Tuesday, May 17, 2011
Thoughts on Kentucky v. King
The Supreme Court decided Kentucky v. King yesterday. In that case, Lexington, Kentucky police officers smelled marijuana coming from an apartment. They banged loudly on the door and yelled "This is the police" or "Police, police, police." No one answered the door but the officers heard people moving around inside the apartment. Fearing that evidence would be destroyed, the police forcibly entered without a warrant. The question was, assuming that exigent circumstances existed, were the police disentitled from relying upon those exigent circumstances in order to make a warrantless entry, on the ground that they had created the exigency by knocking. The Court held, 8-1, that the police can rely on an exigency that results from their own actions, as long as they do not undertake or threaten actions which themselves violate the Fourth Amendment. The decision was both predictable and, in my view, mostly correct. A few observations:
1. The case is yet another chapter in the struggle between two views of the Fourth Amendment, corresponding to its two main clauses. The Reasonableness Clause forbids "unreasonable searches and seizures." The Warrant Clause spells out the requirements for a warrant. Correspondingly, what we can call the "reasonableness view" of the Fourth Amendment is that it merely requires that the police act reasonably, which sometimes requires that they obtain a warrant before acting, while the "warrant view" of the Fourth Amendment is that it requires a warrant whenever the police can obtain one, but sometimes excuses their inability to obtain one. While the Court has continued to give lip service to the "warrant view," it has also continually gone down the path of enshrining the "reasonableness view" into law. This case is no exception. While the court offers platitudes about the warrant "requirement," it essentially grounds the decision in the reasonableness of the officers' actions. Although they could have gotten a warrant, their actions were nonethless reasonable and therefore there was no Fourth Amendment violation. What is striking is that Justice Ginsburg, the sole dissenter, appears to be the only Member of the Court who continues to posit a strong form of the "warrant view." Specifically, it appears that the two newest Members of the Court have cast their lot with the "reasonableness view."
2. Lurking behind this relatively easy issue is a very difficult one. Recall that the Court assumed for sake of argument that the sound of people moving in the apartment created an exigent circumstance permitting a warrantless entry. But did it? As I see it, the issue is not whether there actually was an exigency, no more than the issue when the police arrest someone is whether he is guilty of an offense. The issue, rather, is whether the police have the requisite level of suspicion to believe an exigency exists in order for them to act. It seems to me that they must have either probable cause or reasonable suspicion, but the Court has never directly addressed which is the appropriate standard. In cases like this, the police seem to be relying on little more than speculation that there is an exigency. The sound of people moving around might indicate that they are about to destroy evidence but it also might mean that they are simply ignoring the police and going about their business. Moreover, had they remained perfectly still, the police might have inferred that they were steeling themselves to attack. This leaves answering the door as the only option that does not create an exigency, but the Court went out of its way in King to say that one has a every right not to answer.
So the Court still has not directly addressed whether the police must have only reasonable suspicion or, instead, probable cause to think an exigency exists before they effect a warrantless entry. And might the level of suspicion required vary by the type of exigency? When the police are seeking to prevent the destruction of evidence, they are acting in their law enforcement capacity -- attempting to preserve evidence for use at trial -- which is at the core of Fourth Amendment concerns, so perhaps the probable cause standard should apply. But when the police are acting to prevent a dangerous situation, they are acting in a community-caretaking capacity, so perhaps only reasonable suspicion should be required. Relatedly, do we ever care about the subjective motivations of the police? The King Court says no, and I think that is correct when the purported exigency is destruction of evidence. But when the police are acting in a community-caretaking capacity, as in the "special needs" cases, we at least sometimes do care whether they are actually motivated by a community-caretaking concern, because we loosen the Fourth Amendment's strictures under those circumstances. So perhaps resaonable suspicion of the existence of a dangerous situation is enough for police to effect a warrantless entry into a premises, but the police must actually be motivated by the exigency.
3. Finally, I have one qualm about what the Court did decide. It is at least arguable that the officers' banging loudly on the front door coupled with their yelling "This is the police" or "Police, police, police" would have led a reasonable person to believe that the police were demanding entry. The Court determined that it would not look at "such subtleties" as "the officers' tone of voice" or "the forcefulness of their knocks." But it seems to me that, in determining whether the officers were threatening unlawful action -- forcible breaking unless entry were allowed by the occupants -- one has to look at precisely those "subtleties." The question is whether opening the door under those circumstances would have been consensual. And whenever the issue is consent, whether to a search or to an interaction that would otherwise be considered a seizure, the courts do look at all the circumstances. For example, whether an officer has seized a person or, instead, engaged in a consensual encounter may depend on such subtleties as whether the officer's hand is raised or lowered when he approaches the person. The inquiry is fact-intensive, thereby leaving the law unpredictable and hard to administer, but that is true whenever there is an issue of consent. In my view, the Court should have remanded the case for a determination as to whether the police, in effect, demanded entry, thereby threatening to act unlawfully.
Monday, May 16, 2011
Is the AUMF Broke? (And If Not, Why Fix It?)
There's been a lot of discussion over the past few weeks in D.C. about the "Chairman's Markup" to the National Defense Authorization Act, especially the provisions that would "reaffirm" the conflict that Congress initially authorized in the September 18, 2001 Authorization for Use of Military Force (AUMF)--i.e., the use of military force against those groups that were responsible for the September 11 attacks.
What is surprising to me about the current debate is just how little detail one hears from supporters of the "new" AUMF for why it is a necessary piece of legislation, and for what authority the new legislation would provide that the existing statute does not. To my knowledge, the Obama Administration has not publicly suggested that it needs any additional authority from Congress in the context of ongoing military counterterrorism operations, and for better or worse, the case law coming out of the D.C. Circuit supports a fairly expansive interpretation of at least the detention authority provided by the 2001 statute, largely vitiating any argument that broader detention authority is the justification for the new bill. So if it's not about detention, and if the Administration doesn't think it's necessary, what gives?
The irony is that it's folks like yours truly who are discontent with the status quo, in large part because I don't think the AUMF can fairly be read to sweep as broadly as the D.C. Circuit has held that it does. But are there those who think the D.C. Circuit is largely getting these issues right who still think we need a new statute? If so, why? That, to me, is the key question here, and I continue to be floored by just how little supporters of the new bill have addressed it...
Michael Ignatieff: The Philosopher King that Almost Was
Sadly Michael Ignatieff will not be the prime minister of Canada. Ignatieff announced that he would step down as leader of the Liberal Party after last week’s elections in which the party lost more than half its seats in parliament. Why, you may wonder, should an Israeli/American academic who knows next to nothing about Canadian politics be saddened by this? Good question.
Well, beyond a natural affiliation with the moderate left that comes with the academic territory, this was the one chance of having a true philosopher king on the world stage. Ignatieff is a world-class academic and writer whose books have been a source of great inspiration to me. Ignatieff’s work on human rights and international affairs is measured and brings a much-needed balanced approach. Moreover, his biographical work is equally good. This includes an exceptionally engrossing book on the life of Isaiah Berlin, who was Ignatieff’s teacher, as well as Ignatieff’s wonderful book on his own family’s history entitle The Russian Album I. Here is a favorite passage:
No one I know lives in the house where they grew up or even in the town or village where they once were children. Most of my friends live apart from their parents. Many were born in one country and now live in another. Others live in exile, forming their thoughts in a second language among strangers. I have friends whose family past was consumed in the concentration camps. They are orphans in time. This century has made migration, expatriation and exile the norm, rootedness the exception. To come as I do from a hybrid family of White Russian exiles who married Scottish Canadians is to be at once lucky – we survived – and typical.
Michael Ignatieff / The Russian Album
The loss to Canadian politics (assuming there is one, for all I know he might have been a lousy politician) will be the gain of the academic. But it would have been nice to have had a true philosopher king, for Plato’s sake even if for no other reason.
The Anti-Entry Level Hiring Report
As an excellent counterpoint to the entry-level hiring report, I strongly recommend Samuel Buell, Becoming a Legal Scholar, 110 Mich. L. Rev. (forthcoming 2012), and would be very curious to hear what folks think about it. I looked for excerpts to pull, but I would have ended up excerpting the whole thing, so here's the abstract:
There is now a literature on how to become a law professor. The first book-length treatment of the subject, Becoming A Law Professor, displays a common fault of this literature in directing candidates’ focus on process at the expense of substance. The present body of material on the market for new legal academics does not persuade candidates of the necessity of locating their agendas and voices as scholars, much less does it show them how to go about that vital search. It also risks contributing to a tendency of credentialing processes to standardize resumes without improving outcomes. A second-generation literature is needed: on how to become a legal scholar. This Review explains the need for that literature and suggests some directions for it.
This article captures a lot of what makes me uncomfortable about the hiring report, notwithstanding how fun it was to put together. Although do note this excerpt from Buell's article:
I admit to a full share of responsibility in this process of standardizing teaching candidates. Few things irritate me more in the hiring process than candidates who evidence a failure to have consulted the resources on preparing for the law teaching market. If you can’t be bothered to do the basic legwork of using the internet to find out the fundamentals of the market in which you hope to compete, how serious can you be about doing the job you are trying to get? (Watch what I do, not what I say: Read the literature on how to handle the job market in spite of my criticisms of it.)
Fed Courts on TV?
Last night on AMC's The Killing, a character cites to and discusses Hunt v. Washington State Apple Advertising Comm'n, the leading Supreme Court case on associational standing, in arguing that a midnight basketball program has standing to challenge the city's withdrawal of its funding (in the story, this is a political ploy by the incumbent mayor to get at his opponent, who is a big supporter of the program). I am not sure Hunt actually is relevant here, since the organization would be suing on its own behalf, not on behalf of its members. And it is presented as this obscure case that the protagonist finds only through careful legal research that gives him the idea for a lawsuit--as if he never thought of a lawsuit until he found this one case. Part of me thinks the writers threw it in there only because the show takes place in Seattle.
Later, we find out the judge rejected the standing argument and denied the request for an injunction. But only because the judge assigned to the case was the mayor's old fraternity brother, thus furthering television's meme that judges are corrupt and craven political actors who ignore the law and protect their political cronies.
Still, Art. III standing on basic cable. Who'da thunk?
Sunday, May 15, 2011
John Bingham’s Last Word on the Fourteenth Amendment?
That's the title of a recent post by Gerard Magliocca. Magliocca is currently working on a biography of John Bingham--the author of Section One of the Fourteenth Amendment. His research recently took him to Cadiz Ohio where he discovered what may be Bingham's last recorded comments on the Amendment.
Maddeningly ambiguous, of course, as are most things relating to the original meaning of the Fourteenth Amendment. Still, more historical information can only help.
Saturday, May 14, 2011
The Public Trust Doctrine in the Modern World
As threatened promised, I want to say a little bit about the public trust doctrine beyond my earlier post commenting on the multi-state climate change lawsuits filed last week. I've had the occasion to think about this recently because a couple of months ago I participated in a really wonderful symposium on the topic at U.C. Davis, whose law review was celebrating the thirtieth anniversary of an earlier Davis symposium on the doctrine, which featured an important article by Joseph Sax calling for an expansion of the doctrine's scope.
I come to the topic with a lot of sympathy for the project of using the doctrine for environmental protection. The idea that western law back to Roman times provides for common use rights of resources that today we identify largely in terms of their value as environmental resources is quite attractive. Moreover, as an administrative law professor, Sax's original idea -- that the doctrine should be understood as a requirement of reasoned decision-making that accounts not just for private interests but the public interest -- resonates deeply with me, given its relationship to the crucial developments in American administrative law in the 1970's.
But still, I wonder. With the enactment of a whole array of federal environmental statutes and the previously-mentioned development of a more intricate administrative law system (at least some of which can be attributed to Sax), it's a fair question to ask whether the doctrine has become a victim of its own success. Of course, as I argue in my article, this is not the full story. Indeed, I've argued that scholars who in the 1980's called for the doctrine's demise may have underestimated the effectiveness of those reforms, with the result that the doctrine has not been rendered superfluous.In my article I argue that the doctrine should best be understood as an interpretive canon, rather than as an independent substantive protection for environmental resources. This means that it can be overcome by an explicit statement in the law. I think this at least partially obviates the critique that the doctrine is undemocratic -- a concern reflected most recently (in a different context) in the discussion of the American Electric Power case currently before the Supreme Court. Indeed, this approach answers the obsolescence argument, as it suggests that legislative recognition of the doctrine's values satisfies the doctrine's requirements, and thus allows it to take a back seat when the political process has recognized the doctrine's basic concerns. It also reflects Sax's original understanding of the doctrine as a tool to ensure deliberation, akin to what became NEPA.
But even given this relatively limited understanding of the doctrine, questions remain about its legal foundation. The doctrine's legal basis in American law is notoriously murky, as every likely candidate -- the common law, state constitutional law, the federal navigational servitude, and others -- suffers from some logical flaw or disconnect with the way the doctrine has developed. Even more fundamentally, scholars such as James Huffman have asked some difficult questions about the doctrine's supposed grounding in Roman law. I'm a little less concerned about that deeper issue, since the doctrine, whatever its original provenance, has been recognized to exist in American law for at least over a century, if not longer. But Professor Huffman's concerns do make it more important that a coherent foundation for it be found somewhere in American law.
This debate might be seen as purely academic, or at best a side-show, even within the world of environmental law. But the lawsuits I blogged about last week, and their requests for exceptionally broad judicial remedies, mean that the doctrine will play at some role in environmental discourse for the foreseeable future.
Friday, May 13, 2011
Ann Althouse's blog seems to be missing:
Does anyone know what is going on? Is it a technical problem, related to Blogger's recent outage? Does it relate to Leiter's post about her blog? (To be clear, I have absolutely no knowledge about this whatsoever--I was just surprised to find her blog gone and am wondering if anyone knows why.)
Update: All is well! Althouse herself (h/t RH):
I’M NOT GOING TO FREAK, I’M GOING TO TWEET. Blogger is having problems… to the point where, if you try to go to my blog, you’ll get a message saying it’s removed. According to Blogger Status, they’re working on it. Fortunately, there’s Twitter, and I’m going to hang out there. And there’s also Instapundit, at least for a little while longer. Until Glenn wakes up. Hopefully, Glenn will wake up, and Blogger will wake up very soon.
Updated update (2:18pm West Coast time, 5/13/2011): It actually seems to be a little more complicated than just a technical outage--somehow her blog got flagged as a spam blog, and Blogger is reviewing before they will put it back up. (H/T Instapundit.)
I'm going to close comments on this, and also delete some comments, because I don't want it to turn into a referendum on any other bloggers (and also, of course, because I am a fascist and hate free speech). I really did post this just to try to get information about what was going on.
Law School Curves
I am interested in the number of grades below B- your school requires you to give in classes with mandatory curves. At Hastings, we recently changed our curve to require professors to award 12% to 17% of the class grades below B-. I am curious if this is out of step with what your school does. Please let me know in the comments: tell me your school (assuming you have a mandatory curve) and what percentage of students in a class must receive a grade lower than a B-. If your school has gotten rid of the C, I'd be curious about that as well.
One of the current memes in the effort to preserve the ACA’s individual insurance mandate is the claim that opposition to the ACA only purports to rely upon theories of federalism, but is really driven by a libertarian effort to oppose government regulation at all levels—both state and federal. According to this view, opposition to the ACA is just the first step in restoring Lochnerian libertarianism. For example, the libertarian commitments of Randy Barnett are regularly referred to in a manner suggesting this is the “real” reason Randy has (rather effectively thus far) led the debate against the ACA, and not because Randy really believes that the federalism-based arguments presented in his essays and briefs.
Although predictable, there are a number of problems with this attempt to discredit the current academic leader of the opposition. First, and most obviously, even if true, it says nothing about the merits of his arguments or whether the Supreme Court should rely on such arguments and strike down the statute. Secondly, there is nothing inconsistent in believing that the ACA violates both principles of federalism and basic principles of justice from the perspective of a libertarian. The Court could adopt one without adopting the other. Finally, anyone who knows Randy knows that he is absolutely serious about his arguments.
But if one is to indulge in theories of opportunistic federalism, can’t the same claim be made against proponents of the ACA?For example, the criticism of Randy, as I understand it, is that his theory of the case leaves New Deal precedents in place but (somehow secretly) lays the groundwork for their ultimate erosion. But one could equally claim that the proponents’ theory leaves federalism precedents like Lopez and Morrison in place, but lays the groundwork for their ultimate erosion. This, too, would be opportunistic federalism—pretended obeisance to federalist precedent (in order to avoid the claim that your theory leaves government power unlimited), while pursuing a theory that ultimately undermines those same precedents.
So here’s my question: Is there anyone who supports the constitutionality of the ACA and but also supports the theory (and not just the doctrinal framework) of federalism which informed Lopez and Morrison? As I understand it, every argument in favor of the ACA insists that the standard of review for allegedly federalism-violating statutes is no more than rational basis review. This, in turn, is driven by a theory of subsidiarity in which the national legislature has the discretion to determine when a local matter has risen to the level of a national concern (due to congressionally perceived collective action problems affecting commerce, etc). It is decidedly not the role of the Supreme Court, according to this view, to test whether there actually is a sufficiently significant national problem. So long as Congress avoids violating an individual right listed in the Constitution, issues of “sufficient need” are left to the political process. This is not, of course, the approach of Lopez and Morrison (if it were, the cases would have come out differently).
If, as I suspect, there is no “federalist proponent” of the ACA, then aren’t we dealing with an opportunistic nod to Lopez and Morrison as part of an effort to not only save the ACA but also to replace the federalist theory of those cases with a non-judicially enforced principle of subsidiarity?
Don't worry, I haven't gone wobbly on democracy
For the crew who helped me overcome my anxieties about the strengths of libertarianism over the last couple weeks, I owe you thanks; you can rest assured that your efforts have helped and my current draft on retributive justice and the demands of democratic citizenship has taken a stronger pro-democracy view. Phew. (Needless to say, please don't bother quoting or citing that blog post in anything since I now disavow some of the tentative concerns I raised there.)
Here's an interesting thing emerging from that discussion though. If you look at one of the best accounts of democratic authority out there, Scott Shapiro's essay from his 2002 edited volume with Jules Coleman, there's a footnote in the final version (that's not in the online version on Scott's SSRN page) in which Scott leaves out from the analysis the case of the "internal exile," the person whose private pursuits are not dependent on a pervasive scheme of social cooperation. As I put it, this is a person who goes off the grid. I followed up with Scott and he didn't think his account could necessarily reach that kind of person in terms of obligating him to view the law as having some kind of independent moral force. I'm wondering which accounts of political obligation, if any, y'all think are most successful at reaching that person. Feel free to email me or to provide suggestions or citations in the comments. Thanks.
Barnett vs. Tribe
The discussion about the ACA and the Fourth Circuit arguments at the Volokh blog continues to be very interesting. Randy Barnett, one of the leading figures in the arguments against the constitutionality of the individual mandate, has not only posted several reactions, but, unusally for him, has allowed comments on most of them, which is rare for him.
It's unfortunate that Randy did not allow comments on one of his recent posts. Randy brings up an op-ed Tribe wrote in the Times a while back in which Tribe arguably tries to shame some of the swing vote Justices, especially Kennedy, into upholding the mandate. Randy, following some others, calls this advocacy disguised as analysis.
It's worth thinking about why that is a problem at all (which I tend to think it is).The short answer, I think, is that it free-rides on a professor's reputation for analysis rather than advocacy. We expect advocacy disguised as analysis from advocates, and can properly discount for it. We expect (or are supposed to expect) disinterested analysis from academics, whose approach to these questions is supposed to be "academic" in nature. Tribe arguably crossed that line in his op-ed. That would seem to take advantage of the lower discount rate we normally apply to academic analysis -- although, since it was obvious that Tribe was trying to send a message in his piece, it might be more accurate to say that the problem was that he was using his reputation as a gatekeeper to warn the swing voters that history (i.e., those who have the power to fix historical judgments) would view them poorly if they voted to strike down the mandate.
The reason I wish Randy had allowed comments on that post is that, with respect, I think Randy's role in this litigation has been similar to Tribe's in his op-ed. I read many of Randy's posts, comments, and statements on the ACA litigation as being in the role of an advocate, not a disinterested analyst. This is not a comment on the merits of his arguments (although I disagree with them); it's about their style. At least in my view, there has been a high rhetorical content to his arguments, one that benefits from his well-deserved reputation as a scholar but deploys debaters' tactics as a persuasive device. When, as he occasionally does, he uses the word "unprecedented" to describe some state of affairs, it seems clear to me that he does not mean this simply as a bare factual description; he uses it because lawyers react badly to the word "unprecedented." I had the pleasure of watching his debate with Orin Kerr at the Federalist Society meeting in San Francisco early this year, and I had a similar sense that Randy's arguments had a strong air of debating tactics rather than absolute disinterest: he rather clearly separated his arguments into three different categories at the outset, but then slid between them without mention throughout the debate in a way that smoothed over difficulties and served his broader goal. My point, again, is not that his arguments were bad. They may have been entirely right. But they did strike me as advocacy. With Randy, as with Tribe, it seems to me that one would be wise to apply some form of discount when it comes to the arguments made on this subject.
Let me close with what I thought was the most telling line in Randy's writing yesterday. In his post on his proposed "Repeal Amendment" (another post in which comments were closed), Randy closed with this statement: "Federalism is merely the means, however. Liberty is the ultimate end." This line will not surprise readers of Randy's work. But I think it is important, and helps us understand some of his disagreements with Orin and some of the broader debates about the ACA. It is surely true that one of the purposes of federalism is to enhance liberty (although, to non-Barnettian thinkers, federalism may have other important purposes, and even "liberty" is only one of many competing purposes of the Constitution). But it does so in a specific way, one that can involve political as well as judicial remedies. One can believe in both "liberty" and "federalism" without believing that the individual mandate requires a judicial remedy. I take it Orin is in that camp. And I take it that Randy ultimately believes, although he might disagree with this description, that federalism must be aggressively and judicially enforced, not for its own sake but to preserve a rather strong and specific notion of "liberty" -- one that derives not from a straight reading of the Constitution or its jurisprudence, but from a brooding notion of what "liberty" means that is equally derived from Randy's political philosophy as from anything in the caselaw. I tend to think that most of the arguments about the individual mandate, when all the deadwood is put aside, end up being about "liberty" in that sense, and not about the Commerce Clause as such. If we are to engage in truly disinterested analysis, we ought to be clear about that, so that we can figure out how much of the anti-ACA argument is really about the Commerce Clause -- and how much of it is really about substantive due process.
Thursday, May 12, 2011
Don't Do the Crime if the Other Guy Can Shoot from the Line?
A recent paper by David Hebert, an econ grad student at George Mason University, argues that committing a foul in the NBA is "essentially" (his word) committing a crime:
These criminals [i.e., NBA players who foul] engage in rational economic decision making when choosing whether or not to foul an opponent....This research has broader implications into the world of crime, namely that individual people are able to deter criminal acts committed against them on their own by investing in capital, which reduces the payoff of committing a crime against them.
Setting aside his larger point for a moment, what are folks' thoughts about the supposed equivalence between committing a crime in the real world and commiting a foul on the basketball court? It does not seem like a particularly strong analogy to me, but every time I try to put my finger on why, I fail to convince myself. Here's a version of a conversation I've now had with myself many, many times.
Lawsky One: You generally should not commit a crime, but a regular foul is just part of a game. My coach used to send me into games to foul. [Note: That is true, but nonetheless, my nickname in high school was not "The Enforcer." Life is not fair.]
Lawsky Two: But the rules say that a player "shall not" hold, push, and so forth. Doing that is breaking the rules.
Lawsky One: Still, there must be a difference in kind, not just degree, between, on the one hand, pushing someone a little, so that the guy you fouled shoots two free throws, and, on the other hand, hitting someone so hard that you get kicked out of the game and suspended for the next five games, thus forfeiting nearly $700,000. I mean, you don't apologize for going up to block a shot and hitting someone's wrist, but Andrew Bynum apologized to J.J. Barea.
Lawsky Two: Misdemeanor, meet felony. Monetary fine, meet death penalty.
Lawsky One: Argh! Ok, well, maybe free throws are more like a tax, serving simply to increase the cost of a permissible activity, whereas suspension is more like a criminal penalty.
Lawsky Two: Hmm, that's slightly more persuasive...so the distinction would be between an incentive and a punishment?
Lawsky One: Yeah, something like that.
Lawsky One: Argh! No! Why are you doing that? No con law! Basketball only! BASKETBALL ONLY!
Anyway, I assume many folks have already written about this, so cites would be helpful, but I'd also be curious in folks' general thoughts.
Full disclosure: I raise this question because when my son was six, he and I had a conversation that went something like this:
H [running off the basketball court]: "M fouled me!"
Me: "That's ok, hon--you don't have to come tell me--it's just part of the game."
H: "No, he broke the rules!"
Me: "Not really. If he fouls you, you get free throws. That's how it works."
H: "But the rules say, no hitting."
Me: "Yeah, but they also say, if someone hits you, then you get free throws."
H: "Oh--so I can hit M?"
Me: "No, you can't hit M!"
Me: "Get back in the game! And no hitting!"
As you can see, I was able to assert my parental authority to avoid acknowledging what I fear was a fundamental weakness in my position, but I have a younger child as well, and I'm trying to prepare for the same conversation with her.
Self-Promotion and Anti-Self-Promotion
Given all the discussion (sometimes interesting but mostly fruitless) about self-promotion of one's work on blogs, I thought I would offer one broader thought and one self-sacrificial offering.
First, I was interested by a claim by one of the commenters that one doesn't open the New York Times op-ed page to read someone engaging in self-promotion; one opens it to read interesting new ideas. This is a misconception. (And I don't mean that the ideas in New York Times op-eds are rarely new or interesting, although that is true.) Most New York Times op-ed pieces are an effort at self-promotion. It's no accident that the cutline at the bottom generally says something like, "X is the author of the forthcoming book Y." One of the most frequent pieces of advice book authors give is to find a way to shoehorn the topic of their book into some current event and make an op-ed piece out of it, especially for the Times.
And this leads to a broader point, which has to do with the legal academy's (and perhaps the broader academy's) conflicted relationship to issues of social class and status, levels of prestige, and self-promotion. Some of the comments on this discussion that were critical of self-promotion by bloggers took the underlying view that it just isn't seemly. But the more elite and well-connected one is, the easier it is to engage in quiet self-promotion, or to have others promote one's work, in a way that seems "seemly." If Linda Greenhouse puts out a book, and mentions it in her online Times column, and writes a book review for the Times that mentions it, and has the book promoted by famous friends, and has Yale devote a conference to it, I think at least some of the commenters who complained about self-promotion on this blog would have little to say about it. Those things tend to have the air of simple recognition of merit by those in the know. When bloggers self-promote, however, the ambition is much more naked. There is a greater Sammy Glick element to it (by way of explanation--and self-promotion--see my Connecticut Law Review Online piece about gatekeeping and prestige, available on my SSRN page). So one reason people may find nothing objectionable about one form of self-promotion, and queasier about the other, is simply a kind of built-in snob factor related to broader ideas about how things are "done" in our world. I happen to think some forms of self-promotion can indeed be tedious and a little tacky. But (and just to be a little controversial, I say this speaking as a Jew) I don't think we should overvalue "seemliness" or fail to see its hidden ambitions and reifying effects, or that we should undervalue a little "tackiness."
Now for the self-sacrificial aspect. I thought that I would promote my book The Agnostic Age: Law, Religion, and the Constitution, again, by linking to the Amazon page for the book, and pointing out my sole review so far -- which is a highly negative one-star review. How's that for anti-self-promotion! I note in slight self-defense that the first two-thirds of the review or so are critical of a different article I wrote that has nothing to do with the book, and that I disagree with the last third. Still, it is fair to say this reviewer is not a fan of The Agnostic Age. (As always with such maneuvers, however, I have a separate motive, which is that if anyone out there liked the book more than this fellow and perhaps is more fair-minded, perhaps they could contribute their own review. I would like to have posted a response, but for some reason I think I should let the book be praised or criticized by its readers without stepping in to defend myself.)
Republican Congressmen are SO HOT
As a Democrat I must admit to having been disappointed when the Republicans recaptured control of the House in 2010. But as a gay man, wow, what an unexpected boon. First, there was Chris Lee's shirtless bicep-flexing photo emailed to a Craig's List contact. (No debate about who wins that guns v. butter debate.) And now, we have Aaron Schock's shirtless spread in my respectable porn Men's Health (including the money shot cover picture). To repeat, wow. If he can shred Medicare like he can shred his abs those geezers had better watch out.
But enough about policy. On a more personal note, my I'm-a-gay-man-so-I-can't-control-my-libido libido is like, at code red (or it would be, if we were still using color-coded levels). So thanks, you pill button-popping GOPers. Who knew you'd be so gay-positive in places other than airport bathrooms? Still, this revelation has caused me some wistfulness. If only I had known that Republican congressmen are so hot, and so willing to bare it all most of it, and, no less, in a magazine recognized as having a substantial gay male readership (and here and (humorously) here). So, a resolution. I will never attend another White Party weekend without checking out the Log Cabin hospitality booth and tea dance. God only knows what those people are doing inside that surprisingly big tent of theirs.
Early Results from Our Fall Season Survey
Although we still have fewer than 20 responses to our survey, the preliminary results are interesting enough to be worth passing along. For example, so far it looks like I'm chicken little: most journals report having substantial portions of their slots for articles still open.
There is some concern about selection bias, since potentially journals with more open slots have a stronger incentive to report their availability. Editors, feel free to chime in, even if your book is full. Below the jump: some more results.
We also asked journals whether they had accepted more articles in the spring than they did last year. Again, the answer was pretty resoundingly no:
Most journals reported they would begin reading submissions again in August, with a handful saying they would begin reading after their spring exams end or in June or July. A plurality expect to finish their review in October, but a good third also thought they might finish by the end of September. Only two expected to finish after October.
Most of our respondents so far have been "top-25 general-interest law journals," but we've had a mix of a number of others, as well.
Waiting for Davis v. United States -- or not waiting
One interesting Supreme Court case still awaiting decision this term is Davis v. United States. The case presents the question whether the good-faith exception to the exclusionary rule applies in a situation in which a search was legal when conducted but becomes illegal based on a new rule announced while the case is pending on direct appeal. The new rule at issue in Davis is Arizona v. Gant (2009), which concerned vehicular searches; the search in Davis took place before Gant and was legal under pre-Gant circuit law, but then Gant was decided while the case was pending before the court of appeals. The court of appeals held that Gant provided no remedy, essentially reasoning that the point of the exclusionary rule is to deter police misconduct; if that is the purpose, then evidence should not be excluded when the police acted in accordance with law that was valid at the time.
Davis is interesting for all sorts of reasons involving the exclusionary rule and, more broadly, the retroactivity of judicial decisions. My particular interest has to do with appellate case-management. Defendant Davis is hardly the only person whose case involves the question whether the good-faith exception should apply to pre-Gant searches. Whenever the Supreme Court grants review on a recurring issue like this, there will be plenty of other litigants at various places in the appellate pipeline whose cases involve the same issue. What should lower courts do with these potentially affected cases?
Here is what the Fifth Circuit said in a recent changed-law/exclusionary rule case that happened to come to my attention: "We are aware that the Supreme Court granted certiorari in Davis to address precisely this question. Unless and until the Court instructs otherwise, we are bound to apply this Circuit's binding precedent [i.e. that the good-faith exception applies in changed-law scenarios]." United States v. Curtis (March 11, 2011). It went on to affirm the defendant's conviction.
Now, the court's statement is true enough. A mere grant of certiorari does not change circuit law. But there is another option, right? Namely, the court of appeals could just wait about three months and see how Davis turns out. To be clear, I'm not saying that delaying decision is, all things considered, the right call in this case. The question of whether to hold cases in abeyance when the Supreme Court has granted certiorari is surprisingly complicated and does not admit of across-the-board rules, or so I've argued elsewhere. Sometimes courts decide to wait for a forthcoming potential change in law, sometimes they decide not to wait, and sometimes (as here) they act as if no choice is available to them. But whatever the court does, it is making a choice.
Bonus question: If you are the attorney for someone like Curtis, what is your next move?
Wednesday, May 11, 2011
How abstract can an abstract be?
I'd like to submit an abstract for a conference on Constitutional Law that is scheduled for next November. The abstract is due in a week or so. The problem is, I'm between projects (sort of: I'm finishing three "other" projects), and I have no idea what I'd like to write next, though I suspect very strongly that it will involve First Amendment law. Now I can "invent" a project in a week as well as the next person, but is it honest to submit a proposal or abstract when you know that the paper you actually present next November may bear zero resemblance to the proposal or abstract?
On a related note, I've always envied those people who have a fixed research agenda comprising ten years' worth of projects, all revolving around one central idea or theme. I'm the kind of person who is (a) easily bored and (b) discovers a research agenda only after ten years of seemingly disparate publications. In fact, I shouldn't even call my "agenda" an agenda. It is more like a central preoccupation (with how assumptions about audiences shape speech torts or First Amendment doctrine) that I keep returning to whether I mean to or not. By the way, this is an admission I can only make because I'm tenured and have a publication track record. Assuredly it would be an unwise admission for an untenured person to make. Rather than being a sign of intellectual curiosity, it might unfairly be construed as dilettantism.
Cheating and Plagiarism By Students
The current issue of the Journal of Legal Education has a nice piece entitled Student Cheats and Those Who Harbor Them by Sue D. Naim (get it?). "Sue" recounts a particularly trying episode in which she (or he) took official action against a student for cheating on an exam. The main theme of the piece is the difficult decision one faces when such a situation arises as to whether to handle the matter informally or instead take some official action.
I had one particularly egregious instance of cheating -- and plagiarism to boot -- some years back when a student not only consulted off-limits internet sources on a take-home exam but plagiarized those sources as well. It was not hard to figure out why, in Part I of the exam, the student had trouble stringing together a coherent sentence in the English language while in Part II, the student was writing like William Safire. It was because Part II was actually writtten by William Safire. I brought formal proceedings but the student was forced to withdraw from the school because of low grades before proceedings could commence.
That was the only instance of cheating I have ever discovered. Plagiarism, however, is more common. Much of it is what I would call "good faith" plagiarism, where the student obviously forgot to include quotation marks and/or a citation but did not intend to mislead. Other times students take a portion of another work --sometimes only one or two sentences, but sometimes whole chunks -- verbatim or nearly verbatim with no quotes and no attribution. I have found that such students often do not even realize they have done anything wrong. I tend to handle plagiarism cases informally, either by requiring a re-write or, in more serious cases, by giving no credit for the portion of the assignment that was plagiarized.
Have you ever had to deal with cheating or plagiarism by students? How have you done so? And how on earth do some people get to law school with no understanding what plagiarism is?
P.S. I am not Sue.
I've been surprised by how much space has been taken up on this and other blogs in recent days by . . . um, other things . . . and not on the healthcare litigation, including the oral arguments yesterday in the Fourth Circuit. A tip of the hat to the Volokh Conspiracy, which has had useful posts on this issue by Orin Kerr and Jonathan Adler.
The Short Sharp Paper Series and a movie review too.
Since I would clearly never engage in icky acts of overt self-promotion, and I cringe :-) at the thought of others saying nice things about me or my work, that leaves it to me to sometimes use the blog responsibly and say nice things about the work of others. During this last semester when I had the privilege of a teaching release, I probably read more drafts than I usually do, sometimes to the consternation of those whose drafts I had read and commented on. But I've also had the chance to continue reading lots of finished products and lately I've found all sorts of wonderful stuff worth sharing. Of course, I should be writing this up on JOTWELL, which was created with the smart idea that we should share our reactions about papers that we liked (lots)--it's a concept I love and I have even contributed, but, dammit Jerry, writing up a JOTWELL entry takes time. Fortunately, Facebook status updates don't take much time...and this post is sort of an agglomeration of some recent status updates--talk about synergy.
Those of you on FB with me may have noticed that I have unwittingly started a series of touts or vouches for sharp and usually short papers that may be of broader interest. This has proven useful to a few of you, or so you say, Tamar and Sarah. In any event, I figured some of you may enjoy knowing what I've found really good or helpful to me recently, but I should note that I won't be offering explanations of why I think they're good. These will be like my occasional Ruth Franklin-inspired movie reviews. [Btw, I saw Win Win a couple weeks ago on a date night--worth watching, but for Netflix, not necessarily in the theater, at least if you triage your movie time as I do under the constraining presence of little monsters angels in your blessed and beleaguered life.]
So, without further adieu, here are a few disparate links in no particular order:
d) a nifty and short essay by Sasha Volokh addressing and critiquing the progressive case for cost-benefit analysis as propounded by Ricky Revesz and Michael Livermore
e) and finally for today, a recent piece by Sean Williams on self-altering injury and the hidden harms of hedonic adaptation, which just came out in the cornell lr.
Enjoy your reading time as summer beckons. And feel free to share similar positive reax to the work of others (non-anonymously) in the comments.
The Health Care Debate and Daniel Webster
I was pleased to see the Fourth Circuit panel’s reference to the oral advocacy of Daniel Webster in yesterday’s argument regarding the constitutionality of the individual insurance mandate. Rather timely, in light of this blog’s recent discussion of historical advocacy before the Supreme Court. And, from my perspective, it’s always good to see a court attempt to engage historical understanding of the Constitution.
But putting aside our views of the relative merits of Webster’s advocacy, do the odds of the Supreme Court upholding the mandate increase or diminish to the extent that the Court focuses on the historical understanding of the Commerce Clause? While some might think the answer to this question is self-evident, the Fourth Circuit discussion seems to suggest otherwise.
It's all about procedure, naturally
1) First, the judge's personal jurisdiction analysis would probably deserve a 'C" in Civ Pro.
The judge relies on the "effects test," with the key contacts being a web site. But the court proceeds to find jurisdiction based solely on the defendants putting up a web page (which it conclusorily describes as "interactive," an unfortunate buzzword) accessible from anywhere in the United States. This is a very liberal understanding of the effects test, given that, because the plaintiffs are not from Florida, no real harm (and certainly not the "brunt" of the harm) was felt here. The court found that the statements on the web site were aimed at the plaintiff and the exhibition--but the plaintiff is not in Florida in any real sense and the exhibition was no more in Florida than it was anywhere else. The logic of this opinion comes very close to creating nationwide jurisdiction over people putting things up on web sites.
Moreover, the court mentions much non-web conduct--including public testimony, public statements, and media interviews--none of which took place in Florida; the court mentions statements in Pennsylvania and Hawaii. Worse, the court identifies the particular statements at issue in the case, but does not say whether they were posted on the web site. [ED: I just read the Complaint, which does allege that the defamatory statements were made on the web site and in public appearances and statements]. In other words, the web contacts may not actually be the ones giving rise to the claim. In which case, the court is finding general jurisdiction over an individual based on a web site accessible from anywhere. Which, any of my students will tell you, is just wrong.
2) The defendants did not move to transfer venue, which is surprising. The plaintiffs are not from Florida and have no connection to Florida. The public statements at the heart of the action were made in several places, none of them Florida, which means the state really has no connection to the case. So even if the defendants are subject to jurisdiction, there is at least an argument that some other district (Hawaii, Virginia, or DC make the most sense) is more proper. I think it at least would have been a good candidate for transfer.
3) The plaintiffs seek an injunction against the defendants making future defamatory statements about the exhibit, a problematic remedy that SCOTUS seemed poised to declare constitutionally forbidden a few years ago, but for Johnny Cochran's death.
Anyway, I may have found a good case for next year's Civ Pro class (or is talking about my teaching plans self-promotion?).
How Special is Special?
This may, unfortunately, come across as more law professor navel gazing, but I'm interested in the signaling function of placement in specialty journals. I write primarily in intellectual property. There are a lot of journals out there which focus exclusively on intellectual property, technology, the arts, or some combination of the three. One can instead, if the planets align right, also publish an article in a general law review.
I recently had to decide whether to place an article on copyright law with a specialty journal or a law review at a top 100 law school (according to USNWR). As a young, untenured scholar, I see trade-offs and uncertainty. If I want the casual reader of the particular journal to take interest in the piece (and we might wonder whether there is such a person), my odds are better if I place the piece with a specialty journal. It is possibile that an article in a well-received specialty journal might become part of the discourse more easily than an article in a respectable law review, if scholars in my field are watching the output of specialty journals. (Note my use of terms like "well-received" and "respectable," ill-defined adjectives to compare things that may not be comparable.) I also can't help thinking ahead to the tenure process.
Letter writers in my field will know the specialty journal, and have some idea about its relative strength in the field. My tenure committee, on the other hand, may have little or no idea about a given specialty journal, but they will have priors about a law review. If an article is fantastic, it is fantastic, but it is hard to divorce placement from quality. All things being equal, I would prefer the imprimatur of the Harvard Law Review to that of the Michigan State Law Review because readers will assume things about the relative quality of the piece. I mean no disrespect to Michigan State. I love Tom Izzo. I'm not convinced that the difference between the Harvard Law Review student editors and the Michigan State student editors is so significant that it should impact the quality of the final work product. Nevertheless, proxies matter.
What will the tenure committee make of the specialty journal? For example, what might I send when the choice is between the Michigan State Law Review and the Michigan Telecommunications and Technology Law Review? Does the average tenure committee member know that MTTLR is the 3rd-strongest IP specialty journal in the U.S., according to the Washington & Lee rankings? If my CV includes a piece placed in Duke Law and Technology Review (online), does a tenure reviewer see a placement in a specialty journal at a top 20 law school (USNWR), a placement in an online journal, a placement in a top 10 IP journal (W&L), or a missed opportunity to place the piece in a real law review (W&L ranks the New York Law School Law Review as essentially equivalent).
Let me forestall two obvious rejoinders. First, I am fortunate that I had good placements to choose from. Second, I'm sensitive to the critique that we worry too much about scholarship and too little about students, but as I see it, if I want a long career teaching the law, I need a viable career as a scholar. And I got into this business because I think I have something to say, and I want what I say to reach receptive audiences.
So, when you look at a specialty journal, what's your proxy of choice? USNWR ranking of the home institution? Do you have a sense for the few journals at the top, and lump the rest together? Are you cognizant of and do you give any weight to the W&L Rankings? Are online journals second-rate institutions or the wave of the future? Likewise, what value do you place on peer-reviewed or peer-editing? Inquiring minds want to know.
The D.C. Circuit After Boumediene
Speaking of self-promotion... Those who have been following the Guantanamo litigation and/or the ongoing debate over the "new AUMF" language in the NDAA are probably well-acquanited with the debate over whether the D.C. Circuit in its post-Boumediene jurisprudence has attempted to undermine the Supreme Court's June 2008 decision, which held that the Guantanamo detainees are entitled to the full protections of the Suspension Clause.
For those who would like to read more, or who could use (what I hope is) a useful capsule summary of the jurisprudence to date, I have a new paper on SSRN (part of a sympoisum for the Seton Hall Law Review) that analyzes the bulk of the D.C. Circuit's post-Boumediene Guantanamo case law in light of this charge. Not to ruin the punch-line, but the essay concludes that the hostility to Boumediene (and, as significantly, Hamdi) can be ascribed to no more than four of the D.C. Circuit's judges. The rest of the Court of Appeals has generally hewed to a more moderate line, and has even rebuffed their outlier colleagues in a few significant cases. That's not to commend the results in all of the court's decisions, many of which I find quite disturbing (some deeply so). Rather, it's to suggest that, for the most part, the core of the D.C. Circuit is acting consistently with what little guidance the Supreme Court has offered--a point we would do well to keep in mind in the context of the very live debate over whether statutory reform of the AUMF is necessary...
Asking for the World
Despite the heated reaction to Eric's post on self-promotion, I'll be talking sometime soon about an article I'm writing for a symposium on the public trust doctrine. But as luck would have it, last week came the news of a series of lawsuits to be filed in courts in several states by an environmental group Our Children's Trust. I haven't seen the complaints, but the website for the lawsuits indicates that they're asking for significant curbs on greenhouse gases and a major reforestation effort, based on an argument that the atmosphere is a resource protected by the "public trust" doctrine.
For those who don't know it, in a nutshell the public trust doctrine is a doctrine, traceable back to Roman law, which on one reading creates a commons in certain resources, such as the air and the ocean. It came into American law from Britain, and achieved its most notable success in an 1892 Supreme Court case in which the State of Illinois was held to have lacked the power to alienate a large part of the Chicago waterfront, on the theory that that land was held in common under the doctrine. Joseph Sax, an environmental law scholar, is credited with having resurrected the public trust doctrine in the late 1960's, largely as a tool for ensuring that government decisionmaking affecting environmental resources was made with at least some awareness of environmental values.
So what about these lawsuits? Based on information from the lawsuit's website, they're awfully ambitious in terms of what they're requesting. Given that they're requesting this relief based on a doctrine that (as I'll discuss in a later post) is both of uncertain legal provenance and traditionally limited to a discrete set of resources, it's hard to bet on the plaintiffs' success. Indeed, the courts deciding these cases may well take some guidance from the Supreme Court's likely decision in American Electric Power v. Connecticut to push difficult, large-scale environmental decision-making into the political branches and the bureaucracy, rather than having courts decide them on common law theories.If I had to guess, I'd speculate that the plaintiffs probably know this, and that the goal of the suits is to further publicize the climate change issue, and perhaps reframe it in terms of its effect on future generations. The organization's focus on children, even to the point of using children as plaintiffs, suggests this reframing effort. But who knows -- by filing in multiple states (as well as in federal court), it's possible that they'll enjoy some preliminary success. I can't believe that a state court of last resort would uphold any serious injunctive relief, even if we assume that state common law on climate change isn't pre-empted by the Clean Air Act. But lower court victories, even preliminary ones, could still conceivably alter the political dynamic on the issue.
Interesting Defamation Claim
Premier Exhibitions can proceed with a libel claim against a human rights foundation that claimed that the dead bodies it used in its "Bodies" exhibition were those of executed Chinese prisoners obtained on the black market. A federal district court in Florida (Judge Merryday) refused to dismiss the claim for lack of jurisdiction, since the website of the director of the human rights foundation was accessible in Florida. There are other interesting facets, including a tortious interference claim. For more, see here.
Tuesday, May 10, 2011
Race and Criminal Justice in the West
Conference Announcement and Call for Papers
Race and Criminal Justice in the West
Gonzaga University School of Law
Friday-Saturday, September 23-24, 2011
Gonzaga University School of Law
The Task Force on Race and the Criminal Justice System
This conference seeks to examine the topic of race and the criminal justice system in the Western states. Racial minorities continue to be overrepresented in our criminal justice system; yet too often concerns about the high arrest and incarceration rates are dismissed as simply the result of a high rate of criminality. This conference will explore the role of bias, both conscious and unconscious, to ask whether race still matters in our criminal justice system. While the emphasis will be on the West, we welcome papers and presentations focusing on other areas of the country, particularly ones that engage in comparative analyses.
Examples of the topics we expect to explore include:
- historical treatment of racial minorities with crime in the West
- empirical research examining the role of racial bias in the criminal justice system
- changing demographics and immigration reform
- unique experiences of African-Americans, Asian-Americans, Latinas/os, and Native Americans with the criminal justice system
- role and impact of police actions, prosecutorial discretion, and judicial decisions
- comparative analyses of the criminal justice in the West with other areas of the country
- solutions for addressing the problem of racial bias
We invite scholars, practicing lawyers, prosecutors, judges, law enforcement officials, and engaged citizens to submit proposals for individual papers and presentations dealing with these and related issues. We also seek your participation as panel moderators.
The Honorable Barbara Madsen, Chief Justice of the Washington Supreme Court, will be delivering the keynote address on Friday, September 23.
Papers selected for publication will be published by the Gonzaga Law Review in a special symposium issue.
We anticipate approving the conference for CLE credit.
Proposals must contain the following information:
- Name, Address, Phone, and e-mail
- Title of Presentation and whether you seek, additionally, to submit a Paper for publication
- A statement of up to 300 words explaining your topic
We welcome suggestions for full or partial panels. If you suggest a panel, please be certain to submit the above information for each participant.
If you would be willing to serve as a moderator, please indicate that on your proposal.
Deadline for submission of proposals is June 6, 2011. Please submit proposals via e-mail to Professor Jason Gillmer at firstname.lastname@example.org. Those submitting can expect to receive a response by July 1, 2011.
Final drafts of papers will be due October 24, 2011. Publication decisions for papers will be made by the Gonzaga Law Review.
Did the Supreme Court recently exercise a power that had lain dormant for decades?
The Supreme Court rules permit a petitioner to seek rehearing of a denial of certiorari. The deadline for doing so is 25 days after the denial of certiorari, and the rules really seem to mean it, as they state that "[t]he Clerk will not file" an untimely petition (Rule 44.4). Nonetheless, the Court has long asserted the power to grant a petitioner leave to file a petition for rehearing out of time. The leading cases for this proposition, which are getting pretty old, are Gondeck v. Pan Am. World Airways (1965) and US v. Ohio Power Co. (1957). This practice was never common, and it had seemed like the Supreme Court had gotten out of the business of granting leave to file rehearing out of time. Based on some quick research, the most recent instance I could find in which the Court had accepted an untimely petition for rehearing of a denial of certiorari was about 40 years ago (in Tidewater Oil Co. v. US, 405 U.S. 986 (1972)).
Until last month, that is.
On April 5, the Supreme Court granted a petitioner leave to file an out-of-time petition for rehearing in Foster v. Texas. This is a capital case, and the Court simultaneously granted a stay of execution pending disposition of the petition for rehearing. The Court had previously denied cert. in January. The potential ground for rehearing is evidently that Foster's case could be affected by Maples v. Thomas, a case in which the Court granted cert. in late March. (See SCOTUSblog coverage here.) To be clear, the Court has not yet vacated the denial of certiorari; it merely granted leave to file the petition for rehearing out of time. The petition for rehearing is set for consideration at this Friday's conference. At the conference the Court could deny rehearing, such as if it thinks that the issues in the two cases are too far apart for there to be any effect on Foster's case. Or the Court could hold Foster on its docket until Maples is decided next Term and then at that time either deny rehearing or remand for further consideration in light of Maples.
There are some interesting issues here. (At least interesting enough to me that I'm writing a very short article about it.) On the one hand, at some point litigation must be final. It often happens that the Court denies cert. and then some time later the law changes in a way that could have led to a different outcome. Ordinarily we view that as unfortunate, but we don't do anything about it. On the other hand, the nature of the death penalty changes the usual calculations about finality. In addition to the theoretical questions, there is the factual question of when the Court last granted leave to file an out-of-time petition for rehearing of a denial of certiorari. As noted above, it currently looks to me like it was 1972, but these things can be tricky to find. If anyone knows of anything since then, I'd be most grateful to hear about it!
Monday, May 09, 2011
On Pimping on PrawfsBlawg
Since Dan hasn't turned off my guest account yet, I'm going to wade in with one extra post, so that I can fully respond to AnonProf's comment: "I would appreciate it if Prawfs didn't invite guest commentators who use this blog to pimp their work."
First of all, let's pick a slightly more neutral term: Self-promotion. Am I guilty of that? Yes. I think it's fair to call what I was doing "engaging in a scholarly dialog," but if you want to call it self-promotion, I won't argue with that at all.
Now, as a law professor, I'm a scholar and a teacher. The job of a teacher is pretty straightforward. It's to teach my students, thus helping to contribute to their intellectual toolkit – knowledge, skills, etc. As I see it, the job of a scholar is similar, just more diffuse. Scholars are to try to contribute to society's intellectual toolkit – adding to the storehouse of knowledge, helping to organize it, providing new ways to use it, etc. The function of a scholar, therefore, is necessarily public. You haven't really "produced" scholarship until you've gotten it out there. That means it needs to be made available, accessible, and visible. And that involves not only publication, but some measure of promotion.
So if promotion of scholarship is justifiable, why wouldn't self-promotion be? It seems to me the real difference between "self-promotion" and "promotion" is whether or not you have the resources to pay someone to do it for you. And I use "pay" in a loose sense, as in the microeconomic reality of the situation. Movie stars have agents, PR reps, and, on individual projects, studio or network marketing departments that do their promotion for them. Book authors have reps and publishing houses that largely do their promotion for them. Scholars have themselves and, if they are lucky, an institution with "communications" people. At the University of North Dakota, I don't have a team of people sending out glossy flyers about me or calling newspapers on my behalf. (AnonProf, if you have a team of communications people working for you, then God bless! I wish I had the same!)
So, I engage in self-promotion.
Some people, when they self-promote on PrawfsBlawg, toss in an embarrassed aside, such as "forgive the shameless self promotion." I've skipped those pleasantries. Perhaps that shows a lack of urbanity on my part. But I just see myself as a realist.
We live in a world of vigorous self-promotion. Tiger Woods wears a hat with a logo made out of his own initials. I mean, for crying out loud, if that's okay, how can I have done wrong by mentioning my new article and linking to it? I mean, Tiger Woods is even making money off his hats. My scholarship is posted for free download (here, here, here, here, here, and here, by the way).
Now, one difference (of the many) between Tiger Woods and myself is that I'm not self-promoting with one breath and asking for shelter from barbs with the other. When the news broke about Tiger's philandering, I thought it was hilarious that his friends were asking the media to "respect his privacy." I mean, the man has a line of hats with his initials made into a logo!!
That's not me. I say: Comment on, AnonProf. Dan called your anonymous comment "snarky and craven." I won't. But I would call it ironic. You see, in our online world, millions of people, like me, are putting themselves out there with their blogs, homepages, Twitter, Facebook, online CVs, bio pages, and the like. If that's a breakdown in civility, then, you'd have to admit, so too is the upwelling of anonymous potshots. Self-promotion and unsigned flaming are the ying-yang of the digital world. Now that I think about it, I suppose they bring one another into balance.
And oh yeah, one other thing. Thanks to my linking to my own article in that post, I've already gotten one very thoughtful bit of feedback on it, which will help me to revise my manuscript and put it in better shape for when it is published in final form.
To close, I'll just note that through my blogging on my own blog, Blog Law Blog, I've promoted more of other people's work than I have of my own on PrawfsBlawg. Not that I think I have to in order to mention and link to my own work. But, nonetheless, I have.
Backwards and Forward between Human Rights and Morality: Why Deliberating with (unreflective) Human Rights Lawyers Can Be Troubling
I have the greatest admiration for both academic and practicing human rights lawyers. Yet, I have often found deliberating moral issues with some – unreflective – human rights lawyers frustrating. The conversation usually begins with you suggesting possible moral reasons in favor of or for the permissibility of a certain practice. For example, some people (such as the president and his spokespersons) have suggested that sending soldiers to kill Osama Bin Laden was permissible on both retributive, consequential, and self-defense grounds. At this point the human rights lawyer will attempt to rebut your position by reciting a chain of acronyms, which you will of course find highly difficult to follow, concluding that your position is wrong. If you dare inquire, you will most likely learn that the acronyms stand for things such as a U.N. resolution, a treaty, a non-ratified treaty, some clause in some E.U. convention, a decision by a provisional international tribunal, a report by some commission, opinions of scholars in the field, and maybe even a “custom” or two. In other words, some combination of sources of international law that supposedly suggests your position is not only illegal but has long ago been rejected as barbarous by the enlightened and civilized world. Hoping to avoid the quasi-legalistic issues, for example should Obama be dragged before the ICTA or the ICTP (International Criminal Courts for Afghanistan and Pakistan), you will at this point suggest the obvious fallacy in your interlocutor’s reasoning: one cannot rebut a moral claim with a legal one.
And this is where things become frustrating. As we were all taught, human rights law aspires to capture basic moral rights. Yet, somehow the aspirational component of human rights law is lost on many of the more zealous and unreflective members of the human rights community, for many of which the positivistic lawyerly labor of stringing together the variety of hard, soft, and ephemeral sources of international law functions as a form of moral as well as legal reasoning. For the unreflective human rights lawyer your position is morally wrong because it is legally wrong. Figuring out what the law is is not the beginning of the conversation – as is usually the case for legal academics – but rather the end of the conversation.
And this is where things turn from frustrating to worrying. In the minds of some, human rights law does not merely aspire to reflect morality but actually does – by definition –reflect morality, thereby making human rights law insular and immune to external moral critique. Some human rights lawyers appear to have appropriated not only certain legislative powers over international law, but by extension also view themselves as legislators of morality itself. And, anyone who dares argue against or question the supposed presumed state of human rights law is categorically an enemy of moral rights. Because after all, human rights are moral rights. Aren’t they?
Editors: Help Us Help You Fill Your Fall Books
This is just a reminder to any of our law review editor readers that we'd love to hear your thoughts on whether you'll be accepting submissions in the Fall. Take our very short survey here: <a href="Click" _mce_href="http://www.surveymonkey.com/s/JLYGY3C">Click">http://www.surveymonkey.com/s/JLYGY3C">Click here to take survey</a>
Sunday, May 08, 2011
Quiet Title Is As Quiet Title Does
Saturday, May 07, 2011
Goodbye, and My FSU L. Rev. Article on Intellectual Property
I want to thank Dan and everyone at Prawfs for another wonderfully enjoyable time guest blawging.
I feel especially connected to Florida State this Spring, since I just placed an article in the Florida State University Law Review. That manuscript is up on SSRN. It's called Intellectual Property and the Incentive Fallacy. I argue that the fundamental economic premise of copyright and patent – that public intellectual goods need external incentives – is wrong. Using recent scholarship in behavioral economics, psychology, and business-management studies, I contend that it can now be persuasively demonstrated that natural and intrinsic motivations will cause technology and the arts to thrive even without externally supplied rewards.
I wish everyone a wonderful summer. Here's hoping you don't run into any of your students at the beach. So lawng, prawfs!
Friday, May 06, 2011
"The New Phone Book's Here! The New Phone Book's Here!"
I just got a nice big box of reprints in my office today. Every time that happens, I run through the halls yelling the title of this post. And every time, I have to explain to my colleagues that I am not a lunatic, just a big Steve Martin fan (see here). But which of us hasn't met a box of reprints with the kind of naive enthusiam displayed so wonderfully by Martin's character? "I'm somebody now! Millions of people look at this book everyday! This is the kind of spontaneous publicity -- your name in print -- that makes people. I'm in print! Things are going to start happening to me now." These words were written to be said by a law professor.
I know this topic has been covered before, on this blog and others, but do reprints serve any purpose anymore, other than (1) allowing us the transient joy of seeing our names in print and (2) demonstrating to our parents that the money they spent on law school tuition was not utterly wasted, even though we are making about a fifth of what we could be earning at that fancy law firm where we summered? And more specifically, what is your experience in sending reprints to judges? I have done so on occasion, and even received nice letters in return from Justices O'Connor and Souter, and thought there was nothing improper about it. But the last time I did so, I received a letter back from the judge -- okay, it was one of the Nine Exalted Ones, but I won't say who -- telling me that s/he would not consider any unsolicited matter outside the record of the case. The tone of the letter was rather brusque. I thought this was a little odd, since the judge could have found my article on his or her own and I was just making it easier for him or her. Am I wrong? Has anyone had a similar experience?
A Tip for Lateral Movement
If you are law professor who is interested in being considered as a lateral hire, you should keep your information updated on your school's website. In addition, you should have a link to your full CV there. You'd be surprised how many people don't do this. I'm trying to identify potential lateral candidates right now, and I can tell you that those candidates without CVs online are probably at a disadvantage.
Thursday, May 05, 2011
The Federal Death Penalty in Non-Death States
I want to thank Dan and the gang for inviting me to blog here this month. I'm a bit embarrassed that this is my first post, given that we are already five days into the month, but I was away the first couple of days and have had intermittent and inexplicable internet outages since then (yay, Time Warner). Anyway, I look forward to sharing my thoughts on scholarship, teaching, service, and whatever else crosses my mind.
For my first post, I wanted to share a few thoughts on a pet issue of mine that happens to be quite timely: federal capital prosecutions brought for conduct occurring entirely within States that do not authorize the death penalty. I say "timely" because Judge William K. Sessions III issued a decision yesterday in United States v. Michael Jacques (pronounced "Jakes") denying, among other things, Jacques's motion to strike the notice of intent to seek the death penalty. Jacques is accused of luring his twelve-year old niece to his house, then kidnapping, raping, and killing her. This took place entirely within Vermont, which has no death penalty, but the federal government is bringing the prosecution under the Federal Kidnapping Act. Before 2006, this would not have been a federal offense. The FKA was amended that year to cover not only kidnappings that cross State lines, but also those where the actor “uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense.” That Jacques allegedly used text messages to lure the victim and altered her MySpace page to try to cover his tracks -- and perhaps even that he used an automobile to transport the victim -- brings it within the FKA. It seems pretty clear that the only federal interest here, if it can be called that, is that the death penalty is available under federal law but not Vermont law.
Jacques raised the argument I made in my article, When the Federal Death Penalty is "Cruel and Unusual," 74 U. Cin. L. Rev. 819 (2006) (oh, yes, the shameless self-promotion starts with the first post), that it constitutes cruel and unusual punishment in violation of the Eighth Amendment for the federal government to impose death for conduct occurring within a State that does not itself authorize capital punishment. The argument is grounded in the origins of the Eighth Amendment, and the Bill of Rights generally, as a means by which the Anti-Federalists sought to preserve State sovereignty, especially over crime and punishment. Because the Anti-Federalists conditioned their reluctant acquiescence to the ratification of the Constitution on the adoption of a Bill of Rights, I argue, their views, motivations, and general outlook must be consulted on the meaning of the Bill's provisions.
Judge Sessions rejected the argument, but I take solace in the fact that, unlike the Government's brief, he was not completely dismissive. Rather, he suggested that Jacques might have had more success had he spelled out the argument in greater detail in his brief, rather than simply incorporating my article by reference. Also, the court "observe[d] that the federalism question raised by Jacques appears to remain an open one in [the Second] [C]ircuit."
If Jacques is convicted and sentenced to death, he will join nine others in modern history who have been convicted and sentenced to death by the federal government for crimes occurring in non-death States. (Three had their convictions or sentences reversed on appeal; of those, two were re-sentenced to life without parole and one is currently scheduled to be re-sentenced).
AT&T v. Concepcion and Adherence to Minority Views
Last week the Supreme Court decided AT&T Mobility v. Concepcion, in which it held (5-4, along the "usual" ideological lines) that the Federal Arbitration Act preempted a state-law rule deeming an arbitration clause's ban on class proceedings unconscionable. The case came from the Ninth Circuit, which was applying California unconscionability law. That the case came from a federal court rather than a state court was important. Had the case come from a state court, it might have turned out differently. That is because Justice Thomas believes that the FAA does not apply in state courts, and he has continued to adhere to this view despite multiple precedents to the contrary. See, e.g., his dissents in Preston v. Ferrer (2008); Buckeye Check Cashing v. Cardegna (2006); Doctor's Assocs. v. Casarotto (1996). (For other reasons, he also had problems with the majority's implied preemption analysis in AT&T v. Concepcion itself, but he reluctantly joined the opinion.) In an alternate universe where the case came from a state court, he presumably would have joined the four dissenters in AT&T v. Concepcion in voting not to reverse a state court's unconscionability holding, though for different reasons. (Here I leave aside the possibility that the Court would overrule itself on whether the FAA applies in state courts, but see more on that below.)
Let's return to the actual universe and suppose that tomorrow a state court issues an opinion striking down a class waiver in circumstances that are not materially distinguishable from those in AT&T v. Concepcion. If the Supreme Court took the case, how would it come out? Would Thomas adhere to his prior views on the FAA in state courts? Would the four dissenters adhere to their AT&T v. Concepcion dissent?
There are a few possibilities:
1. Nobody adheres to their prior dissents. FAA preemption wins 9-0.
2. Thomas adheres as usual, the four dissenters do not adhere. FAA preemption wins 8-1.
3. The four dissenters adhere, Thomas does not. Same 5-4 as AT&T v. Concepcion. One might wonder why Thomas would not adhere here, when he has repeatedly in the past. One possibility is that, even though he thinks the FAA shouldn't apply in state courts at all, that view has been rejected by the Court and, for the sake of enforcing lower court obedience to Supreme Court law (even incorrect law), a state court that deviated on indistinguishable facts couldn't be allowed to get away with that.
4. An even more interesting one: all adhere. FAA preemption loses 5-4, though perhaps not with a majority opinion. The result flips, in other words.
Now, my scenario is perhaps a bit unrealistic. When is a case not really distinguishable? Why are we assuming the Supreme Court would decide such a case rather than denying cert? Nonetheless, I think it is an interesting question. What do you think would happen? Any state courts out there who would like to help us find out?!
Oh, and I suppose there is at least one more option:
5. The Court revisits the question whether the FAA applies in state courts and overrules its precedents. Thomas and Scalia are votes in favor of that. We don't know for sure how the new justices feel about it. It would strike me as pretty extraordinary for the Court to overrule here. This is a statutory precedent (well, very loosely anyway!), and those are supposed to be stronger. And there are multiple cases, not just one. Seems like a "super precedent," as Arlen Specter might put it.
Unloading the Canon
There's a saying that "the law you learned in law school is the law," the law you instinctively think of when a legal question arises. This saying has particular resonance for professors, who are tasked with teaching the law, even when it's changed substantially from when the professor herself was in school. The issue is even more resonant for casebook authors. Writing a book, or a new edition, requires making hard choices about excising or minimizing cases that were the law when the author was in school. It's a recognition of the passage of time, and, therefore, of our own aging.
In the most recent version of our con law casebook (note the subtle product placement), we were faced with some choices of this sort. I'm curious about the choices others would have made. So here's my question: for those of you who graduated from law school at least ten years ago or so, what canonical con law cases would you consider to have dropped out of the canon? Let me explain some things here. First, the question is primarily aimed at people who have been out of school for a while, for the obvious reason that for recent grads, they law they learned in school really is still the law. (But more recent grads are of course welcome to participate in any way they choose.) Second, dropping from the canon doesn't mean simply overruled, or deprived of precedential weight. Presumably, almost any con law book has to include Dred Scott and Lochner. Rather, the point is that the case has lost its pedagogical value because it's been superseded, either by later cases or more current debates.
I'll start the discussion by noting a couple of our choices in the Commerce Clause area. First, we demoted Heart of Atlanta Motel and Katzenbach v. McClung from full-blown excerpts to notes. These are great cases to teach, but with Lopez, Morrison and Raich on the books they seem to me to have faded in significance. (Wickard has not similarly faded, it seems to me, because it's still recognized as the template for part of the modern analysis.) Second, we demoted the entire National League of Cities-Garcia debate to a note. The debate is still important, as it provides the backdrop for the commandeering cases of the 1990's; that's why the cases weren't totally excised. But the Court has now had twenty years to mount a frontal counter-attack on Garcia, and it seems not to have shown any inclination to do so.
So how'd we do? Any other suggested deletions from the casebook canon? For that matter, do more recent cases call for considering the addition of older cases not considered part of the canon?
The Free, Open-Source Torts Compendium
Last year I blogged about my project to create a free, downloadable casebook for torts. The completed casebook, broken into two volumes with an online appendix, is done and online. At James Grimmelman's suggestion, I will write a teacher's manual over the summer, which will be available to instructors upon request.
If you are in the market for a new torts casebook, mine has the following features: (1) It's free. And students love free. Paperback copies can be obtained at cost through a print-on-demand vendor (Town & Country in New Hampshire, or one of your own choosing). (2) There are no notes or questions; it's just source material. That may not be a feature as far as everyone is concerned, but I know some teachers like it that way. (3) You can customize the book to your own liking. Just let me know, and I'm happy to send you the Word .doc files, and you can add to, delete from, and change around the content as much as you like. (4) You never have to worry about being blind-sided by new editions, because when I do release a new edition, the old editions will stay online, free, and just as printable and downloadable as the new versions.
My casebook's not for everyone. It's a bare-bones approach. I use it alongside a slim treatise (Understanding Torts by John L. Diamond, Lawrance C. Levine, and Stuart Madden) and a memoir (Four Trials by John Edwards). But if it's up your alley, it's free for the taking. And my archive of syllabi, old exams, handouts, and mindmaps is all on my website. Also, my original slideshow .ppt files are available to any instructor who asks.
Entry Level Hiring: Deadline/Reminder, Information, Question
Deadline and Reminder: I will post the final entry-level hiring summary on May 16. No information received after May 15 will appear in the summary or the spreadsheet. Please post information about entry level hires in the comments to the initial post, or email me directly at slawsky *at* law *dot* uci *dot* edu.
Information: If you want to know more about the schools entry level hires come from (i.e., where entry level hires obtained their JDs), Leiter has a nice report here. An 2009 Journal of Legal Education article by Daniel Martin Katz et al. takes a look at the same topic using social network analysis.
Question: What is this report for?
For law professors, maybe it just satisfies curiosity: who's getting hired? For many people who were on the market this year, I would imagine it's a bit more than that, emotionally.
For people considering going on the market, the summary and spreadsheet are more problematic, for many reasons. Just to name one: the summary appears to provide information about what a good candidate looks like, but we don't see the people who weren't hired, and without that, we're not getting much information about what folks should do to get an entry-level job. For example, if the chart shows that three people who had fellowships at Law School X were hired as entry-level professors and you're deciding whether to take a fellowship at Law School X, it matters a lot how many of those fellows were on the market: three? Or 50?
But maybe this report provides more than just a way to satisfy curiosity, or put closure on a difficult process, or get deeply problematic and misleading information about how to be a good job candidate--maybe it is potentially useful in some other way. I don't know, to be honest, and would love to hear folks' thoughts, in part just because I'm curious, and in part because knowing another use for this project could help me slice the data for the final report.
And remember: May 15! Comment on the initial post, or email me, slawsky *at* law *dot* uci *dot* edu.
AT&T's Long Game on Unconscionability
Thanks to the Prawfs team for inviting me back to guest blog. I'll plan to blog on recent Supreme Court cases, my current scholarly projects, and other miscellaneous topics.
Last week the Supreme Court decided AT&T Mobility v. Concepcion, which held (5-4) that the Federal Arbitration Act preempted a state-law unconscionability rule that deemed an arbitration clause's ban on class proceedings unconscionable. If you wanted this result, this case presented a favorable vehicle through which to reach it. As Justice Scalia emphasized in his majority opinion, the arbitration clause at issue here had a number of interesting pro-consumer features: AT&T would pay the arbitration costs, the arbitration would take place in the customer's county, AT&T would pay a $7500 minimum recovery plus double attorneys' fees if the arbitrator awarded more than AT&T's final settlement offer, etc. (One could genuinely question, as many have questioned, whether these features actually make individual arbitration of small claims viable in practice, but at least in relative terms this clause looks a lot better than those that strictly limit remedies, impose potentially high arbitration costs, and the like.) It seems likely to me that (1) these favorable facts helped the majority reach its preemption result and (2) now that this preemption holding is on the books, it will apply broadly, including to many less favorable clauses -- i.e., it seems preemption will be the rule rather than an exception. The vehicle matters to the development of the law.
And the vehicle probably wasn't an accident.
Those who have been following the issue know that the last decade or so has seen lots of cases in which various state and federal courts have found arbitration clauses (or restrictive aspects of them) unconscionable. The companies trying to enforce the clauses filed plenty of petitions for certiorari during that time asking the Supreme Court to slam the door on unconscionability challenges. They were all denied. One denial that, today, looks especially noteworthy came a few years ago in T-Mobile v. Laster. Laster was a lot like Concepcion. In fact, AT&T was initially T-Mobile's co-defendant in the case. T-Mobile filed a cert petition after the Ninth Circuit struck down its arbitration clause. The trade association filed an amicus brief in support. AT&T didn't seek certiorari, for they had given up back when they saw the writing on the wall in the Ninth Circuit. Indeed, AT&T filed an amicus brief telling the Court not to review the case! (Briefs available here.) My (second-hand, hearsay) understanding is that this move made AT&T's attorneys very unpopular at cocktail parties for a while. AT&T's argument in the brief, though they don't put it this way, was essentially that the arbitration clause that had been struck down really wasn't that great. But it told the Court that it had developed a brand new arbitration clause that was so amazingly consumer-friendly that if any court struck it down, such a ruling would have to be preempted because it would represent a per se bar against class waivers even when consumers could profitably pursue individual arbitration. The new clause would make for a much less messy case, which the Court would probably welcome given the difficulty of reviewing state unconscionability rulings. Concepcion involved the clause AT&T had promised.
Perhaps this is just another illustration of the way a sophisticated repeat player can fashion a long-term litigation strategy in which it sacrifices some cases and waits for the right set of facts to develop. This is something that civil rights groups have done effectively in various instances. But it is also worth remembering that, like the tango, a long-term litigation strategy takes two. The Supreme Court's docket is discretionary, so it too can wait for the right vehicles in which to make law. By providing some key information at a critical time, AT&T might have helped the Court advance the Court's agenda, not just AT&T's.
Will There Be a Fall Submission Season?: A Theory, Some Data, and a Survey for Editors
It often seems to me that as the summer winds turn cool, so too do the shoulders of law review editors. Or, less poetically, I've never had much luck with the fall submission season. In the last two seasons, in particular, based on my own experiences and those of other folks I've talked to, it's been hard even to get any sign of life at all in the fall -- no "confirmation of receipt," no nuthin'.
My theory is that the submission cycle is unraveling backwards into the spring. As Expresso drives up spring submission volume, journals accept more spring pieces, leading to more competition in the fall, leading frustrated authors (e.g., me) to push to get work out in the spring, leading to...etc. And, indeed, consistent with that theory, editors at several good journals have told me that this spring saw the largest seasonal volume of submissions ever.
Not content with my intuition, I did some investigative "journalism" and e-mailed the folks at Expresso. They did a study on submission patterns back in 2006, and it's full of interesting stuff. The headline for our purposes here is their finding that 44% of all submissions are in the Spring, 37% in the Fall. And "those percentages from 2006 are close to what you might expect today," they tell me. But volume has increased steadily each year in all seasons.
I don't see these numbers as clearly confirming or disproving my theory. We don't know what portion of articles are accepted in each season, so steady submission numbers tell us only that authors aren't shifting their behavior. (Though it's possible that authors most likely to be accepted--not me, clearly--do shift...) It's also possible the overall volume increase is leading to fewer fall slots. Expedites & w/d's by season would help, but Expresso doesn't compile that data.
So, in short, we need your help, law review editors! If you have a minute, or if you don't but you're procrastinating, take our very short survey on your fall submission season availability by clicking here.
Wednesday, May 04, 2011
Libertarians and the Claims of Democratic Authority in the Context of Criminalization Debates
I have a section in this paper I'm working on --designed to be a love letter of sorts between retributive justice and liberal democracy :-) -- that I'm afraid I'm not sure is fully there yet, and I was wondering if those with a political philosophy bent might have some reactions. The relevant background here is that I'm trying to explain the reasonableness of democratic authority, largely by appeal to some arguments put forward these days (ie, in the last decade) by Shapiro, Hershovitz, and Christiano. My concern, however, is that in anticipating the first-wave libertarian objection, they have not responded to the "second wave" of critique that an aspect of Arneson's paper represents. (The rough cites for this can be found below.). I could be completely wrong and maybe they or others address the concern, so please feel free to email me offline .
So below the fold, please take a look at these tentative thoughts and feel free to share some reactions or references to additional citations that can help me manage Arneson's critique. I've included a bit more of the discussion than is necessary in case it spurs other reactions too. All the usual caveats apply--it's just a preliminary draft and not for citation or circulation w/o my approval but yes, please tell me if/how I'm wrong (gently). Many thanks!
- Why Fidelity to Liberal Democratic Law?
To sustain a claim that offenders in liberal democracies could reasonably and retributively be punished even in the absence of conduct that is morally wrongful probably requires overcoming an intuition that is widespread and reasonably fixed. Nonetheless, we currently have many laws that criminalize conduct that is not morally wrongful, and many of those laws are violated, and those violators are punished. So do we rationalize this outcome simply by appealing to the possibility that we are all, deep down, thoroughgoing welfarists and that these laws (and the punishments made in their name) are in fact welfare-promoting?
Well, that is one tactic available to avoid cognitive dissonance. But another way to explain this outcome – and indeed to justify it – is to say that we have obligations to conform our conduct to the law’s dictates in liberal democracies, and the recognition of these obligations is not only reasonable, but praiseworthy.[i] What would such an argument look like?
Scott Shapiro and others have defended the idea that there is an authority of law in liberal democratic regimes such that the fact of legislation to do X provides a free-standing (though probably still defeasible) reason to X.[ii] (I leave aside for now whether that obligation is one that necessarily trumps all other reasons to do or not do X.[iii])
We live, work, and play with others—that much cannot be denied. The reason we must conform to democratically elected authority is because such a power-sharing arrangement is, according to Shapiro, “socially necessary, empowering and fair. By disobeying, subjects are unilaterally, and hence unreasonably, setting the terms and direction of social cooperation.”[iv] To understand why this unilateralism is inappropriate, consider first that “social cooperation is not … possible without the availability of procedures for the resolution of conflict.”[v] Moreover, and “absent acceptable resolution, disputes would fester … [and] likely threaten the very survival of the community.”[vi] As Heidi Hurd notes, democratic rulemaking is morally demanding (even if defeasibly so) because “when a moral matter is in dispute (even a matter that concerns competing claims of right, rather than competing claims of preference or utility) and it is more important (again, perhaps as a matter of right) to gain a peaceful resolution of the dispute than to gain a right resolution at a cost to peace, a democratic resolution will recommend itself, and the value of peace will thus dictate compliance with the democratically-crafted solution, even when one takes the resolution to be in error.”[vii]
To risk such dire effects is especially misplaced once “citizens are granted the power to exert control over their lives by allowing them, through the franchise, to affect the terms of social cooperation and the direction of collective pursuits.”[viii]
According to Shapiro, the unreasonableness of disobeying democratic authority is all the more true when there are basic background rights that continue to empower or “enable citizens … the opportunity to persuade their rivals, and the uncommitted, of their view.”[ix] Finally, “democratic processes constitute fair procedures for the resolution of disputes. Democratic processes are fair because power is shared in a roughly equally manner. Equal power-sharing consists, first, in the equal voting power that individuals, or groups to which they belong, have in the selection of policies or election of representatives. Second, equality of power is determined by the equal opportunity that individuals, or groups to which they belong, possess to express their views and to persuade others as to the value of their positions.”[x] Ultimately, Shapiro’s argument here is that it is unreasonable “not to abide by” procedures for dispute resolution that are necessary, empowering, and fair.
Presumably the Nietzschean, the anarchist, or libertarian would resist this claim to their conformity to the law: after all, it’s not as if they asked to receive the public order, coordination, and dispute resolution benefits provided from the state.[xi] If someone throws a newspaper at my house that I didn’t ask for, I’m not morally obligated to pay for it and it’s not right to ask me to do something else in return for a benefit.[xii]
Shapiro adroitly anticipates the objection that the receipt of benefits from a particular person or body is not normally sufficient to ground obligation or deference. But his response here is that whatever liberty the objector has to pursue his projects is a function of the restraint shown by other people.[xiii] Thus to reject the terms of social cooperation that create the objector’s liberty is ostensibly exploitative of other people. Shapiro argues further that such behavior is “dictatorial” because it denies the majority the right to control their lives and it fails to show them the “respect due to them as equal participants in a fair power-sharing arrangement.”[xiv]
There is much I find compelling in this argument and similar ones advanced by Hershovitz, Waldron, and Christiano. For instance, if A thought that his vision of the good required others to do X (build museums to honor a tradition), but the majority did not want to do X, I could easily accept Shapiro’s claim that A’s failure to listen to the majority would be dictatorial and disrespectful to his fellow citizens.[xv] Nonetheless, I don’t see the argument here going through entirely, at least as stated.
The focus of our concern has to be on the claim above that observes whatever liberty the objector has to pursue his projects is a liberty created by the restraint of other people. Is this a descriptive claim of reality and if so is it accurate? If it’s a descriptive claim, it seems to depend on a hidden assumption that private pursuits without a state restraining us are impossible because otherwise we would live in a Hobbesian state of nature of ceaseless war of “every man against every man.”[xvi] But it might well be that such a view is overly pessimistic and that we would be able to pursue some private pursuits in part through a) our own efforts to do so, b) the moral forbearance of others, and c) the measures of self-defense we threaten to those who would not forbear and instead attempt to interfere with those private pursuits. Moreover, assuming we do have a state with the capacity to restrain us from interfering with the libertarian’s private pursuits, in what way is it correct to threaten predation to the libertarian rather than reasons?
Maybe this isn’t what Shapiro means though. Perhaps he’s saying that the pursuit of essentially all private projects necessarily involves building on the achievements and restraint of those before or alongside us. So our own private pursuits are always activities in which we actively participate in the schemes of social cooperation that require our fidelity. For example, if a person wanted to raise chickens on his land and watch TV all day he would perforce be relying on the laws and institutions that protect his land and chickens from intrusion and theft, the laws that provide for intellectual property generation, dissemination, and protection, and the background property norms that allow a person to own chickens and television as private property. Enjoyment of private property rights, for instance, is not just a private pursuit: it entails control over other people, for example, because the owner will (likely) have the power to exclude others from entering the property and taking the chickens.[xvii] As Christiano notes, “Those who refuse to pay taxes or who refuse to respect property laws on the grounds that these are unjust are simply affirming a superior right to that of others in determining how the shared aspects of social life ought to be arranged. Thus, they act unjustly.”[xviii]
All this seems true. But does it go far enough to do the work that democrats want regarding criminalization? If these considerations seem abstract, consider: the libertarian might concede that he morally owes some respect to those public taxing and spending and criminalization decisions that keep the minimal state functioning so that he can raise chickens and watch TV.[xix] And no matter how much he loves opera, he will concede that he can’t force others to kick in and subsidize opera because that would also be disrespectful or dictatorial of their entitlement to liberty and respect. Nonetheless, he might insist there is a “rough line”, as Arneson puts it, between “rights that confer on the right-holder the power to direct how another shall live and rights that do not confer such power.”[xx]
Consequently, our objector might respond that anything beyond that low floor, even if supported by majority rule, corrals too much of his time and effort (and reasonably acquired property) for public use or imposes more restrictions on his liberty than are necessary for that minimal state to protect a large sphere of autonomy for the individual to act privately or with others on the basis of consensual terms of cooperation. Accordingly, the libertarian objector might say: any extra burdens imposed through majority rule on libertarians are ones you democrats can’t reasonably force me to bear if the pursuit of my projects is consistent with and doesn’t impinge on the autonomous spheres of others. Moreover, pace Shapiro, there’s nothing dictatorial about my libertarian stance because I’m perfectly willing for everyone to enjoy the same expansive sphere of private or negative liberty that I do. So, what’s disrespectful about a strong presumption of (negative) liberty, he might ask?
To bring it down one more level of abstraction, consider if the libertarian objected to a law passed with strong majority support designed to eliminate private possession and use of drugs like cocaine or pot. The libertarian can say everyone should have that liberty uncurtailed. Who is being more dictatorial? The majority that criminalizes this conduct or the objector who says this kind of non-culpable activity should not be subject to criminal law and punishment? The majority could say, look, because of the harmful effects of drug use or manufacture, we end up with people causing other crimes and unjustified risks to others when they are high; sometimes the production of drugs (like meth) itself is physically dangerous (independent of the fact of prior prohibition); moreover, we face more expensive medical insurance costs and we worry about free-riders who don’t pay their whole way ex post, so we’d rather try to prevent people from using drugs at the outset because of those risks and harms. That strikes me as a plausible set of responses to the libertarian.[xxi]
Nonetheless, it seems the libertarian should be able to buy some insurance product to ensure to others that he won’t be free-riding, or imposing the risks of externalities arising from his conduct, and thus avoid criminality for recreational drug use (and maybe even its manufacture). If he’s willing to say, look, I will use drugs only in my own home, I will show my good faith by minimizing these risks and externalities by buying insurance and hiring a guard to keep me from injuring others when I’m high, then it seems as if Christiano and Shapiro’s arguments about disrespect toward social cooperation is not necessarily applicable.[xxii]
Perhaps a better way to persuade even the libertarians to conform to democratic authority is to take a tack that Waldron emphasizes: namely, to point out that we need a procedurally legitimate way to go about resolving disputes even over first principles.[xxiii] Democracy plausibly meets that challenge. But as Raz points out, it’s not clear why the fact of disagreement grounds an obligation to accede to democratic decision-making procedures.[xxiv] Moreover, even if it were true that disagreement did ground such an obligation, it would not provide us with a firm basis for enshrining certain liberal rights against democratic choices. I take it, that for skeptics of judicial review like Waldron, this inference isn’t such a big deal as it might be for others.[xxv]
Maybe it would be enough to show the various intrinsic and instrumental benefits associated with democratic authority though. There is after all the suggestion from various corners that democracy: offers a form of epistemic or theoretical authority[xxvi]; instantiates a form of procedural justice[xxvii]; promotes individual autonomy inasmuch as it facilitates our ability to do things that we would not be able to do alone; boosts self-esteem of citizens[xxviii] while militating against social alienation and defeatism[xxix]; and allows citizens to “express and respect their status as political equals.”[xxx] Perhaps the benefits of democracy are so manifold that to reject them in the face of the alternatives is to act unreasonably. But I’m not sure the libertarian discussed above is unreasonable, especially once he makes the concessions to democracy that he does about the shape and contours of those social projects necessary for the protection of liberty and the polity itself.
[i]In the punishment context, the offender has not necessarily consented ex post to his punishment, but, as a reasonable citizen/resident/guest, living with other reasonable persons, he should authorize the creation of fair institutions of retributive justice as part of the machinery necessary to work out the dilemmas of collective self-government. I try to elaborate this point more in what follows in the text and it is in no way unique or, for that matter, without controversy. Nonetheless, there are a number of punishment theorists who adopt this quasi-contractualist (as opposed to contractarian) tradition to ground our obligation to conform our conduct to the law. Cf. Murphy, “Marxism and Retribution,” p. 228: “The criminal himself has no complaint, because he has rationally consented to or willed his own punishment. That is, those very rules which he has broken work, when they are obeyed by others, to his own advantage as a citizen. He would have chosen such rules for himself and others in the original position of choice.” On the difference between contractualist and contractarian, see SEP __.
[ii] Shapiro, 2002 authority essay in oxford handbook 434-439. See also Rawls, A Theory of Justice, 98-99, 294-95 (Rev. ed. 1999) (discussing the “natural duty” to support reasonably just institutions).
[iii] Christiano believes that the democratic assembly’s vote in favor of a law provides “each person a pre-emptive and content-independent reason for complying.” Christiano, The Authority of Democracy 2002, p. 3. But further along he clarifies that respect for such votes is contingent on abidance with other constraints: (“There is no good reason for thinking that matters of distributive justice, individual rights and the common good are less normatively important than democratic principles.”). Id. at 4. So that leaves us with a question of what gets prioritized, which itself is a cause for disagreement, and thus a possibility for infinite regress emerges.
[iv] Shapiro, Authority essay, 2002. (italics mine)
[vii] Hurd, 42 SDLR 2005 at 78. I confess I wonder about the extent to which Hurd’s quasi-anarchistic views in her earlier work is undermined by this later piece, in which she provides 3 content-independent reasons for giving democratic rules some weight as a reason for action in favor of conforming to the law.
[x] Shapiro. (Shapiro acknowledges and is unpleased by the fact that certain laws might make harder the purportedly equal shot at persuading when money drives politics to the extent that it does).
[xi] Nozick, ASU, 90-95.
[xii] This is the distinction between receiving and accepting benefits that some fair-play advocates invoke. My accepting a benefit might obligate me because I am voluntarily participating in a scheme of social cooperation. But my receipt of benefits cannot on its own show that I have voluntarily participated in a fair scheme of social cooperation that thereby obligates me. Cf. A. Simmons 1979 (129).
[xiii] Shapiro (noting that the objection “ignores the fact that personal liberty has value only when a scheme of social cooperation is already in place. One cannot complain that one’s ability to pursue projects in the manner one sees fit would be overburdened when the ability to pursue those projects essentially depends on everyone else’s restraint. The very assertion of personal liberty indicates that the objector willingly accepts the benefits of such procedures. The objection, in other words, wants its cake and to eat it too.”).
[xv] Shapiro’s account here basically coincides with others who vouchsafe the authority of democracy, such as Peter Singer (1974) , Tom Christiano (SEP), Jeremy Waldron 1999.
[xvi] Hobbes, Leviathan, ch. 11/13.
[xvii] See Arneson, Democracy is not intrinsically just, around fn. 11. Justice and Democracy, eds. Keith Dowding, et al. (Cambridge: Cambridge University Press,
[xviii] Christiano, Authority of Democracy, at p.21.
[xix] Cf. Nozick, ASU.
[xx] Arneson, supra note __, (“a right that constrains other people from engaging in a
certain type of conduct toward the right-holder differs from a right to set rules
that might specify what others shall do across a broad range of important types
of conduct. I concede this is a difference in degree but when the difference in
degree is large the difference is large and in my view morally significant).
[xxi] Of course, the story is much more complicated. For a helpful overview of how and why drugs laws in the United States emerged, see Richard C. Boldt, Drug Policy in Context, 62 S. Carolina L. Rev. 261 (2011).
[xxii] Similarly, Tom Christiano argues that the moral authority of a democratic assembly runs out when the assembly passes laws that “undermine equal respect,” Christiano, SEP, since it is that norm that grounds the authority of democratic assembly in the first instance. But as the example above shows, it is not clear who is being disrespectful: the majority that seeks to constrain the liberty of the objector who creates risks and costs or the objector who says the majority is acting in a tyrannical fashion by not allowing him to accommodate the majority’s reasonable interests in reducing the risks and externalities of the objector’s hypothetical drug possession and use.
[xxiii] See Waldron 1999; Christiano, Authority of Democracy (“citizens are bound, as a consequence of the facts of disagreement, fallibility and cognitive bias, to disagree about what justice requires in a society”).
[xxiv] See Hershovitz 2003 (at n.48, describing Razian critique of Waldron and providing specific references).
[xxv] This seems to be more of a problem for Christiano. Christiano and I agree that liberal rights are a basic necessity for the justice of democratic authority to be available, but he doesn’t quite tell us how to defend well against the libertarian objections that say the democratic assembly gets some leeway to resolve necessary projects but not those projects unnecessary for securing the peace and minimal conditions for civil society to effloresce on its own.
[xxvi] Hurd YLJ Challenging Authority at 1675-76 (arguing that democracy may be epistemic guide to determining antecedent moral obligations).
[xxvii] Robert Dahl, DEMOCRACY AND ITS CRITICS 164 (1989).
[xxviii] Rawls, TJ 234 (1971).
[xxix] Hershovitz, 2003 at 214.
[xxx] Gutmann and Thompson, DEMOCRACY AND DISAGREEMENT 18 (1996).
Supreme Court Advocates: "The Best There Ever Was"
Who is “the best there ever was” as an advocate before the Supreme Court?
I’ve been thinking about this lately due to a couple of scheduled trips to the Supreme Court later this month. When I posed the question on a con law listserv, the discussion immediately moved to one of criteria: How does one measure greatness as a Supreme Court advocate? Does it involve eloquence? Most wins? Best performance on behalf of a worthy cause? Greatest skill in getting the Court to change its mind?
However difficult, it seems to me that the task of identifying excellence is worth pursuing, given that we are tasked with training lawyers who may someday find themselves arguing before the Supreme Court.
Obviously, there is no single measure of greatness. Even “winning” is somewhat incomplete since part of a lawyer’s job would be to create a “soft landing” in a losing case by convincing the Court not to rule as heavily against your client as they might have done otherwise.
Perhaps, though, we could achieve some degree of consensus about “the best there ever was” by identifying an advocate who has the highest score across a range of categories: Greatest number of wins, in cases involving a worthy cause, in a manner that appears to have moved the Court in a direction it was not previously disposed to move.
If that’s correct, then I am ready to nominate my choice for the best there ever was: Hayden C. Covington.
Men's sports and Title IX
Universities complying with Title IX by cutting smaller, non-revenue men's sports is not new. In fact, I always have thought of it as a brilliant strategy. The university cuts small men's sports with impunity, able to claim that its hands are tied, that it has to do this to ensure Title IX compliance, and that if anyone is to blame, it is Title IX (this argument undergirds many of the new arguments to "reform" Title IX). The strategy sets small men's sports against women's sports, even though they are similarly situated in all of this. They get forced into a supposed zero-sum game. Meanwhile, schools continues to funnel a disproportionate amount of athletic funds to football and men's basketball (an average of 78 % according to one women's-sports advocate, although I have no way of knowing if that number is accurate).
But the stratgey is back in the public eye again, with the story in Sundays New York Times about the University of Delaware cutting its men's track program in order to ensure future compliance with Title IX, even though there is no present threat or risk of non-compliance or a lawsuit (Delaware is about to add a women's golf team). Instead, several track team members have filed a complaint with the Office for Civil Rights in the Department of Education (headed, by the way, by a former law school classmate), claiming the decision to cut their program was gender-discriminatory. The parties have undertaken informal settlement discussions.
I was cheered to read one comment in The Times story, from a former captain of the Delaware track team, who is quoted as saying "How did we ever get to a place where a program that is supposed to be about creating opportunities for women is now being used in a way to create no opportunities for women and to cut men?" He clearly gets it. When will the rest of college athletics?
Twitter and the Lawprof
This past August, while attending the IP Scholars Conference in Berkeley, I decided to start a work-related Twitter account (I already had a personal Twitter account but kept it locked and very separate from my professional life). I imagined that it would be a useful way to keep in touch with colleagues, post brief comments about issues related to my work, provide quick updates about work I was doing and conferences I was attending, and communicate with students about class. It’s been about one full school year since I started operating the account, and below the fold I explore how my experience with Twitter has been so far, and proffer a few thoughts for how this social media platform might be used effectively by lawprofs.
My first thought in starting a Twitter account was that it would be a helpful, although not exclusive, way to provide students with information about class, and I’ve found this to be the case. I often post last-minute changes to office hours, reminders about assignments and events, and quick notes about updates to the syllabus, and to the extent that students are following my Twitter feed (about which more below), I think this has been a Paret0-optimal move, as the L&E folks are fond of saying. To give just one example, last semester, I ended up coming in on a Sunday during reading period, and tweeted that I’d be in the office for a few hours in case students wanted to come by to ask questions, and several students did.
I could have achieved this with an email, of course, but the advantage of Twitter is that it’s less invasive. I don’t want to crowd already-jammed student inboxes with the kind of quick notes and reminders that I often tweet about.
Interestingly (to me, at least), I did get some skepticism from students about the Twitter account. While many students are on Twitter, not all of them are, and the ones that weren’t seemed worried that they could miss crucial information about class if they didn’t start an account and follow me. One student even made his first tweet, “I’m only doing this because my professor said I had to follow him on Twitter.” This would be concerning if it were not just a misunderstanding. Of course, I never said any such thing, and explained very carefully that I left my account public because I wanted to make sure people could follow it without having to start a Twitter account themselves merely by going to twitter.com/dave_fagundes. So I think the objection that not all students actively operate Twitter accounts is unconcerning, all in all, though it has caused me to be careful not to post any crucial information exclusively on Twitter (but also to, e.g., TWEN) in order to make sure there’s no disparity in who receives it.
Also interestingly (again, to me, obv), many students seemed to find it hilarious that a law professor would be on Twitter. On a number of occasions in class, I mentioned that I posted something to Twitter, and they’d titter (and yeah, that-there rhyme was intentional), and this would amuse me. I asked a few students about this, and they explained that they perceived Twitter as un-serious, so that having an account seemed incongruous with the gravitas of the legal profession (my re-phrasing, of course). One student even mentioned this in an eval, saying “Twitter is for athletes and rappers, not law professors!” This objection also seems to me insubstantial. Twitter is clearly not just for celebrities, as its multiplicity of users attests. This kind of formal objection often arises in the context of new media. Back in the 90s, many people thought the entire internet was just for nerds who wanted to talk about Star Trek. My sense is that categorical objections about who should use any new medium typically reflect the objector’s lack of vision and understanding rather than a meaningful substantive concern.
I also thought Twitter would be a good way to stay in dialogue with colleagues, and this has turned out to be true as well, at least to the extent that these colleagues are on Twitter. Twitter has proved a good way to post a quick update saying, for example, “I’m at thus-and-such conference.” I used Twitter to thank Ann Bartow for her comments on my roller derby IP norms paper at JSIP, and to thank Chris Sprigman for writing a feature (with Kal Raustiala) about that paper on Freakonomics.
All of these functions can, of course, be achieved on Facebook via status updates, but I have a slight preference for Twitter, which may be more a result of path dependence than anything else. Also, I tend to post slightly longer, more involved status updates on Facebook rather than quick notes and updates (probably a personal idiosyncrasy, since many other people seem to use Facebook status updates for just that purpose). And of course, Twitter reaches a different audience—it’s anyone who chooses to follow you, as opposed to just those you allow to follow you on Facebook.
I’ve also found Twitter to be a great source of quick updates on current news items related to my field, since I follow relevant feeds like SCOTUSblog and StanfordCIS. Twitter is how I found out that the U.S. had killed Osama Bin Laden (and where I heard the first hundred people say “Donald Trump isn’t going to believe it until he sees Bin Laden’s long-form death certificate”). It’s also where I first saw that certiorari had been granted in Golan v. Holder.
I’ve been more reluctant to use Twitter as a platform for expressing substantive opinions, simply because it’s hard to say anything of substance in 140 characters. Some lawprofs make a valiant effort at tweeting substantively (and yes I'm aware that "tweeting substantively" may be an oxymoron, and in any event certainly sounds like it should be one), such as Larry Lessig and Adam Winkler. Even so, I think the best one can do on Twitter is to express a simple idea (“I dis/agree with this case”), and that attempts to actually explain or substantiate that opinion are impossible in the allowed space. So while I’ve seen people try to get into substantive debates on Twitter, I’m usually underwhelmed by this, and they seem more like simplified sniping matches rather than anything of real substance or value.
So at the end of my first year using a professional Twitter account, I’d rate the experience a qualified success, and I’ll conclude with five thoughts for lawprofs who may be interested in starting a Twitter account of their own:
1. Maintaining a good Twitter feed requires constant, though not incessant, attention. If you want the account to be taken seriously as a source of information, it’s probably necessary to post at least every several days, and probably more often. But it’s possible to overdo it by posting so many tweets that they tend to overwhelm your followers’ feeds.
2. It may be a good idea to operate separate accounts, one for colleagues and one for students (or just one or the other accounts). I’m planning on doing this next year, largely so my colleagues don’t have to be subjected to countless tweets about changes to assignments and additional office hours.
3. At least until Twitter becomes ubiquitous (if it ever does), it’s probably necessary to have the account unlocked, at least if you want it to be a source of information for students. Not every student has a Twitter account, and if yours is locked, they’ll have to start an account themselves to follow your feed. By contrast, if you leave it open, they can just go to your publicly available Twitter page website, and this is no more onerous (and in fact easier) than visiting TWEN.
4. Related, Twitter can be a nice complement to course websites such as TWEN. I often post tweets to notify my students that new information (recent .ppt slides, revised syllabus) is available on TWEN. This is not something I’d want to send an email about, but does seem appropriate in the relatively less invasive context of a tweet.
5. Use conventions are fascinating and tricky. Negotiating the 140 character limit while still making a coherent point is challenging, and I realize style is not substance, but I still can’t quite bring myself to post in full-on Twitterspeak (e.g., “u” for “you,” etc.). I’m all for trying to use new media in creative ways, but in this respect, anyway, I’m old-fashioned.
Those are the results of my (still ongoing) Twitter experiment. What are others’ thoughts on how lawprofs might use Twitter to productive scholarly or pedagogical ends?
Tuesday, May 03, 2011
Favorite Tort Theory Article of the Year: John Gardner on Corrective Justice
It has been an interesting year in the theory of tort law. Gregory Keating’s stuff is always good (here); Scott Hershkowitz cleverly used Harry Potter to demonstrate how tort theory is often blind to procedural dimensions of tort law (here); Goldberg & Zipursky offered a comprehensive account of their conception of tort law as a law of private wrongs (here); Joseph Raz wrote brilliantly on responsibility and the negligence standard (here, here); Avihay Dorfman has defended an account of the morality of tort law based on the value of equal-respect (here, here), and there have been others. Yet, my favorite (with Raz of course a close second) is John Gardner’s recent article on corrective justice (here).
Gardner – successor to Ronald Dworkin as the Chair of Jurisprudence at Oxford – is often primarily thought of as a theorist of criminal law, which may have the unfortunate effect of distracting readers from his equally impressive work in other fields such as torts (e.g., here, here, here, here). Not that I always agree with Gardner. In fact, I devoted an article to exploring and rejecting some of his ideas on the nature of the negligence standard (here). Yet, I believe that Gardner is among the handful of the world’s very best legal philosophers. His work is always carefully reasoned and highly illuminating. You may say I’m a fan.
In his most recent piece – "What is Tort Law For? Part 1: The Place of Corrective Justice" – Gardner sets out to clarify the concept of corrective justice and its role in the law of torts. A corrective justice approach to tort law appears, at least on its face, overly focused on tort law’s remedial aspects. Remedial duties are second-order duties. They are predicated on a violation of first-order duties, which in tort law are embodied in duties such as the duty of care. Any account of tort law predicated on corrective justice must explain how corrective justice – a concept focused on the remedial – can account for the primary duties of tort law. Jules Coleman, for example, tackles this problem in his The Practice of Principle (lecture III).
Gardner’s article is rich. His explanation of the logic of corrective justice and its relation to primary obligations is particularly interesting. Where an obligation is violated one may often still conform to the reasons for that obligation. Given that it is no longer possible to adhere to the original obligation, the persisting reasons for that obligation call for the next-best satisfaction. Put differently, the rationale for a violated primary obligation (e.g. a duty of care) is also a rationale for a secondary obligation which is an obligation to do the next-best thing (e.g., compensation). Tort law’s remedial obligations of corrective justice are rational echoes of tort law’s violated primary obligations. Realizing this clarifies the normative connection between duty and remedy in tort law: the reasons why one must pay for the wrongful harms one causes are the same reasons why one must not cause such harms in the first place. Gardner calls this the “continuity thesis.” Plaintiffs’ remedial acts are (partial) conformity with those original reasons they failed to conform to in violating the primary obligations of tort law. In tort law the reason not to violate the primary obligation is that even perfect performance of a secondary remedial obligation does not ever fully satisfy the reasons for the primary obligation. There is always a rational remainder of nonconformity. This remainder manifests itself in reasons for a variety of reactive emotions such as regret or shame for violating one’s primary obligation.
Gardner is currently working on a sequel project titled: "What is Tort Law For? Part 2: The Place of Distributive Justice." I cannot wait.
Should RBG and SB Retire this summer?
Here's a question for my fellow(ish) Dems prompted by a TNR oped by Randy Kennedy from HLS: should Ginsburg and Breyer should retire this summer? The logic is that now's as good a time as any for Dems to try to entrench some moderate liberals in those seats given the ages (78 and 72 respectively) of Ginsburg and Breyer. Elie Mystal from Above the Law takes a typically more controversial approach: RBG and Breyer should stay and Obama should campaign on, among other things, RBG's purported frailty, which would make salient to Americans who are pro-Roe that their vote will have substantial significance for the future of laws affecting reproductive medicine. As a tactical matter, which move (retirement or staying on) do you think is better for the Dems? As a moral matter? One friend on FB is such an RBG supporter that she says (I hope tongue in cheek) that if RBG thinks she can outlive them all, then we should defer to her. Crazytalk, right?
Recent Developments at the NYU Center on the Administration of Criminal Law
Since January, I've had the privilege and pleasure of being affiliated with NYU's Center on the Administration of Criminal Law, and I thought I'd take a moment to share with you all some exciting recent developments at the Center, which is helmed by Tony Barkow and Rachel Barkow. First, the Center recently published a book via NYU Press called "Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct." The book is a collection of essays on corporate governance and its intersection with criminal justice by leading scholars including: Jennifer Arlen, Sarah Sun Beale, Sam Buell, Tino Cuellar, Richard Epstein, Brandon Garrett, Lisa Kern Griffin, and Vik Khanna. If you're like me, and long puzzled by the intricacies of punishing in a group context, you might find this book's essays very helpful. You can buy it here.
Second, and equally exciting, an amazing conference the Center organized on "policing, regulating, and prosecuting corruption" recently took place at NYU and you can find video of it here and on C-Span, a network that, as Seth Meyers reminds us, gets more eyeballs than NBC these days. Our own Rick Hills participated in that symposium. By the way, the symposium was also sponsored by the Annual Survey of American Law, and that journal will be publishing the proceedings in a future issue.