans on Jacksonian Democrats as comically ignorant and reactionary hayseeds. (For a vintage example, treat yourself to the words of fictional character, the Rev. Petroleum V. Nasby, the Civil War-era creation of the 19th century writer David Ross Locke who apparently left Abraham Lincoln in stitches). Perhaps the ethnocentricities of both Tea Party and Tea Party Poopers have long American pedigrees, stretching back perhaps to 1832 or even before, to the western Anti-Federalists like Matthew Findley and their eastern financial opponents like Robert Morris or congregationalist enemies like Timothy Dwight. On one side, there was the Appalachian diaspora of (often prosperous) hinterland residents spread across the sunbelt -- Jackson territory -- expressing anger at the snobbery of what they take to be a cosmopolitan cabal of New England brahmins and New York financiers. On the other side, there were those Yankees and New Yorkers’ deriding Andrew Jackson’s bad spelling and bigotry. Their great, great, great, great grandchildren may still be at it, aided by the more recent immigrants who lined up on the "populist-periphery" side or "elitist-center" side of the old debate.
In the 19th century, the two sides needed each other for their own self-definitions. Perhaps they still do: Maybe their endless mutual recriminations about their counterparts' various prejudices somehow hold the country together and define what it is to be an American.
Sunday, August 29, 2010
The Rise (and Rise?) of the Skype Interview
Through the grapevine, I've now heard that some schools are asking/requiring candidates to do Skype interviews first. I'm not sure if this is in lieu of a DC screening interview or as a pre-cursor to one, but I was wondering what y'all thought of this as a practice that appcomms should adopt. To my mind, I can see the benefit of using the Skype interview as a substitute for most DC interviews because it would give the candidates and the appcomms more time if needed than the 1/2 hour slot, and would probably mean that more due diligence could be done on both ends prior to the meeting in person for a callback. If used as a substitute for DC it would also cut financial costs, which some schools are certainly mindful of during these tight times. But I have no experience with this and perhaps those who have done these (either as candidate or interviewer) might have different reactions. Please feel free to share your thoughts or recommendations in the comments.
Shawn Bayern's Conveyance Interpreter
My FSU colleague, the incomparable Shawn Bayern, is generously circulating an instructional tool for those who teach property. Here's how wunderprawf Al Brophy describes and reacts to this new teaching tool over at the Property Prof Blog.
I've been worried for some time about computers taking over; here's more evidence of it....
Shawn Bayern of Florida State University has a web program that is a "conveyance interpreter" that diagrams grants of estates ("To A for life, but if he becomes a lawyer, then to B for 21 years" and so on). The program uses a "context-free grammar" to understand the language of the conveyance, and then it generates an image that maps out the resulting property interests. Shawn borrowed the style of the images from diagrams that Andrea Peterson, his Property professor at Berkeley, used in class. In fact, Shawn wrote it when he was a property student.
I've been playing with it some this morning --- and I have to report that it's pretty darn cool. Just in time for the start of the new year. This could be the new teaching tool of the season! Hours and hours of fun just waiting you and your students.
For instance, [above you can see] the diagram Shawn's program drew for the grant "to A for life, then to B and her heirs if B survives A." The "conveyance interpreter" is available here.
The fact that we're one step closer to our jobs being taken over by computers is a story for another time.
Now, Shawn, where's the program to evaluate the rule against perpetuities?
PrawfsPuzzler: Law Prawfs Crawsword!
There's only one special thing to note: In keeping with the hide-the-ball and antique-language traditions of law school, no warning is given in the clue when Latin is required.
1. Hypothetical estate
7. For a soft-spoken prof.
8. A grade awarded at some universities for academic dishonesty or lack of attendance
9. Our subject
10. Art. 4 governs bank deposits.
12. HMO protector from 1974
13. Holmes explained that early legal systems emphasized vengance. An example was the stoning or surrendering of this animal when one did harm.
14. Your laptop-toting student may not have brought one.
16. Burma, Liberia, and the U.S.A. are the holdouts.
17. The first American law school, established 1773, in Connecticut
21. Said of a mind
22. You may be asked for one from a student wanting a fed. clerkship.
23. An association of members, a place where people drink, or something you could be bludgeoned with, but it's not "club."
24. 18 U.S.C. purveyor
26. May inhabit a utility easement in a condominium tower
27. A guardian __ litem is court-appointed to look after the legal interests of another.
28. Found in bankruptcy captions
30. Applicable to about half of American law schools, it's longer now, thanks to the Energy Policy Act of 2005.
1. Key no. in DUI cases
2. Wielded in the assault case in 26 down
3. E.g., apples, oranges
4. Allow students to weigh in without a hand up
5. The thing
6. Is this going to be on the ______?
7. Traditional color of law for regalia
11. There wasn't one in Dougherty v. Salt.
12. Impeachment data on a JPEG
13. An act and an agency, under DOL, that can literally make you CYA.
15. If you've read one trade secret case, it's probably ___ duPont deNemours & Co., Inc. v. Christopher.
18. This means the S.Ct. will hear you. But I'd check your breath anyway.
19. It's what you're supposed to do to think like a lawyer.
20. Home to six law schools that are surrounded by, but not in, the 4th Cir.
23. This kind of nipping didn't justify vague vagrancy ordinances in Papachristou v. City of Jacksonville.
24. ADR practitioners
25. The ABA-approved law school closest to Canada, which is about 750 yards due south.
26. I __ S et Ux. v. W __ S
29. This Meese headed a 1980s report recommending stricter obscenity laws.
Saturday, August 28, 2010
More on "Whither Law Schools?"
The posts by Rick and by Kristen Holmquist below on legal education are very interesting. I also recommend both Jonathan Adler's post on the subject at the VC, as well as the comments on it (sometimes because they are right and sometimes because they illustrate some deeply held views about legal education). Let me add two or three cents.
First, as some of the comments to Adler's post demonstrate and despite what some of his commenters seem to think, the distinction between "practical" and "theoretical" or "academic" law teaching, or between legal academics with significant practice experience and those with little experience, does not track the left-right divide. Some left-leaning legal academics, including many who write on theoretical questions, have significant practice experience and bring it to bear in their teaching and scholarship. Some right-leaning legal academics, or those who use methods generally associated with more conservative political views, have little practice experience and write more on a theoretical level and with an interdisciplinary bent (see "economics, law and"). Arguments about practice versus theory have no particular political valence.
Second, I think Rick and Kristen are right to emphasize that a good lawyer, broadly defined, may have and need a suite of skills beyond the narrowly "practical," or at least that our sense of what makes a good "practical" lawyer should not be unduly confined. It is important to learn how to file a complaint, and law schools probably fall down on this job; it is also important to learn how to think in a useful way about complaints, particularly if the occasion demands more innovative thinking. Neither the good and the best nor "practical" and "abstract" thinking are enemies here. A number of the commenters on Adler's post make the point that some of their greatest value as lawyers comes from an ability to think broadly and in a sophisticated fashion about their work, and that they learned those skills from more theoretically oriented and less practically experienced teachers. None of this is to say that there isn't room for much more focus on skills and basics, or for that matter that teachers with practical backgrounds will necessarily lack the skills to teach this kind of high-level thinking. Law schools could do a much better job at this kind of thing, and many of them have strained to do just that in recent years. It's just a plea against narrow thinking about what constitutes the lawyer's skill set.
Third, while I think there is much more room for law schools to focus on and hire for practice experience and practically oriented thinking and teaching, I think critics of the current model overstate the supply of qualified and practically oriented teachers who would be willing to do the job full-time. I don't want to be unduly provocative in saying that. Certainly there is a meaningful supply of potential applicants who fit that bill. But my experience in past years on hiring committees (I am not referring to this year's applicants) has been that not all the focus on more theoretical and less experienced legal academics is simply a result of some anti-practical bias on the part of hiring committees. Many lawyers with years of practice experience apply for teaching jobs, and some are both clearly terrific and unfairly neglected on the market. But a number of those applicants strike me as less than stellar. Not all their practice experience is terribly impressive, they show no particular vocation for teaching, and to the extent that we extend the practice vs. theory debate beyond teaching to scholarship, they give no strong evidence of being likely to contribute in a serious way to "practical" or doctrinal scholarship. Even if we took a broader view of what it means to be a "well-qualified" teaching candidate, some practitioner applicants would not meet that test.
The reasons for this are complicated, and it's difficult to sort chicken from egg. Perhaps some talented prospects drop out of practice earlier because they believe the market prefers a more academic candidate; perhaps fewer talented practitioners apply for teaching jobs because they believe it would be fruitless given the tastes of hiring committees. Perhaps some of the most talented practitioners want to, well, practice, not teach. Nor should we neglect the increasing wage differential between high-level practicing lawyers (excluding those in public service, which is an important exception to be sure) and legal academics, which may affect the applicant pool. These are all important points to consider, and perhaps if law schools were less biased toward academic types and more favorable toward practitioners, we would see a different supply. I certainly think not every law school need model itself after the stereotype of the Yale professor in selecting its applicants. But our discussion of the future of the law school should not totally ignore those very pertinent facts on the ground, even if it would be more politic to do so.
Finally, our discussion of the practice vs. theory, or experienced vs. inexperienced, debate in the law schools should not ignore the huge stock of very experienced and skilled practitioners who already fill our law schools at all levels. Most law schools already take tremendous advantage of both adjunct teachers and clinicians. (The ambiguity in the phrase "take tremendous advantage" is intended!) Students with a strong practical bent already have a ready supply of teachers who fit that bill, and many of them avail themselves of those opportunities. There are strong grounds to argue that both adjunct and clinical teachers deserve much more attention and respect than they get at many law schools -- alas, too many faculty are barely aware of the names and backgrounds of some of the most interesting and beloved teachers at their own schools. In a sense, asking most law professors to weigh in on the practice vs. theory debate is a mistake because law professors don't always know their own schools; we would be better off asking the deans and associate deans who actually hire and deal with adjunct and clinical instructors and know just how strong the enrollment in those classes already is. In any event, the idea that modern law schools are all theory and no practice tends to focus only on tenure-track legal academics, and not enough on the substantial number of practically experienced lawyers who do a great deal of teaching at most law schools, either in the clinics or on a part-time basis.
In my typical, painfully moderate fashion, and against a few of the commenters on Adler's post, I just don't see why, even if we neglect Rick and Kristen's broader arguments about the kinds of skills we should value in teaching lawyers, we have to argue for law schools being all theory or all practice, either academic departments or trade or professional schools. There is room for both, and both have value, both to the law and to law students. To an extent not always recognized in this debate, we already do both. Arguing about the proper mix seems legitimate to me; arguing that it is a zero-sum game, or simply assuming that the doors of law schools are being beaten down by superb practitioners who would be superb teachers and/or doctrinal scholars and who want to do so on a full-time basis, does not.
Friday, August 27, 2010
Law School and Lawyering: A Post by Kristen Holmquist (BerkeleyLaw)
Hey there - stopping by again to throw my two
cents into the whither-law-school debate. As Rick Garnett notes below, the
Bruce Newton piece "Preaching What They Don't Practice: Why Law
Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy" has gotten more than a little attention around the law blogs in the last few days. And I
guess I’m not surprised. It taps straight into the reform debate as it’s been framed (theory vs. practice; academy vs. profession). And it captures many reformers’ frustration with law school’s curricular inertia while our students are paying through the nose then and graduating a little too often without jobs.
I share, however, Rick’s frustration with the underlying assumption in this framing. That the ideas explored in interdisciplinary scholarship - ideas at the intersection of law and psychology and economics and
sociology, for example - are somehow irrelevant (or not very relevant) to 'practical' lawyering. I've recently posted a draft that attempts to get at some of this. I don’t mean to diminish Newton’s concerns for our students. I simply hope to add to the discussion. Here's the abstract:
Since the 2007 release of the Carnegie Report on the status of legal education, energy around reform has been tremendous. Indeed, schools of every rank have taken heed of the Report’s finding that while law school teaches students to think like lawyers, it woefully underprepares them to act as such. This essay challenges Carnegie and its conclusion that law school successfully teaches lawyerly thinking. The Report
artificially severs an attorney’s thinking from her doing and thus belies the interrelatedness of understanding, experience, evaluating and creating. It defines ‘thinking like a lawyer’ downward to a crisp and detached doctrinal analysis - one that looks more like law-as-puzzle than a serious attempt to solve complex human (or corporate) problems.
This narrow view obscures the context and content that lawyers work with and within, and it fails to reflect the more complex take on lawyering that lawyers and lawyering theorists describe. Sophisticated empirical
and theoretical accounts of lawyering recognize the recursive nature of knowledge and experience in a way that broadens our understanding of what it means to think like a lawyer.
Through this essay I attempt to fold context and content back in to our notion of lawyerly thinking. And I propose curricular and pedagogical changes that law schools might adopt to better reflect and encourage
this richer, fatter, understanding. While it is true that students’ lack of practical training may deny them the ability to write a fantastic brief, legal education’s problems are bigger than that. Law school’s consistent focus on case-method learning may also deny students the opportunity to engage in higher-order thinking about law and policy, about problems and goals, about potential paths, obstructions, and
Kristen Holmquist is Academic Support Programs Director and Lecturer in Residence at UC Berkeley Law
Van Zandt steps down as dean at Northwestern
David Van Zandt, long-serving dean at Northwestern (my beloved alma mater) is stepping down to become president of The New School in New York. Van Zandt has served as dean since 1995 (he was hired during my 1L year) and has overseen some major curricular and faculty initiatives. These include an overwhelming emphasis on hiring JD/PhD's doing interdisciplinary and empirical scholarship, the development of an accelerated (and controversial) two-calendar-year JD program and three-year JD/MBA program, and curricular additions focusing on the "business" of practicing law. He also instituted one of the earliest formal VAP programs for people trying to break into law teaching (NU hired VAPs back in 1998) and formalized certain programs designed to prepare students for teaching careers.
Not everything he has done has universally praised. But even Brian Leiter, a frequent critique of the way Van Zandt has played the U.S. News game, labels him a "transformative" dean, saying "very few law school Deans have stamped a law school with as clear an identity" as he has. It will be interesting to see what direction the faculty takes in choosing a successor and whether the dean change reflects a course change for the school.
"Preaching What They Don't Practice"
A number of law-blogs have taken note of this paper, by Bruce Newton, called "Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy" (Phew!). (See Bainbridge, Caron, Law Librarian, etc.) Here is Newton's abstract:
In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century. It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively. This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.
Critiques like this are nothing new, of course, and (just as "of course") have some bite. But, they can be (and I worry that Newton's might be) overstated. Sure, we all remember (or know!) legal scholars and law teachers who seem way-disconnected from the practice of law and who we cannot imagine actually advising a client, putting together a deal, or arguing a case. But, the suggestion that -- even at those awful, top-tier theoretician-factories that Newton has in his sights -- faculty members who are hired not only to teach skills and doctrine but also to investigate and reflect on the history, animating principles, normative failings, etc., of our craft and tradition (our learned profession) "lack the skill set necessary to teach students how to become competent, ethical practitioners" seems too sweeping. The suggestion reflects, I suspect, a narrower-than-mine view of what it means to be a "competent, ethical practitioner" -- a real lawyer.
Nearly a year ago, responding to a claim (similar to Newton's) at the WSJ Law Blog that difficult economic times might result in a turn toward the "useful" in law schools ("Perhaps the focus will be more on teaching students on how to draft interrogatories than on reading John Rawls. If we’re reading Gerding correctly, law school may become less fun, but perhaps more useful."), I wrote:
In my own view, for what it’s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach. In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more* like a humane discipline, than they currently are. The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated. There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.
This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics' self-important musings), even elitist. I am uncomfortable with that. To be clear, I think *practicing* law is (or, at least, should be) both "fun" and "useful" (it has certainly be fun for me!). The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting. My sense, though . . . is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for. It is absolutely the role of good law schools to produce good lawyers; I'm just suggesting that the problems with the structure of the profession have not shown that the way to produce good lawyers is to shrink our understanding of what it means to be a good lawyer. The big-firm model of legal-services delivery seems messed up and dysfunctional, no doubt. I'm pretty sure, though, it's not because students have been reading too much Rawls. (Well, maybe it is. But it's not because they have been reading too much Jacques Maritain or Thomas Aquinas. =-) ).
I think what I wrote is true, and is also responsive to some of what Newton is worried about. To be clear: It is essential that law schools provide, value, and reward the best possible legal-skills training to those students we are training to become lawyers. But, it is also essential to remember -- those in the practice who are criticizing legal education need to remember -- that we are not only "training lawyers"; we are also forming professionals: citizen-leaders and teachers who play a vital role in the project of securing and defending the rule of law in the service of the common good, as well as in helping people avoid and solve technical legal problems. To say this is not to defend all hiring practices or all law schools' practices; it is just to warn against embracing too quickly a too-quick criticism.
Thursday, August 26, 2010
What Can You Accomplish as a Lawyer? Renowned Lawyer and Legal Scholar Bruce Winick Has DiedI've just received the sad news that my friend and former colleague Bruce Winick, distinguished professor of Law & Medicine at the University of Miami School of Law for some 36 years has died. Bruce will be most remembered as the co-founder, along with David Wexler of the University of Arizona, James E. Rogers School of Law, of the extraordinary scholarly and law reform enterprise known as Therapeutic Jurisprudence. TJ to its many friends, is the scholary study of how law and legal procedures influence the psychology of those who are subject to it (or practice in it), as well as the law reform project of altering the law to optimize its psychological advantages and minimize its psychological disadvantages. TJ had its intellectual problems. As Elyn Saks argued some years ago, there are all too many circumstances when the psychological consequences of legal choices are cross cutting (as for instance in forcibly medicating a person suffering severe psychosis). Still, one would be hard pressed to name a body of academic legal scholarship that has had more law reform significance in the past quarter century. Scores of drug courts, mental health courts, and other "problem solving" courts of all kinds in the US, Europe, Australia and elsewhere no doubt, trace their intellectual DNA to TJ. In an era when criminal law in the US has been dominated by a widespread surrender to populist punitiveness, TJ was practically the only significant counter force in law reform.
Amazingly, Bruce came to TJ well into his career, after years of impressive legal accomplishments including overturning New York's death penalty in the late 1960s, litigating many of the most influential selective service cases in the Vietnam era, and joining with Miami colleagues Irwin Stotzky and Ira Kurzban in litigating the Haitian refugee cases before the Supreme Court in the early 1980s. Bruce was the author of more than ten books and scores of law review articles, mostly in the last decade and half during which he was functionally blind.
More than anything I will remember Bruce's sheer joy at being a lawyer and a law professor. Oblivious to the slings and arrows that puncture most egos, Bruce was simply carried away by a sense of the enormous privilege it was to argue before courts on behalf of clients, to teach law and medical students, and to share his ideas though his prodigious ability as a writer and speaker. In this latter aspect, Bruce will be with us for decades to come. Just today, well before I heard the news, I was reading several of his articles on TJ and civil commitment (also the subject of 2005 book) for some of my own research on reforming California's civil commitment law.
Free, Downloadable Casebook for Torts
This week I posted Volume One of a freely downloadable casebook for torts. After using three different casebooks over the past three years (I like changing things up), I decided to create my own for this year. It's available as a pdf through SSRN.
Not only should all instructors and students feel free to download this casebook and use it for free, but if any instructor out there would like to customize it, add to it, delete from it, etc., let me know, and I will be happy to give you the original document to work from. So, in an informal sense, it's open source.
This casebook is extremely basic. There are no notes, no questions, no problems, and no exercises. Volume One only has cases, plus one statute. The value of the work is solely in terms of the editing. With no bells and whistles, it's not for everyone. But if you tend to use a casebook only for the cases, then mine might be worth checking out.
At our school, torts is a two-semester sequence. So I've divided the casebook into two chunks, with the first volume corresponding to what I will teach in the first semester, which is negligence and liability relating to health care. I plan to complete a second volume for Spring 2011, which I will also make freely downloadable. Volume Two will include intentional torts, strict liability, economic torts, dignitary torts and a few other subjects.
I only have one request if you do use my casebook in your class: Please send me a note to let me know. I would be gratified to know that the work has proved useful for another instructor.
A few notes:
I was inspired in part by Tom Field's downloadable Fundamentals of Intellectual Property: Cases & Materials, which I use in my survey class on intellectual property. Wonderful text.
The casebooks I used in the past three years were all very good. I should especially mention the book by John C. Goldberg, Anthony J. Sebok, and Benjamin C. Zipursky from Aspen Publishers, which uncovered some especially good recent-era cases that I used in my own compilation. If you are looking for a full-service torts casebook, Goldberg-Sebok-Zipursky is excellent.
I also should give a shout out to James Grimmelmann, who introduced me to one of the cases I used, Boyd v. Racine Currency Exchange, by way of nominating it in response to my call on PrawfsBlawg for the most screwed victims in caselaw history.
Criminal Justice and the Constitution in 2020: An ACS Conference at FSU
I'm thrilled to announce an upcoming conference at Florida State Law about "Criminal Justice and the Constitution in 2020." Everyone's invited--please tell all your crimprof friends, among others.
Florida State University College of Law and the American Constitution Society are pleased to present a symposium dedicated to an exploration of current and future developments in crime control and equality, punishment and the Constitution, national security and liberty, and citizenship and community. Click here to register for the conference. There is no fee to register but we do ask attendees to register in advance so we can plan accordingly. And if you're coming to town, let me know--and I'll fill you in on the relevant social stuff too.
Thursday, October 7 Evening Event:
Keynote Address by Steve Bright, Southern Center for Human Rights
Friday, October 8 Morning Events:
Opening Remarks by Professor Jack Balkin, Yale Law School
Panel One - National Security and Liberty:
Jack Balkin, Yale Law School
John Parry, Lewis & Clark Law School
Deborah Pearlstein, Princeton University Woodrow Wilson School of Public and International Affairs
Marc Rotenberg, Electronic Privacy Information Center
Chris Slobogin, Vanderbilt University Law School
Panel Two - Crime Control and Equality:
Susan Bandes, DePaul University College of Law/Florida State University College of Law
Darryl Brown, University of Virginia School of Law
Song Richardson, DePaul University College of Law
David Sklansky, UC Berkeley School of Law
Friday, October 8 Afternoon Events:
Panel Three - Punishment and the Constitution:
Doug Berman, The Ohio State University Moritz College of Law
Sharon Dolovich, UCLA School of Law
Reid Fontaine, Florida State University College of Law
Dan Markel, Florida State University College of Law
Panel Four - Citizenship and Community:
Jack Chin, University of Arizona College of Law
Bernard Harcourt, University of Chicago Law School
Wayne Logan, Florida State University College of Law
Richard Myers, UNC School of Law
Streaming video of the conference will be available at www.law.fsu.edu/events/criminallawconferencevideo.html.
Wednesday, August 25, 2010
Favorite Professorial Phraseologies
Is there a turn of phrase that one of your law school professors used that has stuck with you through the years?
For me, it was something Gerald Frug said. I had him for contracts. He had so many wonderful phraseologies, but my favorite was, "Honestly speaking, it's delicious!"
As I remember it, it was used to emphasize something ironic that came out of a case. I find myself wanting to say that all the time in class. But I could never do it to the same effect.
Are Word Limits for Suckers? (Guest post by Mark Fenster (U-Fla))
You may recall the big deal that was made some years ago (I believe it was 2005) when top journals declared a moratorium on the behemoth law review article. It was supposed to allow for more and more readable articles to be published -- a real boon, ultimately, for scholarship and a relief both for readers and authors. The Yale Law Journal still has in its guidelines the following:
How's that working out?, you might ask. Consider the three articles published in the two most recent issues of the YLJ (Vol. 119, Nos. 7 & 8):
The Journal is committed to publishing work that is not only original, provocative, and persuasive, but also concise. Recently, the Journal joined with eleven other leading law journals in affirming our commitment to this goal. The Journal strongly encourages submissions of fewer than 30,000 words (roughly 60 Journal pages) and strongly discourages submissions of more than 35,000 words (roughly 70 Journal pages). Authors’ ability to state their arguments in concise terms is a factor in our consideration of manuscripts. The Journal may be unable to respond to authors submitting lengthy manuscripts in a timely fashion.
Jerry Mashaw's article is the fourth in a series on the history of administrative law and administration, all of the individual pieces of which are quite brilliant and significant. I will assume that the other two articles, which I haven't yet read, are equally brilliant. But look at their length: 110 pp., 93 pp., and 112 pp. And note that all of the previous articles in Mashaw's series are approximately the same length (it looks like the shortest was over 85 pp.), and all were published since 2006. This is not an anomaly of the current volume's two final issues. An unscientific survey of YLJ's volume 119 reveals that of the 12 articles published (an average of 1.5 per issue), a whopping total of 2 came in under 70 journal pages. I realize and appreciate that YLJ has been a pioneer in adding different formats for writing, but for many tenure processes (including the one at my own school), the coin of the realm is articles, not essays, features, responses, online feature essays, etc.
Jerry L. Mashaw, Federal administration and administrative law in the Gilded Age. 119 Yale L.J. 1362-1472 (2010).
James Gray Pope, Contract, race, and freedom of labor in the constitutional law of involuntary servitude." 119 Yale L.J. 1474-1567 (2010).
Abbe R. Gluck, The states as laboratories of statutory interpretation: Methodological consensus and the new modified textualism, 119 Yale L.J. 1750-1862 (2010).
I am not especially exorcised about the length of these articles, assuming that the work is brilliant and the articles' length to be essential to their argument -- and they must certainly be so, since YLJ published them! If YLJ or another journal wants to publish high-quality behemoths, well then by golly they ought to. But I have two issues with this practice, one rule-of-law like, the other administrative. If you want to publish behemoths, then don't have guidelines that "strongly discourage" submitting behemoths. That certainly seems like an easy call, even if it means conceding that new standards only last as long as the last editorial board's tenure. And in my role as an associate dean (talk about being a sucker!), I am frequently asked by worried junior colleagues about the law review submission process. My answers are already long and filled with apologies, sad faces, sarcastic laughter, head scratching, and the shrugging of shoulders. In my administrative role, I am asked to speak for and, implicitly, defend a set of institutions and practices that too frequently seems irrational, random, and -- dare we say it -- sometimes fixed. This is merely another frustrating data point that makes a sucky process seem suckier. Either follow the standards or get rid of them.
Policing Decorum in the Limited Public (Social Media) Forum
I have been researching the circumstances under which government sponsored social media sites should be treated as limited public forums. One issue I’ve been examining is whether a government actor who creates, say, a Facebook page that is set up to be a limited public forum constitutionally may police “decorum” within the forum by eliminating speech “flagged” as profanity or hateful or defamatory speech. Here’s my answer.
The constitutional limits on the government’s attempts to preserve orderly and civil discourse within limited public forums are not entirely clear. For example, the Supreme Court has never addressed directly the scope of the government’s authority to police decorum in the limited public forum (although it has done so in the context of schools and public broadcasting, and arguably has addressed the issue indirectly in Southeastern Promotions v. Conrad). The Supreme Court announced, in the celebrated case of Cohen v. California, that the proper remedy for an audience member offended by a the use of the word “fuck” on a jacket was to avert his or her eyes, the Court never addressed the constitutional standard applicable in nonpublic forum or a limited public forum whose purpose arguably could be thwarted by profane speech. Presumably, though, the government’s attempts to regulate decorum in the limited public forum should be evaluated as an attempt to preserve the forum for its intended purpose, and should therefore be judged by whether they are reasonable and viewpoint neutral. Application of this test, however, should be responsive to the nature or context of the forum.
Lower courts that have addressed the issue in the somewhat analogous contexts of city council and planning commission meetings have struggled to balance the government’s interest in preserving civility in the limited public forum with the interests of speakers in addressing government actors in the manner of their choosing. However, most circuit courts that have addressed the issue have given deference to government actors attempting to preserve order and decorum. An instructive example is the Ninth Circuit Court of Appeals decision in White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990). That case dealt with the constitutionality of a city’s “rules of decorum” for city council meetings, which forbade “personal, impertinent, slanderous or profane” remarks that “disrupt[ed], disturb[ed] or otherwise impede[d] the orderly conduct of of [city council] meeting[s]” The Ninth Circuit noted that “a City Council meeting is . . . a governmental process with a governmental purpose,” and the court therefore gave the city council a great deal of leeway in regulating decorum, going so far as to say that the city “certainly may stop [a speaker] if his speech becomes irrelevant or repetitious.” Indeed, the court stated that in the context of city council meetings, a speaker may be deemed disruptive simply by “speaking too long, being unduly repetitious, or by extended discussion of irrelevancies.” The court strongly tipped the balance in favor of allowing the council to “accomplish[ ] its business in a reasonably efficient manner,” giving short shrift to the rights of speakers to address the forum in the manner of their choosing.
The Fourth Circuit was similarly deferential to government interests in Steinburg v. Chesterfield County Planning Commission, 527 F.3d 385. That case involved a citizen who had been stopped from speaking at a planning commission meeting because his remarks were allegedly off topic and contained (very mild) “personal attacks” against the commissioners for not paying attention. Because the county planning commission meeting at issue was classified as a limited public forum, the Fourth Circuit evaluated the county commission’s policy against personal attacks only for reasonableness and viewpoint neutrality. The court concluded that “a governmental entity such as the Commission is justified in limiting its meetings to discussion of specified agenda items and in imposing reasonable restrictions to preserve the civility and decorum necessary to further the forum’s purpose of conducting public business.” The court therefore upheld the county’s “content-neutral policy against personal attacks” against a facial challenge because it promoted the “legitimate public interest . . . of decorum and order.” The Sixth Circuit Court of Appeals sounded a less deferential note in Leonard v. Robinson, 477 F.3d 347 (2007), when it reversed summary judgment in favor of a police officer who arrested a citizen “solely for uttering ‘God damn’” while speaking at a township board meeting. However, Robinson differs from the cases discussed above because the police officer arrested the speaker even though the public official conducting the meeting had not ruled that he was out of order or in any way disrupting government proceedings. Nonetheless, the Sixth Circuit clearly had a different view of the potential disruptiveness of profanity than its sister circuits. Citing Cohen v. California, the court asserted that prohibiting the speaker from “coupling an expletive to his politicial speech is clearly unconstitutional.”
This question about how much deference to give government actors in regulating profane or “abusive” speech in online forums is particularly pressing research suggests that computer mediated communications are more likely than those in the “real world” to become profane or abusive, particularly when speakers believe they are anonymous. Thus, it might be argued that government has more pressing interests in regulating profane and abusive speech in the online contexts than in others simply because the prevalence of such speech may hinder the use of a government sponsored social media site as a forum for public discourse. Moreover, the government can help to ensure that its regulation of such speech is not a cloak for censorship by setting up filtering programs that operate “neutrally” once put into place. And some social media sites, such as Facebook, conduct their own monitoring and filtering of profane and abusive speech, thereby largely eliminating in government role in censoring to eliminate such commentary. Despite these persuasive arguments, however, public discussion that takes place on a social media site is fundamentally different from public discussion in a city council meeting. The user of the online forum ordinarily must take some kind of affirmative step to seek out comments by fellow users; even once a user decides to read the comments, she can easily scroll past the ones that appear to be offensive. Thus, the “captive audience” problem is present to a lesser degree than in a physical forum like a city council meeting. In addition, a profane or abusive speaker in an online forum poses little danger of disrupting a government process or impairing its efficiency. Thus, there is arguably little justification for deferring to government attempts to protect the sensibilities of citizens who come to its social media site.
New paper: Cooperation's Cost
I have a new paper, forthcoming in Wash U's Law Review next year, entitled Cooperation's Cost. The paper got its first workshop start with a grilling from the gang at Prawfsfest! 6 at Southwestern, and then proceeded to a number of exciting and helpful venues, culminating with the Stanford/Yale Jr. Faculty Forum this June. It won't come out until winter 2011, so I definitely look forward to comments and feedback. Here's the SSRN link. You can see the abstract after the jump:
This Article explores the costs and benefits of criminal cooperation, the widespread practice by which prosecutors offer criminal defendants reduced sentences in exchange for their assistance in apprehending other criminals. On one hand, cooperation increases the likelihood that criminals will be detected and prosecuted successfully. This is the “Detection Effect” of cooperation, and it has long been cited as the policy’s primary justification.
On the other hand, cooperation also reduces the expected sanction for offenders who believe they can cooperate if caught. This is the Sanction Effect of cooperation, and it may grow substantially if the government signs up too many cooperators, sentences them too generously, or causes them to become overly optimistic about their chances of receiving a cooperation agreement.
When the government allows the Sanction Effect to grow too large, it undermines one of its key tools for improving deterrence. Indeed, when the Sanction Effect outweighs the Detection Effect, cooperation reduces deterrence, and the government unwittingly encourages more crime. Since cooperation is itself administratively costly, the policy perversely causes society to pay for additional crime.
This Article reorients the cooperation debate around the fundamental question of whether cooperation deters wrongdoing. Drawing on economics and behavioral psychology, it provides a framework for better understanding how and when cooperation “works.” Government actors who laud and rely on cooperation must address the fundamental question of whether it actually deters wrongdoing. To do otherwise, is to leave society vulnerable to cooperation’s greatest cost.
Where Are We Now after Ricci v. DeStefano?
As mentioned a few weeks ago, Prawfs is hoping to serve as a repository for some of the evidence of intellectual life that happens at conferences like SEALS. Thanks to SLU's Marcia McCormick, we now have a document that integrates the reactions and comments of the various speakers on her panel (see below). The theme of this panel is the title of this post. And you can read the notes of the various speakers here. (If you were on a panel at SEALS and want to coordinate collating some or all of your co-panelists' notes, please do so and send me an email and there'll be a post just like this one.)
The Supreme Court's decision in Ricci v. DeStefano at the end of its 2008 term was the first in decades to deal with the question of what practices constitute discrimination under Title VII. This panel will explore the effect of the Court's decision, specifically the current state of the law on employment discrimination, the theory of discrimination that seems to have been adopted by a majority of the Court, and the future of employment discrimination and affirmative action.
Moderator: Professor Jeffrey
Tuesday, August 24, 2010
Taking the "N-Word" out of the Ghetto
The status of the "N-word" was recently placed in issue by Laura Schlessinger's repeated use of it in a radio broadcast and her subsequent resignation from the show in the wake of the ensuing controversy. Schlessinger did not use the word as an epithet. Indeed, technically, she did not "use" the word at all: In philosophical jargon, she "mentioned" the word, meaning that she referred to the term itself and the norms surrounding its use. (I "use" the term "Boston" when I say, "Boston is the capital of Massachusetts," while I "mention" the term "Boston" when I say, "Boston has six letters").
A word must have almost magical capacity to offend when its mere mention, as opposed to its use, can cause offense. (I exhibit my own awareness of the "N-word's" power by refusing to mention it in this post). Schlessinger mentioned the "N-word" for the purpose of contrasting the different norms surrounding its use by members of different racial groups, highlighting that Black men -- she particularly noted Black "comics" -- use the term routinely in public settings without causing offense. Schlessinger implied that those who were offended by whites' similar use (or, I guess, mention) of the term were being "hypersensitive." She was, one might argue, trying to destroy the magic of the term through repetition, much as the characters in Scorsese's "Good Fellas" turns the "f-word" into a mere form of punctuation.
There is an obvious response and a less-obvious question invited by Schlessinger's complaint and strategy. The obvious response (made by a Washington Post piece) is that a term derogatory of a group will plainly be less offensive when used by a member of that group: I can be self-deprecating, but not other-deprecating, without causing offense. There is nothing anomalous about banning a term's use by outsiders while licensing its use by insiders, on this account -- and no need, therefore, to declare war on the double-standard through a radio diatribe.
But there is a deeper question that this glib response overlooks: When a group embraces an insulting term as a defiant banner of solidarity, should we expect the term eventually either (a) to migrate into the mainstream of language, losing its insulting force or (b) die out? If so, why has the "n-word" not yet moved in either direction?
Consider some contrasting examples: "Chicano" and "queer" both began their lives as insults for newly arrived Mexican immigrants or gay men and lesbians, respectively. They both have since migrated into the mainstream, with "Queer Studies" and "Chicano Culture" (for instance) being utterly mundane phrases devoid of insult. By contrast, Edmund Burke's use of the phrase "the swinish multitude" to refer to plebeians led various advocates of democracy to embrace the term "swine" or its cognates as a defiant badge of honor. (For the definitive history of the controversy over Burke's use of the term, see chapter 12 of Don Herzog's Poisoning the Minds of the Lower Orders). But the fad faded: No one nowadays uses the term "swine" to refer to, say, trade unionists or working-class folks. In short, one might hypothesize that contemptuous terms must evolve into a mainstream noun (as did "Chicano" and "queer") or die as an unacceptable insult (as did "swinish multitude"), at least so long as the contempt that the terms represent has been banished from respectable society.
But the "N-word" seems to be defying this tendency: It represents the most vicious of epithets in the mouths of whites, too toxic to spell out completely even for the purpose of mentioning it to analyze its use, while it is common currency as a jocular term of solidarity (I guess), among blacks. This state of affairs is, at least, odd and, I would think, unstable, at least absent extraordinary levels of racial segregation (which, sadly, this nation seems capable of sustaining).
One might also speculate that such a state of affairs is harmful as well as odd. After all, should a term remain in use as a badge of solidarity for insiders if it also remains a bitter insult in the mouths of outsiders? Is it possible that the term does actually not shed its vitriol in the former capacity, no matter how often it is bandied about -- that behind the solidarity is a message of self-denigration or, at least, self-isolation?
I have no idea, being an expert in neither African-American culture nor semiotics. But I'd be curious if there are any other terms that function as amphibiously as the "n-word," as common currency within one community but toxic insult outside that community.
The Faculty Retreat
I'm about to dash off to class to teach my first class of the year (greetings criminal procedure students!), but I noticed via facebook the other day that someone had just returned from a "faculty retreat." Unless I'm not invited to them, FSU's law school doesn't have these retreats, perhaps because living in Tallahassee is already such a verdant paradise :-)
But I am curious: what goes on at these retreats? We have a very good workshop culture here for both internal and external presenters so it seems a bit odd to go to a nice resort to do the kind of work indoors that we can easily accommodate during the workweek. I could see the benefits of a retreat if it was designed to inculcate and strengthen norms of team or community. But how do schools do that? And when is the optimal time of the year to schedule them? Are they required, encouraged or simply available? Does the school pay for the whole thing? Is it just faculty that goes or also key administrators or all staff too? Inquiring minds want to know. Feel free to include a redacted schedule for one of these if you can in the comments.
Happy first week of class!
Monday, August 23, 2010
(Business) License to BlogPhiladelphia is now charging bloggers $300 for a business license. One of the bloggers being charged the licensing fee made a grand total of $11 off of his blog. Forcing bloggers to pay the fee may be penny wise from a revenue raising perspective, but it is pound foolish with regard to fostering the richness of public discourse.
Saturday, August 21, 2010
“Van Buren to Pennsylvania: Drop Dead”
In these troubled fiscal times, it would be fitting to remember President Martin Van Buren who presided over the nation during a similar economic crisis. Like President Obama, Van Buren came to the Presidency right at the onset of a financial panic due to the bursting of a real estate bubble (the Panic of 1837). When this panic turned into a prolonged depression (by 1840), states' toll revenue from their internal improvements -- canals, roads, etc -- plummeted, and states faced a budgetary crisis. The states begged for federal assistance to avoid default on their bonds used to build those improvements (bonds held mostly by British creditors). Van Buren and the Democratic Party refused to bail the states out (the Whigs wanted the feds to assume the debt), and eventually nine states defaulted in part or in whole. (The default by Pennsylvania inspired Wordsworth, infuriated at his losses from investing in Pennsylvania bonds, to pen the only romantic poem about the bond market of which I am aware, decrying the Pennsylvanians for their perfidy).
Should Obama follow Van Buren's example and let California, Illinois, and other deeply indebted states twist in the wind without federal aid? The history of the 1840s suggests one benefit of such tough love: By forcing states to decide how to accommodate or resist their bondholders, the 1840s Democrats also forced the states' citizens to take responsibility for the spending incurred in their name. Maybe the 2010 Democrats could induce the citizens of California, Illinois, and New York to act with similar maturity.
New York's 1842 "Stop and Tax" law, for instance, imposed a one-mill levy to pay off the debt but also enacted a state constitutional amendment banning further expenditures for canals. Other states amended their constitutions during the 1840s to limit or ban aid to private corporations or subject bond issues to referenda. Some states avoided taxation by insulting their British creditors with nationalistic rhetoric ("slap John Bull in the face" said one Mississippi politician), but, as Jay Sexton's history, Debtor Diplomacy explains, those states eventually backed down after they were thereby foreclosed from further borrowing in London. "You can tell your government," said James de Rothschild to an American envoy, "that they cannot borrow one dollar, not a dollar"). The reputational costs of thumbing one's nose at the international bond market proved higher than the political benefits of xenophobic political posturing.
According to Jonathan Rodden, Stanford political scientist and author of Hamilton’s Paradox, the federal government's refusal to bail out defaulting states sent a credible signal to bondbuyers to monitor states' fiscal, legal, and political decisions carefully and set interest rates by the default risk of individual states. Those interest rates served as a wake-up call for citizens who were otherwise inclined to engage in infantile populism -- insult the British, sell short-term notes for systemic expenses, etc. In short, by treating the states as grown-ups, the feds induced the states' citizens to act with a modicum of political maturity, accepting responsibility for their spending choices by either curtailing the spending or raising revenue.
Is there a moral here for us Americans today? Consider this hypothesis (which I will state with perhaps exaggerated starkness for clarity's sake): In debt-swamped states like California, New York, and Illinois, the two major parties represent two streaks of political infantilism. The Republicans cater to suburban homeowners who resist all tax increases without any credible plan to cut spending; The Democrats cater to public employees who resist any practical productivity measures or any realistic cut in unsustainable labor -- especially pension -- costs without any credible plan to raise revenue. Both sides engage in petulant gestures rather than meaningful negotiation.
Perhaps they both need a shove from bondholders to jolt them out of their complacently intransigent rhetoric. If default really loomed, then perhaps we would see the modern equivalent of New York's 1842 "stop and tax" laws that (a) raised revenue through visible and broadly applicable taxes but (b) forced future spending obligations like collective bargaining agreements to be subject to processes that would make them equally visible -- fiscal notes, referenda, genuine and accesible up-front review. In short, We the People could act like grownups who take responsibility for our spending decisions, either by raising revenue or monitoring spending.
It happened in the 1840s: Why not today?
Friday, August 20, 2010
First Day of Torts
My first day of Torts is on Monday, and despite the fact that I'm teaching it for my fifteenth or sixteenth time, I'm still anxious about setting the right tone and pitching the material at the right level for the new 1Ls. I try to cover a variety of topics at some point in the first week, including what a tort is, what tort law is supposed to be for, alternatives to the tort system, what common law is, the various levels of courts in the American system, stare decisis and the hierarchy of authority, the limits of studying appellate decisions, what it means when you say "jurisdictions vary" and why there is no unified law of torts for the entire United States, how to tell if an authority is binding or merely persuasive, the "broad brush" differences between torts and crimes and between torts and contracts, and little about the historical development of tort law. I also discuss, of course, trial court procedure, the importance of identifying the procedural posture of the case, what "elements" are and how to identify them, and what Restatements are. That's a lot to try to do in the first few days, isn't it? I don't assume that the students will master all of these topics. Instead, I try give them the basic knowledge they need to read a case and to introduce themes and concepts that I'll refer to throughout the course. One of the main ideas I try to introduce is that there are types of arguments that are distinctively recognizable as "legal," and throughout the course, I try to teach students to recognize and reproduce those arguments. The article that most influenced the way I teach Torts was James Boyle's Anatomy of a Torts Class. In the past I tried assigning it at the beginning of the semester, but I've found the students really aren't ready for it then. Incidentally, I love the eagerness of 1Ls, even though 1Ls are much more "high-maintenance" than 2Ls and 3Ls. My own 1L experience was one of the most intellectually invigorating of my life, and I always hope I can "pay it forward" by making the 1L experience equally invigorating for my students.
Judicial IndependenceHere's a story about a law professor/federal judge nominee whose net worth is $20 million.
Thursday, August 19, 2010
"Sarah Palin" is an Idiot
I'll write about the "Ground Zero" "mosque" (neither term being quite accurate) shortly. But I am piqued by this story (yes, I read TV Guide) about Sarah Palin's reaction to Dr. Laura Schlessinger's decision to give up her radio program after what has been described as an "N-word rant" on the show last week. On her Twitter feed, Palin said of Schlessinger's decision, which came after significant public condemnation of her words, that Schlessinger's "1st Amend.rights ceased 2exist thx 2activists trying 2silence" her. (Apparently that's how one talks on Twitter. Sigh.) She said the situation was not "American [and] not fair," and added, "Dr.Laura=even more powerful & effective w/out the shackles, so watch out Constitutional obstructionists."
This is a strange line of argument for someone who has been such a vocal opponent of the decision to build a Muslim center two blocks from Ground Zero. Palin has argued that even if the mosque's backers have a right to build at that location, they should not, apparently because the sheer presence of a mosque close to this "hallowed ground" is offensive. (One can, of course, believe that this mosque's particular backers are objectionable. But Palin's argument is broader -- it is about building "a mosque" in this location, not about these individuals building this mosque.) And she has been full-throated in bringing public pressure to bear on the mosque's backers to desist in their plans.
In other words, when Dr. Schlessinger repeatedly uses the word "nigger" on a radio show and elicits substantial condemnation for it, if that public pressure succeeds then the good doctor has lost her First Amendment rights. But when Palin and others attempt to use public pressure to push a mosque to back down from its plans to locate in a particular area, hoping (obviously) to succeed in making them back down, that is quite different -- and certainly not "Constitutional obtructionism!"
Let me make clear that I am not saying people are not entitled to object to the mosque's decision, on good grounds or (mostly, in my view) bad ones. What I am saying is that Palin appears not to notice, or not to care about, the inconsistency between her view that the use of public pressure against Dr. Schlessinger for obviously intemperate remarks is somehow a violation of Schlessinger's First Amendment rights, and her view that it is entirely appropriate to use public pressure, including pressure from prominent political and public figures, to attempt to get the mosque to refrain from doing something that she herself concedes it has the right to do.
I have broken two general personal rules about blogging in this post. I have used stronger language than I usually do (see the title), and I have made what a few might see as a partisan post. (If it makes anyone feel better, I was quite unimpressed by Senator Reid's words this week.) I have at least put Palin's name in quotes in the title of the post: I do not know whether she writes her own Twitter posts or whether she pays someone to write gibberish on her behalf. But gibberish it is.
Friedman on Stealth Overruling
I have done some of my blogging away from my usual home recently. Here is one example: my review, on the Jotwell blog, of Barry Friedman's new article, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona). I commend the article, although I also set out some criticisms of it and offer my own analysis of stealth overrulings and their relationship to broader currents in constitutional law. Here's a taste:
One of the favorite accusations lobbed against the Roberts Court by its critics is that it frequently engages in “stealth overruling.” It carves away at old precedents without expressly rejecting them, distorting them or limiting them to their facts and leaving them undone in all but name. In the view of the modern Court’s critics, this is a new and very bad habit. To repurpose the famous “umpire” analogy offered by Chief Justice Roberts at his confirmation hearings, it is like watching an umpire manipulating the strike zone until it is sometimes as large as the Solar System and sometimes as narrow as the eye of the needle. Not many sports fans like umpires, but we can admire them for doing their job. Not so when we believe they are finding ways to cheat the system and bend the rules. It is far from clear that stealth overruling is new, and it can be used to what most of us agree is good effect: the Court spent decades removing the ground from underneath Plessy v. Ferguson, one brick at a time, until it was ready to topple with the slightest push. To understand stealth overruling as more than a useful rhetorical stick with which to beat the Roberts Court, we must understand better what a stealth overruling is and what costs and benefits are involved.
That is the goal of The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), a fine new piece by Professor Barry Friedman of New York University School of Law. By making stealth overruling an object of careful academic study, Friedman hopes to make its nature more apparent and make possible a “normative judgment” of the phenomenon “based on facts, not speculation.” It is a worthy goal, and Friedman largely rises to the task. One will come away from his article with a clearer and less passion-clouded view of what stealth overruling involves and why we might disapprove of it. I want to suggest, however, that there are some internal problems with Friedman’s account, and one big question mark. And I want to suggest an alternative account of what is troubling about stealth overrulings, one that is more closely connected to broader problems of constitutional jurisprudence than Friedman’s article suggests. . . .
In [a] sense, stealth overruling is just a particularly glaring bad-faith example of what courts do all the time. Stealth overruling is one cause of doctrinal confusion, but not the only one. Our love of doctrine itself, and especially our lawyers’ faith that pure legal doctrine and our own technical genius provides the answers to all our questions, is the real culprit. As long as we keep that faith, we should have every reason to expect that our doctrine will outrun reality, and that confusion, inconsistency, and disingenuousness will result. Stealth overruling is thus just a particularly egregious instance of a much larger problem in constitutional law.
The case against academic tenure
Brian Leiter has been making intemperate attacks on critics of tenure lately. His immediate target is Mark Taylor, whose proposals to abolish tenure won him a lot of academic ire. Brian and I both dislike the style and substance of Taylor's type of philosophical work, so I attribute some of Brian's sharpness of tone to the admitted egregiousness of his target's prose. But Brian's arguments for tenure do not, I think, stand much scrutiny.
The core of Brian's argument is that tenure protects professors' right to say or write controversial things. But I do not see why professorial freedom of expression could not be adequately safeguarded by a much narrower rule barring dismissal for viewpoint-related reasons. This sort of First Amendment-style protection would safeguard professors' rights to make controversial statements without providing gratuitous insulation for professors who are simply lazy, incompetent, or corrupt. Why not require the sacked prof to set forth a prima facie case that their dismissal was the result of something controversial that they said or wrote? This burden could be light: The plaintiff might simply proffer something -- anything -- written or said within a year or so of dismissal that could remotely be regarded as controversial. The employer would then bear the burden of showing that the dismissal was unrelated to the proffered writing or utterance. Think of such a burden-shifting framework as roughly analogous to the Griggs disparate-impact test. The benefit of such a rule is that it not only makes dismissal of incompetent, lazy, or corrupt professors easier but also gives all profs more of an incentive to write controversial stuff, if only to have a prima facie case when the pink slip shows up in the mailbox.
In any case, I would not want to be accused of hypocrisy like the hapless Taylor who offered his tenure-abolishing proposal only after he retired. So I hereby urge that everyone's tenure -- including my own -- be revoked, to be replaced by my First Amendment-burden shifting alternative. By all means, let me know why my proposal is a bad idea with full-blooded Leiter-esque scorn. (Your words won't disconcert me, as I've already produced my prima facie case -- in this post! -- protecting me from dismissal in a post-tenure world). But, if you are inclined to criticize my position (or prose or personality), please avoid the following fallacies (after the jump).
1. "One has a 'blatant conflict of interest' in urging the abolition of tenure if one no longer has an interest in preserving it because one is retiring, or because one has an interest in an alternative system of retaining academic employees." Brian makes this assertion twice -- once, because Taylor attacked tenure upon retirement and a second time because Taylor apparently was involved in marketing online education. But the obvious response is: Tu Quoque. Any currently tenured prof has a conflict of interest far more blatant than Taylor's: They benefit enormously from the system that they are defending. Indeed, this benefit likely explains the passion with which profs have laid into Taylor. By contrast, a retired guy has no dog in the fight one way or the other.
2. "The administrative costs of policing Hills' First Amendment rule would be too high, because adjudicators would have to discern the motive underlying the dismissal." Given that Brian wants to strengthen dismissal "for cause", this complaint is not available to him, because "for cause" dismissal always requires inquiry into the reason for firing someone. Indeed, I think that Brian's unspecified strengthening of "for-cause" dismissal and my own First Amendment proposal would roughly converge, as the "cause" justifying dismissal should generally include any good-faith, basically legitimate work-related reason, which would exclude few justifications other than the professors' controversial expression under my proposal.
3. "Being an academic is so very different from every other kind of employment that the normal discipline of being threatened with termination for being lazy or incompetent is somehow unnecessary." Brian quoted approvingly a post by Marc Bosquet who essentially suggests that, like families, neighborhoods, poker games, churches, etc, faculties are one of those social organizations and relations that just should not be governed by the market. Brian regarded this paragraph as a "fine excoriation," but it strikes me as a fine example of the sort of shrill, lazy posturing that one would expect from someone with a vested interest in preserving an institution that they are defending. Faculties provide services in return for salaries, Marc: The analogy between profs and other employees is obviously much closer than the analogy to relationships that lie outside the marketplace. So stop picking on that straw man of universal commodification, and address the real issue: Explain why this one sort of professional employee should get protections denied to virtually every other highly educated person who writes and speaks for a living -- journalists, lawyers, doctors, priests, businesspeople of every stripe, salesmen, actors, etc. The profusion of market-like incentives in academia -- summer research money, for instance -- suggests that, like other employees, profs respond to normal business incentives in the usual way.
4. "The market sucks: We should not abolish tenure for academics but rather should extend tenure to every other sort of employee." Much of the diatribes by academics defending tenure have this anti-market tone -- which is fine by me: Of course, if you think that the retention arrangements ordinarily produced by labor markets generally fail, then they probably fail for academics as well. Assuming, however, that you, as a consumer, appreciate the power to fire your plumber, lawyer, doctor, etc., when you believe that they provide poor service, why should not universities, representing their tuition-paying customers, not have a similar prerogative? In other words, do you have an argument for why faculties are so different from other sorts of professional employment that they should be governed by a radically different retention regime? If so, why would this difference not be satisfied by my First Amendment rule?
5. "Why rock the boat? There really is no problem with lazy, incompetent, or corrupt profs -- and critics of tenure have not produced data to suggest a problem." The argument that critics of tenure lack data of a productivity problem with tenured profs invites a game of "presumption tennis": The defenders of tenure lack data showing that there is not a problem with tenure, so why is the ball not in their court to produce data? Who bears the burden of proof here? Tenure is, after all, an extraordinary departure from the norms governing ordinary employment. It deserves an extraordinary justification. Getting reliable data about faculty misbehavior is extremely difficult: How many deans would voluntarily provide accurate information about the presence on their faculty of repeat sexual harassers, chronically tardy and unprepared teachers, members who had not published in decades, committee members who did not bother showing up for meetings, profs who were routinely months late getting their exams graded, and so forth? Such actions impose extraordinary costs on an institution, shaming it in the eyes of students, alumni, and administrators. I have seen all of these tendencies among academics, but, for obvious reasons, I am not naming names or even counting noses. So just yelling, "the ball's in your court to produce data" when data's not to be had is not sufficient to justify a practice that would intuitively seem to produce perverse incentives in at least a significant number of cases. (If you think that ordinary employment rules don't apply, please re-read (3) above).
6. "Tenure is not a 'job for life,' as there is always "for-cause" dismissal." Brian actually wrote this down in a place where the general public can read it. If typescript could blush, this assertion would glow bright red. Come on, Brian. You and I have been in this academic racket long enough to know that scraping a a tenured prof out of his position "for cause" is as easy as scraping meaning out of Judith Butler's prose: It takes forever, and, in the end, it is not worth the effort. (Okay, a gratuitous slap for which I preemptively apologize: Insert your least favorite unintelligible philosopher or social theorist if you are a Butler fan). I have been in this business for sixteen years now, and I have never -- never -- seen a prof fired for cause on any of the faculties at which I have visited or been a full-time employee. I have questioned vice deans, associate deans, and full deans assiduously on the question of what it would take to fire someone for cause, and they have uniformly informed me that it would take an act so egregious as to approach a felony to justify the expense and deep embarrassment and trauma of termination proceedings. Yes, this is an anecdote, but I am blogging, not writing a research article. Moreover, I could not get better data if I tried. (If you do not know why, re-read (5) above).
Admittedly, faculties will still face costs in firing slackers under my First Amendment rule. The advantage of my proposal is that, in those cases where plaintiffs could not make their prima facie case, university administrators would not need to air dirty laundry at all, and, in cases where the prima facie case was weak -- say, plaintiffs' platitudinous statements expressing viewpoints that the plaintiffs' colleagues and dean obviously shared -- those administrators could simply respond by showing that the expression could not possibly have been the cause of the dismissal.
But proffering academic freedom as the justification for a retention policy that goes far beyond this purpose requires better justifications than special pleading, presumption tennis, ad hominem and ad personam scurrilities, and other hand-waving techniques that seem prevalent in defenses of academic tenure. These sorts of persuasive only to someone whose job depends on winning the argument.
The benefits of retrying a criminal case
Retrying a criminal case after a mistrial is often a good bet for the government. If the prosecutor knows how and why the jury split in the prior trial, it can adjust its game plan for the next. Sometimes, the government presents additional witnesses, who can better tell the prosecution's story and corroborate witnesses whose testimony was questioned in prior trials.
In other cases, the problem is one of complexity. The government has presented too much evidence, and perhaps has charged the defendant with so many crimes that the jurors do not quite know how to proceed. Apparently, that may have been the problem for the trial of Rod Blagojevich. In cases like that, the best tactic might be to streamline the trial by bringing fewer charges and presenting less testimony.
I would imagine that the streamlining approach is exactly the one that the United States Attorney's Office in Illinois will adopt when it retries Blagojevich. Expect the trial to be shorter and the charges to be far more limited to the events surrounding the alleged sale of a Senate seat (the jury broke 11-1 on this count). Expect also that the government will push for an immediate trial date - the shorter the time lag, the better.
That leads to the obvious question: Should the government retry its case against Blagojevich? The Washington Post has an editorial arguing against it, but I am not persuaded that a second trial is unwarranted. The governor of the fifth largest state (by population) allegedly tried to sell a Senate seat for his own gain. Despite the complexity of the case, 11 jurors concluded that Blagojevich was guilty of this count, and all jurors concluded that he lied to federal agents (which is why he was convicted on one count). Assuming you believe that retrials are ever appropriate, isn't this exactly the type of case that the government should retry?
Snottiness or Theoretical Innocence about Republicans' Federalism at the Times?
Is it just me, or is the New York Times' normal self-satisfaction about the rightness of its politics becoming even less self-critical than usual? I find myself provoked to such irascibility by what strikes me as an insufferably smug and snotty front-page piece implicitly criticizing Alaskan Republicans for taking the federal dollar while criticizing federal spending. "Alaskans tend to live with their contradictions in these recessionary times," chortles Michael Powell, criticizing as "cognitive dissonance" the fact that "[m]ore and more Alaskans, particularly of the Republican stripe, identify the federal government and pork-barrel spending as the enemy, although Alaska was built by both."
There is an obvious rejoinder to the implicit accusation of hypocrisy. All states, including Alaska, face a collective action problem in turning down federal spending to reduce the deficit. Such self-abnegation on the part of one state does not prevent others from feeding at the trough -- in part, with the "virtuous" state's tax dollars. Without some mechanism for obtaining a credible commitment from other states' federal representatives that they, too, will forego federal money, even a state politician who despises high federal spending will seek federal grants. Moreover, if one is over-represented in the Senate (as is Alaska), then one will tend to be over-represented in federal spending -- again, because ones' Senators are competing with other over-represented states (Wyoming, Vermont, Montana, etc) who cannot, absent any mechanism of credible commitment, turn down federal money that they fear will otherwise go to their over-represented sister states.
In short, states are locked in a "prisoner's dilemma" game in which each must grab as much federal boodle as possible in fear that their sister states are going to grab as much federal boodle as possible. The federal budget is a commons that everyone loots because, tragically, everyone has no choice absent some means of credibly committing not to loot. The solution is not virtue but some mechanism of credible commitment: Candidates include (a) strong political parties that can force or tempt individual congresspersons to sacrifice revenue in return for the party's endorsement and campaign funds or (b) constitutional restrictions on federal spending for "local" projects. Andrew Jackson used both mechanisms in his Maysville Road veto message of 1830, and the Democrats were consequently able to avoid spending on internal improvements for the roughly twenty-two years in which they held power before the Civil War.
Why cannot Michael Powell, the author of this egregious Times piece, see that there is a difference between being a hypocrite and being a chump? I suspect that Powell's intellectual laziness stems from the usual source: NYT readers are so complacent about their own politics that any cheap shots at Republicans and Tea-Party types get an easy pass. But perhaps I am being overly charitable, and Times writers are just not very sharp. Either way, this sort of thing -- along with a lousy sports section -- is enough to make one cancel one's subscription (or vent in a blog post).
Proposed Quote of the Day"[C]onvicts who might once have been in prison now walk among us unrecognized—like pod people, or Canadians."
From the Atlantic, Prison Without Walls.
Wednesday, August 18, 2010
Hasen on the stay in Perry
Rick Hasen has a guest post at ACSBlog on why we cannot and should not try to draw any conclusions about the outcome of the appeal in Perry based on the Ninth Circuit motion panel's stay order. Hasen makes three points for why there are no tea leaves to read: 1) different decisionmaker, unless some or all of the motion panel members happen to be selected at random for the merits panel; 2) the motions panel was probably motivated more by a desire to preserve the status quo of no same-sex marriages, a point I agree with; and 3) granting the stay takes it off Justice Kennedy's plate and slows the whole litigation down, which Hasen argues makes it more likely that SCOTUS will find Prop 8 unconstitutional.
The whole thing is worth a read.
Fifth Circuit affirms lack of jurisdiction in Clemens v. McNamee
A divided panel of the Fifth Circuit yesterday affirmed the district court dismissal of Roger Clemens' defamation action against former trainer/friend Brian McNamee, agreeing that McNamee was not subject to suit in Texas. (H/T: Adam Steinman at Civil Procedure & Federal Courts Blog). The panel divided on two aspects of personal jurisdiction analysis.
First, the majority found irrelevant the multiple visits that McNamee made to Texas to train Clemens, because the lawsuit was about McNamee's allegedly defamatory statements about giving Clemens steroids in places other than Texas and not more broadly about their relationship. The visits to Texas did not give rise to the defamation claim, so they could not be the basis for specific jurisdiction (as opposed to general jurisdiction, which Clemens did not argue). The dissent, taking a much broader view, argued that these visits "related to" the defamatory statements and thus the defamation claim; contacts "relating to" a claim can establish specific jurisdiction, an argument suggested by Justice Brennan in dissent in Helicopteros, but never picked up elsewhere. The visits to Texas were part of the overall relationship that put McNamee in position to give Clemens steroids, to be a source on steroid use for the Mitchell Commission and Sports Illustrated, and to make the defamatory statements.
Second, the panel divided over the proper understanding of the "effects test" of Calder v. Jones. The majority said Calder did not support jurisdiction because it is not enough for the forum to be the place where the harm occurred; the tort must be "directed at" the forum, meaning the subject matter of the defamatory statements must be the conduct or events occurring in the forum and it must be based on sources in the forum. Here, the subject matter (narrowly viewed) was McNamee giving Clemens steroids in places other than Texas. The dissent argued that Calder is a broader (and more flexible) approach to jurisdiction, not as narrow or rigid limitation on minimum contacts. Calder applied here because McNamee knew Clemens lived (and at the time worked) in Texas, knew the harm would be felt in Texas, knew SI would be read in Texas, and knew the effects to Clemens' reputation would be felt in Texas. Moreover, the "sources" idea was not in play, since McNamee himself was the source and not a journalist writing something based on other sources.
This may actually be a good teaching case, because the judges cross swords over two open areas of personal jurisdiction--the scope of Calder (a case that many academics dislike) and when contacts with a forum are connected enough to a claim to allow specific jurisdiction. The Supreme Court has not decided a major personal jurisdiction case since 1990, although I doubt the Court is going to touch this. So, if Clemens is going to pursue this, it probably will be in a court in New York.
Tuesday, August 17, 2010
More on HP
There has been a terrific discussion on The Conglomerate about HP's Code of Conduct and its newly deposed CEO, Mark Hurd (who reportedly walked away with a severance package of 12MM cash plus options that could bring the entire package up to about 40MM). Gordon Smith notes that Joe Nocera has speculated that the Board may have had other reasons for firing Hurd, but used the current "crisis" as a pretext for getting rid of him. Today's New York Times reports that Hurd was fired because the Board and company investigators were mystified by his lack of judgment (authorizing more than $75,000 in first-class perks for an HP contractor who would later sue him for sexual harassment), and his lack of transparency (reaching a late-night settlement with the accuser before the Board's investigators had a chance to speak to her).
It seems to me that given these circumstances, the Board acted well within its business judgment.
At some point, the directors undoubtedly said to themselves, "What else don't we know?" and ultimately concluded, "We don't trust this guy any more." (We can assume that different directors had different baselines of trust. What's relevant is that the tipping point had been passed for all of them). Given HP's prior issues with "integrity" and a brewing FCPA investigation with the feds, it's hardly surprising that risk-averse directors decided that it was time for Hurd to go.
The only question that remains, then, is whether the Board should have given Hurd any severance. Recall that Hurd "resigned," albeit with some very strong encouragement. Had he been fired "for cause," he would not have received any severance, but his contract does not define "for cause." (Even if it did, do you think it would include the exact conduct that occurred here? Surely, one could always engage in a protracted fight over what happened, and whether what happened constituted "cause".)
So if I'm a board member, I'm probably wondering whether it's better to tell Hurd to go pound sand, and risk a protracted and potentially embarassing lawsuit with Hurd, or give Hurd a relatively moderate severance package (this isn't a Michael Ovitz-size debacle, no matter how you slice it) and risk criticism from the media and a lawsuit from my shareholders. Assuming that the media storm will die down, I probably choose the latter. After all, assuming I cross my t's and dot my i's, the business judgment rule protects my decision from judicial second-guessing, and Hurd's severance package is a drop in the bucket compared to the value of moving on from this scandal.
This episode nicely demonstrates the benefits and shortcomings of corporate compliance. On one hand, seemingly small compliance issues can serve as a bellweather for deeper, more intractable issues. $75,000 is not very much money to HP, and HP found no evidence of harassment, but Hurd's conduct was troubling enough to raise a number of red flags. On the other hand, the episode shows us what compliance cannot do, which is prevent people from engaging in incredibly short-sided and even self-destructive behavior. You can intone values of integrity; you can spend inordinate amounts of time drafting and revising a comprehensive Code of Conduct; you can spend thousands of dollars educating your employees on how and why they should stay out of trouble. But corporations are like cities, and just as no amount of enforcement by the NYPD can prevent crimes ranging from traffic infractions to violent murder, so too is corporate compliance limited in what it can and cannot do.
Monday, August 16, 2010
Ninth Circuit grants stay in Perry
The Ninth Circuit has granted a stay of the judgment in Perry pending appeal (H/T: Rick Hasen). The order in full:
Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants' motion for a stay of the district courtâ€™s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED.  (JS)
Not entirely surprising, given the mischief that could result if thousands of marriage licenses were issued in the coming months, then the Ninth Circuit or SCOTUS were to reverse the district court. Note that the court has raised the issue of the appellants' standing to appeal and ordered briefing. So we get to talk about standing for a little longer.
Fun with "Mad Men"
I have to flag last night's Mad Men, which touched on three things of interest to my scholarship and blogging.
In the opening scene, Don Draper and Roger Sterling are on a conference call with the head of "Lucky Strike" cigarettes (their largest account), discussing how to handle new Federal Trade Commission limitations on cigarette advertising, limitations (including a ban on broadcast advertising) that today would trigger a First Amendment challenge. But in 1965, the Supreme Court still had not recognized First Amendment protection for commercial speech. So the only question was how to advertise around the prohibitions.
One limitation was a ban on using athletes in advertisements, so the discussion was what else they could do. Roger suggests bowling; there is silence, then Roger says "Yes, bowling is a sport." (And it is: large motor skills, objective scoring, competition). He then suggests horse racing and insists that is a sport (It's not: The horse is the machine doing the work); there is silence, then Roger says "No, the jockeys will be smoking."
Finally, Peggy goes to an art gallery to see an exhibition by a photographer/filmmaker who works with nudes. The party is broken-up by a police raid on a place showing "obscene" movies. Not surprising, in those pre-Miller days.
Fun stuff all around.
Sunday, August 15, 2010
Peter Schuck's response to Rick Hills' complaints
I (Rick Hills) am posting the following response to my earlier criticism of Peter Schuck's op-ed, e-mailed to me by Peter:
"I am indeed surprised -- not that you disagree, but that you disagree without having read a book-length treatment of this issue: : Peter Schuck and Rogers M. Smith (a certified lefty), Citizenship Without Consent: Illegal Aliens in the American Polity (Yale UP, 1985). To address some of your specific charges, we show that, according to the public law theorists who were widely followed at the time going back to Grotius, Puffendorf, and Vattel, consent to the child was imputed from consent to the parents (which is common in many areas of law), so the putative anomaly that you think our interpretation leads to is not anomalous: Our interpretation would not lead to exclusion of the child in the case of legally-resident parents.
"In our book, we go through the interpretation of the jurisdiction clause very painstakingly, and, unless you think that the Court should read such words as 'subject to the jurisdiction' without considering the exceptions -- and the reasons for the exceptions -- that were almost universally understood to qualify 'subject to the jurisdiction' although not stated as such in the text, then this particular criticism cannot stand. So, although we concede that this is not a slam-dunk interpretation of the Clause, it is the best interpretation. Even the Great Textualist/Originalist would recognize that some words are not self-defining, if only because (in this case) Indians, diplomats, and soldiers are indeed subject to the jurisdiction of the US in the obvious sense of the word, yet they were clearly intended to be excluded -- so one must go beyond that obvious meaning in order to respect the intent of those who wrote it.
"You raise a fair and difficult question about whether one should trim one's interpretive sails out of fear of what evil Republicans will do with them. If we were straining to reach our interpretation, that would be one thing. But we weren't -- and my commitment as a scholar is to research and ponder important issues, speak the truth as I find it, and let the political chips fall where they may. I hope that you agree but it sounds like maybe you don't."
Standing on the brain
Some semesters are particularly good times to teach some subjects. Steve Gey has told me about teaching Federal Courts at Florida State during the heart of the 2000 Election and Bush v. Gore; it became a class on that dispute and all the issues it triggered. This coming semester is shaping up as a good time for Federal Courts (which, unfortunately, I will not be doing). Lots of people--Jonathan Adler, Emily Bazelon, Michael Dorf, Vik Amar, and others--are talking about standing. And standing will be the word of the day in the courts and in the news in the coming months.
In denying the request for a stay of his judgment in Perry, Judge Walker emphasized his doubt that the proponents of Prop 8--who were permitted to intervene under FRCP 24 in the district court and became the primary defenders of the law when top state officials refused to defend the law--had standing to appeal the decision. Judge Walker did not finally determine that point; he only expressed doubt leading to his finding that the proponents had not shown a likelihood of success on the merits of an appeal, as necessary for a stay. So we will see three rounds of standing conversations--first as the Ninth Circuit, Justice Kennedy, and perhaps the full Supreme Court decide whether to stay Judge Walker's judgment pending appeal; second as the Ninth Circuit considers standing as part of the actual appeal; and third as SCOTUS considers standing in deciding whether to grant cert and what to do with the case if it does grant cert.
The standing issue here falls in the nether regions of two Supreme Court cases. Diamond v. Charles involves our basic current situation. State officials refused to appeal a lower-court judgment permanently enjoining enforcement of an abortion restriction and a private citizen, who had been allowed to intervene in the district court, sought to appeal on his own. The Supreme Court held that he lacked standing to appeal in the absence of the state officials who actually would be subject to the injunction. Although the law affected him as a doctor and father, that was not a sufficiently unique interest to confer standing to appeal (even if it was sufficient to allow him to intervene in the trial court--more on that later). The one thing that might distinguish this case is that the Illinois law had been enacted by the legislature, while Prop 8 was enacted via referendum. Thus, Prop 8 proponents argue that they are not ordinary citizens for purposes of Prop 8, as was Dr. Diamond, because they were responsible for Prop 8 becoming law through the direct-democratic process. That runs us into a second case, Arizonans for Official English v. Arizona, where the Court expressed "grave doubts" as to whether the proponents of a ballot initiative had standing to appeal an adverse judgment in the absence of state officials, but declined to resolve the issue because the case had become moot (the original plaintiff no longer worked for the state).
Diamond controls here, unless the Court backs away from the dicta (which the full Court joined) in Arizonans. Of course, there are good arguments for backing away from that dicta, which Dorf lays out. One problem is inconsistency. In Arizonans, the Court recognized that a state legislature has Article III standing to appeal a decision in the face of executive refusal, if state law authorizes the legislature to represent state interests in court. Where a law has been enacted via direct democracy, the argument goes, the proponents of the ballot measure functionally stand in the legislature's shoes (they exercised quasi-legislative power) and should have the same Article III status, provided state law grants initiative proponents the power to defend their measures (as California has). And Diamond expressly stated that a state "has the power to create new interests, the invasion of which may confer standing. In such a case, the requirements of Art. III may be met." Thus, the Court seems to have anticipated just this situation. Of course, Diamond predates cases such as Lujan v. Defenders of Wildlife, in which the Court has cut back on the power of legislatures to confer Article III standing by statute. So even if California law gives initiative proponents unique rights, a federal court still must run it through an Article III analysis and decide whether the state-created rights are sufficient for Article III purposes.
One underlying point is how closely the "interests" required for intervention under the Federal Rules of Civil Procedure align and overlap with the concrete and particularized unique interests required for Article III standing. In other words, are standing and intervention the same? The Diamond Court noted a circuit split on the subject, a split that continues today (and at least one district court has read Diamond as accepting a gap between the two concepts). But Adler and Ed Whelan both argue that it is strange to say the proponents had a sufficient interest to intervene and provide the primary defense in the trial court, but not sufficient interest to lead the challenge in the court of appeals when the trial court rejected their arguments. Thus, if Judge Walker is correct about proponent's lack of standing to appeal, it should mean they lacked standing to defend in the district court and Judge Walker's judgment must be vacated.
I am less bothered by this apparent gap. I always have looked at intervenors as amici on steroids, given a fuller role at the trial-court level and having an interest in the outcome and expertise on the subject somewhat greater than the rest of the population, while not necessarily possessing full party status or possessing an interest that rises to full-party level. So a gap between standing and intervention is not entirely illogical, just as a gap between standing and amicus status is not illogical. Prop 8 proponents are not "injured" in any unique way by the injunction, because they are not the ones enjoined to do or stop doing anything--the governor and the AG are] But the proponents still possess views on the constitutionality of Prop 8 that are beneficial to the Court, provided the directly affected parties remain present in the case. SCOTUS itself has used such "super-amici" to provide primary arguments, even where they would have lacked standing as parties. Dorf points to Dickerson v. United States, the case that affirmed the constitutional nature of Miranda. Dickerson appealed his conviction on the ground that it relied on an un-Mirandized confession; the United States defended the conviction on the ground that the conviction was valid under Miranda, but did not want to defend it on the ground that Miranda had been (or could be) overridden by statute. So the Court appointed an amicus (Prof. Paul Cassell) to brief and argue that issue. But no one would believe that, had Dickerson won below and the United States declined to appeal, Cassell would have had standing to appeal. I would point to a similar example from last term--Reed Elsevier v. Muchnick. The parties entered into a global settlement agreement and sought settlement-class certification, but the court of appeals rejected the settlement on the ground that the district court lacked subject matter jurisdiction over the case, a conclusion with which all sides disagreed. On appeal to SCOTUS, all sides argued the district court had jurisdiction, so the Court appointed an amicus to argue the absence of jurisdiction. But again, had the court of appeals found jurisdiction and the parties chosen not to appeal, no one would have had standing to do so. The point is that courts often hear from voices in a case whose interests and arguments diverge from those of the parties, but that does not give those voices all the same rights as the parties themselves, particularly in moving from the district court to the court of appeals.
Moreover, suppose Adler and Whelan are correct--the problem is not proponent's lack of standing to appeal, but their lack of standing to intervene as primary defendants in the first place. Then what happens? It seems to me the case goes back to Judge Walker to start ove. But now there is no one defending the state law. So the next move would be entry of a default to return to the district court, where the state officials would consent to a judgment (not a default, since the state officials properly are parties to the case) enjoining the law, accepting and establishing all the plaintiffs' legal and factual arguments or the court might enter summary judgment, accepting the plaintiffs' factual allegations as true (Vik Amar makes this point). In other words, we end up right back here. On the other hand, as Adler quotes a Time story, California will have a new governor and a new AG come January, so who knows what would happen if the judgment were vacated and the case began anew?
Adler points to one other issue of California law that I did not know about. Another interested party in the case would be individual counties and county clerks (and their deputies), who are charged with issuing marriage licenses and solemnizing marriages. The deputy clerk of Imperial County sought to intervene to defend the law in the district court, a motion that was denied after Judge Walker issues his decision. That deputy clerk has sought to appeal the denial of her motion to intervene and the ruling on the merits, arguing, in essence, that she would be subject to the injunction because she would have to issue marriage licenses to same-sex couples, even if she believes state law is constitutional. I have not read the briefs on this, but my wild guess for a response is that no same-sex couple sought a license from Imperial County, so that deputy clerk is not actually subject to this injunction (she would not be in contempt of Judge Walker's order if she refused to issue a license, although she may be wrong as a matter of law) and thus not a proper party to the case (again, this is a guess-feel free to explain in Comments why I am wrong).
As Bazelon points out, the standing controversy has sparked some schadenfreude among liberals, who (as with the first round of birther suits in 2008) see conservative interests being hoisted on a doctrinal petard of their own creation. Bazelon regrets that this case could be undone by a "technicality"--a word I despise, although I take her point. Still, you never know when doctrine is going to come to life.
Saturday, August 14, 2010
Peter Schuck on Immigration & the 14th Amendment: C'est magnifique, mais ce n'est pas la loi.
Peter Schuck's op-ed on the Fourteenth Amendment and "soil citizenship" contains an interesting and important historical point, a possibly sensible policy suggestion -- and a really unpersuasive legal interpretation. Peter might be right that citizenship should be denied to infants until they reach an age where we can say that they have a "genuine connection" to this country. (Call this the "Antipedobaptist" theory of citizenship). Peter also has some interesting historical observations about American objections to the British practice of impressing American sailors of British birth into the Royal Navy during the War of 1812, the 1868 Expatriation Act, etc. But none of these observations, to my view, add up to a minimally plausible interpretation of the 14th Amendment's textual qualification on "soil citizenship," requiring persons "born or naturalized in the United States" to be "subject to the jurisdiction thereof." After the jump, I'll speculate about whether confusing sensible policy ideas with constitutional law is especially dangerous in contexts where there are nativists out there who care about neither, ready to exploit non-existent legal ambiguities to undermine the prof's own moderate and sensible policy proposal.
Why do I think that Peter's legal interpretation (as opposed to his views on framers' intent or policy) is wrong, and plainly so? If I understand the argument, Peter maintains that, under the Fourteenth Amendment, citizenship is based on mutual consent of the citizen and the nation, and neither the the kids nor the nation consented to citizenship when the kid's only connection to the nation is the fortuity of having been born here. In Peter's words, "these children are here as a result of an illegal act and thus have no claim to membership in a country built on the ideal of mutual consent." But the argument proves too much. If Peter's argument rests on the idea that the infant did not consent to citizenship, then Peter has proven that even the children of U.S. citizens should not become citizens upon being born within the United States. Such an "antipedobaptist" position on citizenship must deny "soil citizenship" to all newborn children, not just to the kids of illegal immigrants, because no infant of whatever lineage possesses the legal capacity to consent to anything. If Peter's argument rests instead on the idea that the rest of us also did not consent to illegal immigrants' infants' being members of our community -- that citizenship is, as it were, a mutual contract -- then it would suggest that Congress could deny citizenship to the children of anyone with whom Congress or the states, in their wisdom, did not wish to make such a contract -- say, children of felons or even slaves -- even when the parents happened to be U.S. citizens.
In short, given the plain text of the 14th Amendment, consent has nothing to do with the matter. The 39th Congress might have mentally endorsed a "mutual consent" theory of citizenship, but they did not write this theory down -- and it is the writing, not the unwritten intentions, that count as law. No one denies that the U.S. government has "jurisdiction" over illegal immigrants and their kids: We can -- and do -- subject them to all of the criminal and civil process to which U.S. citizens are subject. Given the plain textual reference to "jurisdiction," the 39th Congress' unwritten intentions about "consent" would seem to be irrelevant. Peter writes that "it is hard to believe that Congress would have surrendered the power to regulate citizenship for such a group, much less grant it automatically to people whom it might someday bar from the country." Peter's use of the subjunctive in this sentence revealingly (albeit implicitly) endorses the worst excesses of purposivism: The implication is that, had they only given the matter some thought the 39th Congress would have drafted a very different text -- so we should correct their mistake for them through some fancy interpretive moves. I do not know what the 39th Congress "would have" done had they thought about the issue of illegal immigration. But I do know what they actually did: They conferred automatic citizenship on persons subject to U.S. "jurisdiction" -- maybe by mistake. Tough on them: Sometimes (contrary to Saint Paul) the letter trumps the spirit of the law, when the letter is plain and the spirit, textually invisible.
So what? Law professors make fancy, smart, but legally erroneous historico-policy-purposivist arguments about the Constitution all the time. But should we law profs be a bit more cautious about the Constitution's meaning when public tempers run high about an issue?
Nativist readers indifferent to the Constitution but hostile to "anchor babies" will use Peter's piece as ammo in an effort to adopt a position that both Peter and I would abhor -- denying citizenship even to kids who have been in the nation for years. I am absolutely sure that those egging on Lindsey Graham to deny "soil citizenship" to illegal immigrants' children have not the slightest interest in adopting Peter's very thoughtful "genuine connection" theory of citizenship, simply because Peter's theory will do nothing to address their loudest complaint -- the complaint that the school-age kids of illegal immigrants, who undoubtedly have a "genuine connection" to this country under Peter's theory, impose fiscal burdens on us by attending public schools. (Newborns, by contrast, are relatively cheap -- and, therefore, a source of indifference to nativists). The "soil citizenship" clause is a crude but unmistakably clear obstacle to nativists' making good on this complaint. It just so happens that the clause is also an obstacle to Peter's very sensible policy suggestion about requiring a "genuine connection" between infant and nation before conferring citizenship on the former.
Here's my genuinely tentative suggestion: Perhaps we law profs ought to be extra-clear, especially in op-ed pieces, about the distinction between constitutional law and policy when there are people out there who would exploit non-existent ambiguity on the former to pervert the latter. I'd be much happier with Peter's piece if it contained a frank acknowledgment that the text is against him and that his position is more akin to a recommendation for a constitutional amendment in the spirit of the framers than a good interpretation of the word "jurisdiction." Of course, Peter might respond that my view of the term "jurisdiction" ignores some 19th century consent-based gloss on this term that makes the concept of "jurisdiction" less clear than I suggest. If so, I stand corrected -- although it would have been helpful had this legal argument had appeared in the op-ed in the first instance.
Friday, August 13, 2010
Perry: Injunctions, stays, and appeals
Judge Walker denied a motion (by the proponents of Prop 8) to stay his judgment pending appeal. He ordered entry of the judgment, delayed until August 18, giving either the State or the Prop 8 proponents a chance to get stay from either the Ninth Circuit, Circuit Justice Anthony Kennedy, or the full Supreme Court. Lyle Denniston breaks down the court's order.
Judge Walker concluded that the proponents had not made the necessary strong showing that they likely would succeed on their appeal, largely because it is not clear they have standing to appeal the judgment, an issue I previously raised. A unanimous Supreme Court in Arizonans for Official English v. Arizona expressed, in pure dicta, "grave doubts" as to whether the proponents of ballot initiatives have standing to defend the constitutionality of a challenged enactment (Michael Dorf criticizes the dicta and argues that initiative proponents should have standing to defend the law). The district court did not address (and the parties did not brief) the proponents' standing at the trial level, concluding only that the proponents had sufficient interest to intervene under FRCP 24. But the right to intervene as a defendant, which is based on a general "interest" at the trial level does not confer standing to appeal the adverse judgment, which requires some adverse harm beyond the ideological.
Nor could the proponents show any irreparable harm to them from the absence of a stay (and the issuance of marriage licenses to same-sex couples), other than their general objection to same-sex marriage. The proponents are not obligated to do anything by the injunction--the injunction runs only against state and local officials who grant licenses. And the court rejected the argument that marriages performed now (before appeals have been exhausted) would be under a "cloud of uncertainty"--are they valid? would they remain valid if the district court is reversed? While true, it is not an issue that affects the proponents, but only the same-sex couples who might seek to marry in the interim. So the proponents cannot raise the issue. The court also was swayed by representations from state officials that they opposed a stay, believed the inequality in state law should be eliminated immediately, and that issuing licenses in the interim would not impose an administrative burden. The court did not see a difference between the 18,000 marriage licenses issued to same sex couples between the California Supreme Court decision and the enactment of Prop 8 and any marriages that might be performed while the State remains under the district court's injunction, however long that injunction lasts.
I must admit to being somewhat surprised by the court's decision. First, the absence of a stay potentially speeds up the appellate process, particularly before SCOTUS, which might not be best for the plaintiffs. Any expediting of the appeals process affects an interesting argument by David Cohen. He suggests that SCOTUS never will hear the Prop 8 case, because Prop 8 likely will be repealed by ballot initiative in 2012, mooting the case before SCOTUS has a chance to decide the case. But David assumes a panel Ninth Circuit decision, an en banc Ninth Circuit decision, and full briefing before SCOTUS. If the absence of a stay speeds the appeals process up, that destroys this presumed timeline.
Second, Judge Walker seemed a bit blase about the possibility that thousands of new (same-sex) marriages would be performed under the injunction, only to have the injunction reversed and Prop 8 reinstated. This would leave us with thousands more grandfathered same-sex marriages, always an uncomfortable situation. While this two-tier reality was unavoidable following the California Supreme Court ruling (it was appropriate for the California Supreme Court's mandate to issue immediately), it is not unavoidable now. Or it would require invalidation of previously recognized marriages, an unequally uncomfortable (although doubtful) situation. Perhaps this simply reflects Judge Walker's confidence in the strength of his decision, in the proponent's potential lack of appellate standing, and in the weakness of their legal and factual arguments.
In the typical constitutional case, the court issues a negative injunction prohibiting the state from enforcing an unconstitutional law for the time being. There is no lasting harm from non-enforcement in the interim. But this case involves a positive injunction ordering the State to affirmatively do something (issue marriage licenses to any couples who want them and otherwise qualify, regardless of the gender of the parties) that cannot easily be undone (or at least without further injuring some married couples or creating an odd marriage scheme) if the injunction is reversed and the law reinstated.
Anyway, nothing changes until August 18, by which time the proponents will have been able to go both to the Ninth Circuit and, if necessary, probably to Justice Kennedy. Stay tuned. And keep reminding students how much procedure matters to the vindication of constitutional rights.
Thursday, August 12, 2010
Where are we now with copyrights?I'm wondering if, post-tenure, I should stop being willing to assign my copyrights to the law reviews/university presses, etc, and just insist that they publish it under a creative commons license or, more traditionally, that I hold the copyright and they can have the relevant licenses and warranties, and if they don't like it, I'll publish elsewhere. Do you guys make a fuss about this stuff? Is it worth it? Practically, I feel like it makes little to zero difference in my life since I don't think "breaches" of the typical author-publisher agreements occur and if they do, I doubt they are enforced. (Has anyone had that experience or heard of it happening?)
That said, I don't see the rationale for giving someone else my copyright for zero compensation -- I'd sooner give it to the public domain... And why is it that the law reviews managed to reduce their work load with respect to shorter articles, but they and the academic presses haven't fully yielded to open-access or more authorial control? Would there be a solution if law schools or universities said they were committed to open-access and that the only scholarship considered for tenure/raises, etc would be that which is published a) where the author retains copyright and/or b) the publication occurs under creative commons-type licensing scheme?
One thing is true: increasingly authors with good academic presses have been able to negotiate rights to give away their book for free electronically for noncommercial purposes. I think Zittrain, Benkler and Solove were able to do this. And Ethan and Jennifer and I were fortunate to do that too, and so very soon we will be putting Privilege or Punish on the web for free. I hope you consider assigning it to your classes or perhaps more helpfully, using it (gratis) as a leveler for a wobbly table nearby.
Pipeline Program at National People of Color Legal Scholarship ConferenceKudos to the organizers of the Third Annual National People of Color Legal Scholarship Conference for including a program aimed at potential entrants to the legal academy. How to Enter the Legal Academy: Pipeline Program, will take place on September 9th from 11am to 3pm, and takes place along with the rest of the Conference at Seton Hall Law in Newark. Register at the above link, or for questions, contact Professor André Douglas Pond Cummings: firstname.lastname@example.org
Wednesday, August 11, 2010
Category Confusion and Public Forums: CLS v. Martinez
How many constitutional categories of public forums are there and what are their names? This should be an easy question to answer, right?
In the recent case of Christian Legal Society v. Martinez, 130 S.Ct. 2971 (2010), the Supreme Court majority stated (and the dissent did not dispute) that there are three categories: traditional public forums, designated public forums, and limited public forums. Id. at 2984 n. 11. Compare this to the Supreme Court decision of Arkansas Educational Television Comm'n v. Forbes, 523 U.S. 666 (1998), in which the Supreme Courts divides forums into the categories of traditional public forums, designated public forums (whether open to "all or part of the public"), and nonpublic forums.
Evidently, the Court now conceives of the term "designated public forum" to refer only to a forum that is designated as open to the public as a whole rather than to merely a part of it. Does the distinction between the limited public forum and the "nonpublic forum" therefore collapse? Or did the Court just omit to mention the nonpublic forum as a category because Martinez so clearly involved a limited public forum? Even before this decision, the constitutional standards applicable to the limited public forum and the nonpublic forum weren't all that different, if, indeed, they were different at all. It was clear, even prior to Martinez, that in both the limited public forum and the nonpublic forum, the State was required to maintain viewpoint neutrality and application of state-imposed content parameters was subject only to review for whether it was reasonable in light of the purposes of the forum. But is there really no difference between the two now?
Does this category confusion drive anyone but me crazy?
I find that I'm often overly critical as a reader of other scholarship, so that's one of the reasons I really like the idea of JOTWELL. It helps us find really good pieces and allows you to say so unashamedly.
The problem with JOTWELL, however, is that we're all busy and sometimes it takes too damn long to explain why something is good, especially when you're not an expert in the area but you just think: Hmm, that was really good. So, with that in mind, I want to draw attention to a few pieces I read recently and really liked. I'll put the links here and the abstracts after the jump. While I wouldn't say I quite agreed entirely with each of these pieces, I did really like them, find them helpful and instructive and interesting. That's about all one could hope for really. (And for what it's worth, I don't know the authors of either of these pieces though after reading their work, I wish I did.)
University of Michigan Law School
Philosophers' Imprint, Forthcoming
Tuesday, August 10, 2010
Want to Improve Your Teaching?: Watch This
This video of a lecture by Dr. Robert Duke explains many precepts of good teaching that too many law professors are unfamiliar with or ignore. Here's one of my favorite quotes from the video: "If you're teaching something that has to do with change, it is probably interesting. If you're teaching something static, it is probably not." Another is: "Testing teaches [whether it means to or not.]."
On a related note, I would argue that the relevant research suggests that it is pedagogically unsound to administer one exam per semester to evaluate students, and yet almost all law professors continue to do it anyway, in part because we can't withstand the pressure to do otherwise. I am not claiming any moral superiority in this regard. Though I've begun administering a series of quizzes in Torts, I still only administer one final exam in my upper-level courses. But I have a growing sense that it is very wrong, and I expect to change it soon.
William Lerach's proposed "Community Service": Teaching a class at UC Irvine
There's some talk in the blogosphere about disgraced former plaintiffs attorney Bill Lerach's attempt to use a proposed class at UC Irvine's law school as part of his required community service for his federal criminal sentence. The federal judge who heard his motion was particularly upset with Lerach, voicing discontent with Lerach's apparent lack of remorse (in contrast to the remorse he allegedly showed at sentencing) and with the general nature of Lerach's community service to date. Apparently, doing work for the La Jolla Historical Society wasn't the type of work the judge had in mind.
For Bill Lerach, this is only a minor setback. He'll complete his service one way or another and then move on to other things. For future criminals who come before the same judge, however, the salience of Lerach's example may well create negative consequences. Future claims of remorse may be (unfairly) discounted, and offers for community service may be summarily rejected. Risk averse judges may conclude, as this one likely will, that it is simply too difficult to distinguish "truly remorseful" defendants from ones who are just faking it in the hopes of a more lenient sentence. Notice that Lerach himself likely will never experience these costs. They are externalities imposed by one generation of criminals on the next.
Notice further that this is something of a one-way ratchet: when defendants follow orders and take community service seriously, it is unlikely courts will hear about it. Probation officers likely mark them down as having completed their service and that's the end of it. As is often the case in criminal law and procedure, the cases of malfeasance are the ones that come to the attention of prosecutors and judges, and those cases tend to stick out in our minds. I imagine there are ways to "debias" courts of this notion (by pointing out examples of successful community service), but it's not clear to me how often or how well such debiasing might occur.
The Ethics of Expediting
I was having a conversation with my colleagues recently about how the ease of submitting law review articles through ExpressO has affected the law review submission process. Gone are the arduous days of mailing out paper copies with individual cover letters; now it is a simple matter. Select publications! Upload files! Check that all is complete! Done!
We were in general agreement that law reviews are even more bombarded with submissions than they used to be; indeed, it seems that several publications are currently full and, according to ExpressO, are not accepting any submissions until 2011. When law reviews are oversaturated with submissions, one tried-and-true method of getting your article noticed is requesting an expedited decision.
The practice of expediting an article, however, can involve some tricky ethical questions, particularly when a law professor submits to the top 100 law reviews but in reality has no intention of publishing with that lowest-ranked law review. I think that most would regard this submission strategy as less than ideal. But is such a submission strategy actually unethical?
There seems to be little question that law reviews, particularly those that are "low-ranked," are harmed by these choices. Untenured professors, in particular, may feel pressure to apply to a large number of law reviews to maximize their chances of not only placing an article, but placing it in as prestigious a publication as possible. If no offers from prestigious (or "prestigious enough" publications are forthcoming, they may also feel pressure to turn down an offer from a "low-ranked" law review and resubmit the article in the future. It seems that these ethical issues are exacerbated when the law reviews are just bursting at the seams with submissions, reducing the odds that your article will be considered.