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Wednesday, November 10, 2010

Economic citizenship?

Perhaps I mean "economic theories of citizenship?" No matter, while I realize that I promised another installment of my online education series, I thought I'd take a brief break and try to see if we can find a way to connect current legal theory and constitutional history.

Here's the situation. I'm working on a paper that's vaguely connected to the book manuscript I'm finishing up. The connection is more vague than not, I should actually be reading a book I need to engage in the manuscript, but this is by way of being a study break. (And I have read all but one chapter in the book so far today!)

Anyway, the paper looks at a series of related legal events in the 1850s, and uses them to trace out multiple discourses of state citizenship. One of the sources for the paper is a state supreme court opinion upholding a lower court decision to dismiss a claim against a municipality for damages.  The plaintiff sued, claiming that the city failed to properly protect him, his family, and his home from a mob. The state courts all ruled against him, arguing that an earlier decision made it clear that no such cause of action existed.

That's all well and good. But what struck me as I was reading the opinion today, was one aspect of the analysis offered by both the plaintiff and the court. Each, it seemed to me, relied on what I can only call economic theories to define the relationship between the citizen and the local government.

The two arguments were, however, different. The plaintiff's argument was that he paid property taxes (quite alot, one imagines, he was the richest man in town). In exchange for allowing the local government to take part of his property in taxes every year, he said, he was entitled to have the government protect him and his family from harm and that included protecting him from mobs.  The way the argument is set out in the summary, it sounds like a contract claim:  The plaintiff paid taxes and was promised specific protections in exchange. The city failed to provide the protections, so the plaintiff sued to recover damages from that breach.

(Note that while this looks like a theory of citizenship based on a contract claim, it's not particularly Lockean--this is not a compact or contract between citizens, this is a contract between the individual citizen and the government.)

The court, while rejecting that argument, offers an alternative, but equally economic theory of the relationship between citizen and government. It is true, the court admitted, that people in a polity pay taxes in the expectation of getting protection. But the promise is not so direct as the plaintiff claimed. Rather, the citizen is paying the city to minimize risk of harm. But the citizen must realize that in making decisions about how best to minimize risk, the city has to take all the people in the city into account. To put it another way, the court effectively rejected the idea that taxes purchased a contract for personal protection (which is how it seemed to view the plaintiff's claim) and instead asserted that taxes purchased a share in a group insurance plan that guaranteed that risks would be reduced in general, but might not guarantee any particular individual claimant would be compensated for injury at some future date. The city had to retain the power to adjust risks so as to protect the greatest number of people from future harm, it could not promise each individual absolute protection from future harm.

(Perhaps characterizing the court's theory as analogous to a group insurance claim is misguided, if someone can think of a better metaphor I'd love to hear it.)

Anyway, here's where I'm hoping to generate some dialogue. I like to think I'm fairly up on modern theories of citizenship and citizenship studies, but I can't say I've ever seen economic arguments of this sort.  Nor can I recall seeing a similar argument in 19th century constitutional discourse in the US.  I did some quick research, and checked out a few articles, and I'm not finding anything that looks particularly like either of these arguments.

Yet surely that can't be right. I appreciate most of you are not legal or constitutional historians, so I'm willing to put aside the historical aspects of these arguments (though if anyone who has done work on the relevant time period wants to pipe up, that's great). But I have to believe that some enterprising law and economics person, or constitutional theorist of a more recent vintage has floated a theory of citizenship that looks something like one of these two arguments. And I'm sure if someone has written that article, one of you knows about it. And if you know about it, I'd love to hear what you have to say. Cites are great. Comments rejecting the ideas and pointing to learned analysis that demostrate the idiocy of these arguments are also welcome. I'm not endorsing either theory of citizenship. I'd just like to see if there are other similar arguments out there. 

Posted by Elizabeth Dale on November 10, 2010 at 05:07 PM | Permalink | Comments (2) | TrackBack

License to Vote?

Last week I promised I would share some of the more provocative comments made by students in my State and Local Government seminar.  Here is one.  As part of our discussion on allocating the right to vote in local elections, I cited some statistics demonstrating that many US citizens lack a basic understanding of our governmental structure. In response, one student argued (quite eloquently) that people should be required to obtain a “license to vote” by passing a licensing exam designed to ensure that voters have a threshold knowledge of (a) the candidates’ positions on a variety of substantive issues and (b) the political office for which the candidate is running.  Though perhaps not a novel idea (see for example, here and here), it was the first time one of my students advocated restricting the right to vote, as opposed to the more common (and politically correct) proposals for increasing civic engagement and voter turnout.   

As you might imagine, a heated classroom debate ensued.  Many students were appalled by the idea and argued that a licensing exam, reminiscent of a poll tax or a literacy exam, is inherently discriminatory. A surprising number of students, however, supported the “licensing” scheme as a way to prevent ill-informed citizens from voting in a manner that might be contrary to the public good (presumably defined as whatever that student thinks is good). 

Putting aside any discriminatory motives, the main sentiment seemed to be:  Voting is a privilege, not just a right – you have to earn it.  I am curious whether other profs who teach in related areas have encountered similar debates in their classrooms and how they have responded. 

Posted by Ashira Ostrow on November 10, 2010 at 04:26 PM | Permalink | Comments (3) | TrackBack

Religious Tests and a Committee Chair Candidate

Fans of the relationship between religion and public dialogue, and of issues concerning the Religious Test Clause, may enjoy this story about Rep. John Shimkus (R-Ill), who has announced that he is running for the chairmanship of the House Energy and Commerce Committee.  (He's a long shot.)  The news sources on this lean left but are helpfully buttressed with committee footage.  They suggest that Shimkus is a skeptic about global climate change for theological reasons: he believes humanity will not destroy the world because God promised Noah that the world would not be destroyed after the flood.  

I take no position on that question, other than to point out that there is a good deal of interpretive leeway left between the world's not being destroyed and its being damaged significantly, and good stewards of creation might well take that point seriously.  Nor will I mock Shimkus, as some of the stories have done.  But the story is a nice illustration of two points.  First, there is no getting around questions of religious truth; they will necessarily influence debates over public policy, explicitly or implicitly.  Second, this is further reason why the Religious Test Clause, whose  text and/or broader implications are sometimes read quite broadly (as in the debate over some recent Supreme Court nominees), cannot properly be so read.  There is a significant difference between saying that Shimkus's faith should not be grounds for excluding him from public office, and saying that he is entitled to be free from questions or criticism about his faith and its implications, or that his colleagues are forbidden to deny him the chairmanship (or, in some hypothetical case, confirmation to, say, a relevant cabinet post) precisely on the grounds that they either disagree with his faith-claim or think it renders him unsuitable for a position that involves these issues.  The former is impermissible; the latter must be permissible.    

Posted by Paul Horwitz on November 10, 2010 at 09:35 AM in Paul Horwitz | Permalink | Comments (3) | TrackBack

Religious Arbitration and the New Multiculturalism

In my previous post, I floated my thought that there's been a rise of a "new multiculturalism," which focuses less on symbolic recognition and more on jurisdictional differentiation.  Put differently, many minority groups are less concerned with their integration into the public sphere and are increasingly concerned with their own law-like autonomy.  And, I think recent attacks on religious arbitration (here's on op-ed of mine on the issue) represent a key front in the battle over the new multiculturalism.

Now my sense is that the new multiculturalism has not played particularly well on the constitutional level.  With some exceptions (Boy Scouts v. Dale stands out as such an exception), cases like Employment Division v. Smith and CLS v. Martinez come to mind as instances where the Court did not embrace the new multiculturalism in constitutional doctrine.  In fact, nothing really captures the Court's rejection of the new multiculturalism quite as much as Employment Division's memorable phrase that each person cannot become "a law unto himself."

But what groups haven't found in public law, they have to some degree found in private law.  The most notable example is religious arbitration whereby parties submit disputes - via an arbitration agreement - to religious authorities for adjudication in accordance with religious law.  Because the awards of religious arbitration tribunals can be confirmed and rendered legally enforceable (like any other arbitration award), religious groups can merge religious authority with legal enforcement (here's the beginnings of my longer thoughts on the topic).  Such an option provides the type of law-like autonomy that stands at the center of the new multiculturalism.

I've elsewhere blogged a bit about the challenges of religious arbitration.  But it's not surprising that the recent amendment in Oklahoma is aimed at prohibiting religious arbitration - the bill's sponsor has been pretty clear about that (check out this video).   The new multiculturalism is seen as dangerous becuase it's not about bringing minority groups into the public sphere, but it's about letting groups retain some degree of autonomy.  In this way, the new multiculturalism encompasses attempts on the part of minority groups to share, to some extent, law making authority with the nation state.  And, it's for this very reason that attacking religious arbitration is the obvious next step in the battles over the new multiculturalism.  

My own view is that we should not be banning religious arbitration, but instead finding ways to build on the freedom-enhancing value of religious arbitration while still protecting against some of the unique problems it raises.  I'll hopefully say a bit more about this in an upcoming post.

Posted by Michael Helfand on November 10, 2010 at 03:14 AM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Tuesday, November 09, 2010

Setting High Expectations

I am not a touchy-feely type, and when someone says she believes the universe is sending her messages, I tend to question her sanity. Nonetheless, I kept facing the same issue today over and over again in every imaginable context: how should I set my expectations--for my students, my colleagues, faculty candidates, my children, and myself--so that they are high but not unrealistically so?

I will spare you the full rundown of my day. Let me just present a few examples. Let us say hypothetically that your faculty is in the market to hire a new entry-level faculty member and that the prospective faculty member has written an article or the draft of an article. How should you (and your colleagues) judge her work? Should you judge it the way you would judge an untenured colleague's first tenure piece, or should you set a lower standard on the theory that the person's scholarship will improve when they join your faculty and receive mentoring? How harshly should you judge the candidate's writing style? If the article or draft indicates that the candidate is a mediocre writer, should you overlook that if she seems to have good ideas (perhaps on the theory that editors can be found to improve the problem)? Is it fair to criticize an article that a candidate wrote on nights and weekend while practicing law for not surveying the secondary literature or at least showing thorough familiarity with it? I tend to be quite critical of mediocre writing, but I am often willing to forgive a mediocre presentation. Are these the right standards to apply?  [By the way, I've seen numerous candidates both this year and over the last 16 years, so this is more an abstract question I've been asking myself as I see the annual parade of candidates than a question about a particular individual.]

Let me give another example. I believe that you insult the intelligence and abilities of your students if you don't set high expectations for them. I expect my students to be prepared, but I don't browbeat them if they're not. I just promise to call on them the next class period, and I try to remember to always follow through. Am I setting my expectations too low by not having more severe consequences? Or am I being unduly punitive by potentially causing embarrassment for the student who hasn't read? Have I struck the right balance with my policy? You never know what is going on in the personal lives of any of your students. Perhaps you just called on a student whose spouse just asked for a divorce, whose child was in the hospital all weekend, or who is simply terrified of speaking in class when put on the spot. Or perhaps you called on a perennial slacker who was out drinking the night before.  Should it matter to you that it could be the former rather than the latter? I can hear you saying it will not matter to the judge, but the point is that we are not judges. The classroom is not the courtroom: the stakes simply are not that high. Moreover, I am trying to set a tone where students feel safe to experiment with ideas and arguments and to make the inevitable mistakes that go with that experimentation. Should I demand more? or less?  [My gut instinct is to say more.]

In addition to the examples above, I had an uncomfortable realization today concerning the standards I set for myself, or rather, my failure to realize them to the extent I would like. I try hard to never miss a deadline set by a co-author or a publisher. I also try hard to have an open door policy and to see students who drop by when they drop by if at all possible. But I realized that, although my door is open, I sometimes am not evincing the open door attitude I'm striving for because I'm feeling the pressure of conflicting obligations. Maybe I would actually be more welcoming if I restricted students to my office hours, and if the ordinary scheduled amount of hours seem too meager, I could add more.

I could go on in this vein. [Did I mention that my three sons just got their report cards or that I feel guilty this isn't a "substantive" blog post?]

Posted by Lyrissa Lidsky on November 9, 2010 at 10:21 PM in Life of Law Schools, Lyrissa Lidsky, Teaching Law | Permalink | Comments (7) | TrackBack

The New Multiculturalism

I just got back from a wonderful conference at St. John's on Religious Legal Theory: Religion in Law, Law in Religion put together by Mark Movsesian and Marc DeGirolami.  As announced at the conference, next year's Religious Legal Theory Conference installment will be held at Pepperdine Law School to be run by Robert Cochran.   

During my presentation at the conference, I floated an idea that I've termed the "new multiculturalism."  One sees this trend, for example, in the recent attempted ban of Sharia Law in Oklahoma and how multicultural debates have become intermingled with issues of conflicts of laws (check out recent posts from both my colleagues Trey Childress and Roger Alford thinking about the Oklahoma Sharia Law ban and the parallel ban against international law). 

If the shift to the old multiculturalism, to use Nancy Fraser's phrase, was all about a shift from redistribution to recognition, I think the shift to the new multiculturalism is all about a shift from symbolic recognition to jurisdictional differentiation.   

The “old” multiculturalism was largely focused on the recognition of previously marginalized minority groups.    Philosophically, the old multicultural movement understood recognition of the “other” as an essential feature of liberalism’s dedication to the principles of equal respect and equal dignity.  Accordingly, the great multicultural debates of the late 2oth century – and even in the early 21st century – followed this same script, centered on such questions as the minority representation in higher education, the permissibility of religious symbols in public schools, incorporating religious views into public discourse, and permitting religious symbols on government property. 

Increasingly, my sense is there's been a shift to a “new” multiculturalism where minority groups – especially religious minority groups – are less concerned with receiving recognition and more concerned with maintaining autonomy.  Philosophically, the new multiculturalism conceives of minority identity as embodied not only in symbols and histories, but also in the rules and practices that often constitute an independent legal order.  And for minority communities to maintain their identity, they must also find a way to retain authority of the interpretation, application and enforcement of communal rules within their membership.  

Accordingly, the new multiculturalism looks less for symbolic integration and more for jurisdictional differentiation.  We might even thing of Employment Division v. Smith and CLS v. Martinez as bookends of the new multiculturalism.  Similarly, I also take the recent battles over Sharia Law in Oklahoma to be emblematic of the new mutliculturalism. 

In an upcoming post, I'm hoping to explore what I take to be the next great debate of the new multiculturalism.

Posted by Michael Helfand on November 9, 2010 at 01:14 PM | Permalink | Comments (1) | TrackBack

FIU Law Review Symposium: Cure, Botch, or Opiate?

This Friday, November 12, FIU Law Review and FIU College of Law will sponsor Cure, Botch, or Opiate? Law, Politics, Policies, & the Constitutionality of the Patient Protection and Affordable Care Act, a comprehensive discussion of the law and politics of health reform legislation. The symposium program is here .

Participants include Gerard Magliocca (Indiana-Indianapolis), David Rivkin, Ilya Shapiro (Cato Institute), Kevin Sack (The New York Times), David Freddoso (Washington Examiner), David Orentlicher (Indiana-Indianapolis), Frank Pasquale (Seton Hall and former GuestPrawf), Elizabeth Pendo (Saint Louis University), and Dr. Fernando Valverde (FIU Wertheim College of Medicine). My colleague Elizabeth Foley and I will serve as moderators.

Please stop by if you will be in Miami this Friday.

Posted by Howard Wasserman on November 9, 2010 at 09:19 AM in Howard Wasserman, Sponsored Announcements | Permalink | Comments (0) | TrackBack

Monday, November 08, 2010

Governance v. Property

So in my previous post I paid tribute to Richard Nagareda and, in particular, his contribution to the ALI's Principles of the Law of Aggregate Litigation.  I tried to show that the Principles reflect two major themes of Nagareda's scholarship: (1) mass torts and similar complex litigation all share a common problem of "governance," and (2) correcting this problem requires primarily corrections to the "design" of existing procedures.    

In my current draft, entitled "Mass Torts and Due Process," I argue that "governance" does not fully capture the difficulty of mass torts.  Instead, I argue that mass torts present a "property" problem.  So why do I think "property," not "governance," tells a better story?  To answer that question, I have to take a detour and discuss the work of one of Nagareda's foils, David Rosenberg.

To recap, Nagareda understood mass torts as providing a "governance" problem because they involved parties with interests that were both divergent and interdependent.  Take asbestos litigation.  Due to the mass production of asbestos containing products and long latency periods for asbestos-related injuries (think decades), asbestos manufacturers injured a large number of individuals whose injuries were temporally dispersed.  Some manifested injury relatively quickly (call these the "presents"), while others were exposed to asbestos but took some time to manifest injury, if at all (call these the "futures").  

What if the manufacturer wanted to settle all of its asbestos liability at a given point in time?  It could settle with each of the presents, but cannot do so with the futures, at least not easily.  Suppose, however, that a class action was brought on behalf of a class of all individuals exposed, including the presents and futures?  The manufacturer could reach a global settlement with the class and "quiet title" as to its asbestos liability, so to speak.  Well, the global settlement class action approach was rejected by the Supreme Court in Amchem, and it is easy to see why.  What's to stop the presents from biasing any settlement in their favor?  In fact, what's to stop the class attorneys from selling out the class for pennies on the dollar, a problem that the Court will highlight in a later decision, Ortiz v. Fibreboard.  These conflicts reflect a "governance" problem - how do you set up governing structures to adequately take into account the interests of everyone in the litigation?  Class actions seem only to exacerbate the "governance" problem, not solve it.

David Rosenberg, who is primarily a tort scholar, viewed mass torts differently.  He focused less on the differences among the plaintiffs and more on what they had in common.  In particular, and despite their differences, the plaintiffs all shared a number of fact and legal issues as to liability, such as whether the manufacturer had knowledge of the dangers of asbestos, or whether asbestos caused certain diseases.  A plaintiff going alone will invest in those issues to increase their likelihood of recovery, but only to a point. To take a simple example, if the total recovery runs around $500K, the plaintiff is not going to hire a $1M expert.  The defendant, in contrast, will invest much more on common issues.  The defendant has to account for more than the plaintiff before it.  So if the liability associated with a common issue is $100M, the defendant will not hesitate to hire a $1M expert, or $2M expert, or whoever is the best out there.  Because of these asymmetric stakes, to borrow a phrase by Robert Bonedefendants have an inherent advantage in mass tort litigation.  Rosenberg has discussed this problem of asymmetric stakes in a number of articles, perhaps most forcefully in a response to a piece by Richard Nagareda in the Harvard Law Review.

As I argue in my draft, the problem of asymmetric stakes is best understood as a "property" problem.  The reason the defendant has greater incentive to invest in common issues is because it effectively owns all of the liability associated with those issues.  By contrast, each plaintiff only owns a partial amount of the recovery associated with a common issue.  Thus, the defendant can exploit economies of scale to invest in common issues that the plaintiff cannot, at least alone.  Of course, plaintiffs can aggregate to match the scale of the defendant's ownership, but that is rarely possible.  The futures do not have a "claim" to aggregate until they manifest injury, there are high transaction costs to aggregating, and, most importantly, there is strategic behavior.  Some plaintiffs, frankly, would rather go alone then aggregate with the others, making everyone worse off.  This mismatch in scale between the ownership unit of the resource (the claim for damages) and the scale at which the resource is most efficiently used (collectively, at least for common issues) is a common feature of commons/anticommons situations.  Thus, mass torts present a "property" problem, one caused by the individual ownership of each plaintiff's tort claim.

So why does this matter?  Conceived as a "governance" problem, class actions are disfavored.  But as a "property" problem, class actions can correct the problem of individual ownership of the claims by, in effect, judicially assigning legal title to all of the claims to a third party, class counsel.  In this way class counsel can invest in common issues at the same scale as the defendant.  In fact, to avoid an "anticommons" problem where a plaintiff threatens defection by opting out, the class action ideally would be mandatory.

Of course, reconceiving "mass torts" as a "property" problem does not completely do away with the problems identified by the "governance" lens.  In fact, a mandatory class action will require some plaintiffs to recover less than they otherwise would going alone, and prohibit any escape from the potential inadequate representation of class counsel.  How do I account for these deficiencies?  I will address these points in the next post.

Posted by Sergio Campos on November 8, 2010 at 11:21 PM | Permalink | Comments (5) | TrackBack

Are we ready for Nuclear Power?

Two nuclear power plants, one in New York and one in Vermont, were temporarily closed yesterday due to “emergencies;” a leak in one case and a transformer explosion in the other.  These accidents are likely to reignite the debate over developing nuclear energy as an alternative to fossil fuels.   Earlier this year, President Obama expressed a renewed interest in developing nuclear energy and the DOE announced loan guarantees of $8.3 billion to help build new nuclear reactors.

Even assuming that nuclear power is the best alternative to oil and gas in terms of reducing carbon emissions, nuclear power presents its own challenges.  In addition to the obvious health and safety concerns, we still have not figured out how to dispose of high-level radioactive waste.  Back in 1987 Congress decided to construct a national high-level nuclear waste repository at Yucca Mountain, Nevada, as a long-term solution to storing nuclear waste.

In 2007, Harry Reid (from Nevada) became the Senate majority leader and less than two years later the Department of Energy terminated its plan for Yucca Mountain (after spending several decades and billions of dollars studying the site).  Reid’s somewhat surprising re-election to the senate last week presumably adds the final nail in the Yucca Mountain coffin (but see here for its possible revival).  So the question remains, if we develop additional nuclear facilities, where will the waste go

Posted by Ashira Ostrow on November 8, 2010 at 07:38 PM in Current Affairs | Permalink | Comments (1) | TrackBack

Antibullying Curricula and "Agenda" Debates

The New York Times yesterday had an interesting story about anti-bullying curricula in public schools, specifically concerning the GBLT community.  Some educators believe, understandably, that it is difficult to guard against bullying of students for reasons of sexual orientation without actually discussing sexual orientation and teaching a positive acceptance of LGBT orientations.  Some parents believe that doing so, in practice if not necessarily in theory, ends up promoting "acceptance of the homosexual agenda" or, in a more pert and ambiguous phrasing, teaching "homosexual lessons."

Although I tend to support one side of this debate, far be it from me to try to resolve it here.  It seems to me at least quite possible to teach the fact that some people are gay, and to promote the value that all people should be free from violence, without taking a stand on the question of whether homosexuality is moral or immoral.  Whether most educators want to slice the educational point this finely, or are reliably capable of doing so, is another question.  Whether some parents would accept even this lesson, even if they agree that bullying of anyone is wrong, is yet another question.  And despite my general desire to reach a rapprochement on these issues that finds ways of including a broad range of religious voices and values, including those whose conclusions differ from my own, I would quite understand if LBGT advocates wanted a thicker lesson to be taught and not just a narrow lesson about tolerance.    

Posted by Paul Horwitz on November 8, 2010 at 05:23 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

A connected series of statements intended to establish a proposition

To teach MGM v. Grokster in my Copyright class, I adopted a technique from Doug Lichtman, who taught Copyright at Chicago when I was a student. As a class, we worked through the audio recording of the oral argument before the Ninth Circuit, stopping the recording each time one of the judges on panel asked a pertinent question. At each juncture, we considering why the judge asked the question, what potential missteps could be made, and how counsel might both respond to the judge's question and maneuver back to the key points necessary to win the case for their respective clients.

In my initial post-class assessment, I felt like this was a productive opportunity for students to consider, in a cooperative fashion, how to frame an appellate argument, and how to prepare for the questions one might be asked in any face-to-face interaction with a judge, arbitrator, client, opposing counsel, or contracting party. The students had a keen ear for where counsel went off the rails, and which counsel best used the questions as a spring board to get to the important points on which they wanted to focus. These skills are not unique to appellate argument, but the oral argument was a useful vehicle for the process, and one distinct from the archaeological exhumation of law from the written opinion. The recording was also readily available, which saved me the effort of crafting a new tool from scratch.  (I briefly considered this Monty Python sketch, but quickly reconsidered).

I am sensitive, however, to the critique that law schools are too focused on appellate decisions and the appellate process, which brings me the question: what other tools have you used to invite students to think about how to properly develop and defend an argument? What has worked well, what has failed to work, and what do you hope to try next?

Posted by Jake Linford on November 8, 2010 at 05:06 PM | Permalink | Comments (6) | TrackBack

"Speech and Harm"

The Times ran today this interesting essay, "Speech and Harm", by Ernie Lepore, in which the author reflects on the fact that "there are certain words that can not be uttered without causing shock or offense."  It's worth reading for the author's own points but, for me, it was a reminder of something that (I think) it is important to remember about the freedom of speech and First Amendment doctrine: 

It is a mistake (I think) to allow our thinking and doctrine to be shaped by a perhaps comforting but still mistaken assumption either that "speech" does not cause "harm", or that the "harms" speech does cause are, somehow, necessarily caused.  Instead, we choose to tolerate certain harms -- or, more precisely, we choose to tolerate the infliction of harms on some actual people by some other actual people -- because we think those harms are "worth it", given the benefits that (we think) a harm-tolerating speech regime delivers.  But, I try to suggest to my own students that we should (a) avoid treating as an un-examinable premise that they are "worth it" and (b) we ought to always be asking ourselves what account we could give -- and whether it would be good enough for them -- to those who are harmed by speech that the harms are "worth it."  

Posted by Rick Garnett on November 8, 2010 at 01:37 PM | Permalink | Comments (0) | TrackBack

Online teaching, Part II: What is it good for?

Last week I promised a further post about what I thought online teaching might be good for. I thought I'd start with explaining what I hoped to accomplish with my foray into an online webinar this academic year.

As I've mentioned, I'm on leave this year and nowhere near Florida. I was worried, however, that going on leave would put my grad students, most particularly an incoming grad student, in an unfortunate academic limbo. And while I realize doing things like that are an important way to maintain the illusion that I, as a faculty member, have the power of life and death over people, I decided it was probably best to figure out a way to stay in touch with my students and forego the pleasures of that illusion just this once. So partly, the webinar is for that.

Partly, the webinar is because I think it's important for grad students to experiment with different ways of teaching and learning. Who knows what we'll be doing to teach in fifteen years (on my bad days I wonder if "teaching" will still exist, but it's early yet, so I'm still maintaining its a good day)?  I hardly claim to be the most technically advanced teacher on the planet, but I like to think that I at least model a willingness to experiment and try new approaches. So partly, the webinar is for that.

Partly, the webinar is because I think the program I am part of needs to do more to create a communities, or working groups, of grad students in different stages in their careers and different programs. Other grad programs do have longstanding seminars that absorb new students and provide an academic home for students along their academic careers. For a variety of structural reasons, my program does not, with one exception. And so this seemed to be a possible way to do that.

Finally, I did this because I wanted to find ways to reach out to other students, and scholars, at different schools who were working on things that related to my work and my students' work. There's much to be said for exposing students (and being exposed as faculty) to other people's ideas, and there's much to be said in this time of academic cutbacks for finding ways to create working groups that cross university boundaries. In any given year, I can never guarantee I'll be able to admit a student to do legal or constitutional history with me, and I can almost certainly guarantee that I won't be able to admit two. But that creates a cohort problem, isolated students who have no one to talk to but a single professor may get lots of attention (maybe not, but let's assume that I am a conscientious grad advisor), but that can be too intense and not very productive. One way to solve that, it seems to me, is to develop virtual programs or quasi-programs that encourage students admitted to different schools to interact through webinars and workgroups across the course of their grad careers.

So those were my ideas. How do they stack up against reality, and how might they be translated to the law school setting, since you are mostly law profs and have a very different relationship to your students and their training? (I do appreciate that those of you working in joint degree or interdisciplinary programs do have a more direct interest in the types of graduate education I am talking about here).

Certainly it does seem to work as a way of establishing a subject based writing and research seminar that could be a place to bring different cohorts of grad students together as a community. As I mentioned in my last post, I think it's important that the focus of the group be very narrow--this works as a seminar on constitutional history that looks at very precise issues of interest to the students. It would not, I don't think, work long as a site for all grad students in US history or any student doing modern (ie, post 1800) history or as a place for a student who is vaguely interested in legal history. Any seminar that general will have problems, but a seminar that general and this remote would be very difficult to keep going.

A long term seminar like that would, ideally, last for years, until there were no more grad students with an interest in the topic in the program. So long as there were ways to mix up new readings, dissertation chapters, and perhaps the occasional article draft or conference presentation, I think it would be possible to generate interest and keep people focused and engaged.

But I also think you could use this format for shorter term projects, for a working group that had a time table to produce a particular report or prepare a case or brief, or as part of the process of setting up a mini-conference. Here, I think you'd need to do some mixing and matching. Probably the process should begin with a face to face session so people meet, lay out ideas, and then, perhaps form breakout groups.  Once the structure was in place, you could use the online program for monthly sessions, either of subgroups or (if the initial group was small) the whole group. I'd recommend not using an online resource for more than an hour at time. But  an hour long session would allow for one or two presentations of work in progress and discussions about the work group's project or the conference subject more generally. And it would be a way to keep people on track towards completion of the project or towards a final, second conference at year end.

That might be something that law schools would find fruitful. Certainly clinical work groups could use this as a way to coordinate projects with law firms, or other schools, or alums. But research groups with a particualr focus--environmental justice, the mortgage crisis, whatever--might also find this a handy way to stay in touch and share research as part of a build up to a final conference or a CLE presentation or a publication.

And finally, I think it might be a way for us all to break down some institutional and disciplinary boundaries and try to bring students and faculty together to work on areas of mutual interest and perhaps create virtual--cross institution--grad programs. Obviously, there are logistical problems (the subject of the next installment!), and those maybe impossible to overcome, since territorality increases, in my experience, in times of scarcity (and I have been blessed with a fair amount of experience with times of scarcity in academics). 

But all the hassles, headaches, and weirdnesses of webinars might be worth it if we could use the processes available to try to create some networks and work groups that changed the ways in which we conceived of graduate education. It might be a way to give law students who crave a more academic approach a way of getting that in their third years, without altering the basic professional format of law school or penalizing law schools that are not associated with universities that have extensive graduate offerings. It might be a way to bring law professors who want to do interdisciplinary work in contact with people who have advanced training in particular fields. Likewise, it would be a way for historians (or anyone) with an interest in law but no background to connect their research and teaching to law schools. 

All that hybridity, of course, might shake up the systems of academic rankings and models of academic apprenticeship that we currently rely on. I leave it to you all to decide if that's a good or a bad thing.

Posted by Elizabeth Dale on November 8, 2010 at 09:07 AM | Permalink | Comments (0) | TrackBack

Jurisdictional confusion in unexpected places

One of my future writing projects is to take all my writing on jurisdictionality confusion, rework it with a whole bunch of issues I have not yet considered, and turn it all into a book-length project. Part of that project is going to involve checking through all the possible, but unexpected, areas in which the issue could arise. For example, last week I was reading the transcript of the oral argument in Ortiz v. Jordan, a § 1983/qualified immunity case that the Court agreed to hear on the issue of whether a public official, having lost a summary judgment motion and having gone to trial, can appeal the summary judgment decision. The argument then turned to whether the issue was really about sufficiency of the evidence at trial and whether the defendant waived the issue by failing to raise a Rule 50(b) motion after the verdict.

At one point, Justice Alito and others pushed Ortiz's lawyer on whether Rule 50(b) was jurisdictional, insisting it was not, in light of recent cases distinguishing jurisdictional rules from procedural, claim-processing rules (about which I write more in a forthcoming essay). The petitioner's lawyer seemed surprised by the line of questioning and tried to get around the question by insisting that he was "making a distinction among jurisdiction and power"--the court of appeals had jurisdiction over the case, but lacked the power to review that issue. But Justice Ginsburg rightly pointed out that this distinction makes no sense, becuase "jurisdiction is power."

What the lawyer was looking to say, I think, is that the litigant cannot raise sufficiency of the evidence on appeal if she did not make a Rule 50(b) motion in the trial, so there is nothing for the appellate court to hear and resolve on this issue when it takes the case. It is not an absence of power in the appellate court to hear the issue, but an absence of a procedural right in the litigant to raise and present the issue. The court is unable to exercise adjudicative power it possesses, limited by the claim-processing rule that the parties control the issues presented for judicial resolution. Courts are necessarily reactive in this regard; their ability to exercise power rests on strategic and legal decisions by others.

Of course, this may simply turn on perspective--we can change how something is characerized simply by redefining it from one perspective to another. From the court's standpoint, it does lack power to hear a Rule 50(b) sufficiency issue if not raised below; the court cannot raise it sua sponte, so the party's waiver deprives the court of the abiltiy to hear and resolve the issue, which is not so different than saying the court lacks power to hear it. Or this is why, as I mention in the forthcoming piece, the line between jurisdiction and procedure is far more muddled, far more difficult to draw, and arguably less consequential. And it always turns on the conduct of some actor (litigant or court) within the litigation process, not conduct beyond the four walls of the courtroom. The difference may come down to something soft, such as the structural values underlying the particular rule.

Something more to think about.

Posted by Howard Wasserman on November 8, 2010 at 08:17 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (2) | TrackBack

Sunday, November 07, 2010

CAIR Challenges Constitutionality of Sharia Ban

For those following the story of Oklahoma's vote last week to ban state courts from "considering" sharia law, these developments are not particularly surprising.  CAIR (Council on American-Islamic Relations) announced the filing of a lawsuit seeking a temporary restraining order and a preliminary injunction against implementation of the sharia law ban passed in Oklahoma (see previous post for more info).  Here's the brief (and a local article).   

It's hard for me to imagine that the state constitutional amendment does not violate both the Establishment and Free Exercise Clauses.  First, it would appear to violate the Establishment Clause's own anti-discrimination principle (requiring neutrality between religion and religion, and between religion and nonreligion).   Plus the amendment doesn't appear to be facially neutral and generally applicable - and I don't quite see an argument supporting the claim that the amendment is narrowly tailored (let's leave aside the compelling government interest part of the analysis). 

But what about the imminent and irreparable harm prong of the TRO/PI analysis?  I suspect both sides may take some ironic positions on the topic.

Critics of the amendment have emphasized in recent weeks that there simply haven't been any cases of sharia law in Oklahoma courts.  While the current lawsuit seeks a TRO/PI largely on the grounds of immediate stigmatic harms, I wonder how much of a difficulty this might pose in claiming imminent/irreperable harm. 

On the flipside, advocates of the amendment have, in the weeks leading up to the referendum, argued that there's an immediate need for the amendment - presumably to thwart an impending threat.  If there's a claim of immediate need, it would sure seem like there's an implicit claim of immediate opportunities for application.  Any thoughts? 


Posted by Michael Helfand on November 7, 2010 at 01:01 PM in Religion | Permalink | Comments (2) | TrackBack

Saturday, November 06, 2010

Happy birthday, Rick!

I don't remember to do this enough, but please join me in extending warm birthday wishes to one of the most magnanimous souls in all of prawfdom: Rick Garnett! Looking fine for a 29 year old!

Richard W. Garnett

Posted by Administrators on November 6, 2010 at 07:05 PM in Blogging | Permalink | Comments (1) | TrackBack

Friday, November 05, 2010

The "story"

Paul has written before, here at Prawfs, about the "Yale 'So'".  Because I am, as a rule, slow to pick up on things, I am just now starting to notice (what strikes me as) the pandemic-speed spread of the use by legal scholars, and also entry-level candidates, of the word "story" to replace, say, "account".  We note, often, that "there is a story [to the effect that X]" instead of "One could [or even 'I would'] argue [that X]."

My sense is that the turn-to-the-"story" started -- or Patient Zero emerged from -- the empirical-studies context, but I could be wrong.  Like any tic, I suppose "story" could be over- or mis-used (just like endless parentheticals can be misused.  Oops.) but, I have to say, I kind of like this one.  So (sorry Paul), . . . what's the story?

Posted by Rick Garnett on November 5, 2010 at 02:10 PM in Rick Garnett | Permalink | Comments (5) | TrackBack

Humans and Econs, read by a robot

I am, I suspect, the last law professor in America to actually "read" (as opposed to "get a good sense of what the book's about by listening to NPR and reading a few relevant magazine articles") the Sunstein and Thaler "Nudge" book.  I listened to it, actually, while running.  And, I thought it was funny that a book which has its (somewhat precious) leitmotif  the importance of distinguishing between real people ("humans") and hypothetical, Spock-esque rational actors ("econs") is -- at least the version I listened to is -- "read", apparently, by the same technology that talks to me when I call the Delta service number.

Posted by Rick Garnett on November 5, 2010 at 09:59 AM in Rick Garnett | Permalink | Comments (0) | TrackBack

Good morning, here's some coffee, let's hear your job talk

Tim Zinnecker asks for thoughts on how the job talk and lunch should be coordinated--Should lunch be before/during the talk? Shoud the talk come first, then lunch? Should lunch be at the school or at a restaurant or somewhere else afterwards? Small group or large group for lunch? Interesting stuff.

But I was struck by one anonymous commenter, who said he/she gave a talk at one school first thing in the morning. This idea is intriguing. You get the toughest part of the day out of the way at the start, when everyone is fresh and the adrenaline is going, especially for you. You certainly can be more relaxed and at ease (and maybe more yourself) in all the office meetings/interviews that follow, since the JOB TALK is not looming over you all morning. I suppose the downside is that, if the talk goes badly, it casts a pall over every single meeting that follows (as opposed to a bad lunchtime talk, which only ruins a few afternoon sessions). And it probably is a bit more difficult to get an audience. We have a lot of classes going at 9:30 or 10 in the morning, while there are fewer classes offered at noon so we can get more faculty to the talk (this is a big issue on a 25-person faculty).

Other thoughts on leading off the day with the job talk?



Posted by Howard Wasserman on November 5, 2010 at 09:10 AM in Howard Wasserman, Teaching Law | Permalink | Comments (4) | TrackBack

Online teaching?

OK, I'm back. I'd like to talk today about a topic that's floated around a bit on the blog over the past year or so, for example here, and is the subject of a timely (and institutionally relevant!) NYT article here: online teaching. This year I got a small start up grant to run an online seminar in constitutional history for advanced graduate students, and so I thought I'd spend this post reflecting a bit on what it's been like.

(But wait, you say, I thought you said you were on sabbatical this year. Well, yes. I think technically I'm teaching an overload while on sabbatical. Let's just say that I'm a little nuts.)

Anyway, as a result I'm teaching a webinar that meets once every three weeks, or so. This semester we're doing readings to test out the system. Next semester I hope to have some guests come visit and present papers.

How's it work? Technically, what I've done is two things: I picked out some common readings and set up a wiki page for the webinar. The discussant for each session uploads a paper on the readings to the wiki a week before the meeting. A second student is assigned to comment on the discussant's presentation. So we go into each session with a solid base of commentary already set and that provides the foundation for the rest of our discussion.

To carry out the discussion, we're using a webinar program that let's me set up an online meeting of up to 15 people. There is no video (though there is the capacity to do power point presentations or share documents), it's basically a conference call run out of my computer with the addition of a chat box to the side. We've had some gliches: we tried the first run with some people not using head sets and got a lot of ambient noise, one day one of the participants somehow managed to log in through a browser with ads, with the result that we had commercial interruptions every couple of minutes until we figured it out. But generally the system has worked fine.

And the seminar itself has been very good. The first week, everyone was a bit shaky. But by the second week we were generating some very good discussions and exchanges and that carried over to the third week as well. The intellectual content has been as good, if not better than what I normally see in either a graduate or law school seminar. The participants are prepared, they have spoken to one another far more than to me (this is always my biggest problem in seminars), and we have had some complicated discussions. In each hour we've met (and our sessions are roughly an hour long), we've covered as much material as I would assign for a three hour seminar and done so in considerable depth.

So in many respects, I'm very pleased. But I do have some reservations. And that's what this post is about.

First, I think most of the credit for the success of the seminar goes to the participants. These are upper level graduate students. One is getting his PhD this semester, two are writing their dissertations, two others are still getting ready to take their PhD exams but have several years of grad seminars under their belts. And, with one exception, these are students who knew each other from other seminars and have also studied with me before. So we know each other, trust each other, and have a sense of intellectual commitment to one another that predates this experiment.

Second, these are folks who are talking about legal issues that are central to their research and writing. So they are committed not only to one another, but to engaging the topic and wrestling with the material to see how it fits with what they are doing.  So they are willing (so far) to put up with the hassles and technological challenges to try to make it work.

Third, completely by accident, I managed to find some readings that were on very different topics but circled around some basic issues. This has allowed us to build each new session on the discussions in the earlier sessions and has meant that there has been a real conversation over time.

That's all good. But it also suggests my reservations. I am pretty sure this would not work for a first year graduate seminar, or a law school seminar. In each of those cases, you are dealing with people who are not experienced with seminars.  In my experience, people coming to the seminar experience from undergrad or from big law school courses need lots of face time with their professor and with one another. In particular they need a longer session so that they can work through both the materials and the processes of exchange.  This is particularly true when the seminar includes a mix of students from various disciplines, since their the process of learning to talk to everyone involves finding common language, as well.

I'm also pretty sure this would not work in a seminar that some people were taking to get a writing credit or seminar requirement out of the way. The level of commitment required is too high, and the potential that a bored or frustrated student could be disruptive (even by accident) is too high. Before this experiment I hadn't realized how important it was to my teaching style to be able to glance at students, or otherwise use body language and gestures to communicate.   When you take that away, you really have to depend on each participant to engage without prompting or encouragement. And that's a lot to ask of someone who is only in the class because she needs it to graduate.

I don't think this sort of thing would work as a one off thing, a mini conference to exchange papers. Here, I have two concerns. All day mini conferences can be exciting and interesting, but they are also exhausting. In my experience you need the feed back of people glancing around, talking directly to you, shuffling papers and grabbing more coffee to keep you alert. And you simply don't get that in a webinar.

But more to the point, I worry that the learning curve is too steep. Stuff goes wrong the first time, and it's easy to get frustrated and tune out.  That can poison the entire process and turn what could be a fascinating exchange of ideas into a problem.

So those are my initial thoughts. I have some ideas about where this process might be useful, for law schools and for graduate programs more generally. But this post is already long. So I'll return to those aspects of the topic next time.

Posted by Elizabeth Dale on November 5, 2010 at 08:59 AM | Permalink | Comments (1) | TrackBack

Thursday, November 04, 2010

Students and blogs

I make extensive use of blogs of the classes I teach; basically, it is a TWEN site, but without the proprietary software. I use it for multiple purporses: I post course materials and assignments and I post the audio for each class the recording is the quid pro quo for banning laptops). I urge students to post questions or comments about the course materials or the discussions (this ramps up mainly during exam time, not during the course of the semester).

I also require students to post information, news stories, new cases, etc., that come up during the semester. To help with that, I include on the blogan extensive blogroll of news sources, subject-based law professor blogs, and aggregating blogs (Bashman, SCOTUSBlog, etc.). In part, my goal is to get students in the practice of reading blogs and and other information sources on a regular basis. Obviously, most students are not going to blog regularly as practicing lawyers (although the writing practice is good for students). But blogs are going to be around for at least a little while and they are great sources of information about events and changes in the law and in public policy; it seems to me that a good, well-informed lawyer should include these sources as part of practice and regular keeping-up reading. The results of this are mixed. Some classes do very little of this extra reading/blogging. On the other hand, in another class, 75 students produced more than 500 posts, many of which were on new and timely issues.

Am I wrong in thinking that keeping-up-with-the-blogs is important? Is this less important than I think?

Posted by Howard Wasserman on November 4, 2010 at 10:02 AM in Howard Wasserman, Teaching Law | Permalink | Comments (5) | TrackBack

Wednesday, November 03, 2010

Teachers' Manuals

One sign that you are an experienced teacher is that  you don't care whether the book you adopt has a teacher's manual or not.  If you are teaching a subject for the first time, however, the teacher's manual can be a lifeline. 

I've been thinking about TMs because I am going to be writing one  for a casebook that is in its eighth edition.  The book has not only survived but thrived through seven editions without a TM, but the publishers would really, really like to have one, so we finally cracked under the pressure and agreed to deliver one.  My problem is that I'm out of touch with the needs of the first-time teacher of the subject.  I don't care to read someone else's summary of case, but that seems to be the stock in trade of many TMs.  I know that the one thing I want from a TM is an answer to any problem or extended hypothetical that the authors pose, and I sometimes appreciate the TM pointing me to outside reading in the area.  I also appreciate it if the TM gives hypotheticals to pose to students or points to videos or other materials that might be useful.  And of course, I wouldn't mind seeing sample exam questions, but TMs rarely include those.  Beyond that, what should the TM include?  You tell me. 

Posted by Lyrissa Lidsky on November 3, 2010 at 11:29 PM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (17) | TrackBack

Dual Resident Voting

I am excited to be guest blogging this month because it gives me a chance to think and post a bit about voting rights and election law.  I teach a course in State and Local Government Law and we spend a fair amount of time discussing the right to vote in local elections.  My students have some very interesting and provocative ideas about voting reform, which I hope to share in my next several posts. 

But back to me.  As a law student, I wrote a Note, entitled Dual Resident Voting: Traditional Disenfranchisement and Prospects for Change, 102 Colum. L. Rev. 1954 (2002).  Here is the abstract: 

In modern times, a large and growing number of Americans qualify as bona fide residents of two     or more locales. These dual residents are subject to local taxes and ordinances and are profoundly affected by policies that concern their second-home community. Yet, in most states, individuals are prohibited from voting in more than one location through voting statutes that equate residence with domicile. Recently, the Second Circuit upheld a New York election law that prevents second-home owners from voting in both of their residential districts. This Note argues that extending the franchise in local elections to individuals who qualify as bona fide residents of a community, regardless of whether they already qualify to vote in another community, is required under the Equal Protection Clause of the Fourteenth Amendment. Such an extension is also supported by normative arguments arising from the democratic tradition of government by the consent of the governed and against taxation without representation.

To be honest, I am not sure that I fully agree with my Equal Protection argument anymore, but I still think that my policy arguments are persuasive.  Currently, a number of states, including Arizona, Colorado, Indiana, Montana, New Mexico, North Dakota, and Wyoming, offer nonresidents some voting rights in special districts.  Other states, including Tennessee and Colorado, permit local governments to enfranchise nonresidents at their discretion.   If I were to rewrite this piece (or write a follow up), I would probably argue that states should be encouraged to permit localities to enfranchise dual residents at their discretion.  Localities could then decide for themselves whether such residents should be included as part of the local political community. 

Posted by Ashira Ostrow on November 3, 2010 at 04:56 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Richard Nagareda and the ALI's Principles of the Law of Aggregate Litigation

Like many (see herehereherehereherehereherehere, and here), I was shocked and saddened by the recent passing of Richard Nagareda.  I had only spoken to him once, at a conference this past March, but even in our brief encounter he displayed a grace and kindness that I admired.  Judging from the memorials, his decency towards me was not an isolated incident.  To borrow a phrase from an attorney I worked for in Boston, Nagareda was truly one of the finest of the fine. 

Here I want to highlight one of Nagareda's many accomplishments – his involvement as an associate reporter for the American Law Institute’s Principles of the Law of Aggregate Litigation.  The fact that the project was completed is itself an achievement, since similar projects have not been successful.  Apart from the project's completion, the Principles themselves are an enormous contribution to the law of complex litigation, and I think that the other reporters to the project -- Samuel IssacharoffCharles Silver, and Robert Klonoff -- would all agree that Nagareda's contribution was immense.  It is easy to see why when you examine the themes of Nagareda's scholarship.

One of Nagareda's key insights in his scholarship was that many complex procedures -- class actions, MDLs, bankruptcy, even "informal aggregation" involving the private settlement of claims in the aggregate -- all shared a problem of "governance."  By "governance" he meant the difficulty of mediating the interests of all those affected in any given case, particularly when there are many, many affected individuals (think millions), their interests are in some way intertwined, and their interests may diverge wildly.  The classic example is asbestos litigation, where, despite some commonality as to certain factual and legal issues, the victims all differed as to the products causing the injury, the timing, the diseases suffered, the amount of damages, the state law that applied, etc.  One common way to manage such conflicts is to appoint a representative, say, class counsel or "lead counsel" in an MDL, to speak on behalf of the class.  However, Nagareda was quick to point out that it was not altogether clear that this move improved things or was even legitimate, since the representative's interests can diverge significantly with the interests of the class.  In his magnum opus, Mass Torts in a World of Settlement, Nagareda carefully shows the elusiveness of designing legitimate governance structures for "mass torts" like asbestos litigation in a wide range of contexts, jumping from class actions to bankruptcy to even suits bought by governmental actors on behalf of those injured.

Although Nagareda's concern with "governance" dovetails with the constitutional due process concern with "adequacy of representation," Nagareda used the concept of "governance" as a way to bring in scholarship from other fields, most prominently administrative law.  By looking at this outside scholarship, Nagareda was able to see the problem as one of, to borrow his word, "design."  Nagareda did not see the problem of governance as intractable.  Instead, he saw it as a "magneto" problem.  Throughout his vast scholarship he continually proposed seemingly minor tweaks to existing procedures or institutions to assure a fairer and more legitimate "peace" in mass tort and similar litigation.

Nagareda's concern with "governance" and "design" can be seen throughout the Principles.  Much has been written about the aggregate settlement rule proposed in Section 3.17, but in other proposals -- expressing a preference for contingency fees (Section 1.05(c)(5) & cmt. h), proposing that lead counsel should be assigned to parties with the largest stakes (Section 1.05(c)(2) & cmt. e), and concluding that individual notice may be costly and self-defeating in some circumstances (Section 3.02 cmt. c) -- you see the spirit of Nagareda’s scholarship.  Even though many of these proposals have been proposed and utilized by others, they are all consistent with a decidedly "design" ethos.

Many of Nagareda’s insights suggest much greater reforms than anything Nagareda or the Principles propose.  In a current draft I have recently completed and plan to submit this February, I argue for a greater use of mandatory class actions in mass torts than the Principles would permit.  I will blog about the draft in the coming weeks.  But criticizing Nagareda for not pushing the envelope misinterprets what it is that Nagareda and the Principles sought to do.  Nagareda not only had a gift for seeing common threads, but for the practical.  He was respected by both scholars and practitioners.  He never gravitated to revolutionary proposals.  Instead, he sought realistic ways to move the law to a better place.  That he was able to accomplish this in his all-too-brief lifetime is a gift to us all. 

Posted by Sergio Campos on November 3, 2010 at 04:53 PM | Permalink | Comments (0) | TrackBack

Shinar on When Governments Break the Law

Over at the CoOp, Adam Shinar, a Clark Byse Fellow and JSD candidate at Harvard, has a review of the new book edited by Austin Sarat and Nasser Hussain, When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration.  Fellow blogger Steve Vladeck and I both contributed chapters to this book, so I'm doubly grateful to Shinar for his kind review.  As he notes, the book proceeds from the assumption that the Bush Administration did indeed break the law in its prosecution of the war on terror, not because that question is not open for debate but in order to move past it and consider what measures, if any, should be taken if that assumption is true.  The book is really thus about what the rule of law demands in these circumstances.  My own contribution notwithstanding, I think the book turned out well.  I appreciate the review and hope others who are interested in rule-of-law issues in this context will find the book useful.

Posted by Paul Horwitz on November 3, 2010 at 04:53 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack

School choice in the Supreme Court

Today (in a few minutes, actually) the Supreme Court will hear oral arguments in a school-choice and church-state related case out of Arizona, called Arizona Christian School Tuition Organization v. Winn.  (To learn more about the case, check out this helpful summary at SCOTUSBlog, and this argument preview by Lyle Denniston.)  I am happy to see that my friend and classmate, Neal Katyal, is arguing for the United States as amicus, and also delighted that the Department of Justice is supporting the constitutionality of the Arizona program at issue.  (Disclosure:  Jack Coons and I did a short amicus brief in the case, too, for the American Center for School Choice.)

There is a non-trivial chance that the Court will not reach the merits of the First Amendment challenge to Arizona's (very successful and entirely, in my view, sound-as-policy-matter) tuition-tax-credit program.  If they do, they should certainly uphold the program, and reverse the Ninth Circuit's misguided misinterpretation and misapplication of Zelman.  Programs like Arizona's are proving more successful, and more politically do-able (especially, I suppose, now), than "voucher" programs, and they are, I think, essential to education reform.  On the other hand, I'm not a big fan of Flast, and so a no-standing ruling would not be entirely unwelcome.   We'll see!

Posted by Rick Garnett on November 3, 2010 at 09:37 AM | Permalink | Comments (0) | TrackBack

The Varnum Effect?

To me, one of the more interesting stories arising out of yesterday is Iowa voters' dismissal of three of the seven justices of the state supreme court in their retention election. (See story here.) I think it's safe to attribute this result to the concerted campaign to oust the justices in response to the court's unanimous 2009 decision in Varnum v. Brien, which recognized sexual orientation as a "quasi-suspect" classification under the Iowa Constitution, and proceeded to invalidate the Iowa law defining marriage as being between a man and a woman.

This is hardly the first time that unpopular decisions by state court judges have factored into campaigns to unseat them in subsequent elections. Still, given both the dramatic nature of this particular result (unseating three of the seven sitting state supreme court justices), along with the increasing attention -- thanks at least in part to Justice O'Connor -- being paid to the issues raised by state judicial elections, I wonder if this result may end up being an even bigger story in the long-term than Harry Reid defeating Sharron Angle, or the size of the Republican swing in the House...

Posted by Steve Vladeck on November 3, 2010 at 08:05 AM in Constitutional thoughts, Current Affairs, Law and Politics, Steve Vladeck | Permalink | Comments (0) | TrackBack

Tuesday, November 02, 2010

No one had 26.2 interviews

Like Elizabeth, I am also spending the first week of November on the road, so substance will follow in subsequent posts. For now, I’m glad to enter the Blogosphere from this side of the screen for the first time, and I look forward to your insights and comments to future posts.

In the meantime, I’m not far removed from the market myself, so for those who have just finished the AALS conference, both interviewers and interviewees, it seems like we should be celebrating you as we celebrate those who run a marathon. It was a long weekend, but one that I hope leads to many fruitful new relationships.

Posted by Jake Linford on November 2, 2010 at 03:16 PM | Permalink | Comments (0) | TrackBack

Prawfs and the Hiring Conference

Like Sergio, I too am a long-time Prawfs reader, first time guest blogger.  And, after all these years of reading, it's really exciting to be doing a bit of the blogging.  Now that I got a quick post on the Oklahoma referendum out of the way before today's vote, I wanted to thank the Prawfs for having me here for the month.  I'll hopefully incorporate some of my experience as a first semester professor at Pepperdine in my upcoming posts.

I actually starting reading Prawfsblawg when I was in law school - my wife introduced me to it - and it was an indispensable read while preparing for going on the job market.  Some of the Prawfs themselves have given me great advice on joint degrees, article placement, the job talk and working through the hiring process last year.    

Of course, right before, during and after the hiring conference, I found myself incessantly checking the Law School Hiring Thread.  A great post by Michael Risch on Prawfs last year helped keep me from hitting the refresh button.  Still, I suspect those of you on the job market right now are likely checking the thread with some pretty high frequency.  While you definitely can drive yourself crazy with checking, there was one way I was able to use the information being posted in order to strategize a bit while waiting for the phone to ring.

Whenever I saw information being posted about callback at a school I was particularly interested in (for example, Pepperdine), I'd reach out to my recommenders and let them know that the hiring committee was contacting candidates.  Now I don't recommend doing this frequently, but if you've got a couple of schools you're targeting, keeping your recommenders abreast of chatter on Prawfsblawg is a great way to keep your name in the mix when big decisions are being made by the hiring committee.

Posted by Michael Helfand on November 2, 2010 at 01:56 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (1) | TrackBack

When is a Majority Opinion Really a Plurality Opinion?

A student and I have been fighting over United States v. Verdugo-Urquidez -- the 1990 Supreme Court decision that is cited for the proposition that the Fourth Amendment categorically does not apply to non-citizens outside the territorial United States.  I have long read Chief Justice Rehnquist's opinion in that case as only being for a plurality, at least with respect to that specific holding. My student rightly pointed out that no one on the Court seemed to treat it that way, including the reporter, who didn't make the normal notations that signify a plurality opinion. And Justice Kennedy seems to share this view, given that his concurrence (which, in my view, is only a concurrence in the judgment) expressly says "Although some explanation of my views is appropriate given the difficulties of this case, I do not believe they depart in fundamental respects from the opinion of the Court, which I join."

In a nutshell, here's my argument: Kennedy's concurrence only concludes that "the Constitution does not require United States agents to obtain a warrant when searching the foreign home of a nonresident alien." His analysis, as his opinion makes clear, is quite distinct from the categorical approach to the question that Rehnquist undertakes (moreover, he, unlike Rehnquist, doesn't over-read Johnson v. Eisentrager). Given that, isn't it more accurate to read Verdugo as only holding what Kennedy said, i.e., that the Warrant Clause doesn't apply to searches of the foreign homes of nonresident aliens? That would leave open the possibilities that (1) the rest of the Fourth Amendment applies to such searches; and (2) the Warrant Clause applies in other contexts. Although I suspect a negative answer to (2) would also follow from Kennedy's analysis, (1) strikes me as a serious issue, and one for which there were only four votes in Verdugo.

So does form or function govern when deciding whether a particular holding is for a plurality or a majority? If it's function, I feel pretty good about my argument. If it's form, doesn't that give a lot of power to the Supreme Court's Reporter of Decisions, or, at the very least, to the Justice in the middle, who may not want to highlight the depth of his disagreement(s) with the majority?

Posted by Steve Vladeck on November 2, 2010 at 01:47 PM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (15) | TrackBack

Monday, November 01, 2010

Hello Everyone!

To quote a former guest blogger, I am a long-time Prawfs reader, first-time guest blogger, so I want to start my own guest stint by thanking Dan Markel for allowing me to post here this month.  I have been an avid reader of Prawfsblawg since the beginning, and am thrilled that I can now contribute to it.  For those of you who don't know me (which is most of you), I am finishing my second semester teaching at Miami and my main research interests include civil procedure, race and the law, and torts.  This month I plan to post on civil procedure topics, mostly focusing on class actions and other aggregate procedures.  I look forward to your comments!

Posted by Sergio Campos on November 1, 2010 at 09:18 PM in Civil Procedure | Permalink | Comments (0) | TrackBack

AT&T v. Concepcion

Thanks a lot to the prawfs community for letting me blog here in October.  Just as a final FYI, if you're into contract law, arbitration, federalism, fed courts, cell phones, or just whacktastically difficult Supreme Court cases, be sure to check out oral arguments in AT&T v. Concepcion on November 9.  (Full disclosure/self-plug: I wrote an amicus brief on behalf of contracts professors in support of the Respondents). 

The issue is whether the Federal Arbitration Act preempts state courts from finding that the class action waiver in AT&T's wireless service agreement is invalid.  The FAA precludes courts from discriminating against arbitration clauses by subjecting them to unique anti-arbitration rules.  The California Supreme Court (and courts in many other states) have held that class action waivers can be unconscionable when they require plaintiffs to arbitrate low-value lawsuits on an individual basis.  Basically, the idea is that no one will actually bring these negative-value claims unless they can aggregate them. 

However, AT&T contends that it has cured this defect by coupling its class action waiver with incentives for plaintiffs to arbitrate low-value claims individually.  For instance, it will pay up to $10,000 to plaintiffs who recover more in arbitration than AT&T's last written settlement demand.  Thus, AT&T argues that any state law that invalidates this "pro-consumer" clause on the grounds that it's unfair--as California law did here--must be impermissibly discriminating against arbitration. 

On the other hand, the Respondents argue that (1) the Supreme Court has no business second-guessing a state court's application of its own contract law and (2) even with AT&T's bells and whistles, few consumers will arbitrate individually, meaning that the class action waiver still reduces AT&T's incentives to conform to the law.  

Should be a wild one!   

Posted by David Horton on November 1, 2010 at 07:57 PM | Permalink | Comments (2) | TrackBack


I'm really excited to be here at Prawfs for the month, particularly to post on topics related to religious commercial law and, one of my favorite topics, religious arbitration.  The topic has gotten pretty hot in the blogosphere of late (check out some recent blog posts here and here) and has recently hit some maintstream press (here's Stanley Fish's take in the NYTimes and some of what was featured in The Economist). 

I suspect a lot of the recent interest comes from some bills introduced over the past year in Oklahoma, Arizona and South Carolina, which seek to remove, among other things, Sharia law from being "considered" by judges in state courts.  The proposed Oklahoma amendment - titled the "Save Our State Amendment" - will actually be put to the Oklahoma electorate tomorrow

Now it's not perfectly clear to me exactly what this Amendment would prohibit, but I'm curious what thoughts people have on the Amendment's constitutionality.  Particularly, would this Amendment pass under Employment Division v. Smith's facially neutral and generally applicable standard?  Or, would it have to be justified by demonstrating that the Amendment is narrowly tailored to advance a compelling interest?

The Amendment itself reads, in part, "The Courts . . . when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law." 

At first glance, the Amendment doesn't look like it's facially neutral - or generally applicable for that matter.  Advocates may contend that the Amendment treats all brands of non-U.S. law in the same manner - whether that law is Swiss law, French law, or Islamic law.  It does seem, however, that the Amendment's restriction on looking to the law of other states where those states include Sharia law constitutes a treatment of Sharia law different than the treatment of any other brand of law.  Any thoughts?

Posted by Michael Helfand on November 1, 2010 at 05:33 PM | Permalink | Comments (1) | TrackBack

Bye!...and a short review

Thanks to Dan and friends for the time here.  I want to follow in Jessie Hill's footsteps and conclude by directing you very gently toward this little review of Steven Shiffrin's terrific book, The Religious Left and Church-State Relations, which I just put up.  One of the surprises of the book, for me, is that it led to some separationist wistfulness that I did not expect.  I highly recommend the book to you folks who are interested in these issues. 

Posted by Marc DeGirolami on November 1, 2010 at 04:42 PM | Permalink | Comments (2) | TrackBack

Overcoming My Fear of Blogging

I have resisted blogging for many years, first because I did not really understand it, and then because I was scared to do it.  Five years ago “Ivan Tribble” published an article in the Chronicle of Higher Education cautioning academics (particularly junior scholars) about the dangers of blogging. Tribble’s essay and follow-up generated many responses defending and validating the practice of blogging.  And of course, blogging has evolved and become more acceptable in the years since the essay was published. 

Nonetheless, the core of Tribble’s concern rang true for me.  As a law professor, I put myself and my ideas “out there” on a regular basis.  In class, at conferences and in writing.  Yet, there is something different and infinitely more frightening (to me at least) about blogging.  In addition to my usual fear that other people know more than I do about a given topic, or will see a mistake in my work or be offended by what I have written, there is an added time factor.  With most of my written work, I write, rewrite, then send to a few select people for comments, then rewrite again, then send out again to a few more people, and so on.  So there is time to gauge the response and adjust the piece accordingly. 

Blogging is different.  To be interesting, it must be current.  And staying current does not give you the luxury of testing the waters.  Instead, you just put your thoughts and opinions out there in real time and hope for the best.  (Although, if I am honest, I will admit that I did run this introductory post by my usual first readers – my mom, a trusted colleague and my research assistant.  Some habits are hard to break!).  So thank you for allowing me to guest blog this month; I am looking forward to it (sort of). 

Posted by Ashira Ostrow on November 1, 2010 at 04:27 PM in Blogging | Permalink | Comments (5) | TrackBack

Good-bye, and one last self-promotion

I suppose it's time for me to wrap up my guest stint here at Prawfs, but I can't resist my final opportunity for one last act of shameless self-promotion, so I will let you know that a special online symposium issue of the Duke Journal of Constitutional Law and Public Policy is now available, here, featuring short essays on cases from the Supreme Court's most recent term. Contributions include my essay on CLS v. Martinez, as well as essays by Rick Pildes on PCAOB, Neil Siegel on McDonald v. City of Chicago, Samuel Buell on Skilling v. U.S., John Coats on Jones v. Harris, Tamar Birckhead on Graham v. Florida, and Adam Tomkins on Holder v. Humanitarian Law Project.

Thanks again to all for the comments, and for the opportunity to plug my scholarship!

Posted by Jessie Hill on November 1, 2010 at 03:30 PM | Permalink | Comments (0) | TrackBack

Signs from the Rally to Restore etc.

are here at the WaPo blog.  My favorite:

God hates figs.


Posted by Matt Bodie on November 1, 2010 at 11:32 AM in Culture, Current Affairs | Permalink | Comments (2) | TrackBack

Grades, Elitism, and Gloom and Doom in Post-Law School Hiring

It's good to be back, and thanks to the Prawfs crew for having me. With the Bilski case now done, I'll have to find something else to grouse about. Today, it's predictions of gloom and doom for law schools.

A colleague sent this article around the other day, and it got me thinking, especially when there's other discussion about the best ways to get a job in the blogosphere.  I appreciated receiving the article and reading others like it. They are good reminders of why we as law professors are in business. While I love the scholarship aspect of my work, teaching is why I have a job and it is critical that my students get jobs after graduation. My wife, who is a law school graduate, is sure to remind me of that whenever appropriate.

At the same time, articles like this one strike me as a bit premature and not terribly enlightening. We just don't know enough to condemn legal education just yet, even if things are changing. I have a few thoughts about this based on my move between two very different legal marketplaces.

I applied to law school during a recession - the conventional wisdom then was that law school was a good place to spend a recession because you would have a degree when the recession was over. And now, law school enrollment seems to be growing in part due to the recession. Even so, people complain that no one is getting hired. The problem with these complaints is that the recession isn't over yet. This year's graduates started in 2007, before the meltdown - they just had bad luck. It won't be until the classes of 2011 or even 2012 before we know whether the conventional wisdom will hold up for those people who decided to go to law school during a recession.

That said, it is hard to dispute that the market is changing. It's no longer easy to get a job by graduation, especially just through on-campus interviews. Most schools now have large gaps between placement rates at graduation and nine months after graduation in large part due to firms wanting to hire only those that pass the bar.

This last point is of particular interest to me given the Boston College student who hasn't found a job yet. The student's complaints are premature at best and whiny at worst. Even in these hard times, BC has higher placement rates than many schools, and the student who cannot find a job (yet) may have expectations that are out of line with current legal hiring. 

Those quick to blame law schools for the false expectations miss an important point - just because law schools could easily place their graduates by graduation in the past does not mean that they have always been able to do so, nor should always be able to do so. After all, graduates of other schools have to work -- hard -- to find a job. Indeed, I recall going to Job Training Partnership Act workshops as early as eighth grade (forward thinking parenting, I guess) where these very skills were taught to workers of all ages. It is amazing to me how many college graduates I've met lack them -- which I suppose is the reason JTPA had workshops in the first place.

Having been through job searches with family and friends, there was a lot of pavement to pound to find employment. It's unclear why law school should be any different. That said - I do agree with others who complain that schools with sufficient funds to hire their graduates en masse to increase employment numbers are doing so a bit deceptively. Neither of the schools I've been affiliated with engages in such practices. Of course, if a law schools look for creative ways to get their graduates hired (even if temporarily) and  hires its own graduates on a permanent basis and can do so in the long run, more power to them. I would submit that the problem lies not in the attempts by the law schools to get their graduates paid, but in how the data gets reported. Concerned applicants may now know to ask the tough questions.

This leads me to an insight from my former school, West Virginia, which has extremely high (well above 90%) placement rates despite not being "elite" and despite being in a small state. In fact, it is the thin legal market that has helped keep WVU placing lawyers in hard times. While WVU has plenty of on-campus interviews, there are few big firms in the state, and WVU law grads have always had to work to find a job, just like nonlawyers. There are many who desire to go into solo practice right out of law school - something unthinkable in most schools. The placement office knows how to help its students pound the pavement, set up small offices, and otherwise do what it takes to get employed. (To be fair, it doesn't hurt that tuition is low enough to allow slightly lower starting salaries).

Placement offices in many other states are only now learning to teach students how to find jobs in a thin market. This leads me to a final couple points in this rant post. While the studies that say grades are better than credentials for long term success make a lot of intuitive sense, there are caveats - especially in hard times.

First, if one is worried about getting a job now rather than long term success (and tuition being equal), then one should go to the most elite school possible. In thin markets, law firms are more likely to hire from these schools, especially before graduation. It's an unfair fact of life, but a fact nonetheless.

That said, not everybody can get into an elite school, but this doesn't mean that law school should be rejected. Schools outside of the top 10 or 15 still have really high placement rates, and even into the US News lower tiers one can get good jobs. 

Finally I am skeptical of the whole "go to a lesser school to get better grades and do better in your career" theory. My best students would have done well at any school. It's possible that middle of the pack students at elite schools would be higher than middle of the pack at other schools, but not at the top. And it's also possible that non-elite schools grade harder (some elite schools have no grades, after all!), such that doing well at a non-elite school really means something. In other words, this is one area where correlation may not mean causation.  I suspect, as many do, that whatever drives someone to get good grades -at whatever school they attend - will drive them to career success. 

Despite my own whining about other peoples' whining, I hope that the overall tone of this post is taken as optimistic - if you study hard, work hard, and job search hard, jobs can be found even in tough times.



Posted by Michael Risch on November 1, 2010 at 10:37 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Hi, back soon

Hi folks. This is a fly over post, I apologize. For reasons that are now obscure, I decided the best way to celebrate my first sabbatical was to spend October presenting two new and different papers at two separate venues while also reviewing a bunch of proposals for a granting agency. And around the edges I also had to do the usual things like writing letters of recommendation, working on a book manuscript and a chapter outline, and so on.  The upside is that I got a lot done on my new project (which looks at constitution making movements in turn-of-the-twentieth-century China), met some people working on interesting projects, and got a lot of good comments on my work.  The downside is that October has been a sort of a long month and it isn't quite over yet, since I have to fly off today to participate in a review of all those grant proposals. So this is just a way of quickly saying hi and thanks to Dan for inviting me, before I disappear for a couple of days.

Before I go, I should probably briefly introduce myself, if for no other reason to distinguish myself, however slightly, from the hordes of Floridians that people this blog. I'm at the University of Florida, in Gainesville, where I teach legal and constitutional history. These days it's mostly constitutional history; I teach your basic US constitutional history course, but I've also taught a whole range of related classes, including a course on constitutional debates in the founding era, a course on citizenship in US constitutional history, a seminar on comparative constitutional history, another seminar on civil liberties in times of war and trouble, and a course on the long history of civil rights in the US.  My main appointment is in the history department, but I have a longstanding affiliation with Levin College of Law. So once a year I teach some sort of constitutional or legal history course at the law school to a mix of law students and graduate students in history, anthropology, and/or political science.  My research was recently described as eclectic, which seems like a pretty fair way to put it. It's covered a lot of ground and some fairly distinct periods of time, but in the end, it has all tended to circle around the issue of how and why social forces are able to influence or shape constitutional order. Which proves I'm a hedgehog in fox clothing, I guess.

And on that note, I need to go pack and run to the ATM. I'll be back around midweek.

Posted by Elizabeth Dale on November 1, 2010 at 08:59 AM | Permalink | Comments (0) | TrackBack


Not sure how I missed this earlier, but Larry Tribe's letter to POTUS re: SCOTUS nominations from last year was leaked earlier in the week. His written candor is admirable (crazy?), though now he believes the gist of his counsel was misguided. Still, I don't think too many of LT's RA's will be Sotomayor's clerks anytime soon. When the story of the leak broke, Tribe was available for comment to the WSJ's Bravin:

Bravin caught up with Tribe today, who managed to retain a sense of humor about the revelation. “Ironically, I’m in the middle of a root canal procedure,” Tribe said in an email. “The endodontist has let me leave the chair long enough for me to say this much:

“I don’t comment on my confidential advice to the president, and I regarded the letter I wrote in May 2009 as confidential. The fact that it was leaked doesn’t change my policy. I’ve long held Justices Breyer and Kennedy in the highest regard, both as friends and as jurists, and I certainly regret any contrary implication some may try to I draw from this letter, taken out of context. I would also stress that the reservations I expressed about Justice Sotomayor prior to her appointment were amply refuted by the closer study I was later able to give her record and that have been fully negated by her performance as a justice.”

Phew, glad that's all cleared up now. I guess the Zuckerberg effect has still not restrained people from tendering confidential advice or reactions in writing. 

Posted by Administrators on November 1, 2010 at 12:04 AM in Article Spotlight, Blogging, Current Affairs | Permalink | Comments (2) | TrackBack


It's a new month and so it is time to give thanks to our wonderful crew of guests this past month and to welcome the new and returning voices to Prawfs.

While our October guests may take a moment to sign off, we have a bunch of brand new folks guesting this month: please welcome Sergio Campos (U Miami); Elizabeth Dale (U.F.); Jake Linford (FSU-woot!); Ashira Ostrow (Hofstra); and Michael Helfand (Pepperdine). And please welcome back Michael Risch (Villanova).

Posted by Administrators on November 1, 2010 at 12:00 AM in Blogging | Permalink | Comments (0) | TrackBack