Tuesday, August 30, 2011
Arizona Challenge to the Voting Rights Act
The state of Arizona has filed a lawsuit challenging the constitutionality of the Voting Rights Act (see complaint here - h/t Rick Hasen). In its complaint, Arizona challenges the Act on several grounds, including that Section 5 of the Act infringes on state sovereignty by requiring states to preclear changes to their election laws with the federal government before the changes can go into effect. Back in 2009, the Supreme Court was quite sympathetic to this argument, even though it ultimately decided to uphold the constitutionality of this provision.
As I argue in my new draft, the Voting Rights Act should not be invalidated on the grounds that it infringes on state sovereignty because states are not sovereign over federal elections and have, at best, limited sovereignty over practices that govern state elections. Consequently, the Court should defer to Congress’s determinations about what remedies are needed to address discrimination in voting. The draft is here.
Further Thoughts on Different Learning Styles
The recent news about the scientific debate over learning styles and the evidence to support the idea that learning styles among students really differ was on my mind as I read a recent article by my colleague, Louis Schulze, called Alternative Justifications for Academic Support II: How “Academic Support Across the Curriculum” Helps Meet the Goals of the Carnegie Report and Best Practices. Louis heads the academic support program here at New England Law and we have often discussed whether professors should alter their approach to teaching to accommodate different learning styles among students. For my part, I have no facility with technology and eschew PowerPoint and movie clips and the like. I do use old school technology—namely, writing on the chalkboard. But for the most part I teach as I was taught: I ask questions, call on students to answer those questions, and the discussion continues from there.
Which leads to the point I typically raise with Louis: altering one’s teaching to appeal to different learning styles among students is well and good and consumer-friendly, but in much of the practice of law, an endeavor which requires learning on the job for much of one’s career, no one is going to adapt to a student's preferred learning mode. That is, the judge will not explain his evidentiary ruling visually, the senior partner will not illustrate his point with a movie clip from The Departed, and you will be hard-pressed to find the Classics Illustrated versions of the cases you need to read and understand for the summary judgment brief due at the end of the week.
Which is not to say that the professors teaching in our academic support program are not doing some of the most important work in the law school, as illustrated by Louis’s thoughtful article about how academic support practices can be integrated across the law school curriculum.
For those recently hooked on Westeros
Dave Hoffman has a fascinating interview with George R.R. Martin from 2007. You can find the interview, and the post about it, here.
Monday, August 29, 2011
The irrepressible myth of different learning styles
NPR had a story this morning discussing the newly joined scientific debate over whether there really are different learning styles (H/T: My colleage Joelle Moreno). A psychologist at the University of South Florida argues that there is no evidence-based scientific support for the idea of different learning styles and that it is a mistake to try to teach differently to different students. Rather, the similarities among brains and styles are more prevalent than the similarities.
Which is not to say that different approaches are not a good idea. Rather, studies show that "mixing things up" (combining aural, visual, movement, etc.) is a good way to keep students interested and engaged, which studies do show better enables them to learn.
So now I have a scientific basis for not being defensive when I get my annual "Use PowerPoint, some of us are visual learners" student comment.
Friday, August 26, 2011
Rick, You Are My Bagger Vance
Thanks, Rick, for your post about the Bill Keller column. Alas, I haven't read his original column, so I can't speak to it. But I looked at the list of questions for the presidential candidates concerning religion that Keller subsequently supplied, the list you discuss in your post. Keller begins with a couple of general questions about whether the candidates think these sorts of questions can be asked at all. I think that is a relevant question, not least because many of these candidates have themselves repeatedly invoked their faith, more or less specifically depending on which audience they've been addressing. The subsequent questions generally have the potential to say something meaningful about how the candidate would behave in office, so I think they are within bounds. (Are they the most important questions? Not necessarily. One might be better off asking the candidate about specific matters of domestic or foreign policy. But they are relevant; they're not boxers-or-briefs questions, or even, to paraphrase you, boxers-briefs-or-sacred-garments questions.) A couple are less immediately relevant. "Are Mormons Christians, in your view?" does not seem relevant to me, although the next question Keller proposes -- "Should the fact that Mitt Romney and Jon Huntsman are Mormons influence how we think of them as candidates?" -- does seem relevant. The question about evolution seems mostly irrelevant to me, as does the question about teacher-led student prayer in public schools, because the President will likely have little influence on those local issues. They're not outrageous questions, however; they do concern public policy, and for better or worse we ask presidential candidates about local issues, and even national issues they have no authority to address, all the time.
Rick also suggests that there are different reasons to ask such questions, some of them better than others. Questions asked in good faith because the voter thinks they are relevant to the performance of the office, whether directly or because the voter thinks they say something about the candidate's character, are quite acceptable, Rick writes; questions asked merely because they could be taken out of context in a damaging way or could be used to make the candidate seem "weird" are questions we could do without.
Nit-picker that I am, let me add a couple of points to that.First, note that Rick's first category -- questions that are acceptable because the voter sincerely thinks that they will say something about the candidate's fitness for office -- is potentially a huge category, because individual voters may, in good faith, harbor very broad views about what religious questions are relevant to a candidate's fitness for office. If, in classic republican fashion, one believes that the nation ought to be led by genuinely good men and women, then one might conclude that anyone who believes in an untrue set of religious doctrines might be an unfit candidate. So just about anything could be on the table in that case. Second, let me add another category. A question on a religious topic might be relevant not because the voter thinks it is relevant, but because the candidate thinks it is relevant. That is, if it is the case that Michelle Bachmann genuinely believes in the inerrancy of Scripture and in a highly specific set of religious doctrines that ought to be or effectively are part of American law and governance, then surely it is reasonable for a voter to ask her about them, even if the voter would not otherwise be moved to ask about religion. The difference between the two may be subtle, or they may amount to the same thing, but I thought it was still worth bringing out this point.
Third, when Rick says that questions about religious doctrine that are designed to be taken out of context or to make a candidate seem weird are questions that political discourse could do without, I more or less agree. But I would add that I think that conclusion is true to the extent it is true for non-religious questions. Political discourse would be better off without questions on any topic that are designed to be taken out of context. And while we should generally disfavor them, we can't categorically say that questions that make a candidate seem "weird" are necessarily out of bounds, whether they involve religious beliefs or not. It is basically irrelevant to a president's qualifications for office that he sincerely believes that he was abducted by aliens and subjected to intimate probing. But many of us would probably want to know that fact about a candidate before casting our vote, and not without reason. It's true that for various reasons we are less likely to consider a belief weird if it's shared by many people as part of a lasting and hallowed tradition (say, that Christ rose from the dead, or that it is possible for judges not to make the law from the bench). But what constitutes a "weird" belief of this kind is probably an essentially contested question, so I don't think we can rule such questions totally out of bounds.
Two broader points. First, I think the difficult issues lie less with the kinds of questions we ask about religion than with how we treat the answers. Here, my view is that we should approach these answers with a certain care, caution, subtlety, sympathy, and appreciation for nuance. It is possible, for instance, to believe that gays and lesbians are engaged in sinful conduct, without believing that they should not be appointed to federal office or treated differently by the law. I cannot blame anyone, LGBT or not, who refuses to vote for such a candidate, anymore than I would think less of a voter for refusing to cast a vote for a politician who is personally racially prejudiced but pledges in good faith not to allow her own prejudices to affect her decisions. (Character is thus, it seems to me, closely linked to voters' views of candidates -- another reason it is difficult to treat religious questions as out of bounds.) But it is still possible for a religious candidate to hold, and honor, precisely such a nuanced view, and we need not discount that possibility out of hand. Second, I should point out that even if we are entitled to put these questions to candidates, as Keller has, the candidates are not obliged to answer them. The point I made in my Times op-ed, and elsewhere, is that the candidates' choices what to answer and not answer can themselves be relevant -- as in the case of a candidate who appeals to voters on the basis of his Christianity and then refuses to answer questions about particular doctrinal views that might actually affect his policies or fitness for office.
Of course there are no easy rules in this area. The same is true of political dialogue and, indeed, all public discourse, generally. It is true that religion brings in sensitivities of its own. But they are not utterly unique sensitivities. Thinking about the best way to discuss religious issues publicly is ultimately a sub-topic of the general question how to engage any issue publicly in the most responsible and productive fashion.
Absolutism and Proportionality in Canada and the United States
I should say at the outset that I have been critical of Linda Greenhouse on this blog before, and that as a former journalist I was troubled by the incident, now long past, in which Greenhouse marched in support of abortion rights while she was a Supreme Court reporter for the New York Times. (Most recently, I brought this up when discussing her decision, after leaving her job at the Times, to take a leadership role at the American Constitution Society, which I thought was a mistake.) I should also say that I've been a vocal critic on more than one occasion of freedom of expression law in Canada.
That said, I must disagree with various premises of a potentially interesting post by David Bernstein at the VC today. I'm not calling him wrong, exactly. But I think his major premises are overstated or mistaken, and that those mistakes or overstatements raise some constitutional law questions that are interesting in their own right. Bernstein quotes from a new online column by Greenhouse in which she writes:
Earlier this month, the American Bar Association traveled north to Toronto for its annual meeting. Doing some homework for a panel I was to moderate, I came upon Section 1 of the Canadian Charter of Rights and Freedoms . . . . Section 1, the “limitation clause,” makes the Charter’s many guarantees subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” A Canadian judge assured me that this requirement of “proportionality,” as various European constitutions with a similar principle refer to it, is invoked constantly and forms the basis for Canadian constitutional interpretation. Proportionality strikes me as worth considering in preference to the arid absolutism that seems to have taken hold of the United States Supreme Court.
Bernstein writes that this view is hard to square with Greenhouse's support for Roe v. Wade, and to suggest (I'm paraphrasing here) that taking the path of proportionality will lead to a dangerous approach to freedom of speech.Here's an extended quote:
Greenhouse is alluding primarily to the Court’s recent First Amendment cases, but surely Roe v. Wade is the most absolutist case the Supreme Court has ever issued, on a variety of levels–it invalidated the abortion laws of all fifty states; created a regime that permitted virtually no regulation of abortion for the next eighteen years, giving the U.S. the most liberal abortion laws in the world; was significantly out of line with public opinion; gratuitously went well beyond what the Court needed to say to rule in favor of Jane Roe; and invented a right to abortion that’s awfully hard to justify based on either the Constitution’s text or American tradition.
So if the principle of “proportionality” should apply to freedom of speech, an explicit and enumerated right, surely the same principle should apply to allow “reasonable” limits on the unenumerated right to abortion. And surely the USSC should interpret reasonableness in the abortion context with the same leniency that the enlightened Canadian Supreme Court has applied to freedom of speech. Right Ms. Greenhouse? Ms. Greenhouse?
I find this an odd definition of absolutism, particularly in this context. It seems pretty apparent to me, not only from Greenhouse's discussion but from constitutional law scholarship generally, that the contrasting terms here are absolutism as a particular form of constitutional adjudication -- sometiems called categorical adjudication -- and proportionality, a different and more balancing-oriented form of constitutional adjudication. The contrast is not between widely or narrowly protecting individual rights; either a categorical approach or a balancing test can lead to either outcome. The fact that Roe invalidated many state laws does not tell us whether the decision engaged in balancing or proportionality, and is thus irrelevant to whether the opinion is "absolutist," in the general meaning of the term in this field (and, specifically, the way Greenhouse uses it in her column); the fact that abortion is poorly rooted in the constitutional text is also irrelevant; so is the state of public opinion. Those factors might or might not make Roe a bad opinion, but they don't make it an absolutist one.
Rather, particularly in terms of method, Roe was a proportionality- or balancing-oriented decision. One hallmark of decisions reached through proportionality rather than absolutist or categorical approaches is their statute-like quality, the way they weigh and sift competing values and come up with some kind of compromise, as a legislature would. That is the classic criticism of Roe: that it reaches a quasi-legislative compromise through an opaque balancing of interests. The opinion itself leaves no doubt that it is a balancing-style case, not an absolutist one: "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." To be sure, it cashes out in a way that places the thumbs on different ends of the scales at different points in the pregnancy: easy to obtain an abortion in the first trimester, much harder to do so in the third trimester. But the framework is itself quite clearly the result of a balancing test.
I also think Bernstein overemphasizes the idea that the Supreme Court of Canada's freedom of expression jurisprudence leniently interprets "reasonableness" in the proportionality inquiry in a way that, to paraphrase the article he cites, has given dangerous leeway to censors or the "thought police." I don't want to overstate this criticism; I think Bernstein has good grounds to criticize the Court's approach, and better grounds to criticize what lower courts and, particularly, administrative tribunals have done on their own. Again, and without wanting to lean on my own credentials, I've written critically about Canadian freedom of expression jurisprudence myself. But Bernstein's article was written in 2003 and, both before and most certainly after that, the Canadian Supreme Court has written many opinions that are quite protective of freedom of expression--sometimes as much or more so than in the United States. (It should also be noted that there is always a gap between what the Supreme Court of a country does in this area and what lower courts, agencies, and government officials do; it would take no effort to come up with a laundry list of lower courts and officials in the United States who have been unduly censorious toward speech. That gap has relatively little to do in practice with whether the high court favors categoricalism or balancing.) I think there is room for disagreement here. But I believe Bernstein overstates his case, at least as of the current state of Canadian free speech law, and that Americans (not including Bernstein) who draw all their conclusions about that law from the Butler and Keegstra cases, decided two decades ago now, or from the actions of some of the human rights tribunals are drawning an incomplete picture.
What seems quite odd, and especially interesting, to me about both Bernstein and Greenhouse's posts is the gulf they perceive between "absolutism" and "proportionality." There are conceptual differences between them, of course. But in practice the gulf between them can narrow down to a crack. Proportionality is not necessarily the same as even or all-things-considered balancing. Nor is it necessarily without content; at the local level, courts can provide a relatively fixed structure of factors and weights that go into the proportionality decision: consider this, don't consider that, weigh this value heavily and that one very lightly, and so on. (Note that, to the extent they do so, the courts end up making the proportionality test steadily more categorical in nature.) Depending on how the proportionality inquiry is conducted, it can be very speech-protective--or not.
But the same thing can be said of absolutist approaches. A categorical or absolutist rule of content-neutrality can be very speech-protective. A categorical rule that all expressive conduct should be treated as conduct and not speech (a rule advocated by Justice Black, the classic First Amendment absolutist), or, to take a more current example, that content-neutral laws are subject to a relatively low level of scrutiny even if they would prohibit vastly more speech than a content-discriminatory law, or that certain kinds of "low-value" speech "constitute no essential part of any exposition of ideas," can be speech-restrictive.
Just as important, even a categorical or absolutist rule is generally reached only after engaging in . . . well, balancing. The absolute rule propounded by the Court (or, as it pretends, by the text or history of the First Amendment) generally takes on board, at the moment of its promulgation, a host of considerations concerning various competing claims that need to be balanced. In setting out the scope of coverage of the rule, the Court has generally already engaged in a proportionality analysis of its own, even if it expresses the result of that analysis in categorical terms. Nor is the interest-balancing over even then. As the Court engages in later applications and modifications of the rule, it generally does so in order to incorporate unforeseen circumstances or to redraw the balance, albeit in seemingly categorical terms, in light of changing experiences or views about how the various interests involved should be treated. I'm not saying that there is no difference between categoricalism/absolutism and balancing. But there is much less room between them than the standard kind of Manichaean picture suggests. Proportionality analyses often contain relatively invisible absolutist rules and categories; absolutist or categorical approaches often contain, either at first or as they develop through constitutional common law, a fair amount of invisible balancing or proportionality analysis. And certainly, whatever the difference between them, it should not be characterized as one of speech-protectiveness (on the side of absolutism) vs. speech-repressiveness (on the part of proportionality). The two ideas need not overlap much, if at all.
I should note parenthetically that this last point applies to Greenhouse as well. I'm a little shocked to see her write as if section 1 of the Canadian Charter of Rights and Freedoms, or the general idea of proportionality, are new to her, given how long she's been writing about constitutional law in a professional capacity. Even the cosmopolitan Americans among us still often seem fairly parochial. In any event, while I tend to agree with her that the Roberts Court is pretty "arid" in its approach, I think, for the same reasons I think Bernstein's analysis goes awry, that she is mistaken in concluding that the Roberts Court is, so to speak, absolutely absolutist, or that its seemingly categorical approach to the First Amendment utterly neglects the balancing of interests and consequences. Whether it admits it or not, it can't neglect those considerations, and it doesn't.
For those interested in a deeper look at these issues, check out Joe Blocher's terrific article on "Categoricalism and Balancing in First and Second Amendment Analysis," or Fred Schauer's piece (one of many in and around this subject by Schauer), "Balancing, Subsumption and the Constraining Role of Legal Text." (Schauer takes a different view than mine, one that thinks there is real value to the constraining role of legal text. In general, though, I think he would agree that even absolutist rules at some point effectively incorporate something like proportionality or balancing analysis, and that the two approaches can converge in subterranean ways.)
Thursday, August 25, 2011
Bill Keller tees one up for Paul Horwitz
The NYT's Bill Keller poses, here, what he characterizes as some "tougher" questions for the (Republican) presidential candidates about "their religious beliefs." In my view, the questions (that were not partisan and snarky) actually weren't very tough, but, whatever. And, as some of the commenters point out, Keller seems to be overlooking the fact that a number of his questions could just as well be posed to (or have been posed to) Pres. Obama. Still, some of the questions themselves -- again, the ones that are not partisan and snarky -- are ones that our own Paul Horwitz has thought and written a lot about, including in, well, The NYT.
Keller's lead ("lede"?) question is, whether it is "fair" to ask candidates about the details of their faith. In my view, the question invites another: Why is one asking? Sometimes, such questions are asked because it is thought by the asker that the content of a candidate's professed religious faith actually tells her something about the candidate's character, loyalties, priorities, loves, commitments, etc., that -- it is honestly thought by the asker -- is relevant to the enterprise of the office the candidate is seeking. (Example: Gov. Smith, you are a Quaker. Given your sincere beliefs about the immorality of violence, could you serve effectively as Commander in Chief?) Who could object to such a question, assuming it was asked in good faith, and asked -- when relevant -- of both parties' candidates?
At other times, though, it seems to me that the question is asked in order to elicit what the questioner hopes will be an answer that can be presented superficially (after all, not every question about religion can be answered propositionally, or in two sentences), out of context, or in a way that will (the asker hopes?) strike those who hear the answer as just "weird." (Example: "Rep. Jones, you are a Mormon. Tell us about your garments." Or, "Rep. Johnson, you are a Lutheran. Doesn't that mean you are anti-Catholic?") Our shared political life could get along pretty well without these latter sorts of questions, it seems to me.
Guarding the Gladiators
This has been a sad and sobering week for professional sports. And I say this not just because of the regrettable behavior of some fans attending NFL preseason games (see disturbing video of fights in the stands, on the concourse level, and in the parking lot). Rather, Rick Rypien, a professional hockey player who most recently skated for the Vancouver Canucks, was laid to rest. Rypien, who suffered from depression, committed suicide. He was 27. Rypien’s death follows the May passing of Derek Boogaard, a fellow professional hockey player who struggled with substance abuse and died – just one day after leaving rehab – from a lethal mix of alcohol and Oxycodone. Boogaard was 28. Last year, former NHL player Bob Probert collapsed and died at the age of 45. Probert himself had legal issues related to drugs and alcohol.
Rypien, Boogaard, and Probert were all “enforcers,” or players in the NHL whose sole or primary role is to fight on behalf of their team or teammates. Fighting, in other words, is what enables them to hold a spot on a team and earn a living. They "have" to fight, even though they may not personally enjoy fighting. Though they can energize their team and excite fans, once the bouts are over, these players return to a rather isolated existence. At the outset, I will admit that I am among those who believe fighting can serve a legitimate purpose in hockey contests (e.g., it can generate or change momentum, avenge a questionable play or the targeting of more skilled players, or intimidate the opposition). Whatever the alleged or arguable merits of fighting in hockey, this entrenched element of hockey can no longer stand if serious brain injuries or mental health problems stem from it. The three aforementioned deaths suggest that all those who assume the responsibilities of an “enforcer” and occupy this singular, specialized place on a hockey team deserve special attention, support, and consideration above and beyond any competitive or fan-based benefits of fighting.
Preliminary reports suggest that Probert developed a degenerative brain condition that is generally brought upon by repeated concussions or trauma to the head. Boogaard’s family has donated his brain for further study as to whether he, too, had this condition. (Rypien’s family is apparently contemplating the same.) What, if anything, does this have to do with the law?
Concussions are a growing problem in hockey, itself a contact sport like football. The NHL, in response to concussions, has curbed hits from behind and body-checks from the "blindside" that appear to target another’s head. These are encouraging developments from the perspectives of protecting the health and well-being of players and shielding the league from potential liability. They are not close, however, to being sufficient in either respect.
In this essay, Canadian sports law professor Jon Heshka points out that the NHL is trailing behind the NFL in guarding against brain injuries in that the former’s rules have a difficult-to-prove intent requirement for the blindside hit prohibition to be triggered, whereas the NFL does not, and the former can fine offending players a maximum of $2,500, compared to corresponding fines of $75,000 in the NFL.
In my view, the NHL is in disarray at a crossroads. At the highest level, it is presided over by a commissioner with an, ahem, limited hockey background, who lacks the respect of the hockey cognoscenti, and who as a result of these two qualities undermines the credibility of the league’s overall activities. Its enforcement arm has failed, as I’ve written, to sufficiently punish players for reckless actions that seriously jeopardized the health and safety of others, to deter such conduct, or to spread confidence among the fans that there is any sense to or consistency among the punishment decisions. It now has lost three members of its fighting fraternity, which should at a minimum call for more robust mental health services, efforts to diminish any stigma attached to seeking out or obtaining these services, research into more effective helmets and other equipment, and adoption of additional rules that can protect players even if doing so sacrifices exciting moments in a game (e.g., no-touch icing). The league response has been underwhelming, and has not matched in word or deed the seriousness of players' health and safety problems.
Andrew Cohen argued that it may take an on-ice death for the NHL to wake-up. I hope, for the sake of the players and the league, that three premature off-ice deaths may compel the league's brass to take a hard look at its rules, their enforcement, and the resources available to its players, particularly the marginalized enforcers. If their collective conscience in light of recent events is not sufficiently agitated to jolt the league into action, it sadly may take the threat of liability for things to change.
Congress and jurisdictional confusion
George Conway of Wachtell, in response to my recent posts on jurisdictionality, e-mails with another example of jurisdiction/merits confusion and misunderstanding, this time coming from Congress: Section 929P of Dodd-Frank. Congress (or at least Dodd-Frank's drafters) wanted to overturn Morrison v. National Australia Bank, which in 2010 narrowed the extraterritorial reach of federal securities fraud laws. But Congress did so by amending the statute-specific jurisdictional grants from the '33 Act, '34 Act, and '40 Act; the amendment to each gives the district courts jurisdiction over actions initiated by the SEC or the United States under the respective acts involving "conduct occurring outside the United States that has a foreseeable effect within the United States" or conduct occurring within the United States, even if the violation is committed by a foreign adviser or involves only foreign investors.
As Conway argued last year, as written, this change does not do what Congress thinks it does (or intended it to do). The Morrison Court held, properly, that extraterritoriality is a matter of the substantive reach of the statute and what actors and conduct it regulates. Expanding the district courts' jurisdiction does not change that conclusion, since Morrison was not about judicial jurisdiction. So, under Dodd-Frank, federal courts can hear cases involving charges of non-U.S. conduct. But courts cannot find violations of federal law in those cases, because substantive securities fraud law is not violated by extraterritorial conduct under the current text as interpreted in Morrison. It is as if Congress granted district courts jurisdiction to hear civil actions brought under Title VII for discrimination because of sexual orientation, but did not amend Title VII itself to actually prohibit discrimination because of sexual orientation. Several scholars made similar arguments to OLC while Dodd-Frank was being debated, but apparently to no avail.In my most recent jurisdictionality piece, I argued that Congress is often as responsible as courts for jurisdiction/merits confusion. Congress bears just as much responsibility to avoid enacting drive-by jurisdictional statutes and to exercise caution when it uses "jurisdiction" in its statutes. Dodd-Frank seems to be a clear example of Congress failing to exercise care in drafting, trying to achieve substantive results by addressing judicial jurisdiction. The result is that its intent--to prohibit foreign securities fraud as a matter of U.S. law--is not achieved by its actual enactment, which amends only the text of expressly jurisdictional provisions with no corresponding change to any other law.
There has been some discussion, including in Conway's post, as to whether the courts can bail Congress out of its drafting error by looking to intent. Even if the courts ever should do that, this does not seem like an appropriate case. This is not a situation in which Congress tried to amend Provision A to prohibit X, but used language that only prohibited Y; courts might read the one provision broadly to achieve that intent. Here, on the other hand, Congress simply amended the wrong statutory provisions. A court would have to conclude that a change to one provision of the code (the various jurisdictional grants) also means an amendment to entirely separate provisions (the substantive prohibitions of the securities acts).
On the other hand, the jurisdictional and substantive provisions all part of the same statutes (the '33, '34, and '40 Acts). So perhaps a court will read, for example, the '34 Act as a whole and treat the whole thing as having been amended. Alternatively, a court may just be fooled by the statutory misuse of the jurisdiction discussions and treat the jurisdictional rule as a merits rule--if courts have jurisdiction over extraterritorial cases, the law must reach extraterritorial cases. That would be unfortunate, although it illustrates how legislative confusion about jurisdictionality leads to judicial confusion about it. But it also demonstrates the importance of the Court's recent, and repeated, warnings about drive-by jurisdictional rulings. Courts must look not at statutory labels but at essential concepts and ideas to get to the correct characterization of any provision.
One last point on the irony of all of this. The fact that Congress focused at all the Acts' jurisdictional provisions shows how pervasive the tendency to talk about scope-of-law in jurisdictional terms, and to focus on jurisdiction at the expense of all else, has become. All Congress had to do to overturn Morrison was amend the substantive provisions of the acts and they automatically would have amended the jurisdictional provisions to allow courts to hear these extraterritorial cases. Because the district courts have jurisdiction over all civil actions "arising under" the laws of the United States, whatever the scope of those laws. And district courts already have exclusive jurisdiction, under the '34 Act, over "violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder," again whatever the scope of that chapter is.
Wednesday, August 24, 2011
Conflating concepts in the jurisdictionality/merits divide
Yesterday, I discussed a recent Third Circuit case holding that the limits on extraterritoriality in the antitrust laws imposed by the FTAIA went to the merits and not jurisdiction. The court reached the right conclusion, but it made what I believe is a significant analytical misstep that I want to explore.
In various articles, I have laid out two distinctions that are, in my view, central to disentangling merits and jurisdiction. The first is between "legislative" (or "prescriptive") jurisdiction, which is the authority of the legislature to establish legal rules, and "judicial" (or "adjudicative") jurisdiction, which is the authority of a court to hear and resolve the legal and factual issues in case. The second is between Congress' "substantive" (or Article I) lawmaking powers, meaning the power to enact legal rules regulating primary or real-world conduct and to set forth the elements of a successful claim for relief, and its "structural" (or Article III) lawmaking powers, meaning its authority to enatc legal rules setting the jurisdictional and procedural rules for federal courts.
In its FTAIA decision, the Third Circuit seems to have conflated those concepts. The Court defines legislative jurisdiction by reference to substantive lawmking power and judicial jurisdiction by reference to structural lawmaking power. In other words, Congress exercises legislative jurisdiction when it enacts substantive rules and judicial jurisdiction when it enacts jurisdictional rules.
But that seems wrong to me. Whenever Congress enacts legal rules, it is exercising legislative jurisdiction--its constitutional authority to establish prospective rules via the legislative process. That is true whether those rules are substantive (merits) or structural (jurisdiction). Judicial jurisdiction is exercised by courts, not by Congress. The difference is not judicial v. legislative, but what type of legislative authority and the source of that legislative authority. Judicial grants come when Congress exercises legislative (prescriptive) authority to control the structure and jurisdiction of the federal courts. Substantive law comes when Congress exercises legislative (prescriptive) authority to regulate real-world conduct.
Now, this conflation points to some interesting connections among the concepts that I had not previously thought about. Most notably, judicial jurisdiction turns on legislative jurisdiction. A court has adjudicative authority in an individual case only if Congress exercised its legislative authority to grant the court jurisdiction over that class of cases and if Congress actually had the authority (under Article III) to make that grant. So if a court lacks subject matter jurisdiction in a case because the statutory grant of jurisdiction is invalid (see, e.g., Marbury v. Madison), we can say that we have both a failure of judicial jurisdiction (the court cannot hear the case) and of legislative jurisdiction (Congress lacked the power to allow the court to hear that class of cases). Unfortunately, this muddies the line between adjudicative/judicial jurisdiction and prescriptive/legislative jurisdiction, because something can reflect a failure of both types of jurisdiction. Instead, we have to take a closer look at the precise power Congress exercised in a given statue and what the statute was trying to do.
So how does this play into the FTAIA? This is where Scalia's approach to merits in Morrison works well--the FTAIA controls the "reach" of the antitrust laws, that is, what conduct (and by whom) the antitrust laws prohibit. The same goes for the ministerial exemption to employment-discrimination laws--the First Amendment limits the "reach" of these laws, what conduct those laws prohibit. They are both questions of the scope and amount of real-world conduct Congress has chosen to regulate (or can regulate) in the exericse of its substantive powers over certain real-world conduct. That is, exercises of legislative jurisdiction--the only question is which particularly jurisdiction/authority.
Tuesday, August 23, 2011
Stanford Constitutional Law Center Academic Fellowship
Here is a link to an announcement from Stanford's Constitutional Law Center regarding its new Academic Fellowship program for budding constitutional law scholars. It's a two-year program, with the expectation that the fellow will go on the job market in the second year. It looks terrific. Go to the link for more information.
President Obama the Policy Wonk
It is well known that the issues that drive debate in our country are selected by news anchors at all of the major stations. For example, for two + months, we had to endure unending news coverage about the debt ceiling. There was no attention paid to job creation, to the war in Libya, or to any other events that had the misfortune of being relevant during the debate over the debt ceiling. In fact, the economy was relevant only to the extent of what would happen if the U.S. defaulted on its debt. And this was true despite the fact that we have record unemployment in this country, which has now become the focal point since the debt ceiling controversy is over.
Because the 24 hour news cycle drives the level of interest in issues, candidates, and events, it is really important for politicians to own the debate. Owning the debate means creating a narrative that the politician can sell to the media who can then sell it to the public. The Obama administration, at least since the 2010 midterm elections, has not owned the debate. Unlike Barack Obama the candidate, President Obama has had a difficult time creating a coherent narrative that can sell his policies to the public. I think that part of the problem is that President Obama tries to add rationality and nuance to an issue that most people only want to see at a macro level. Someone who has been unemployed for over a year, for example, could care less about extending the Bush tax cuts or cutting the payroll taxes. Of course these things affect everyone and are really important, but in reality, all this person wants or cares about is getting a job. Similarly, the average American does not care that the price of gas is controlled by the oil companies and OPEC, all this person knows is that when gas is $4.00 a gallon, then he or she cannot afford to drive to work.
The point is that when someone like Michelle Bachmann says that her administration can get gas down to $2.00 a gallon, these statements find an audience and therefore a place in the 24 hour news cycle, even if they are ridiculous and have no basis in reality. President Obama has relinquished his place in the 24 hour news cycle because he tries to sell policy and not a narrative. Even if he is right about his policies and that, over time, they will better the economy, the average American wants to hear a story about what those policies mean in real time. The narrative allows Michelle Bachmann to get the Joe the Plumber’s vote by selling him $2.00 gas without any explanation about how such a feat would be accomplished. Joe doesn't care, he just wants to be able to drive to work. President Obama loses votes (and therefore the media's attention) because he tries to sell policies such as getting rid of tax breaks for oil companies because gas is $4.00 a gallon. Although this may be good policy, it does nothing for Joe the Plumber, who doesn’t have a job and couldn’t afford to drive to work if he had one.
So my advice to the president is actually pretty simple: Remember your audience. Your audience is not academics or the wealthy or individuals who have thrived in the last few years. It is those who have lost the most.
Third Circuit on jurisdictionality of FTAIA
An important aspect of the Supreme Court's recent campaign to eliminate drive-by jurisdictional rulings is a signaling function--emphasizing to lower courts the similar urgency to stop making drive-by rulings and to back away from past rulings. The Third Circuit last week did just that in a case under the Foreign Trade Antitrust Improvements Act (FTAIA), overturning two circuit precedents and concluding, properly, that the FTAIA (which limits the extraterritorial application of federal antitrust law) went to the merits and not the court's jurisdiction.
The court concludes that its prior jurisdictionality cases cannot survive Arbaugh v. Y&H Corp., which established a clear-statement rule under which a rule is not jurisdictional if Congress does not label it jurisdictional. Like Title VII (at issue in Arbaugh), the FTAIA does not mention the jurisdiction of the district courts or speak in jurisdictional terms. Good, as far as it goes. But I still would have preferred the Court have taken the more absolute approach to the jurisdiction/merits divide suggested in Morrison v. National Australia Bank: The extraterritorial "reach" of the Securities and Exchange Act is a merits issue (seemingly regardless of legislative text), because the "reach" of a statute is synonymous with the scope of what a statute "prohibits," which is inherently a merits question. In fact, I am convinced that Morrison establises the essential merits nature of extraterritoriality of all federal laws, including the FTAIA (a question the Court left open, and confused, several years ago). Unfortunately, the Third Circuit focused only on Arbaugh and not on the broader, and better, analysis in Morrison.
This decision now sets up a bit of a circuit split on the characterization of the FTAIA. The Seventh Circuit reached the opposite conclusion pre-Arbaugh, over a strenuous dissent by Judge Wood, a departing decision that the Third Circuit acknowledges and dismisses (because Arbaugh changed the landscape). In addition, the Ninth Circuit assumed the FTAIA's jurisdictional character, while recognizing that the issue is unclear. Given the Court's interest in weighing in on jurisdictionality questions, might a cert grant be possible? Or will SCOTUS simply give the Seventh Circuit a chance to eventually correct itself?
Monday, August 22, 2011
Fall Schedule for Criminal Law Theory Colloquium at NYU and BLS
For those of you writing in criminal law theory/philosophy of crime and punishment, you might be interested in the information that I just circulated BELOW via email. Let me know if you want to be on the email list for future updates and paper drafts.
Monday, March 26, 3-530pm
Monday, April 23, 3-530pm
Separated at Birth?
The Muslim Brotherhood and Egypt’s Future
During my travels in Cairo earlier this summer, I spoke with the locals about their perceptions on Egypt’s political and legal future. The Muslim Brotherhood and its vision for Egypt was a center point of each conversation.
Founded in 1928 by Hassan al-Banna, a schoolteacher and an imam, the Brotherhood’s credo was: “Allah is our objective. The Prophet is our leader. Qur'an is our law. Jihad is our way. Dying in the way of Allah is our highest hope." Its stated purpose remains the establishment of Islam as “the sole reference point for ordering the life of the Muslim family, individual, community . . . and state.” Although an illegal organization in Egypt since 1954, the Brotherhood managed to become the largest and best-organized opposition group in Egypt. It ran candidates as independents in parliamentary elections, winning an impressive 19.4% of the seats in 2005, even though the elections were widely viewed as rigged in favor of the National Democratic Party (Al-Ḥizb al-Waṭaniy ad-Dīmūqrāṭiy), led by Hosni Mubarak.
The Brotherhood played a role—though not a central one—during the revolution that toppled the Mubarak regime earlier this year. Although the Brotherhood supported the revolution, it did not seek to dominate or capture it. As Mohamed Saad el-Katatni, a spokesman for the Brotherhood, put it: “This is a revolution for all Egyptians; there is no room for a single group’s slogans, not the Brotherhood’s or anybody else.” In the revolution’s immediate aftermath, the Brotherhood promised not to field a presidential candidate or seek a parliamentary majority in order to mollify fears of an Islamist takeover of the new Egyptian democracy.
Following the revolution, the Brotherhood immediately began to take advantage of its position as the best-organized opposition group in Egypt and started mobilizing support. A constitutional declaration issued by the ruling military council lifted a constitutional ban on the formation of political parties with “a religious frame of reference,” allowing the Muslim Brotherhood to establish its own party, called Hizb al-Horriya W Alaadala (Freedom and Justice Party). The Freedom and Justice Party quickly rose to become the frontrunner for the upcoming parliamentary elections.
The swift electoral timeline set by the ruling military council will likely boost the Brotherhood's electoral prospects. The elections are on track to take place by November—eight months after the revolution—a relatively short timetable for new political parties to form, organize, raise funds, and campaign. As an already established political group, the Brotherhood has the organizational and financial capability to quickly commence an electoral campaign. In contrast, rapid elections will likely work to the detriment of emerging opposition parties, which have splintered into numerous factions and need more time to establish and promote themselves.
The upcoming parliamentary elections carry particular weight. Under the constitutional amendments adopted by referendum in March 2011, the new Egyptian Constitution will be drafted by a Constituent Assembly elected by the new Parliament. If the Brotherhood dominates the Parliament, then the Assembly in charge of drafting the new Constitution will likely reflect the Brotherhood’s constitutional preferences. Perhaps for that reason, the Brotherhood, unlike many of the newly formed parties, lauded the military’s plans to postpone the constitution-drafting process until after the parliamentary elections. Confident that the elections will produce a bloc large enough in its favor, the Brotherhood expects to control the constitution-drafting process as well. The Brotherhood also rejected a set of supra-constitutional principles intended to guide the Constituent Assembly and ensure that the new Constitution conforms to certain principles such as equal rights for women and religious minorities.
What does the Brotherhood’s likely electoral success mean for the future of Egypt? The Brotherhood is a fairly closed and secretive group and has declined calls to reveal its constitutional vision before parliamentary elections take place. The opinions of the locals are also mixed. Some characterize the Brothers as “aggressive” and intent on establishing an Iran-like theocracy in Egypt. They point to a protest that took place on July 29, 2011, when a demonstration that was scheduled to be a non-ideological rally for Mubarak’s swift prosecution became a show of force for the Islamists. The members of the Brotherhood (along with other Islamist groups) started chanting Islamist slogans and rallying for the establishment of Sharia law, which prompted the non-Islamists to withdraw from the protest. Others believe that the Brotherhood “is not so bad” and will do little more than perpetuate the existing role of Islam in Egyptian society (even before the revolution, the Egyptian Constitution established Islam as the state religion and Sharia law as the principal source of legislation). That difference of opinion among the locals might reflect a generational rift within the Brotherhood itself—between the younger, more progressive, faction and the older, more conservative, members. It remains unclear whether and how that internal rift will be resolved in the upcoming months.
At least for some Egyptians, the thirst for democracy outweighs the concerns raised about the Brotherhood. As one Christian local put it to me, “I don’t care if the Brotherhood comes to power—as long as we have democracy in Egypt.” There is always the possibility, of course, that the Brotherhood will use the democratic process to undermine democracy, so the result, as Edward Djerejian put it, is “one person, one vote, one time.”
Hiring Chairs for 2011-2012
Let's gather information! In particular, please share in the comments the following information related to the 2011-2012 law school hiring season:
As is now customary (how time flies on the Internet!) I will gather this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)
You can't make changes to the spreadsheet directly, so please post the information in the comments, or email me directly, slawsky *at* law *dot* uci *dot* edu.
Update: Someone has very kindly submitted a spreadsheet of addresses of a subset of law schools, if folks want to create their own mail-merge. You can download it here.
Update: The spreadsheet with hiring needs by subject is here. It is (and will remain) up to date.
Teaching Legal Ethics in a Legal Recession II
Let me note one hopefully positive idea I've taken from all the recent fuss, although its roots lie earlier than that. Last spring, I wrote a post about my recent experience teaching legal ethics in a general and legal recession. Having taught the course for around eight years by that point, I wrote that the kind of dialogue I was getting in class seemed to have changed, and that the economy seemed to be one of the reasons it had changed. Students may be less willing to engage with questions of legal ethics in practice when they aren't sure they'll even get a chance to practice; they may adopt more of a zealous advocate model than an "officer of the court" or "overarching duty" model, and sometimes may even be more comfortable (at least in class!) with what most of us would consider unethical conduct, because they are so worried about getting and retaining scarce clients; and, in a broader sense, their dismay and sense of dislocation may affect their ability and willingness to enter into the kinds of necessarily hypothetical discussions we hold in class about legal practice.
Today I start my fall class in legal ethics, and my first readings are not from the casebook. Instead, I've assigned a series of blog posts about legal education and the legal economy, including some of my own, as well as Bill Henderson's recent co-authored piece in the ABA Journal about paradigm shifts in the legal economy. To be sure, there's a "caveat emptor" quality to doing so: I may not be able to have an immediate impact on whatever general communications my school or other schools issue, but I can be frank with my own students about the state of the legal economy. And I certainly think students deserve a chance to air their dissatisfactions and fears. Beyond that, though, I hope our discussion will remain as an underlying theme as we go through the rest of the semester. I also hope that, having had a chance to express those views, students may be more willing after that to engage in the kind of open-minded participation that can make a legal ethics class interesting and valuable. I hope to remind them that, cynicism aside, a reputation for ethical lawyering can have positive professional effects that will benefit them not so much at their first legal practice job (when and if they get one!) but at their second, third, and fifth jobs. And finally, just as I recently wrote that students may get more out of law school if they are willing to commit themselves to it and find areas that they love, so I hope that they will see that valuing one's own professionalism and ethical integrity can be an intrinsic, personally rewarding thing that will enrich their own professional experience. We'll see. If nothing else, at least I hope my students will now know that they are not the only ones thinking about these issues.
Sunday, August 21, 2011
No Longer Anonymous, But Still Not Quite Right
Since I had such fun and elicited such a supportive response the last time I wrote about "LawProf," I thought I'd add some thoughts on the denouement of this little drama. LawProf unveiled himself in a post on his blog as Prof. Paul Campos, after a post in which he talked about why he had chosen to write anonymously. I should preface my post by saying that, as I made clear in my initial discussion, I am not outraged by anonymity, and I never sought to discover or reveal Campos's identity. I did say that it is silly to call a tenured professor at a first-tier law school "heroic" for blogging about problems with legal education, let alone for doing so anonymously. Some of his commenters still fervently insist that it was, although Campos, to be fair, never claimed that he was a hero. My point was not a substantive one; his views stand or fall on their own merit. I just find it silly to call tenured professors heroic for just about anything they do, especially when they don't do so under their own name. In any event, I have a few points to make by way of closing out the book on this.
First, Campos now describes his motivation for writing anonymously--his only motivation, as far as I can tell by his post--as having been "to keep the argument focused on the substance of the debate, rather than on the hierarchical status and personal qualities of those participating in it." That's a perfectly worthy ambition. In law, we too often rely on on appeals to authority rather than on substance. But it bears pointing out that in the interviews he gave, "LawProf" seemed to suggest that another primary motivation for his anonymity was concern for the repercussions of writing so critically about legal education under his own name. (That is not the only reading available, I think, but it's a fair one.) That justification seems to have vanished from Campos's current account of his actions.
Second, while I do believe we ought to focus on the message rather than the messenger, Campos is not accurately describing what he did. If he had wanted to focus on substance rather than on "the hierarchical status and personal qualities" of the speaker, Campos could have declined to give any hint as to his identity at all. He needn't even have identified himself as someone involved in legal education, whether as a professor or as a student. But he didn't do that, of course. He specifically identified himself as a "first-tier" law professor, and insisted that his blog would be different and important because it offered an "inside perspective" on the issues. In other words, Campos may not have used his name, but he hardly disclaimed any interest in making an argument from authority. To the contrary, he deliberately traded on his authority, both to burnish his claims and, in my view, to give his enterprise the illusion of some kind of subversive frisson. His argument always involved the messenger as well as the message. If you really want to focus on the message and not the messenger, there are better ways to go about it than by invoking your authority in the first place, even if you don't sign your name to that invocation; having done just that, Campos has no reason to profess surprise that people did indeed focus on who he was.
Third, and I'm sorry I seem to have to emphasize this, but (as I said the first time around) Campos does make some reasonable arguments about serious structural problems with legal education. (Of course, he described those "structural problems" as a "scam." Again, it seems to me he did so for some kind of rhetorical effect or subversive atmosphere, even though he acknowledged from the start that he was not talking about individual intent on the part of law professors. And again, it should hardly have been surprising to him that people reacted to his deliberate use of the word "scam." I assume, incidentally, that his blog would have been less highly trafficked if he had called it "Inside Structural Problems in Legal Education.") We should take those points seriously, and try to separate them from the exaggeration, the overblown rhetoric, and so on. We should do so because the problems are important and deserve a response, as do the many law school graduates who are extremely unhappy, both with the job market and with legal education itself (two things that are sometimes the same, but not always; one of the points I was making was that we should not conflate the two). But it would have been easier to do so in the first place if Campos had actually written carefully, without exaggeration and overheated rhetoric. My original point was that this is one of the downsides of writing anonymously rather than under your own name. Not all restraint and nuance is capitulation. Sometimes, writing under your own name means you have to live with what you have written and answer for it; sometimes, writing anonymously means you can let yourself succumb to the lure of a poison and purple pen. In one of his interviews, Campos called this "pure candor" but noted that this sort of "freedom" can be "abused." That was my point, and it seems to me that Campos ended up making it for me.
Fourth, Campos, in his unveiling post, writes almost as if he is the first law professor to tell it like it is. The conversation about problems with legal education "should have started much sooner than it did," he writes, , and he's glad that some law professors have, "in just the last day," started to "engage[ ] substantively with issues I'm discussing." One reading of this--not the only one, but a pretty obvious one--is that, thanks to Campos's own blog, some law professors had finally started addressing these issues publicly. Now, I'm sure that Campos can't have meant this, although, again, it seems to me like a pretty fair reading of the impression he was trying to convey. But in case anyone out there thinks he was the first to make the kind of observations he did, let me be clear that this is hardly the case. To name only two individuals, William Henderson and Brian Tamanaha have been writing incisively about these issues for some time. Then there was the symposium dissecting everything that's wrong with both the US News rankings--and with law schools' gaming of those rankings; it took place in 2005, I believe. As far as I know, all of the people involved managed to write without undue consequences and with "pure candor," despite the handicap of attributed authorship. If anything, I'm hard pressed to think of any major general-interest law blogs that haven't featured discussions, for years, about significant problems with the nature and structure of legal education and legal employment, about whether law professors are overpaid and whether legal scholarship ought to be more practical in nature, about law school tuition increases, etc. I haven't written about all of these topics, but I certainly have written about some of them--both before and after tenure and under my own name. My point is not that Campos has nothing to contribute to these discussions; I'm sure he does, and again I think he's made some good points mixed in with the bad. But he's late to the discussion.
Finally, let me exercise the privilege of responding to something Campos said on his blog. He wrote in an earlier post,"contra Prof. Horwitz I never said 'virtually no professors prepare for class.'" If he means he didn't use those exact words, he's right. What he said, among other things, was that in "several thousand law school classrooms" every year, professors are teaching without having looked at anything beyond the casebook and the teacher's manual. He said: "This is how much preparation I’m doing this summer for the classes I’ll teach this coming academic year: None. And that, I guarantee you, is the median amount of time law professors have spent over the past three months preparing for the classes they’re about to start teaching again." And he said: "[M]any outside observers would be shocked to discover how little time and effort law professors, and most especially the traditional tenure-track faculty, devote to teaching." I feel pretty comfortable in saying that my paraphrase, although surely not perfect, was in the final analysis a hell of a lot more accurate than his rebuttal. Of course, in writing his misleading rebuttal, Campos was able to use my name and unwilling to use his. I'm glad that's no longer the case.
[Based on past experience, let me make clear that I am fine with anonymous comments, that I am equally fine with moderating the discussion, and that I am perplexed as to how any law student could think that presents a First Amendment issue.]
What constitutes "due process" for the accused in universities' hearings dealing with campus rape?
Peter Berkowitz has published an op-ed in the Wall Street Journal denouncing a "Dear Colleague" Letter from the Department of Education's Office of Civil Rights on the procedures that universities ought to use in adjudicating student of rape and sexual assault. Peter styles the OCR's guidance document as an "illiberal" attack on due process driven by the "dogmatism" of "postmodernists, radical feminists and critical legal studies scholars" who are "institutionalizing a presumption of guilt in sexual assault cases." Peter is upset that OCR recommends that universities reduce the procedural protections for students accused of rape below those provided by the criminal justice system. In particular, Peter takes issue with OCR's recommendation that universities hold the accuser merely to a "preponderance of the evidence" standard of proof, that the accusers get the same appeal rights as the accused, and that the accused not be given rights to confront or cross-examine the accuser. According to Peter, these recommendations are rooted in Feminist orthodoxy that "men are controlling, angry and deceitful" and that "women neither lie nor make errors in alleging that they have been sexually assaulted."
But Peter cannot be serious that all of the rights appropriate for a criminal case (where the stakes are loss of life or personal liberty) ought to be imported into an administrative hearing (where the stakes are suspension or expulsion from a particular educational institution). In particular, the BARD standard of proof is almost never used in administrative hearings. Entire families are expelled from public housing based on one member's drug activities even if the rest of the family was unaware of those activities, using the usual "preponderance of evidence" standard. (See HUD's guidebook, page 204). Conditional permanent residents are routinely deported in immigration hearings under INA section 216(b)(1) based on the "preponderance of the evidence" standard.
If aliens can be kicked out the country and tenants kicked out of their apartment based on the "preponderance of evidence" standard, then it hardly horrifies me that students can be expelled from a particular university based on the same standard. Moreover, I really doubt that Peter sincerely believes that "due process" generally requires the use of criminal procedures in administrative hearings. Instead, I fear that his judgment has been distorted by the ad hominem fallacy -- namely, that "the enemy of my enemy is my friend." Based on his dislike of those "postmodernists, radical feminists and critical legal studies scholars," Peter has been led to denounce perfectly sensible proposals because of their proponents rather than their merits.
This sort of ad hominem posturing is exactly the sort of thing that makes contemporary politics so dreary. It causes even the best of us to ignore our deep principles as soon as our opponents embrace them, just to score points against people we generally dislike.
Take Peter's denunciation of the OCR's proposal, couched as a call for more protection for the accused in university "campus rape" hearings. He focuses entirely on the OCR's motives -- all that male-hating feminism -- but he says nothing substantial about the actual merits of the OCR's process. Meanwhile he ignores the one genuine flaw in OCR's proposal that is unrelated to the alleged feminist origins of the proposal -- namely, that the policy is simply too centralized.
Consider, first, the merits of the OCR proposal. Frankly, neither I nor Peter nor anyone else who has not spent a lot of time in university administration can have any worthwhile opinion about how much process is properly "due" in these sorts of university hearings on campus rape. As a conservative guy with a bit of a law-and-order streak and a daughter in college, I am not sure that Peter's call for more process in these hearings is a great idea: Maybe it is more important to assure a sense of security in a close-knit community than to insure the protection of the innocent. In any case, Peter says nothing about the managerial needs of university administrators, who are essentially landlords charged with fostering an atmosphere of trust among several thousand young and often immature tenants expected to interact in close settings with minimal supervision. Will Jarndyce v. Jarndyce-style procedural regularity lead to such delay in discipline (rustication, suspension, apologies, etc), that women feel intimidated and do not bring forward charges? This is surely an empirical question about which Peter might collect some data. Instead, he just blasts away at some alleged feminist orthodoxy.
Meanwhile, there is an enormous an obvious flaw with the OCR's proposal that Peter simply ignores: It might be that OCR is simply too centralized an institution to be defining administrative procedure for universities. In a federal system -- yes, I am harping on federalism again -- it makes sense to rely on subnational jurisdictions when contentious matters like sex and due process are on the line, unless one has reasons to believe that those subnational processes are irretrievably broken. Rather than try to proscribe some ideal level of process from Washington, D.C., OCR might instead collect data on how and why why university administrators have struck their particular balance of the rights of accused and accusers. If that data revealed some real indifference to the interests of the accusers, then perhaps an NPRM on the topic would be in order, stating why the university and state regulatory processes are believed to have failed in striking a good-faith balance. In short, OCR should not over-centralize process until they have explained why the university and state regulatory processes are incapable of taking the relevant interests into account.
Rather than denounce the OCR's one-size-fits-all bid for centralization, however, Peter instead proposes a bit of centralization of his own, proposing all sorts of criminal procedures for university "campus rape" hearings without explaining how these procedures fit with the community-fostering mission of universities. Why does Peter ignore the issue of over-centralization and instead adopt the mantle of an ACLU lawyer with an idée fixe about hyper-proceduralization? He'll have to speak for himself, but I suspect his decision was rooted in a desire to strike directly at those post-modern, feminist proponents of critical legal studies. After all, my preferred policy of decentralization is an admission that there is room for reasonable disagreement about how to run a university. That's not the sort of clarion call that can rouse the blood against an enemy. Indeed, decentralization may let those dastardly post-modern feminists win some victories on some campuses where they have strong support.
The prospect of those victories does not disturb me, because I believe that our federal system -- which includes our system of decentralized non-profit corporations called universities -- has robust procedures for give-and-take that will ultimately insure a balanced answer to a difficult question. But, in our hyper-polarized age, the bland and apparently indecisive position of the committed federalist is not a winner on any red-blooded op-ed page. Thus, we get instead a call for more criminal protections for the accused that goes beyond the wildest dreams of the ACLU. One might think that such calls for more criminal procedure fit oddly on the pages of the Wall Street Journal from a fellow at the Hoover Institute. Fueled by Oleanna-style anxieties about political correctness, however, writers can say the funniest things. Our age of ad hominem politics makes for strange bedfellows -- a natural consequence of thinking that the enemy of one's enemy is one's friend.
Saturday, August 20, 2011
A few thoughts on writing and shame
Thanks to someone on FB whose name I can't recall, I came across this essay about the experience of shame in the process of academic writing. Take a look at it if you've not seen it yet. Once you have, come back to this post and tell me your reactions. My sense is that some people simply sound wonderful on the page from the moment they put fingers to keyboard. (This must be true, for example, of Paul Horwitz, Chad Oldfather, Rick Hills and Dan Kahan, right?). Sadly, those dudes have done comparatively little to open the kimono regarding their creative process. But if they are like most of us mortals, I think it bears mention and reminder upon reminder, especially for all the aspiring prawfs who read this blog and others like it, that the process of producing good academic scholarship in clear prose takes real sustained effort.*
On that note, I recall with affection the story, perhaps apocryphal, of John Kenneth Galbraith, the Harvard luminary known for his econ and style. As the tale goes, Galbraith was presiding over a public celebration of his zillionth birthday or book in Cambridge. He was taking questions from the audience. A middle-aged woman asked: Professor Galbraith, how on earth do you get your prose to read so effortlessly? And, in an uncharacteristic flourish of candor and modesty, he said: well, after the 15th draft, I sure hope it looks effortless.
I am no Galbraith. In my own case, I number my drafts beginning 1.0 and they frequently go well past 10.0 (that is 100 or more drafts). The first fifty drafts or so are typically drenched with shame and marinated in self-disgust. But still I plod on. Gotta feed the boys, right? Anyway, as it is, the project on punishment and democracy that I've been working on since February is now at version 10.4, and it hasn't even begun the editing process from the students. It took me an unconscionably long time to realize what I wanted to argue but with the help of some good friends (yes, Cahill, it's principally your fault), I'm now more sure I'm saying something quirky and sound enough to lose the self-disgust. It's not yet up on SSRN, however. That's the signal that I'm still surrendering to the shame of the writing process, with a white flag around my neck.
I hope to overcome that particular bout of shame soon. But if it lingers, it may have to do with related anxieties about the connection between style and argument. Because I write principally in the philosophy of crime and punishment, I've frequently tried to strip my scholarship of any baroque tendencies that I would otherwise indulge. The topic itself is already abstruse. So, just the arguments, so much as I can bear. For me, sadly, the arguments take a while to develop and once I get there, I want to protect them from various objections; as a result, I still write really long articles. Thus, insofar as a writerly style has emerged, it's one that involves less verve and splash than I might otherwise prefer.
Because I want the arguments and not the art to perform their coercive task, I often feel my once-creative writing muscles and imagination have atrophied. And so the real shame I experience with my writing isa fear that my beloved vocation has flattened, if not quite deadened, my soul. Law school may be to blame: as the trope goes, it sharpens but narrows the mind. If what I read is any gauge, when I was in college, I was more of a fox than a hedgehog. Now, I think I'm a hedgehog with much less tolerance for reading or listening to foxes. And so I wonder: can hedgehogs still be interesting? Can they write coercively and creatively?
If the examples I mentioned at the outset are any indicator, the answer is clearly yes. So what is to be done? I'm curious to hear what others have done to retain or recover the palette of language or to overcome the various experiences of shame and the writing process.
*That's partly a word of caution to the folks in the sheets who are practicing and who think they can just gin up a job talk paper in a couple months or less. In most cases, good prawfs will sniff out mediocrity or worse within a few pages of reading.
Thursday, August 18, 2011
FAQs about the FAR
I'm working on a "FAQs about the FAR" project, in connection with my work on the AALS Committee on Recruitment and Retention of Minority Law Teachers. So, please help me out: What are some Qs that are, or should be, FA? Please suggest the As, too!. (Please note that "Should I lie about my willingness to move to certain parts of the country?" has already been suggested.)
According to our survey, the approach of September means that a number of law journals are now or will soon be reading submissions again. For some (and I have from time to time counted myself among this unhappy number) this means re-submitting a piece that failed to find a home in an earlier submission season. Not, as George & Jerry would say, that there's anything wrong with that. Still, many folks seem reluctant to talk about resubmission, as if it were somehow either shady or shameful. I don't think it's inherently either one, but that there are definitely practices I view as a little dubious. Of course, I also think it's cheating when a batter pretends he checked his swing -- so, with the warning that my sense of ethics may be a little over-developed, here's my resubmission etiquette checklist for authors -- and editors.
1. Editors, don't judge.
My sense is that a lot of authors take steps to shroud the fact that they are resubmitting, probably on the assumption that there is some negative signal from having failed to secure an earlier offer. First of all, I don't think any negative signal should attach. Journals intentionally create scarcity for most categories of article. In an arrowvian sense, rejection or not is not a stable equilibrium, but instead is contingent on agenda setting. And, relatedly, many journals will stop reading for a season before they get to all their submissions. On the author's side, the revised version may genuinely be better than the old one.
2. Authors, respect the process. Ok, many prior rejections are not "on the merits," or at least aren't very informative about the quality of the resubmission. But journals are entitled to economize on decision costs by giving some preclusive effect to their own earlier decisions to reject. Yes, a different screener might have a different view of the merits. But journals don't circulate each submission to lots of screeners until the article reaches someone who likes it. It seems shady for an author to try to engineer the process to get to that same result. If nothing else, there is something like a horizontal equity argument here: the process could not work if all authors were considered by all screeners. It isn't fair for some authors to help themselves to additional consideration that not all applicants can get.
I do think this norm is different for resubmissions after a new board has taken over. It's less clear there that the presumption is that the new board would want to be bound by the judgments of their predecessors. But still, the better practice is probably to disclose.
3. Want respect, editors? Don't judge, and announce it. Obviously, points one and two are related. Authors are most likely to shroud when they think there is some negative signal. If the journal wants authors to disclose resubmissions, they should announce their policy on resubmissions. Saying there is no negative presumption will produce more disclosure. .
4. More explanation is good for everyone. I think it's helpful for both authors and editors when authors explain how their resubmission differs from earlier versions. Journals can encourage this behavior, too: for example, by admitting that they do have some negative presumption, but that they are open to articles that have been revised with a clear explanation in the cover letter of what's changed.
And, of course, in happy fantasy land journals would explain why they rejected a piece that came close to acceptance, allowing authors to then explain in the resubmission how they had answered those concerns. (Also, while I'm dreaming, the journal's explanations would 1. be internally consistent (difficult, admittedly, when decisions are a group process); 2. give a clear path for revisions; 3. bind the board so that if the author follows the path the article will be accepted; and 4. be delivered on shiny unicorns riding on rainbows).
Teaching with Law Review Articles
Despite the recent attention given to the relevance of faculty scholarship, the discussion seems neither new nor confined to legal academic. Without reraising that particular issue, I want to pose a similar one: what is the value of legal scholarship as a pedagogical tool? Leaving aside seminars, for which I think law review articles are essential, should we use legal scholarship in doctrinal courses, and if so, what's the best way to do it?
This question came up when I was selecting my civil procedure casebook for the upcoming term. Some casebooks mention law review articles only in the notes if at all, while others make extensive use of long excerpts. I ended up going with a casebook that splits the baby on this issue. It has a "perspectives" section at the beginning of each chapter that raises some broad issues and contains a few excerpts from leading works on the particular subject. Of course, there are good ways and bad ways to use law review articles. Assigning the articles as background, but only discussing the cases, seems like a bad way. Conversely, using the excerpts to introduce themes, and referring back to them ("how would Professor Perdue reply to that argument"), seems like a good way.
The question of whether to integrate legal scholarship into doctrinal teaching can be rephrased as a question of whether legal scholarship is useful beyond advancing the general corpus of legal wisdom. My own feeling is that it is, because if used correctly, it can introduce some useful forest into the trees individual cases represent. But if that's the case, then legal scholarship may be more useful than some have recently suggested.
Are Tea Partiers Actually Correct to Believe that Medicare Isn't a Governmental Program?
It is common place to make fun of Tea Party types for not understanding that Medicare is a governmental program. Everyone knows about that guy who told Representative Bob Inglis to “keep your government hands off my Medicare!” There is more systematic evidence that many recipients of Medicare do not believe that they receive any “government social program.”
In an odd way, however, might those Tea Partiers be correct? I know it sounds crazy, but maybe there is a sense in which Medicare is not a governmental program: Maybe it is instead just a program funded by the government but pervasively influenced by private healthcare providers who loot the fisc constrained only by very weak bureaucratic oversight. What’s worse, it could be that this private domination of Medicare is reinforced by an ideology of privatism, in which beneficiaries see their Medicare benefits as nothing more than their “return” on their payroll tax “premium.” Any effort to change the benefits is seen as governmental confiscation of the fruits of the elderly beneficiary’s thrift and hardwork.
If my gloomy suspicions are correct, then one of the Left’s frequent defenses of Medicare – that Medicare has low administrative costs – is precisely what’s wrong with the program. What Medicare needs is higher administrative costs – aka bureaucrats – who can rein in the private interests that now control the program.
I admit that all of these dark thoughts are merely my own perverse speculation. I am no health law expert: It might be that CMS holds tighter reins over physicians’ and hospitals’ lobbying for ever more generous reimbursement than I imagine. (I have suggested to law students that they take a look at how HCPCS codes are determined at CMS’s public meetings – who shows up and who prevails – but the students were too intimidated by the sheer unintelligibility of the whole process to take me up on the project).
Here, however, are some reasons for entertaining this hypothesis that Medicare is looted by private providers.
First, consider the record. Hospitals tenaciously fought to preserve a fee-for-service system that creates obvious incentives for unnecessary tests and procedures with accompanying ballooning costs. Reagan defeated them with prospective payment systems (“PPS”) in 1983, and PPS was extended to outpatient services in 2000. In theory, PPS reduces incentives to over-treat and over-test by compensating based on the overall care (“diagnostic related groups” for hospitals, “ambulatory payment classifications” for outpatient care). In practice, however, Medicare costs have steadily climbed by 9% annually between 2001 and 2009 despite these reforms. It might be that providers make up in volume of services what they lose when ceilings are set for APCs: Order more tests, and it does not matter that CMS imposes a tight ceiling on the test’s cost. Or it might be that the process by which reimbursement is set for bundled services, APCs, DRGs, etc, is simply inflated because the only people at the table are the doctors, hospitals, and AARP when CMS defines those reimbursement codes. Whatever the reason, our healthcare costs seem immune to cost-control measures in ways that private provider domination of the administrative and legislative would handily explain.
Second, to an untutored observer, the providers sure look like they wield a lot of clout, both politically and economically. They seem to price-gouge when they are not carefully monitored by insurance. But they also seem to have a lot of pull even when CMS tries to rein them in. The pharmaceutical companies seemed to roll everyone in 2005 with the new Part D. General news accounts attribute vast power to the physicians and hospitals in both contributions and general influence. And who sits opposite the providers at the table when CMS sets the HCPCS codes? Do private insurers push back against the providers’ demands for higher reimbursements from the feds, on the ground that the private reimbursement rates are based on the federal HCPCS codes? If so, how effective is this push-back?
Third, recent efforts to rein in costs with impartial commissions of experts seem to be drowned in catcalls before they are barely on stage. Proposals to strengthen MedPac as a sort of Federal Reserve of Medicare seem to have gone nowhere. Obama’s efforts to invest IPAB with some authority to recommend cost-savings measures have been ferociously attacked by Republicans, who compare it to the IRS even though IPAB’s charge is to reduce the amount that government spends. The U.S. Code is riddled with special congressional rules for specific treatments and even specific hospitals, suggesting that medical providers have the clout to secure pork worthy of an Alaskan Senator.
The root of this private provider domination, perhaps, is the conceptualization of Medicare as a form of “insurance” funded by the beneficiaries’ “premiums” in the form of payroll taxes. This description might induce beneficiaries into believing that their benefits come from their personal savings accumulated from years of past payroll taxes. The demonstrable facts are different: Medicare beneficiaries now receive much more in payout than they ever invested. But the ideology is that Medicare is an "entitlement" based on contributions to a fund. When they yell, “get your government hands off my Medicare!” Tea Partiers are not being fools: They are actually just correctly stating the reigning ideology that distinguishes sharply between entitlements allegedly based on based contributions and “welfare” or “the dole.” They might even be more prescient than their critics who might be deluded into thinking that federal officials have the capacity to control providers’ demands for ever-higher reimbursement.
If my suspicions are correct, then defenses of single-payer systems that rely on comparisons of the United States with regimes that have more robust bureaucracies like, say, Canada are off the mark, because the latter have the statist power to put the kibosh on providers that the United States lacks. Ironically, our budgets are so bloated because our state is so weak.
Wednesday, August 17, 2011
Don't Mess With Texas: Why Democrats Should Embrace, Not Doubt, Texas' Economic Success
Lately, there has been a lot of debate about whether or not Texas has performed an economic miracle in increasing jobs during a recession. The popular view on the Right -- especially among supporters of Texas governor Rick Perry -- is that Texas' pro-business environment has boosted employment. The popular view on the Left is that the job growth in Texas is the result of low-paying, low-skill jobs that are no real economic boon at all. According to Matthias Shapiro over at "Political Math," the jobs data suggests that there has been significant job growth in Texas, that the jobs are not unusually low-paying, and that they are not concentrated in the energy sector. As Nate Silver is inclined to agree with Shapiro's view of the numbers, I am inclined to go along as well: So far as I can tell, Texas seems to be enjoying some economic success that is worth further study.
But here's a thought that my friends on the Left might consider before they try to mess with Texas: Texas's economic success might be doomed by policies popular among Republicans -- especially the Republican Right.
Why? Because Texas' success might be attributable to two libertarian policies that Republicans generally seem to resist -- (a) housing markets relatively unregulated by zoning and (b) lots of foreign (mostly Mexican) immigration. Both of these policies may have been major contributors to Texas' economic success. And both are policies that Republicans ranging from Chris Christie to Rick Perry himself are strenuously fighting. So, rather than fighting the story of Texas' success, Democrats might be well-advised to co-opt it.
First, consider the role of immigration in Texas' job success. Texas has a lot of undocumented workers, clustered in low-wage jobs. But (if Shapiro is correct in his view of the numbers) Texas' overall job growth does not appear to be especially concentrated in low-wage jobs. While low-wage immigrants may reduce wages of low-skill native workers, they may increase the wages of high-skill complementary workers.
In short, Texas' lesson for the rest of the nation is that we should attract more immigrants, not chase them out of the country. This is not, however, a message that Republicans want to press lately: It is a Democratic message. As Matt Yglesias has argued, Democrats should not run away from Texas' economic success with immigration but embrace it, wielding the "Texas miracle" to debunk the notion that an influx of immigrants is somehow responsible for high unemployment.
Second, consider the role of Texas' libertarian zoning in helping Texas to avoid the subprime mortgage crisis. It is a familiar point that zoning can increase housing prices by reducing housing supply. It is a less familiar but equally widely accepted point that these sorts of artificial increases in housing prices lead to housing volatility and help fuel housing bubbles. Indeed, the role of exclusionary zoning in contributing to the subprime crisis is one of the few points on which Paul Krugman and the Cato Institute agree. Texas is famous for its relatively unzoned housing market. Aside from containing Houston, the only major U.S. city that still lacks a zoning ordinance, Texas also makes it easy for developers to build out in the 'burbs with municipal utility districts ("MUDs") and generally lax zoning restrictions. Texas has also been relatively less affected by the subprime crisis than more heavily regulated housing markets. in short, Texas' distinctively lax attitude towards zoning might be responsible for Texas' weathering the housing bust relatively well.
Republicans, however, have a love affair with exclusionary zoning. Take the case of Chris Christie, governor of New Jersey, who has been making war on the Mount Laurel doctrine and calling for suburban municipalities in New Jersey to have near-total autonomy to zone out affordable housing like townhouses and apartments. These sorts of regulatory policies appeal to Republicans' home-owning suburban base, but they directly undermine the basis for the success of states like Texas. Again, it has been the Democrats in Trenton who have fought a stubborn rearguard action to stop Christie from allowing New Jersey suburbs to wall out low-income households.
In short, there may be lessons for the rest of America in Texas' economic success, But they are not especially Republican lessons. They are lessons, instead, in the importance of protecting equal access to housing by tearing down restrictive zoning policies and welcoming more immigration. There was a time -- it seems like eons ago -- when Republicans like Jack Kemp embraced these sorts of policies, but those days are long gone. Maybe Democrats should take up the libertarian banner and become champions of the Lone Star State.
UPDATE: So, based on Erik's comment below about the disparity between Shapiro's and Jared Bernstein's figures on Texas government employment, I tried to figure out the actual BLS figure. The BLS website gave me this table on government employment in Texas between 2001 and 2011, showing that total government employment in Texas was December of 2007 was 1,756,100 and 1,868,100 in June of 2011 (although that last figure is labeled "preliminary").
(Download BLS data on Texas govt employees). That's a difference of 112,400, which seems closer to Bernstein's figure than Shapiro's figure but is different from both of their numbers. Can someone reveal the actual BLS number?
Personal Jurisdiction, McIntyre v. Nicastro, and Horizontal Federalism
The Supreme Court's recent plurality opinion in McIntyre Machinery, Ltd. v. Nicastro contains a fascinating, potentially significant, and largely overlooked discussion about how horizontal federalism frames constitutional limits on adjudicative jurisdiction in state courts. The opinion provides some hope that a more coherent approach to jurisdictional analysis might be on the horizon, although that hope may be dim due to the plurality's failure to consider the implications of its reasoning. Indeed, the opinion's brief discussion of abstract constitutional theory is oddly disconnected from its application of narrower doctrinal rules.
In Nicastro, the Court held that a New Jersey court could not exercise personal jurisdiction over the British manufacturer of an allegedly defective product that caused an injury in New Jersey to an employee of the New Jersey business that had purchased the product. The manufacturer had not directly marketed or sold the product in New Jersey. But the manufacturer had actively encouraged its distributor to market the product throughout the United States, and the manufacturer's officers had attended sales conventions in the U.S. alongside buyers from New Jersey. Nevertheless, the plurality opinion concluded that jurisdiction was unconstitutional because the manufacturer had not "purposefully directed" or "targeted" conduct at New Jersey, at least to an extent sufficient to confer jurisdiction in light of the "economic realities" of the relevant market. The fact that the product entered the "stream of commerce" and forseeably flowed into New Jersey was immaterial absent a more direct nexus between the manufacturer's extraterritorial activities and the product's eventual destination. This holding is debatable for several reasons, including: (1) the defendant's well-documented desire and efforts to extract payments from U.S. buyers regardless of their precise location; (2) New Jersey's interest in providing a convenient and effective remedy to a local plaintiff injured in a local accident; and (3) the unfortunate incentives and risks that doctrine creates when it allows defendants to evade jurisdiction through the use of intermediaries (indeed, the intermediary in Nicastro had filed for bankruptcy prior to the litigation). Whether or not the holding is correct, for present purposes we can focus on the more abstract theoretical questions that the case addressed. (For insightful commentary on the holding elsewhere on this blog, see the posts by Howard Wasserman and Robin Effron.)
An interesting aspect of the plurality opinion is its attempt to explain why the Constitution limits the states' authority to exercise adjudicative jurisdiction. This "why" question has generated disagreement among commentators, who often find common ground only in their shared skepticism of the Court's evolving explanations. For example, scholars have characterized modern personal jurisdiction doctrine as "unacceptably confused and irrational," "convoluted and arcane," "in chaos," "half-baked," "precarious," and "plagued" by "ambiguity and incoherence." (My recent article entitled Impersonal Jurisdiction provides citations for these quotations and a more detailed account and critique of the doctrine's theoretical foundation.) Given the widespread perception that the Court has yet to offer a coherent account of why the Constitution limits the jurisdictional reach of state courts, any new discussion—even if only from a plurality—is grist for a well-primed mill.
We can more easily follow the plurality's densely written argument by fragmenting it into components. The plurality essentially contended (on page 9 of the slip opinion) that: (1) limits on personal jurisdiction exist to protect "individual liberty" rather than as "a matter of state sovereignty"; (2) liberty is important because of the Due Process Clause; (3) the Due Process Clause "protects the individual's right to be subject only to lawful power"; and (4) power is lawful only if it is within the "sovereign" "authority" of the forum state. So the plurality appears to have concluded that the scope of a state's adjudicative jurisdiction is at least partially a function of the scope of its sovereign authority, assessed through the prism of liberty. But how do we know how far the state's sovereign authority extends? It is here that the opinion takes an interesting turn. The plurality observed (again on page 9) that "if another State [other than the defendant's "home State"] were to assert jurisdiction in an inappropriate case, it would upset the federal balance, which posits that each State has a sovereignty that is not subject to unlawful intrusion by other States." This language suggests that each state's sovereignty is a function of its role in a federal system that includes other equally sovereign states. The plurality's complete chain of reasoning therefore runs as follows: limits on jurisdiction implicate liberty, liberty implicates due process, due process requires focusing on state authority, and state authority is a function of the forum state's position among other coequal actors in a federal system. The opinion thus suggests that one cannot understand the scope of states' adjudicative jurisdiction without thinking about horizontal federalism. (Justice Ginsburg's dissent denied that "sovereignty" was directly relevant to jurisdictional analysis, although the dissent did engage the plurality by noting that the lower court's exercise of jurisdiction did not "diminish the sovereignty" of other states or undermine the "fair and reasonable allocation of adjudicatory authority among States." Justice Breyer's concurrence did not address the plurality's discussion of sovereignty and federalism.)
If the plurality meant to invoke horizontal federalism, the opinion is novel. In my Impersonal Jurisdiction article, I contended that personal jurisdiction jurisprudence should focus on horizontal federalism concerns, but currently does not. The plurality's apparent invocation of horizontal federalism could be a welcome development, depending on how the Court expands on its analysis. Of course, the opinion's analysis is fleeting and undeveloped, and so one should not read too much into it about how the plurality (and the rest of the Court) might approach future cases.
Unfortunately, any hope that the plurality may have introduced a useful innovation into analysis of adjudicative jurisdiction is tempered by several gaps in the plurality's analysis. These gaps suggest either that the plurality did not take its own observation about horizontal federalism seriously, or that it did not fully consider the implications of its reasoning. I will explore a few quirks in the plurality's analysis here; my Impersonal Jurisdiction article (which predates Nicastro) provides a more complete account of the kinds of questions and complexities that arise from thinking about personal jurisdiction within the broader context of horizontal federalism.
First, the plurality did not explain how the theory that it articulated led to the test that it announced. The opinion concludes (consistent with precedent) that purposeful targeting of the forum is generally a necessary prerequisite for jurisdiction. Yet the opinion does not consider why a doctrine ostensibly focused on state authority in a federal system should prioritize the defendant's subjective intent over, for example, the forum state's interest in providing a remedy, objective facts about the defendant's profit from activities in the forum, and the defendant's ability to bear the cost of litigating in the forum. The opinion thus departs from prior accounts of why jurisdictional limits exist without reconsidering prior accounts of how jurisdictional limits operate.
Second, the opinion did not consider that situating personal jurisdiction within a broader context of constitutional law governing horizontal federalism invites analogies to other federalism doctrines that might require reorienting jurisdiction doctrine. The plurality inadvertently illustrated this phenomenon when it discussed choice of law. Two portions of the opinion are relevant. On page 4, the plurality stated that "[t]he Due Process Clause protects an individual's right to be deprived of life, liberty, or property only by the exercise of lawful power. This is no less true with respect to the power of a sovereign to resolve disputes through the judicial process than with respect to the power of a sovereign to prescribe rules of conduct for those within its sphere. As a general rule, neither statute nor judicial decree may bind strangers to the State." The plurality thus noted that the choice of law and jurisdiction inquiries can be similar: states may not exercise "lawful power" over "strangers," and so doctrine exists to distinguish strangers from non-strangers. Yet on page 11, the plurality observed that "[a] sovereign's legislative authority to regulate conduct may present considerations different from those presented by its authority to subject a defendant to judgment in its courts." In other words, even though the jurisdiction and choice of law inquiries sometimes aspire to distinguish strangers from non-strangers, different factors might be relevant in the two inquiries, so a person might be a stranger for jurisdictional purposes but not for choice of law purposes. The obvious follow-up question that the plurality never addressed is: why? What aspect of asserting jurisdiction over a person, as compared to applying a statute to that same person, requires considering different variables in the constitutional calculus? Instead of addressing this question, the plurality merely repeated various doctrinal tests (such as "purposeful availment") announced in prior jurisdiction cases, without explaining why those tests did not also apply in the choice of law context, and why current choice of law tests do not apply in the jurisdiction context. The failure to compare the two contexts is important because modern choice of law doctrine almost certainly would allow application of New Jersey law to the plaintiff's claim (which stems from an accident and injury in New Jersey to an employee of a business in New Jersey), even though the defendant did not "purposefully direct" its conduct to New Jersey. So apparently the lawful exercise of sovereign authority over a reluctant defendant does not always require the sort of purposefully targeted conduct that the plurality extols in its blunt rhetoric about due process. This observation does not mean that the plurality was wrong—jurisdiction and choice of law might be meaningfully different—but those differences require a subtler analysis of federalism than the plurality provided.
Finally, the plurality did not consider how thinking about jurisdiction in the context of federalism lowers some of the stakes that rhetoric about due process tends to inflate. For example, the plurality observed that Congress may be able to authorize jurisdiction over the defendant in a federal court in New Jersey (for example, by using the Commerce Clause to create a federal question action, or by permitting nationwide service of process in a diversity action). Presumably, Congress could also authorize the application of New Jersey law (which would apply of its own force in a diversity action and could be borrowed in a federal question action). Moreover, there is no reason why federal and state courts cannot lease space in the same building. Accordingly, the following hypothetical scenario is possible under the plurality's analysis: two plaintiffs could sue the British manufacturer on identical claims; one would file in state court, and one in federal court, but both courts would be on the same floor of the same building in New Jersey. In the federal action, the manufacturer would not have any defense to personal jurisdiction. But twenty feet away, in the state action, the manufacturer could bristle at the outrage of being sued in a New Jersey court in violation of its right to liberty and due process. The defendant's argument in state court might have technical merit, but the fact that simply removing the action to an adjacent federal courtroom and re-serving the summons would cure the problem takes some of the sting out of the defendant's invocation of liberty interests. Indeed, one can argue (as I have in the Impersonal Jurisdiction article) that Congress's ability to cure most jurisdictional defects in state courts by authorizing removal to federal court should obviate or narrow the due process remedies that the Court has created without much attention to the Constitution's text or to the relevant horizontal federalism concerns.
In sum, the plurality opinion's reference to horizontal federalism in a context where such references had been missing is an interesting shift in emphasis that offers a tantalizing possibility of future evolution in personal jurisdiction doctrine. But the opinion does not consider, let alone embrace, the implications of its observation about why the Constitution limits the states' judicial reach.
Abandon Hope All Ye Who Enter Here; Or, My Advice to First-Years
I enjoyed Lyrissa's advice to the first-years and, since I was giving just this advice to my advisees the other day, thought I'd try my hand at it here.
1) The Economy is Terrible. This one seems obvious, but the contretemps of the other day has convinced me that we would be better off starting with the bad news so that law students can make some smart and tough decisions at the outset. One hopes it will be in a different place in three years, but for now we can all agree that many students have a lot of debt, no clear route to a job, and think they haven't much else. In the past I would have felt confident saying that no matter how tough the job front is for the first year after graduation, people do find positions and their training ends up being about their second, third, and fifth job, not just the first. But I would rather be pessimistic than optimistic for now. What can you do about it? Reconsidering law school is one possibility. Budgeting, to the extent possible, with the most pessimistic assumptions is another. You might also look at the cover story in this week's ABA Journal, co-authored by William Henderson, and think a little bit about opportunities in the new legal economy. Below I try to give you at least one other.
2) You Are Enrolled in "Job-Hunting and the Law."This is advice I've been giving my own students for a while now, and it seems especially apt in light of #1. It's easy to put the job hunt last after a long list of other duties and to work at it lackadaisically. I recommend instead that you treat the job hunt as one of your principal enrolled courses. Set aside the same amount, every week, that you would set aside for any other enrolled course, including class time and reading and study time. Devote yourself to particular long-term tasks every week. Getting your resume in order is obvious. Searching out data about where your school's graduates work is another good idea. Most professors right now are focused on networking, and for good reason. I encourage you, especially if you know where or in what practice area you'd like to work, to meet as many people as you can. The key (and I learned this back in journalism school) is not to ask them for a job. People who will make no time for job-seekers may well make time for a student who says, for example, I'm interested in environmental law and you're an alumna who practices in that area; I'd love to buy you a coffee and find out about your job, and perhaps even tag along one day on your work. Do this 70 or 80 times and, even if that person doesn't have a job to offer, they may introduce you to someone who does. In the meantime, you may learn a lot about the place or practice area that interests you.
3) It's Your Money and Your Degree. By this I don't mean the kind of thing I get sometimes from more consumer-oriented commenters, ie. I paid good money for this and if I want to spend three years not talking in class and surfing on a laptop instead, it's my business. I mean that if you're going to spend three years and a good deal of money in law school, it's up to you to make the most of it. Just about every law school offers a surprising amount of great resources; just about every law school does so more passively than actively. Some students will go through law school feeling ignored. Others will attend events and speakers, talk to their professors after class and during office hours (I am startled by how many students never visit, no matter how much they are struggling, and how much the few students who do visit me regularly feel that they are getting a lot out of law school), visit the career services office without being invited, volunteer, get practical clinical experience, and so on. Whether their grades are stellar or not, they will feel as if they got full value for their time in law school. It's up to you to decide to be one of those people.
4) Nobody Gets Hurt, Nobody Gets Arrested. Something similar goes for talking in class. Of course you can say, why bother; it's my degree and if I want to spend it clammed up, that's what I'll do. On the other hand, what happens if you talk in class and say something incorrect? Well, you may learn the right answer, and you may learn something in the meantime about how to talk and argue like a lawyer. The downside is that you may feel like an ass in front of your classmates or get pegged as a gunner. BUT: Your client will not fire you in disgust. You won't lose the case. No one will go to jail as a result. You won't get disbarred. And so on. Talking in class, and other ways of throwing yourself into the mix, is a terrific, bad-consequence-free way of actually starting to practice at being a lawyer. Take advantage. (Although, of course, if you have nothing worthwhile to say at all, don't feel the need to pop your hand up every time; those are the students who really annoy their colleagues.)
5) Stop Worrying About Competitive Advantage. I had a no laptop policy in one of my classes a couple of years ago (and will again this fall), and many students insisted that they absolutely learned best by using a laptop. Yet, when I gave them the opportunity to take notes in class on a laptop provided they shared those notes, they declined. Why would you decline to take advantage of the learning method that you believe works best for you? Because these students felt they would be losing a competitive advantage over their fellow students. Similarly, on class websites some students lurk rather than contribute because they're afraid of giving anyone else an answer; and some students don't talk in class if they have the right answer because they believe they'll gain a competitive edge over the competition. I've been teaching long enough to say with confidence that this is 95% illusion, and that students who think this way are actually losing an excellent opportunity to gain a competitive edge. (And to not be jerks or alienate their classmates, but that's a different story.) If you can carefully and clearly explain some legal problem, you are at least two-thirds of the way toward mastering the material and being able to put it down in an exam in a way that will make you stand out as a top-performing student. Teaching others is a great way to learn; it helps you put the material together, it helps reveal questions you didn't know you had, and it helps you learn how to communicate that material. The "edge" you lose by helping others is minimal compared to the "edge" you gain in mastering that same material by teaching it. So go ahead and cast that bread on the waters.
6) Legal Research and Writing is Your Most Important Class. That's true not just in the sense that you will use the skills you gain in that class more than you will use, say, basic contract law doctrine on a given day at work. It's also true in the sense that a good legal writing memo -- clear, concise, stating the issue accurately and then moving on to analysis, pointing out forking paths of analysis that may change the result, describing particular rules or questions but also deciding that they are relatively easy or unimportant and then allocating more time to the central issues, reaching a conclusion but in a way that allows the "partner" reading the memo enough information and analysis to draw his or her own conclusions -- IS A GOOD LAW SCHOOL EXAM ANSWER. Professors want students to state the issues clearly, offer analysis without jumping to conclusions, consider alternative arguments and outcomes, prioritize and spend more time on major issues than minor ones, use clear headings, topic sentences, and other devices that allow the grader to see easily where points should be allocated, and do it all in a clear, understandable, concise way. In other words, they're looking for good legal memos. A good law school exam answer is just a good legal writing memo under conditions of absurd time pressure. The more you've internalized this form and made a reflex of it, the more time you can spend on an exam focusing on the issues rather than trying to learn how to write. In my view, as far as exam success is concerned, this one piece of advice is as good as you can get.
7) Find Your Own Way to Find Joy in Law School. I felt rather out-of-place and miserable in my first semester of a law school, for various reasons. In my second semester, I remember starting to feel quite different about it. One reason was that, most nights, I burrowed away in the bowels of the sub-basement of the Columbia Law Library, a frightening place at night but utterly private. On the shelves were many works of legal history, judicial biography, and somewhat light or meta-legal theory. I have a somewhat narrative frame of mind, and those books, which I plucked at random for relief from studying (and, in fact, sometimes read to the exclusion of my casebooks), ended up offering me a way in to loving the law, a way of absorbing my profession and making me feel a part of it, and of legal education. After that, I found my classes themselves much more enjoyable because I felt like a stakeholder. For others, the same experience will come from something else. They may discover that tax law is like an elixir to them; they may do clinical work; they may find that Lacanian analysis of the law has changed their outlook on life; they may discover that they love to argue, or hate to argue. Whatever it is, with any luck not only will you have found something in particular that you love about law school, but you'll find yourself bringing that renewed sense of energy, purpose, and belonging to all your other classes. I found that I loved First Amendment law, but I also found that I love thinking of courses as puzzles, and enjoyed secured transactions tremendously for that reason -- no matter that I had no interest in practicing in that area. Note that I'm referring here to finding joy in law school, not in life. Many people will tell you to exercise, eat healthy food, not forget your loved ones, and so on. All essential advice. But in addition to not forgetting the things that give you happiness in life in general, I think it's important to find ways to draw particular joy and sustenance from law school in particular. Again, it's your money and your time, and I think you will feel a lot better off about it if you work to find ways of making it your own and finding something lasting and exciting about it.
8) Don't Hate Shortcuts But Don't Make Law School All About Them Either. Most first-year students find their year very challenging. And most of them find by the time they become second-years that there are all kinds of tricks and strategies they can use to make it a lot easier (apart from one thing they may not notice; that the more they've read and absorbed legal language and forms of argument, the easier it is to read, study, and understand the materials in their upper-year courses). Upper-years will give you all sorts of advice: read this Gilbert's, not that one; this Professor wants a particular kind of answer on her exam, and this one another sort of answer; and so on. I think we as professors need to strike a balance in advising about these kinds of shortcuts, because if we disdain them altogether students may naturally think that we're engaging in unnecessary mystification and making their lives harder, and so they'll ignore us. I guess I would say that if your sole aim in law school is to get a B in class, these shortcuts have genuine value, although even here they may have less than you think. But if you would like to develop legal skills, learn how to become an A student more often than a B student, and just, you know, enjoy law school, then you shouldn't let the shortcuts become the whole story. I am just about ready to shoot any student who walks into law school with the Chemerinsky con law treatise and without the assigned con law casebook (and yes, it has happened [the business with the books, not the shooting]). Not because I hate the book; it has lots of value. But because this is really getting things backward in all sorts of ways -- in terms of enjoying the course, in terms of really mastering it, etc. Use your shortcuts, but don't let them become your entire law school experience.
9) Use Clinics and Adjuncts. This may not apply to everyone, although maybe it should. But for those of you who are interested in getting some practical skills or who already know exactly what they want to do in practice, both clinics and adjunct professors are a great resource. I know many law students who otherwise weren't crazy about law school but found a profound education in clinical work. And some adjuncts (not all of them, of course) offer simply the best courses you will get at law school. As I wrote earlier on the blog, I think that law schools should stop thinking of adjuncts as, well, adjuncts, and think of them as an integral part of what they do; as colleagues, not fill-ins. I think we should see them as part of our overall faculty mix. I'm clearly not knocking theory or more theoretically oriented professors, of whom I'm often one; but for those who either don't like that sort of thing or don't want it to become their entire law school experience, clinics and adjuncts are a terrific place to start.
These will do for now. I hope a few people out there find them useful. Sorry about the title; I couldn't resist.
The Roberts Court's and Obama Administration's Federalism Scorecards
As the summer draws to a close and a new Supreme Court term looms, federalism aficionados might want a summing up of how well the Roberts Court has scored on the protection of federalism. Likewise, as 2012 draws nigh, federalism fans might also be interested in whether and to what extent the Obama Administration has taken federalism seriously.
I have written up a summary of the Roberts Court's eighteen statutory preemption decisions, in which category I include Gonzales v. Oregon, Rapanos v. United States, and Fowler v. United States (a lenity case). My tentative assessment is that the outcomes of the decisions seem to depend a lot on whether the federal and state laws have a "commercial" purpose or a "regulatory" purpose. As I use these terms, “commercial” contexts involve federal and state laws having the purpose of defining the rules for bargaining and remedies for breach of bargains, while “regulatory” contexts involve state and federal laws defining the baseline entitlements over which the parties bargain. (By way of illustration, the “mailbox rule” defining when a contract is accepted is an example of a “commercial” law, while a prohibition on filling a wetlands or building a cement plant in a residential zone are examples of “regulatory” laws). In "commercial" contexts, the Roberts Court seems to find preemption very easily (in seven out of eight decisions, with the outlier -- Cuomo v. Clearing House Ass'n -- being explicable on state autonomy grounds that cut across the commercial-regulatory distinction). In the "regulatory" context, the Roberts Court seem much less willing to deploy broad theories of preemption (rejecting preemption in seven out of ten decisions).
My commercial-regulatory distinction, by the way, is orthogonal to the express-implied preemption distinction that inspires a lot of judicial and scholarly rhetoric but, I think, does not actually drive case outcomes. "Express" preemption clauses, if ambiguous (as they always are), involve analysis largely identical to frustration-of-purpose preemption, because, in both cases, even the strictest textualist will have to rely on legislative purpose to clear up the ambiguity.
What about the Obama Administration's legislative and administrative record? Gillian Metzger has an interesting paper summarizing how the Obama Administrative's major legislative initiatives deal with subnational government. Catherine Sharkey, my colleague, has also conducted an important study of the Obama Administration's agencies' attitude towards federalism, interviewing agency officials to see if they take seriously their duties to comply with the Obama Administration's May 2009 preemption directive and E.O. 13,312 on federalism. Sharkey finds (to my own surprise) that the anti-preemption directive apparently has made a difference with some agencies -- notably, NHTSA, which has disavowed some pro-preemption language in some 2005 NPRMs and argued successfully against preemption in Williamson v. Mazda Motors. (The FDA, by contrast, seems more balky on limiting the preemptive force of its rules).
Altogether, a mixed bag for federalism. But I commend Cathy's and Gillian's studies to anyone who wants detailed but manageable overviews of a complex legislative and administrative track record.
Tuesday, August 16, 2011
Signing Off (and Giveaway for IP Prawfs!)
Thank you to PrawfsBlawg for the (extended) guest blogging stint. As I sign off, I'd like to announce a little giveaway for the IP folks out there.
To celebrate the grand-reopening of my Museum of Intellectual Property – now with all exhibits up on the web – I am offering to any bona fide teacher of Intellectual Property or Trademark Law a swatch of fabric from an actual Qualitex press pad cover, resplendent in its trademarked green-gold color. As the IP folks will know, Qualitex successfully defended its color as a registered trademark in the landmark IP case, Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995) (holding that color can be registered as a trademark, overruling the Ninth Circuit).
What is that you say? You have the green-gold color in a slideshow? Unacceptable!!! The only way you can truly experience the Qualitex hue is live, and in person. As Qualitex notes on its website:
The Unique Green Gold Color is a Registered Trademark of the Qualitex Company. (The color on your screen may NOT be an accurate display of the Qualitex Green Gold!)
So, if you'd like yours, please send an e-mail with your physical mailing address to [email protected] by September 19. I'll need everyone's request by then so that I can know how finely to divide up the material that I have on hand. And don't worry, the Museum of Intellectual Property will retain a full, intact Qualitex press pad on display.
Stanford Law Review’s Peer Review Process
As part of our continuing “law review review” features, I spoke with Andrew Prout, a senior articles editor at the Stanford Law Review, about their peer review process. (For background on the peer review process, check out Brian's overview from last week.)
(1) How long has Stanford participated in the peer review program?
My understanding is that this is the third year of the program (i.e., Vol. 62 started this program).
(2) Do you share reviewers with the other schools, or do you find your own?
We use our own reviewers, although on maybe one or two occasions (when we were under a very tight deadline from another journal's exploding offer), we have reached out to professors who we knew had already reviewed the piece for another school.
(3) About how many articles do you send to be peer-reviewed each cycle (spring/fall)? How are these articles chosen?
This year [as of the spring], we've sent around 40 to 50 articles for peer review, and so far we've accepted 12 articles. Usually, we choose to send an article to peer review after several student readers have shown a very strong interest in the piece. We also turn to peer review when we have certain concerns that we feel reviewers can address, or when we discuss the article at the full committee level and decide that we need more information before we can make an offer.
We almost never send to peer review an article that is over our word limit (30,000 words, including footnotes, excluding appendices).
(4) How do the reviewers give their feedback? Do you use a system of categorization or a ratings system?
Their feedback is holistic. We ask reviewers for their perspective on the article's novelty, usefulness, and accuracy.
(5) Have you thought of formalizing the peer-review feedback and providing an (anonymous) copy to the author after the review?
We know that scholars in other fields can receive feedback from their peer reviewers once the process is complete, and we've considered whether we should do the same. Trouble is, many legal scholars writing about a niche topic are familiar with the same scholars who end up providing us with peer reviews. So even if we sent just the text of the review without any name attached, many could tell who had reviewed their article. This in fact happened at least once before when we used to share just the text of the peer review with authors. Because complete anonymity encourages many of our reviewers to be frank with us, we promise that we will never reveal their review to the authors, and we stick to that promise.
We could formalize the reviews, as you suggest, but that would require quite a bit of editing, and frankly, we don't have enough hours in our days to do that. We also are concerned that using a form or otherwise asking for more standardized responses from our reviewers would deter potential reviewers, most of whom we have to ask to respond within a short timeframe due to exploding offers.
(6) Do you always follow what the peer reviewer suggests? In other words, have you ever accepted an article that was given a poor peer review? Or have you ever rejected an article that got stellar peer reviews?
When the reviewers are nearly unanimous in their praise or disdain for a piece, we almost always follow their lead. But that's not always the case. If anything, we err on the side of rejection, so there have been times when peer reviewers liked an article and we rejected the article anyway, either because we changed our mind about how much we liked the article in the first place, or because the content of the review did not alleviate some concerns about the piece even if the reviewer liked the piece overall.
NB: Last year, we withdrew from ExpressO, so all the articles we receive are submitted directly through our website (www.stanfordlawreview.org).
Monday, August 15, 2011
"Let 'em Play" and Hockey
I read with great interest Professor Mitchell Berman’s series of posts on the Volokh Conspiracy discussing his new article, “'Let ‘em Play': A Study in the Jurisprudence of Sport.” The article, as I understand it, explores fans' expectations in professional sports that certain rules of the game will be enforced less strictly at critical moments in the contest, such as the last minutes or seconds of a close match. Umpires and referees interfering less in these critical moments, the theory goes, fosters the impression that the players themselves are responsible for the final outcome of the match. Professor Berman’s goal, at least in part, appears to be to examine how these norms with respect to the non-enforcement of rules in the sports realm can or should apply to the legal system. As an avid sports fan and prawf, I appreciate very much his serious treatment of the potential relationship between sports and the law.
Professor Berman uses several professional sports to illustrate this concept of “temporal variance,” including tennis, baseball, football, soccer, and basketball. Largely absent is ice hockey, which Professor Berman admits he isn’t as familiar with and thus hasn’t incorporated as much into his substantive discussion.
I happen to a huge hockey fan and religious follower of the storied Montreal Canadiens. I generally watch (via a cable hockey package) seventy-five to eighty of the Canadiens’ eighty-two regular season games, and have enjoyed for over an aggregate decade season tickets to two other NHL teams. All in all, I’ve probably watched well over a thousand NHL games in my life. Below, I’d like to offer some informal thoughts, based entirely on my observations of live and broadcasted games, on “temporal variance” and the non-enforcement of rules in hockey.
I generally agree that, in professional ice hockey, some expect referees to call less infractions in the last moments of a close regular season game relative to the rest of the game, and in playoff games relative to regular season games. While "temporal variance," as a factual matter, may exist in professional hockey, I am skeptical as to whether "temporal variance" should be part of professional hockey.
First, for me consistency in the enforcement of rules is a value that trumps any intentional abdication of rule enforcement in the last stages of a tight game. Referees possess a lot of discretion in calling penalties. The question is not how that discretion is used only in the last, critical moments of a game, but how that discretion is used in the last moments compared to how it was used in the prior bulk of the game. Some fans may not be pleased, for example, if a referee called an infraction in the earlier moments of the game, but then let a similar infraction committed by the other team "go" when the game is on the line, even if doing so is consistent with the "temporal variance" expectation. If referees are consistently strict or lenient throughout the game, there may be greater acceptance of a call (or non-call) in the last moments. Such context-neutral application of the rules would seem to give the referees enhanced credibility and ability to claim that they objectively handled the game. That evenhandedness or consistency may provide greater assurance that the outcome of the game can be attributed to the players, not the referees.
Second, "temporal variance" pays insufficient weight to the enforcement or non-enforcement of rules in earlier moments of a match. The last moments have been shaped and determined by the preceding moments. A hockey game has certain ebbs and flows that are no doubt impacted by referees’ calls or non-calls throughout a game. The last moments are the culmination of everything in the game that occurred previously. A penalty called in the beginning of a game can have a profound impact on the direction and contents of the rest of the game. "Temporal variance" gives the false impression that it is only in the last moments that referees can influence the game when, in fact, referees have been taking part throughout the game in determining the opportunities available to and disadvantages to be imposed on particular teams. As referees already have impacted the game by making their calls in the earlier moments of the game, it may be that what has changed in the last moments of the game is only some fans’ sensitivity to that potential last-minute influence.
Third, one of the costs of referees "putting their whistles away" in the last moments of a game is that referees effectively reveal that they are doing something other than dispassionately and objectively calling the game. They are signaling that they can and do intentionally manipulate the entire game if they are intentionally "hands-off" in the last moments. If they are "activist" in one instance, they open the door to the view that they are "activist" in all.
Fourth, Professor Berman seems to posit that "temporal variance" may be explained by an interest in rewarding the "competitive excellence" of players. It is not fully clear, however, what constitutes "competitive excellence" in hockey. In the other sports noted by Professor Berman, generally no or minimal physical play is tolerated, yet "temporal variance" may permit a greater degree of physical play. In hockey, physicality is not condoned only in the last part of a close game. Rather, in hockey, physicality is integral to the entire game. In fact, hockey players are commended for their physicality, such as their ability to deliver body checks in open ice. Of course, on the other hand, speed and skill are prized in hockey. This is not an either-or situation – hockey blends both physical play and speed/skill. This is to say that "competitive excellence" is a complicated issue in professional ice hockey, and the physical component is not an inherent evil but a regular feature that is generally penalized when it goes too far.
Fifth, finally, and perhaps most importantly, the impact of non-enforcement is not limited to the perception of referees' proper role in handling a game (e.g., whether they are impartial) or whether the players have decided the game. It also impacts perceptions as to the integrity of the entire league. Recent non-enforcement of rules during two periods of time other than the last minutes of a game or the playoffs demonstrate the costs that non-enforcement may have on the league as a whole and thus the fans' qualitative experiences with respect to the NHL.
The first of these time periods is after a regular season game is completed, when the league has an opportunity to consider and issue supplemental discipline for potential infractions that occurred during a previous game. This past season, Canadiens’ forward Max Pacioretty was trying to skate past Zdeno Chara, a Boston Bruins defenseman and the largest player in the league, when Chara drove Pacioretty into a partition separating the two players’ benches. Pacioretty suffered a severe concussion and broken neck, and missed the rest of the season and playoffs. Chara claimed, incredulously, that he did not know the partition was there and that he was innocently trying to separate Pacioretty from the puck -- which, incidentally, was in another zone. There was no legitimate basis for the hit, as the puck was far away and Pacioretty was entitled to skate without obstruction. Chara was not given any supplementary discipline. In all my years of watching hockey, that single non-enforcement decision did more to undermine the credibility of the league than anything else I can recall. The league effectively “let ‘em play,” though in doing so diminished the respectability of the NHL. Indeed, the NHL lost sponsors as a direct result of its unwillingness to sufficiently enforce its rules against Chara. It likely lost fans as well.
Worse, non-enforcement emboldens players and invites them to test the limits of acceptable play with even more objectionable, unsportsmanlike behavior. This is exactly what occurred in the playoffs, in between whistles when the play is officially over though players still interact. The Bruins won the Stanley Cup this season in part because they used their superior physical strength to intimidate and wear down the opposition. The referees' unwillingness to police the Bruins’ spearing, cross-checks, and jabs that took place after play was over only empowered them to act more aggressively and brazenly. Unrestrained by the referees, the Bruins, unsurprisingly, took advantage and were able to quell the skilled play of the Canucks’ forwards. The Canucks engaged in some of the “less than honorable” conduct as well, though the Bruins due to their team strength, size, and attitude did so with greater frequency and severity. The Bruins, to their credit, played within the bounds that the referees impliedly established by way of non-enforcement; and the Bruins were not going to regulate themselves and limit their physical competitive advantage if the referees were not going to.
All told, the competitive excellence that the league therefore rewarded, through such non-enforcement, is the bullying style of play exemplified by the Bruins. This, to me, is a regrettable development, one that tips the balance too heavily in favor of the brute and to the detriment of the skilled. As Andrew Cohen noted in The Atlantic after the Pacioretty-Chara incident, the league's excessive non-enforcement will end up resulting in the loss of life of an NHL player. "Let 'em play," thus has serious consequences broader and more important than the perception of who is responsible for wins or losses.
One may completely discount my take on the non-enforcement of rules within hockey because of my affinity for the Canadiens and commensurate hatred for the Bruins (sorry, Professor Somin). I hope nonetheless that some readers may think twice about whether "temporal variance," and non-enforcement generally, is a normatively appealing value in professional ice hockey.
Comments Sought re Facilitating Classroom Discussion
Our friend and colleague Rick Bales, who teaches at NKU Chase Law, has asked me to pass along the following crowd-sourcing request. Rick will be giving a talk at his university this week on "Facilitating Classroom Discussion," and would love to hear some ideas about techniques that you have found successful in generating good classroom discussions. I'd like to hear them too! Please chime in.
What's in a Name?
A group calling itself Law and Religion Professors has filed an amicus brief in support of the EEOC in the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. It's available on Westlaw and is well worth reading; indeed, in my view many of the briefs in this case have been excellent.
I have a small observation to make. Despite the group's name, few of the professors who signed on to the brief are law and religion scholars as such -- that is, scholars who write frequently, if at all, in the field of law and religion itself. As the brief itself observes, the group includes "men and women who teach constitutional law, religious studies, and employment discrimination law." But it includes few law and religion professors and scholars, and at least one professor who does not teach any of the subjects listed above, unless you count criminal procedure as constitutional law (would that we generally did so count it!). That said, the brief was spearheaded by two superb law and religion professors, Caroline Mala Corbin and Leslie Griffin, and the signatories include many serious writers in the areas of both constitutional law and employment discrimination (including Prawfsblawg's Lyrissa Lidsky). And I think it is both valuable and important that several religious studies professors are among the signatories. Still, without commenting on the merits, I think it is fair to say that the label "Law and Religion Professors" is literally true -- the group includes both law professors and religion professors -- but perhaps somewhat misleading. The general absence of law and religion professors from the list of signatories doesn't mean the brief's arguments are wrong, by any means, but it does suggest something worth noting: that a very different and nearly unanimous consensus about this case exists among those who spend most of their time working on these issues from a law and religion perspective.
The Onion's take on networking was that 89 Percent Of Networking Nonconsensual. Here is a flavor:
A new study published Tuesday by Emory University determined that 89 percent of networking encounters occur forcibly and without the consent of one of the parties involved, a disturbing finding that suggests far more people are victims of unwanted career-related discussions than was previously thought...
According to Raybeck, it's not uncommon for people who have been brutally networked to blame themselves for what was done to them. They might, for example, believe that their business-casual attire provoked the networker or that standing alone in the corner of a cocktail party was somehow "asking for it."...
The truth is that networking, in itself, can really be a healthy, fulfilling, and beautiful thing," Raybeck told reporters later over drinks at the Haymaker Bar & Grill. "After all, nothing wrong with putting the old feelers out, especially in a tough market like this, you know what I'm saying? Hey, I'll get the next round, don't worry about it. By the way, who's doing HR for you guys now? Is it still Gary?"
For us academics, at conferences, workshops, reunions, seminars, let alone the meat market, we surely have been victimized with such non-consensual networking behavior. But after all, its part of the job...so please please, all of you former students, future lawyers, new lawyers, future professors, junior colleagues - do harass us! we've all been there.
Sunday, August 14, 2011
Healthcare and Federalism: Should courts strictly scrutinize federal regulation of medical services?
I am sick to death of arguing about functionally empty federalism theories. Therefore, if you want a detailed analysis of why the 11th Circuit's recent opinion in Florida v. United States errs in accepting Randy's argument against the constitutionality of PACA's individual mandate, take a look at Mark Hall's excellent post at Balkinzation or David Orentlicher's post over at Health Law Profs blog. (In the unlikely event that you are interested in my views, they're all over prawfsblawg -- here, here, here, and here, for instance).
My objection to Randy's argument is that the action/inaction distinction is just more empty federalism etiquette born entirely of the need to distinguish precedents rather than the desire to construct a sensible division of powers in a federal system. The action/inaction distinction will not really limit federal power: As Randy concedes, Congress could impose precisely the same mandate through the taxing power or even conditional "prohibitions" on "actions" like buying insurance or being employed. Moreover, the distinction is not even very crisp, as Judge Sutton's concurring opinion in Thomas More Law Center v. Obama explains with exemplary clarity and dispassionate good sense. So I'll be delighted when the SCOTUS finally upholds PACA's mandate and we can get on with the real business of figuring out how to limit the federal leviathan in ways that actually make a practical difference.
Which leads me to a question asked by Abby Moncrieff via e-mail: She asks me why a sensible theory of functional federalism would not suggest "devolution in the ACA case." As Abby puts the matter, "[h]ere is a case of deep and salient disagreement among local populations as to the propriety of insurance mandates," disagreement that would suggest that a one-size-fits-all national law would be a bad idea. Why not, instead, let the states go their different ways on the issues addressed by PACA?
Good question, Abby -- and one blessedly free from the normatively vacuous precedent slalom that is the PACA litigation. My answer, following the jump, is that sensible functional federalism (a) would devolve the regulation of medical practice to the states but (b) would give the national government substantial power to finance health care. Resolving the tension between (a) and (b), however, requires a little more elaboration as well as an explanation of where I stand regarding Abby's excellent theory of "federalization snowballs."
First, why give subnational jurisdictions a lead role in the regulation of medical practice? Professional standards for the practice of medicine raise religiously and culturally sensitive issues of life and death, physical privacy, and acceptable risk-taking. National legislation on such matters invites unnecessarily divisive struggles for the commanding heights of federal power. Devolution of such issues reduces the acrimony of pitting Red State folks (who dislike med mal liability but hate avaunt-garde ethical innovations like physician-assisted suicide) against Blue State folks (who have opposite instincts). Given that the choice-of-law rules for medical malpractice and professional discipline predictably assign legislative jurisdiction to the state where medical services are performed, states can easily internalize the costs of their regulatory regimes in terms of inflated or reduced insurance premiums. (This latter point distinguishes standards of professional care from standards for the design of highly mobile pharmaceuticals -- hence, the need for the Food, Drug, & Cosmetic Act).
Second, why give the feds the lead role in healthcare finance? The reason is the familiar point, set forth by Paul Peterson long ago, that the subnational governments cannot redistribute wealth effectively in a federal system characterized by mobility of labor and capital. Any health insurance scheme will involve massive redistribution of wealth from the young to the old, from the rich to the poor, and from the sick to the healthy. The notion that subnational jurisdictions can take the lead in performing these financing functions strikes me as untenable.
But here's the rub: Limits on insurance coverage provided by the feds under Medicare (or PACA) will obviously affect the standards of medical care provided by state-regulated doctors and hospitals. Costs imposed by those standards of care imposed by state law will obviously affect the costs of health care financed by the feds. Abby Moncrieff emphasizes this latter point in her article on "Federalization Snowballs": Because the feds foot the bill for medical services, the federal taxpayer ends up subsidizing states' medical malpractice regimes. Abby argues that the feds, therefore, might need to preempt state med mal regimes. But I'd argue that the feds need only do what private insurers do: Price the liability through higher premiums. Specifically, the federal spending power could legitimately impose special Medicare payroll taxes in states where the med mal liability really seems to impose an extra burden on the federal fisc. Differential payroll taxation has always been used to equalize spending between states with state-financed unemployment insurance systems and states without: Why could not such a tax system solve the problem of "federalization snowballs"?
So that's my 500-word theory of federalism and medicine. I do not pretend that it is comprehensive answer to the problems of dividing power over medicine in a federal regime. But these are the sorts of functional considerations that I would like to see being debated in the U.S. reports rather than the nonsense of whether "inaction" is "commerce."
Saturday, August 13, 2011
Blankness at Conferences: Good for Graphics, Bad for Badges
I just finished attending Intellectual Property Scholars Conference 2011 – a wonderful event. But it reminded me that I have a couple of simple suggestions for all scholarly conferences that I'd like to pass along.
First, put a PowerPoint presentation consisting of a single blank black slide on every podium computer. That way, if someone doesn't have a slide show, the blank slide can be turned on for them. With the aid of a blank slide, nothing will be competing for the audience's visual attention while the presenter speaks.
Mark Lemley of Stanford, for instance, seems to have a penchant for presenting slideless. That's fine, of course. But for Mark at this particular conference, that meant that during the first portion of his very interesting presentation, he was competing for attention with a rather sternly worded message reminding podium-computer users that ALL FILES ON THIS COMPUTER WILL BE DELETED. It only got worse when the screensaver came on. As if because of something Mark said, suddenly a hyperactive, menacing “DePaul University” in 3-D chrome lettering began furiously pivoting left and right, and pacing back and forth over Mark like it was getting ready to attack him. It was pretty hard to concentrate on what Mark was saying, if, like me, you were mentally trying to gauge whether the graphic was getting especially agitated when Mark mentioned overturned Federal Circuit precedent.
Who is this person I'm talking to? I recognize the face, but have I just seen it in some bulk-rate postcard law porn, or was this person actually in my Torts class in law school? Well, no problem, I'll just casually look down at their name tag ... DANGIT! It's spun around to its blank side! Hmmm. Maybe I should drop my pen and see if their name tag spins around when they try to pick it up for me. No, wait, that's even weirder than admiting I don't know their name. Or is it? OH FOR CRYING OUT LOUD, who am I fooling? If I wasn't so socially awkward, I would have gone to business school.
So, if you are organizing a conference, just print out the text for the name tag on two slips of paper, and then insert them both back-to-back into the plastic thing. (And congrats and thanks to the organizers of IPSC 2011!)
Last Thoughts on LawProf
I really appreciate the substantial reaction to the LawProf post. I remain fully convinced that people ought to be civil, regardless of whether they post anonymously or not, but even in uncivil comments there can be some valuable statements, and sometimes the emotion that such comments convey is itself diagnostically useful. Let me close out this discussion, at least for now, with a couple of remarks.
The first is that, although a few comments on a blog post are hardly accurate measures, obviously there is a substantial constituency of law students and recent graduates out there who feel badly injured by law school. I think it's difficult to say how many of these people actually went to law school in reliance on particular statistics about jobs provided by law schools featured in some brochure, how many went to law school in reliance on general hopes and expectations (in many cases supported by the law schools' words) about the likelihood that a law school graduate will get a high-paying job, and how many went for the usual mix of reasons and just happened to graduate in the middle of a recession. I think misreporting by law schools is reprehensible and would be even if no one at all relied on those figures, but I think it's probably fair to assume that some people went to law school for reasons that had less to do with specific promises and more to do with general assumptions about the economic security of a law degree. Regardless, what is striking, and unsurprising, is the depth of passion on the part of students in this position. They demand, first and foremost, an acknowledgment that law professors are actually aware that their students are suffering. Of course, nothing I can say here will reassure them, but as I said in my post, to the best of my knowledge and based on my experience, law professors are fully aware and distraught about what their students are going through. We don't teach from remote undisclosed locations: we're in the classroom and in the building with our students every day, work closely with them, and genuinely care about them; many law professors are going to great personal lengths to do what they can on the job front. Moreover, many of us graduated from law school in the midst of other recessions in the legal and general economy, and have experienced some of these things first-hand. Whether we do or say enough to acknowledge all this is a separate question -- perhaps every law school should devote its orientation week to talking about the legal economy, about how many recent graduates are suffering, and about what current law students should do to think about debt, jobs, and so on. But we're not ignorant of what's going on.
Second, and this is a point I made in my original post and Jeffrey Harrison makes very effectively in his comment, there seem to be a mix of various complaints, some of which are only slightly related and which would require very different remedies; in the midst of the talk about urgency, and of the genuine student suffering, these things are getting jumbled together in unhelpful ways. So we get complaints about law school reporting practices; about whether law schools provide sufficient practical training; about whether law professors are overpaid, or don't work hard enough; about how many law schools there should be; and complaints about the lack of jobs in general. Some of these form a basis for talking about "scams," and some of them are not about scams at all, but about structural questions about what law schools ought to be doing. And we get a variety of views about what to do about all this. Some students (and professors) believe in reemphasizing practical training regardless of whether that will result in more jobs or not, because they think it's the duty of law schools in good times and bad; some students might not care if every teacher in a law school taught high theory, if there were good jobs waiting at the end of the three years. And, judging by some of the comments, I would say a few students don't really care what changes are implemented and whether they actually achieve anything useful, as long as law professors are made to feel the pain of their students.
I can understand the passion of those who say there must be a solution, right now. But it doesn't change the fact that we need to figure out which problem we're talking about and what to do about it. And, again, I want to emphasize that our obligation to think on a continuous basis about what works and doesn't work in legal education is not just about the current recession; it's a permanent duty, and one that shouldn't blow hot and cold.
Friday, August 12, 2011
Who’s Afraid of Herman Melville?
Among her tips for new law professors, Lyrissa Lidsky suggests that “You will teach a class best the third time you teach it.” I’ve been thinking on this one for a few days, and I would agree that the third time you teach a class will be better than the first. The real question is: how can you make the fourth better than the third?
The answer may depend on the class. As I noted here last week, I’m teaching civil procedure this fall, and right now I am primarily concerned with polishing a syllabus that, for the first time in a long time, contains new cases—the U.S. Supreme Court’s recent personal jurisdiction decisions. I’m happy to have some new material, because my part of civil procedure is fairly static—each time out, I’m really just trying to do a better job of teaching material that is essentially the same as the year before.
One of the ways I’ve tried to do a better job in recent years is to introduce civil procedure with some reading from outside the casebook—with material that, at first glance, has little connection to civil procedure. Years ago, I read Tamara Piety’s essay about why she makes her civil procedure students read chapter 89 of Moby Dick, “Fast-Fish and Loose-Fish.” She’s a quirky writer and her take on Melville (and how to use Melville to introduce civil procedure) is inspired.Essentially, Piety argues that “Fast-Fish” is the perfect vehicle with which to get students thinking about the nature of law and its limitations. You may recall that, in chapter 89, Ishmael takes off on one of his many tangents, this one an effort to provide the reader “some account of the laws and regulations of the whale fishery.” That entails a discourse on two rules: the fast-fish belongs to the party fast to it, while the loose-fish “is fair game for anybody who can soonest catch it.” These simple rules not only require several pages of explanation, they ultimately have universal implications; after all, as our narrator observes: “what are you, reader, but a Loose-Fish and a Fast-Fish, too?”
There’s much for a law students to chew on here, much that they will see played out in cases involving the meaning of rules in new and different situations, particularly situations the rule-drafters might not have imagined. And there is an opportunity for students to see that insights into law’s meanings and consequences may be found outside the pages of casebooks—in the real world, of course, but also in life as rendered by writers trying to get their arms around all of the human condition.
Plus, after struggling with Melville’s musings for an hour, Pennoyer v. Neff—or the rule against perpetuities, or the nature of consideration, or any of the classic cases from Torts—might not seem quite so alien to a first-year student.
I feel like I’m still relatively new at the law-teaching game and am wondering about other bits of literature that might serve the same purpose as this chapter from Moby Dick—all suggestions welcome.
Earlier this year, the ABC News show, "What Would You Do?," aired a segment in which three job applicants – a Jewish man with a yarmulke, a Muslim woman with a headscarf, and a Sikh man with a turban – were denied employment at a restaurant, in front of and within earshot of customers, specifically because the applicants’ religious attire did not conform to the employer’s dress code policy. The purpose of this hidden camera show is to ascertain how unsuspecting members of the public will respond to an underlying problematic situation played out by actors. In this case, the objectionable situation designed to illicit a public reaction was the fact that the applicants were rejected solely because of their religious appearance. For example, the restaurant manager informed the Sikh applicant that he could not be hired “looking the way you look” because the turban could be considered “threatening to anyone sitting here eating.”
Some patrons took the bait -- they voiced concern that the restaurant manager’s decision was discriminatory and unlawful. One witness, for example, likened the treatment of the Sikh applicant to discrimination on the basis of race -- can the manager “say the same to me about my color or my religious beliefs, it’s the same thing.” Another troubled witness told the manager, “I’m not sure you’re aware how illegal this is…. You’re lucky there are no lawyers around."
As it turns out, the assumption that such conduct is inconsistent with the law is a mistake. For years, federal courts have enabled employers to engage in the behavior depicted in this broadcast.Where, as with the above scenario, there is a conflict between an employee’s religiously-mandated appearance and an employer’s interest in avoiding possible negative customer reactions to the religious employee’s identity, federal courts are allowing employers to resolve this conflict by placing the religious employee out of public view or by refusing to hire him or her altogether. In legal terms, courts faced with Title VII claims are reasoning that placing an employee with religious attire in the back is an acceptable “reasonable accommodation” of the employee’s religion or that to hire such an employee may result in economic costs that amount to an “undue burden.”
My recent research argues that these courts have it wrong. It seems to me that the text of Title VII forbids such employer action and that this conduct reinforces majoritarian norms and perpetuates harmful stereotypes as to who the public wants to interact with. Reserving social spaces for the familiar or likeable religions is problematic. Moreover, other contexts, particularly principles from the civil rights movement, also point to the discriminatory nature of this employer conduct.
While this position may not be controversial, what may serve as a lightning rod is how the aforementioned employer conduct is being described. In particular, if an employer places in the back an employee who looks different on account of his religious attire, or refuses to hire such an individual, can this be fairly termed "segregation"? In other words, it seems, the employer is segregating an employer in the workplace (by placing him or her away from the public) and from the workplace (by refusing to hire him or her). Title VII expressly prohibits "segregation" and language in the latest Workplace Freedom Restoration Act refers to this conduct as "segregation." The term is charged, but the question is whether its use is accurate or prudent in this context.
Thursday, August 11, 2011
Defending Against and Proving the Counterfactual
Presidents make mistakes. It does not matter if one is president of a country, a corporation, or the local branch of the girl scouts---prepare to make at least one bad decision during your tenure. Because of this bad decision, you will likely face opposition when you run for reelection, either from an outside source or within your own ranks. What I find interesting is how the incumbent defends him or herself against the counterfactual. The opposition, no matter what the forum, essentially runs on the platform that he or she would have done a better job as president because he or she would have done X,Y, and Z better. It is this claim that gives me pause as we gear up for the 2012 election cycle.
In 2008, it was easy for a virtually unknown Barack Obama to make this claim against an unpopular incumbent because he didn’t have the record. At times, then-candidate Obama's lack of experience was a political liability, but people were so disillusioned that they were willing to vote for the newcomer. In 2012, however, it will be much more difficult for the Republican challenger who runs against Obama to make this same claim because he or she will have a record of public service, either as a current or former senator, representative or governor. But the claim still can be made because many voters feel the same disillusionment that was common in the electorate during the 2008 election cycle. So the question is how does an incumbent defend against something that is virtually unprovable? The proposition that, had his opponent been president, the country would be in a better place? Voters tend to believe the counterfactual, despite the lack of evidence, because they often have buyer’s remorse and regret endorsing the now-incumbent. Yet this counterfactual is clearly problematic, right?
I think that the reason we shouldn’t worry about the counterfactual is because, despite the significant disadvantages to the incumbent from this claim, the fact that there is an incumbency advantage erases any disadvantage that emerges from buyer’s remorse. President Obama’s tenure has been controversial --- from health care to the recent debt negotiations---he has been criticized on both the left and the right. There seems to be some crisis or controversy almost weekly that turns Republicans, Democrats, and/or Independents against the Administration. Yet President Obama has been consistently polling ahead of the Republican field and his voter approval rating has stayed in the 40-50 percent range, illustrating that the counterfactual (which is a key argument for any potential opponent) may not be strong enough to sway people to vote against President Obama in 2012.
So I guess a part of me wonders how this should factor into the Republican strategy. I don’t think it will be enough for the Republican challengers to parade President Obama’s mistakes and say that they would have done things differently. Traditionally, that is how elections are won, but we are facing unprecedented polarization in our electorate. Times have clearly changed. Unlike 2008 and 2010, neither party can run on a platform of hope and change this time around. Or even on a platform of fiscal restraint, low taxes, and economic responsibility. I suspect that the debates of the last two years have forced both parties to change their rhetoric going into the 2012 elections. We have already gotten some indication of how the Obama Administration is changing their rhetoric going into the 2012 election cycle, and I think the Republican debate tonight will be the first glimpse at what the new messages will be for that party. Stay tuned.
Peer Review at Student-Edited Journals: Best Practices?
Last week brought news, via Bainbridge, that Chicago is joining Harvard, Yale, and Stanford in regularly using some form of official peer review. (I say “official” because many journals also informally solicit faculty input). Bainbridge is displeased, especially about the short turnaroud. I can’t sign onto the whole rant, but there are a few points about the implementation of peer review he highlights that are worth some more discussion.
First, some stylized facts about current practices. I have a survey out now to journals that have used official peer review in the past, and so maybe soon we’ll have real facts. (Chicago editors should feel free to e-mail LawReviewReview ~at~ gmail.com for a survey of their own.) For now, though, my impressions are that: 1. journals often disregard or weight lightly the advice they get from outside reviewers; 2. reviewer comments are not shared with authors; 3. authors cannot respond to reviewer comments; 4. reviewers are anonymous but free to reveal themselves; 5. reviewers don’t know author identity (except perhaps in the new case of Chicago, which does not use blind review). I think 1 & 2 are significant problems, 3 sucks but is probably hard to fix, 4 needs some tweaks and 5 seems a'ight. After the jump: why.
As Bainbridge points out, giving no presumptive weight to your reviewers is a pretty lousy way to motivate good reviews. You’re asking me to drop everything, simply for the good of mankind, and I’m only going to get a couple of days to collect my thoughts. If my views don’t actually matter that much, why would I bother? There’s a strong norm in other disciplines that editors must make an offer if reviewers recommend publication, and at a minimum I think journals should bind themselves to that position. The same is not necessarily true of reject/revise recommendations, since scholars are by nature a disputatious and suspicious bunch, and there may be legitimate reasons for thinking a piece is publishable despite some skepticism by (let’s say) the author’s intellectual foes.
Next, it’s a major problem that reviewer comments are rarely shared. One EIC was nice enough to pass along some reviewer comments to me once, but I haven’t heard of anyone else who’s ever gotten any (of course, student editors rarely respond to any post-rejection communication of any kind). Again, this is demotivating for reviewers (not to mention aggravating for authors). What is the point of thinking deeply about the issues you’re reviewing, if there is a good chance no one will ever benefit from your thoughts? You could contact the author directly, but generally the better norm is that the author shouldn’t know that you were the reviewer (more on that in a minute). And, incentives aside, scholarship would be better overall if authors did get the opportunity to benefit from reviewer advice, especially junior authors with senior reviewers.
In most peer-review processes, providing reviewer feedback to the author goes hand-in-hand with allowing authors to revise to account for, or at least respond to, the reviewer. Some reviews are just wrong, or miss a key point of the argument (especially those that have to be completed in 5 days...), or are, shall we say, “motivated.” If reviewers have make-or-break power it’s fair to let authors point out possible flaws in the review, or acknowledge its wisdom and make the necessary adjustments. And, as Bainbridge says, circulating responses back to the reviewer gives the desirable incentive to care what the reviewer says. The timing and volume of the student-edited process probably makes this process impractical, especially revisions. But I could see offering an author the opportunity to respond as long as she was willing to commit to wait long enough for the editors to digest her response.
Lastly, I don’t have deep thoughts about author anonymity, but I do think reviewer anonymity is probably a good idea. And not just formal anonymity, but also an expectation that reviewers not reveal themselves. In fact, letting reviewers reveal if they want is probably the worst outcome, since it gives asymmetric incentives. One doesn’t want reviewers who are motivated by the rewards of the authors’ appreciation. But one also doesn’t want reviewers who are motivated by the opportunity to bury an anonymous hatchet in the work of a rival. Revealing everyone eliminates the second but exacerbates the first; shrouding everyone eliminates the first but exacerbates the second, and reviewer option to reveal exacerbates both.
On balance, I’d guess shrouding everyone is the best choice IF it’s combined with giving authors the opportunity to respond, which of course mitigates the hatchet-job dangers. I can’t think of any comparable way of mitigating the problem of over-enthusiastic reviewers, other than just discounting everyone’s views. But then we’d be back to the “why bother?” problem. So, anon + share with author + responses it is.
What do you think?
I Am LawProf
Actually, I'm not. But there are similarities. LawProf, the anonymous author of a blog called Inside the Law School Scam, purports to be a mid-career, tenured professor at a top-tier law school. According to this article, which says the reporter confirmed that LawProf is who he says he is, he teaches at a well-regarded but not top-10 law school, is active in publication and service, and has taught at four law schools. Pretty similar so far. But I've taught at five law schools, didn't graduate from an American high school, and seem to have graduated a few years after this person.
Also, I don't write anonymously. (With one exception: I've written one cracking good humor piece, which I published anonymously in a journal, primarily because I wrote it mostly as a diversion from more serious work and didn't want to yoke my identity to humor writing, and partly because I didn't want to feel as if I was feuding with the scholars I gently made fun of.) LawProf says he writes anonymously because he feels he would face repercussions if he wrote under his own name, and also because he feels he can be more honest that way. Unlike some of my online colleagues, I don't necessarily have a problem with anonymous writing (see this piece), and I will assume that LawProf really does feel that he can write more honestly this way. But it seems to me that tenure is a reward for showing that you will write the truth as you see it despite possible repercussions (in theory, at least; obviously, we're all human, and I'm convinced that too many scholars truckle to others for various reasons), and LawProf doesn't measure up splendidly according to that standard. Again, we're all human; but he doesn't. More important, the kind of honesty that anonymity allows can sometimes lack a deeper level of integrity: that is, it can pride itself on its brutal frankness without exhibiting the kind of humility, care, self-doubt, and acknowledgment that one might be wrong that comprises full honesty, the kind of honesty we are often constrained to engage in when we attach our reputations to what we say. Based on the name of the blog and what he's written so far, I'm not sure how LawProf measures up according to this standard either.
So, given our similar backgrounds, do I reach the same conclusions that LawProf does: that law school is a "scam" perpertrated by law professors, that they are "absurdly" overpaid for doing "almost no real work," that the academic rather than practice background of many professors "guarantees that most of your classes will be a complete waste of time," that professors don't prepare for classes but probably wouldn't benefit students any even if they did, that we should have fewer legal clinics, that full-time legal academics should have much smaller legal salaries, and much more?
No and yes, and probably more no than yes. To state the obvious truth -- one so obvious that I know no law professors who don't acknowledge it, despite the usual official defenses -- there are plenty of good grounds for criticizing legal education. (That there always have been good grounds, and that there are always good reasons to criticize any institution, educational or otherwise, is true but beside the point, except to the extent that it might take the edge off the hysteria and help us see ourselves as engaging in ongoing and useful reform instead of applauding ourselves for being "whistle-blowers" who are revealing some unseen conspiracy.) The kind of writing LawProf is engaging in from behind the veil of anonymity has lots of foundation in fact, and just as much exaggeration. That means it puts some genuine and important problems in high relief, but also distorts the overall picture.
I have generally enjoyed Brian Tamanaha's useful posts on problems with legal education. I've written -- under my own name, and without apparent repercussions -- about problems with the gatekeeping function of law schools and legal scholars, and about the pretensions of legal scholarship to more authority and expertise than it can rightly claim. I've written both for student-run journals and peer-reviewed journals, and performed peer reviews for university presses and journals. And I have, as LawProf seems to as well, argued that adjuncts with practice experience are a crucial but often undernoticed part of law school teaching, and that we ought to see their value more clearly and pay more attention to them. Although I think the economic downturn continues to drive much of the current panic over the state of legal education in ways that can be both good (in that it spurs valuable reforms) and bad (in that it leads us to think nothing has ever been this bad and to overdo the apocalyptic rhetoric about how all this must change, especially because if the economy improves we may end up quiescent rather than dedicated to continuing self-monoriting and reform), I certainly see the value in long-term reform. If LawProf has useful and constructive, as opposed to merely alarmist and bludgeoning, things to say about reforming legal education, then so much the better.
But will he? I don't know yet. As I said, the problem with the kind of rhetorical overkill and murder-by-anecdote that LawProf's anonymity encourages is that it ends up blaming everyone (e.g., virtually no professors prepare for class, a claim that seems quite untrue to me) and no one (e.g., LawProf goes on to say that no professors actually intend to "scam" their students, so that no one and everyone is culpable); proposing sweeping changes without really considering whether those changes will be truly useful or merely dramatic (reducing law professor salaries may be a cosmetically useful statement, but is it actually relevant to the general cause of structural reform? Isn't the problem lock-step tenure and relatively lock-step salaries rather than high salaries themselves?); and so on. The question, to me, is whether we can think about and effect real reforms and think carefully about what we do well and poorly(and I do think there are some things we do well, even now), and whether we can do so in a way that not only responds in a reactionary fashion to the current moment, but institutionalizes an ongoing process of experimentation and examination -- or whether we're going to limit ourselves to sound and fury. For all the talk about how we are so badly off right now that the legal profession and the legal academy must either change or cease to exist, my suspicion is that even a slight economic uptick will lead us back to being comfortable with roughly where we are right now. That's a downside of revolutionary rhetoric: it subsides easily, and is just as likely to lead to nothing in particular as to something concrete.
My own experience, at a variety of high- and low-ranked schools, is that most law teachers actually do work hard at teaching and many are quite good at it, despite the obvious existence of some bad teachers. It also suggests to me that many legal scholars work hard at their scholarship, although whether that scholarship has value is a different question, and whether all legal scholarship needs to have the same value (I don't think it does) is yet another question. I think lower teaching loads have helped those who are serious scholars a great deal, although those people would produce no matter what. I do think there are some scholars (but not all!) who clearly produce so little and of so little worth that one must shudder, wonder at how their time is spent, and think more carefully about the tenure process. (I should note that some of these people are excellent and dedicated teachers; but one shouldn't universalize there either, and even if these individuals fully deserve their tenure, it's not clear to me that they should have reduced teaching loads.) And I think that we ought to fully recognize how integral adjuncts are to legal education -- while resisting the urge to think of them as "the" solution to the "problem" of full-time legal scholars, rather than thinking of both adjuncts and full-time scholars as part of a total mix. (I think clinics are a part of that mix, too, so I don't agree with LawProf on the general view that we should kill off legal clinics as such.) I'm struck by just how hard-hit today's law students are on the job market, and feel a strong sense of responsibility to them -- without thinking either that it means I ought to stop being a legal scholar, or that there are no costs to viewing law schools as providing trade education and treating law students only as "consumers."
I like Tamanaha's posts because I think they are hard-hitting and concrete, even when I don't agree with some of his universalizing tendencies or with all of his specific suggestions for reform. But I like them most when, and because, they tell it like it is, without concern for how bad it makes law schools look, and think hard about what to do about it, without dismissing scholarship altogether -- Tamahana himself is a prolific and presumably well-paid scholar, who writes on fairly non-practical topics -- or engaging in easy alarmism. We absolutely need to have those discussions. If LawProf adds to them, again, so much the better. But, with all respect to his well-earned frustrations and his good intentions, I see his anonymity, and some of the heat of his writing and his self-description as a "whistle-blower," as more of a distraction than a concrete contribution that can be made a part of a long-term institutional process.
Hosni Mubarak's Trial
Many thanks to Dan for allowing me to guest blog this month. I recently returned from trips to Cairo and Istanbul, where I conducted field work related to a work-in-progress. In Cairo, I interviewed, among others, the organizers and participants of the Tahrir Square protests that took place early this year about the recent revolution in Egypt and the ongoing democratic transition process. In Istanbul, I followed the resignations of Turkey’s top military generals and the government’s plans to draft a new Constitution. I plan to blog primarily about these legal developments, beginning with Hosni Mubarak’s trial.
The second session of Mubarak’s trial will take place this coming Monday (August 15th). I was in Cairo on August 3rd, the historic first day of Mubarak’s trial, a rare occasion when an Arab dictator brought down by his own people was scheduled to be tried by his own people. Mubarak is charged with corruption and ordering the Egyptian riot police to fire on the protestors during the revolution earlier this year that forced Mubarak out of the seat he occupied for three decades.
In the days leading up to the trial, many Egyptians were skeptical that Mubarak would even appear in court.He had made no public appearances in six months. Rumors were widespread around Cairo that the ruling military—which once counted Mubarak among its ranks—was reluctant to punish him and would see to it that he would evade a criminal trial.
A convention center in downtown Cairo was initially scheduled to host Mubarak’s trial, but for safety reasons, the trial was moved to the outskirts of Cairo to a police academy that ironically once bore Mubarak’s name. On the day of the trial, the streets of Cairo were unusually barren. The ordinarily unbearable Cairo traffic seemed almost bearable again. I walked past storefronts in downtown Cairo and observed as Egyptians glued themselves to their television sets to watch the trial of a century. The normally persistent storekeepers of Cairo barely noticed me when I entered one of the stores to observe the trial with the locals.
As Mubarak appeared on a stretcher in a metal cage in court, many of the locals gathered in the store erupted in celebration. He was accompanied by his two sons, Alaa and Gamal, who were both prominently carrying the Quran. Some viewed that as a cheap trick, but others as a sign that the sons, despite their not-guilty pleas, were repenting. One local pointed out to me that Mubarak had been picking his nose throughout the trial—a sign that, despite all appearances, the impervious latter-day pharaoh of Egypt was perhaps human after all. Some viewed Mubarak’s frail appearance on a stretcher as a ruse, designed to arouse the sympathy of the Egyptian public. They despised what they viewed as the special treatment that Mubarak had been receiving in detention and wanted him to be treated as an ordinary citizen (or according to one local, “worse than an ordinary citizen”).
But not all Egyptians had the same visceral reaction towards Mubarak. Surprisingly, a number of the locals I spoke with felt sorry for him, despite acknowledging that he was a corrupt dictator under whose reign the Egyptian people languished. Some pointed to his old age and others to his service—however corrupt—to the Egyptian nation. Perhaps, the patriarchal Egyptian society viewed Mubarak, despite all his wrongdoings, as the father of their nation for three decades. And a public spectacle that forced Mubarak to appear on a stretcher behind a metal cage in court was no way to treat a frail old father.
Egyptians are conflicted about the expected outcome of the trial. Some continue to ascribe sinister motivations to the military and expect that Mubarak will somehow evade criminal punishment. Others are more optimistic and anticipate that Mubarak will at least be convicted of the corruption charges against him, if not the murder charges for ordering the riot police to fire on the protestors during the revolution. Some cannot fathom a possible verdict of not guilty. One of the leaders of the Tahrir Square protests told me that another revolution will be forthcoming if Mubarak escapes punishment.
Stay tuned as the second session of Mubarak’s trial takes place on Monday.
Wednesday, August 10, 2011
Teaching Law in the UK
There's a wide array of information regarding the market for teaching law jobs in the US but I recently got asked an interesting and related question: specifically, does anyone know of any sources regarding how to get a prawfy-type job in the UK, especially if you have US or Canadian credentials? Thoughts or links in the comments are appreciated.
Tuesday, August 09, 2011
Where Are the Aliens? Is Their Problem Legal?
We keep searching the heavens for signs of extraterrestrial intelligence, and we keep coming up empty. The silence in the skies has been called the Fermi paradox: According to some people's calculations, the galaxy should be teeming with life, which means that ETs should have come knocking many times over. So where are they?
There are many proffered theories for resolving the Fermi paradox. Some theories are biological – that the development of our complex cell structure too improbable to develop elsewhere. Other theories are sociological – such as the conjecture that advanced civilizations might have a predilection for destroying themselves with nuclear war, environmental catastrophe, or even imprudent physics experiments.
But as a law professor, your thoughts immediately go in another direction: Maybe the explanation is legal.
Perhaps the pan-alien courts are holding things up. One civilization that wants to contact us may have lost a preliminary injunction, and (you know how it is) the case may still be several yoctads from going to trial. Or maybe there's an unresolved procedural question, such as whether Alpha Centauri's "long-tentacle statute" provides jurisdiction in the Beta Quadrant.
To my delight, I found that there are people who have already given the legal angle some thought. For example, Wikipedia hypothesizes a "legal policy amongst more advanced lifeforms necessitating isolation with respect to civilizations at Earth-like stages of development."
The questions inherent in galactic gavel-banging are further developed in a very short article that I highly recommend: Metalaw and Interstellar Relations, by Robert A. Freitas, Jr. It was published in an astronomy magazine in 1977, but it asks a lot of law-review worthy questions, such as: What would be the rights of extraterrestrials in the United States?
[T]he most fundamental rights of life and liberty in the U.S. are granted under Constitutional provisions that speak of the rights of persons. ...
The most important question, then, is whether the ET visitor would qualify as a person or merely as an animal under our laws. ... After thousands of years of industrious lawmaking, man has not defined exactly what he means by “man.” We have failed to agree; worse, we have failed to specifically address the question: What are we? What is the primary distinguishing characteristic between persons and all other entities? ... [W]ould intelligence alone be enough to qualify one for personhood? Dolphins and other animals display remarkably high intellects, and do not qualify as persons. Yet viable fetuses and insane people are viewed as legal persons, although their “intelligence” may be negligible or nonexistent.
The article goes on to contemplate the rule of law among alien civilizations, asking, for instance, whether the Golden Rule – do unto others as you would have them do unto you – is actually cognizable when the others are so other.
Admit it: These are good questions. It occurs to me that I would like to teach a seminar someday on speculative interstellar law. The course would require one to rethink law from the most fundamental level. That, I have to say, seems like an intellectually worthy project. (And, of course, by having the course listed with my name, I would be hoping to put myself on the short list to represent the extraterrestrials when they inevitably wind up at the U.S. Supreme Court.)
The Problem with August Submissions?
First, I want to thank Dan for inviting me to blog here this month. I am a regular reader of Prawfs, and I am excited to join the conversation. Over at The Faculty Lounge and on my own blog, Democracy and Distrust, I have been doing a series of posts (here, here, and here) designed to help new and untenured law professors become productive scholars and faculty members (read: get tenure). Along these lines, a former articles editor from the University of Chicago Law Review is taking questions about the law review submission cycle over at Concurring Opinions. Many people have asked great questions, ranging from what editors are looking for to whether it makes sense to submit off season. So, in keeping with the spirit, I want to ask a question about law review submissions to the broader prawfs community.
For a few years now, the general consensus seems to be that the August submission cycle is starting to disappear. There is a lot of discussion on the blogs about this, although the anecdotal evidence tends to be mixed about the success of placing an article during the Fall cycle. I am wondering if the August season is disappearing because it has become a trial run of sorts.
So this is what I suspect is happening.Most professors have a written product in some form by the end of the summer, but for many, it is still a fairly rough draft that has not been workshopped extensively, if at all. A lot of professors, particularly those who are tenured, do not need to invest the same amount of time in a piece as a younger professor, but for most of us, getting comments on drafts and workshopping a piece is an important part of the process. Nonetheless, it seems to me that, since the boards of most law reviews will turn over in February, profs have nothing to lose by submitting a rough piece to law reviews in August in hopes of getting a bite. If nothing happens, they can resubmit the piece in February to an entirely new board. Here is the problem: Editors, realizing this to be the case, choose to fill most of their volumes in February-March because they suspect that not only will there be fewer pieces in August, but the quality of the pieces will also be significantly lower.
Am I right about this? I often hear stories about there being fewer submissions in August, but I also wonder if there may be a quality difference as well. I recognize that there are profs who wait until August to submit because they did not get a satisfactory placement in February. So it seems to me like they will be the ones most injured by the practice of other professors of submitting first drafts in August. Or alternatively, they may be helped by this practice because the competition will be weaker? Its not clear to me which scenario has the most credence.
There are also profs who happen to have a polished piece completed at the end of the summer and are faced with the choice of whether to wait until February or submit in August. For new professors in particular, this is a tough choice because you want to get the best placement possible, which might mean submitting in February, but you also want to get pieces placed to show your faculty that you are writing and engaged in your respective field, which might mean submitting in August. And submitting in August might also result in a better placement because there is less competition ... unless there is a presumption that August pieces are significantly lower quality. Any thoughts?
Is Group Participation Like Playing the Lottery?
For my current writing, I’ve been doing a fair amount of reading and thinking about collective action and public choice theory. I’m far from the first one to notice that there’s a tension between Mancur Olsen’s views on collective action and the fact that people still organize in large groups. One of Olsen’s arguments (in oversimplified form) is that large groups tend to underproduce public goods, because of incentives to free ride and disincentives to act. The question that remains is why individuals in large groups organize in the first place, since according to Olsen, the larger the group, the less incentive for individuals to act. Scholars have provided a variety of explanations to this, but reading Bryan Caplan’s The Myth of the Rational Voter made me think that the trick to explaining why large groups organize in the face of the disincentives Olsen highlights is to check our premises: maybe people aren't acting rationally here, as public choice (and the logic of collective action) assumes. Maybe group participation (voting, campaign donation, and especially individual participation in interest groups) is like playing the lottery. It's irrational to think you'll win, just as it's irrational to think that your influence in an interest group, or an election, will make a difference, or yield benefits that outweigh costs, rather than the other way around. So the answer to the question public choice theory raises about why people vote in elections, or join interest groups, may be the same as the reason people play the lottery: they are systematically irrational about the payoff they will receive from their actions.
Monday, August 08, 2011
JOTWELL: Steinman on Pfander on remand orders
The latest review is up on the Courts Law section on JOTWELL. Adam Steinman (Seton Hall) reviews James Pfander's article (earlier this year in Penn Law Review) arguing for the Supreme Court to use its All Writs Act power to review certain remand orders by district courts. Both the article and review are worth a read.
Saturday, August 06, 2011
The Urban Underclass and the Constitution
Those close to me are well-aware of my fascination with "The Wire," an HBO television series (2002-2008) that explored the relationship between crime, drugs, law enforcement, politics, public schools, and the media in Baltimore, Maryland. For example, I've given DVDs of the complete series to a friend as a housewarming gift. When the ABA Journal omitted "The Wire" from its list of "The 25 Greatest Legal TV Shows" (and from its list of honorable mentions), I was sufficiently agitated such that I wrote a letter to the editor, complaining that while "The Wire" suggested that the devastating consequences of various structural failures on those in Baltimore were going unnoticed, it seemed rather ironic and unfortunate that "a national journal of attorneys overlooked Baltimore's story too." (To the journal's credit, the letter was published.) In my view, "The Wire" is an amazing series because it compellingly demonstrates how several institutions reinforce and perpetuate social pathologies in the city, how the dire circumstances of those in the city call out for solutions, and yet how entrenched systems and interests render progress improbable. It may be the closest we have to a documentary on the various actors and entities that spin their wheels while some urban residents continue to languish.
My latest research focuses on whether the conditions of the urban underclass -- as depicted in "The Wire" and as studied by William Julius Wilson, Sudhir Venkatesh, and others -- implicate the Constitution, specifically the Thirteenth Amendment. The term "urban underclass" is not without its controversy or shortcomings, but it is generally understood to refer to those who are marginalized economically and spatially in American inner cities ( the term "inner city," too, has its definitional issues). The Thirteenth Amendment was designed to formally end slavery and eliminate the vestiges of this institution, however it has been read to apply to modern circumstances and to guarantee individuals some minimal ability to participate in society. Sociological works appear to demonstrate that the urban poor are not meeting this basic threshold, with some scholars even suggesting that the urban poor are “extraneous” to our economy and society. Sociologists further make clear that the urban poor are “trapped” economically and in their physical locations, and that urban poverty is transmitted over generations. I argue that the limited economic opportunity and physical liberty of the urban poor, where the urban poor are disproportionately African-American, and where at least some of the conditions of the urban poor stem from overt discrimination, activate the legal protections contemplated by the Thirteenth Amendment. It seems that the sociological analyses of the urban poor can be plausibly translated into a legal basis for relief. I suggest in particular that Congress may invoke its broad enforcement powers under the Thirteenth Amendment to enact remedial action that will give the urban poor a meaningful chance to compete in mainstream society.
This week, Mayor Bloomberg announced a $127m program, the "Young Men's Initiative," which aims to provide greater opportunity to black and Latino males. While I have not yet studied the details of this program, I do commend the general (and apparently genuine) interest of an actual mayor to address the limited opportunities possessed by some members of our society.