Monday, October 31, 2011
Mississippi's Personhood Amendment
The NY Times has just run this op-ed I authored (along with Jonathan Wills) on Mississippi's proposed Personhood Amendment 26, which is up for a vote on November 8. Here is the initiative's official description:
Initiative #26 would amend the Mississippi Constitution to define the word 'person' or 'persons', as those terms are used in Article III of the state constitution, to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."
Jonathan and I argue in the op-ed that whether one is pro-life or pro-choice, the amendment is a bad idea because it is ambiguous in two key ways: (1) that "fertilization" could mean anything from the moment sperm penetrates egg to the moment the fertilize egg implants in the uterus (or does not, in the case of IVF embryos that are not used), thus it is unclear whether it sweeps in some forms of birth control, IVF embryo discard, and stem cell derivation along with abortion. (2) It is unclear whether the Amendment is self-executing and thus updates the criminal code among other pieces of law, or whether it instead would require legislative action to do so piece-by-piece. We argue that without a clear amendment, Mississipians can't know what they are voting for. Moreover, if courts are inclined to read the ambiguities in a way to avoid raising federal constitutional questions, even pro-life groups hoping to offer the courts an opportunity to revisit Roe may not get what they want with an ambiguous amendment.
I will have more to say about this Amendment during my blogging stint this month, but I just want to make one observation based on my experience in a public debate in Mississippi that I participated in.Here I should make clear I am speaking only for myself, and not Jonathan:
During the debate, it felt a good deal like the pro-life groups seemed to want to have it both ways on the self-executing question when I pushed them on this during the debate. If it is not self-executing, if it just a statement of "policy" or "principle" without legal effect, it is unclear why they are pushing this amendment so hard politically and financially. They accused me of “fear mongering,” and I am too close to this to be objective on the issue, but I do harbor this fear I want to share (if not "monger"): I fear some groups are pushing an ambiguous amendment they hope they can slip by Mississippi voters by protesting against its likely implications as to IVF and abortion, only then to press the courts to rely on the amendment as having altered criminal other laws in the state once it is in effect, impacting a good deal of reproductive practices. I am not trying to cast aspersions on the views of those supporting this amendment. I am sure their motivations are complex, heterogenous, and in some cases overdetermined. I think abortion is actually a hard question from a bioethics perspective, and understand where disagreements on the subject come from. But I found the positions they took on the self-executing question downright peculiar, and I have yet to hear a straight answer from supporters of the law that they do not think it self-executing. Until they publicly take that stand, I will continue pressing (if not "mongering") this fear.
It's great to be back at Prawfsblawg. Since my last stint, I've been trying to keep a list of things to blog about. Alas, the list is pretty haphazard - it includes stuff like the Supreme Court's decision in AT&T Mobility, legal pluralism, religious arbitration, and awesome colleagues.
But for my first post, I thought I'd solicit some help. Chris Lund (Wayne) recently signed me up to write 500 words for the annual newsletter for the AALS New Law Professors Section about guest blogging. It's due pretty soon, so I figured I'd see if anyone had any ideas they thought I should incorporate.
Either way, I figured this would allow me to guest blog about guest blogging - to meta-guest blog - which seemed like a fun way to start the month.
Welcome to "Law School Review"
Welcome to a new legal education blog: Law School Review: A Forum on Legal Education, sponsored by the National Law Journal. Contributors include Brian Tamaha, Erwin Chemerinsky, John O'Brien, Kyle McEntee (a recent Vanderbilt grad and exec director of a not-for-profit advocating for legal-education reform), Lucille Jewel, Michael Olivas, and William Henderson. It should be well worth reading.
Giorgio Vasari Quincentennial
Preparations are well under way for the quincentennial of Giorgio Vasari's birth. I am very excited for the shiny commemorative 10 euro coin. Vasari is known for his contributions to artistic historiography -- he was one of the first to comment systematically on the pattern of classical greatness, medieval decline, and Renaissance renaissance in art (unfair though that assessment may be in some respects) and he ushered in a new period of artistic historiography. He was also responsible for rebuilding architectural gems like the Uffizi Picture Gallery in Florence. Yet as an artist, Vasari was a Mannerist, and Mannerism was itself often viewed in declinist terms thereafter -- as a reaction against the simple but perfect naturalism of the high Renaissance in favor of artifice, archness, 'manner', and sophistication.
Do we have something like this? Traditions and counter-traditions of legal scholarship which evince opposed stylistic commitments? Do we have periods deemed eras of ascendance, decline, and revival? And in what aesthetic commitments does ascendance and decline consist?
Rotations and Sundry
Well, it's almost the anniversary of Othello's grand opening in London way back in 1604 and the birthday of Kinky Friedman, so why not share the excitement of the onset of November a little early? We'll have an exciting crew of new voices to welcome over the next few weeks: Kirsten Nussbaumer (doing research over at Stanford this semester) and Kerri Stone (FIU) are joining for the first time, while a band of familiar voices also returns home: Bill Araiza (BLS), Glenn Cohen (HLS), Marc DeGirolami (St. John's); Mark Kende (Drake); Jake Linford (FSU!); and Michael Helfand (Pepperdine). Moreover, and fortunately, Derek Bambauer and Verity Winship will stay on further during the month of November.
Many thanks to our great visiting October prawfs: we hope to see you again on these pages here soon.
Some announcements. First of all, a big thanks to Loyola Los Angeles and Michael Waterstone and Dave Fagundes for hosting and organizing the upcoming Prawfsfest!, the first one I'll have to miss myself since I'll be teaching a mini course at IDC then. Relatedly, we're thinking of the next few Pfests! over 2012 and 2013, so if you think your school might be interested in hosting, get in touch with me. (We normally do warm weather cities in the winter and multiple-weather cities in late spring or early summer.)
Next, I'm pleased to announce that we'll be having our annual happy hour at AALS in DC during the conference. Without promising, I'm guessing it will take place the Thursday night, on January 5th, around and following 930pm. These details might change so watch this space, but we'll be having drinks thanks to and in celebration of Drexel's law school, which recently earned accreditation and wants to party with the people. (So pencil that date/time in please; and if you're a DC area prawf with recommendations of favored bars/lounges, let me know since my experience there is getting (sadly) dated!)
Finally, I'll soon be putting together the schedule of guest bloggers for January-June 2012 (inclusive). If you're a prawf and would like to try your hand (or you know someone who'd be good for it), please get in touch with me with suggestions for a couple months during which you're available to blog a few times a week for a month. Thanks! Happy Halloween!
Will Dismantling of Mass Incarceration Outlive Economic Crisis?
I'm signing on from Hartford, CT, in the aftermath of a historic October storm to recap last Friday's ABA Legal Educators' Colloquium, held in conjunction with the Association of American Law Schools Criminal Justice Section. Our theme was "Reducing Reliance on Incarceration." Speakers included Professors Chris Slobogin, Cecelia Klingele, Shima Baradaran, Roger Fairfax, and Mary Fan, all of whom focused on the potential for the economic crisis to prompt states to adopt policies that reduce reliance on prisons. (A course that several tough-on-crime states already have adopted, as a recent report by the ACLU summarizes.) We heard from Senator Jim Webb (D-VA) whose bill to create a National Criminal Justice Commission recently was defeated by just a few votes. While criminologist Todd Clear suggested that the American change-of-heart regarding mass incarceration would outlive the economic slowdown, Professor Michael Seidman of Georgetown, discussing his recent article on "hyper-incarceration," suggested that America was "addicted" to prisons and that the economic crisis would not affect a lasting turn-around. The conference surfaced the following question: are current policy changes a short-term trend, or the beginning of a long-term draw-down of the so-called prison-industrial complex, like the arms reduction we have seen since the end of the Cold War?
I'll leave you with that question as I sign-off as a prawfs guest for October 2011 and return to the business of trying to free my car from massive fallen oak branches. Wishing you all a safe recovery from Winter Storm Arnold, a Happy Halloween, and a productive school year until we meet again!
Gilreath on "Patriarchal Religion, Sexuality, and Gender"
It is not quite apropos of my last post, but I thought it was worth linking to a recent paper, a symposium introduction, posted by Shannon Gilreath of Wake Forest, who has done a good deal of interesting work on gay rights and competing claims (which is not to say I necessarily agree with it). The paper is titled Patriarchal Religion, Sexuality, and Gender: An Introductory Essay. Its target is the "new natural law" theorists, particularly their writings on sexuality and gender. It argues not only that their arguments are flawed, but part of "a larger political project," and that it is important to "locate them as a subsidiary of a wider, well-organized, extremely well-funded movement aimed at perpetuating Gays as a pariah caste and reversing hard-won and, generally, meager legal advances." He draws inspiration for the essay, and the symposium, on the recent work of David A.J. Richards on these issues, which he says "root[s] out the ulterior motives of new natural law and exposing its gratuitous meanness in a systematic, rigorous way."
I am not especially fond of the new natural law; or, to put it differently, because I reject many of its foundational premises and believe them to be based on ipse dixits, I find just about everything built on those premises to be unhelpful. But I am not all that impressed by Richards's work either, to put it mildly. I reviewed Richards's most recent book on the subject here. I suggested that his psychoanalytic approach was neither productive nor necessarily offered in good faith, and certainly not for purposes of persuading anyone who is not already convinced. I concluded: "In the end, then, this book is not a call to resistance at all. It’s a cri de coeur: an argument that everything disagreeable that has occurred since roughly Watergate could be cured with a good fifty-minute hour on the couch. I’m not convinced. Richards makes many valuable points about both religious and constitutional fundamentalism in this rich book. Ultimately, however,Fundamentalism in Religion and Law is more an act of self-justification than an effort to understand the other, let alone to engage with him." If this is the foundation of the symposium Gilreath introduces, I suspect many of my criticisms would apply to it as well.
Here's the connection to my last post.At the end of his introduction, Gilreath writes:
I would be remiss were I to fail to acknowledge the lack of “balance” present here, in the sense that no new natural law theorists or religious traditionalists were invited to respond or to defend their positions. The composition of this Symposium, including what it excludes, was an intentional effort on my part as the Symposium’s organizer. Despite the remarkable and enviable ability of religionists to propagandize themselves as an embattled, endangered minority—no mean public relations feat, to be sure—the facts are not on their side. Religionists have a powerful lobby and a powerful bully pulpit. They are generally successful at propagating and, indeed, institutionalizing their views. In reply to the likely liberal criticism of a lack of “balance”—a criticism born of liberals having fetishized ecumenism for ecumenism’s sake—I would simply ask where you have seen the institutionalized religious interests engaged and refuted here making equal time for the theorists speaking from the pages of this Symposium. By presenting a critique of patriarchal religion and its artifices, unqualified by the liberal apologetics that passes for academic engagement of religion these days, this Symposium is not only a project of particular importance, but also of particular bravery.
Now, I'm as much of a fan of critiques of liberalism as anyone, and I do some of that in The Agnostic Age, which, as Rick notes below, is the Pope's new favorite book. And I don't think every symposium is required to be "balanced." That said, the reasons for the refusal to include any opposing participants strike me as not being scholarly in the slightest, but purely political. I take it Gilreath would not view that as an insult, and that's fine. But for scholars, questions of lobbies and embattlement are beside the point; they are things to be examined, but not reasons to fail to engage opposing viewpoints or invite someone to a conference. And whether "liberals" have "fetishized ecumenism" or not, genuine engagement with others is certainly a scholarly value, and one that Gilreath apparently does not share.
I do think Gilreath's dismissive point about "the liberal apologetics that passes for academic engagement of religion these days" is an important one. Most of us who write about law and religion, and most people who write about issues of sexuality and gender and the law, do make an effort to engage those we disagree with. I think Gilreath goes too far if he thinks we're fooling ourselves, but in a sense his dismissal is a worthwhile reminder that for some involved in these debates--both champions of gay rights and champions of religious rights--their premises are so far apart that genuine dialogue may not be possible. It is possible that we "moderates" are neglecting some important sectors of the debate, precisely by engaging with those who think engagement is possible, in much the same way that many liberal scholarly arguments can ignore or fail to engage with truly illiberal groups. Perhaps we need to make a greater effort to read and engage with those on both sides who believe that engagement is impossible.
Still, my bottom line, as I said about Richards's book, is to find something deeply sad about all this. And the capping line--"this Symposium is not only a project of particular importance, but also of particular bravery"--strikes me not only as needlessly self-congratulatory, but false too. I would have the same view of a symposium populated only by new natural rights scholars, even if most of the academy thought they were crazy or bigoted. (Which strikes me as probably being true.) In neither case would anyone be burned at the stake; since such a collection of scholars on either side would mostly write for each other, they would probably not even suffer a lack of conference invitations. Academics write about high issues but play for low stakes. If one is looking for bravery, one must look elsewhere than an academic symposium published in a law review. Let us not devalue the language of bravery.
Passion channeled or passion destroyed
One of the common complaints about law school is that students come here full of wide-eyed passion and a desire to do justice and make the world a better place, only to have that beaten out of them by professors and classes focusing only on the boring drag of parsing statutes and cases. There is a nice question of how law school does and should strike this balance. I want to offer three stories; how we view these stories tells us something about this balance.
1) A clinical faculty colleague was discussing one of his students getting into a heated argument (he used the word "fighting") with opposing counsel and said that he was glad and proud to see the student's display of passion.
2) One of our DC candidates, who has some experience teaching Environmental Law, talked about trying to strike that balance with students who come to law school to "save the environment." They want to argue and shout and swing from the ceiling about the environment and how imprortant it is. But they find the real world--parsing and understanding complex statutes and regulations, understanding complex rulemaking schemes--boring. The trick is to make students recognize that they cannot argue and shout and swing from the chandelier until they know what they're talking about. And that means reading and parsing complex statutes.
3) Another colleage was discussing a class (not Environmental, but a subject that inspires similar passion and arguing but that also requires an understanding of complex statute, regs, and interpreting case law) in which the students are very passionate and engaged, but clearly have not done the reading. My colleague was struggling to find the balance between letting students have their say in class discussions and cutting them off when their arguments become, if not wrong, then lacking connection to law or the legal principles governing some area of law.How do we strike the balance?
On the one hand, if we over-emphasize technical skills or "professional comportment," we make law seem arid and rigid and inhumane, sacrificing some notion of "justice" and the power of law to change the world for the better. Policy arguments and normative arguments are an important part of the discussion; in fact, exploring the normative justifications underlying the doctrine is the major difference between law school and bar prep. If we cut students off when they take off on empassioned policy-based pleas, we risk discouraging them from principled policy fights. We also risk being negatively reviewed as professors who are not receptive or willing to listen to opposing viewpoints (even if our lack of receptivity is because the opposing viewpoint is unsupported).
On the other hand, students probably should know that much of what they do in the real world of legal practice will not involve swinging from the ceiling or making broad policy arguments--if law schools are supposed to prepare students to be lawyers, that dose of reality is pretty important to any sense that we are not concealing what they have gotten themselves into. The same goes for the student who wanted to physically or verbally confront opposing counsel--he needs to learn that, in fact, this is not a good idea. Passion is good, acting like a jerk less so--although the line probably is in dispute. Passion and policy arguments without real grasp of the legal principles is not effective advocacy--even on a blog and certainly in court. And talking loudest or most insistently is not the way to win an argument that has nothing behind it. Our obligations as law teachers require us to make clear that advocacy means knowing the law, even if you are arguing that the law is wrong or bad. It may be that the question "why" is the most important arrow we have in our Socratic quiver.
Students must come to understand, in advance, that, in trying to argue X, they must be ready to point to something underlying X. And that is what the reading is for. But does this hard, slogging work beat the passion out of them? And if so, what do we do? How do we strike this balance?
Is Fallon's Article a No-Brainer?
I'm grateful to Dan for posting a link to Richard Fallon's paper on scholars and amicus briefs. Fallon argues that legal scholars are or ought to be constrained in various ways to meet various scholarly requirements before signing on to an amicus brief. The title to this post is not meant as an insult: Fallon's paper is typically clear and detailed in setting out the various issues and proposed resolutions. The reason I ask this question is that it seems utterly obvious to me: of course legal scholars (and scholars from other fields who sometimes submit amicus briefs, like historians) cannot just sign briefs willy-nilly, or on the sheer basis that the signer agrees with the desired outcome or the general drift of the argument. As long as a brief is designated a scholars' brief, each individual who signs it must be convinced of the detailed arguments made in that brief. Period. Fallon argues that many professors who sign amicus briefs don't live up to that obligation, and I believe he is right. My operating assumption is that when this happens, it's because the signer has an ideological commitment to some outcome and is willing to accept some arguments he or she may not agree with, or to sign without looking closely and deciding whether he or she agrees on the particulars or not. I consider this an abdication of scholarly responsibility, and although Fallon nicely lays out some of the underlying issues and complexities, ultimately I see this as a no-brainer. So I am wondering whether anyone really disagrees with Fallon's general view that signers of amicus briefs must live up to their scholarly responsibilities for these writings just as they would for other scholarly writings, and if so why they disagree.
I do want to point to a few important passages in Fallon's paper. Here's one: Fallon argues that the "norms of scholarly integrity applicable to legal scholarship" include an obligation to candidly look for and acknowledge difficulties with one's arguments and "to put the counterarguments as clearly and as fairly as she can." That seems quite right to me. Law is not mathematics. Some arguments depend on normative positions, such that if one questions that normative position the rest of the argument weakens or fails; others are open to disagreement even from within a particular normative position. It seems to me that scholars should acknowledge both kinds of arguments, and in the former case must make clear the normative premises on which they rely and acknowledge that they are hardly the only possible premises to rely on.
For both reasons, I am led to conclude that it should be rare indeed that a scholar, let alone a group of scholars, ought to sign on to one side of a case or the other, especially in the Supreme Court, which generally takes cases that are sufficiently complex, or sufficiently based on contestable normative premises, that a decent scholar wouldn't simply swallow one position whole without acknowledging the possibility of being mistaken.I would much rather see scholars submitting amicus briefs in support of neither side, briefs that explore the genuine complexities or conflicting normative positions of both sides and look at the possible consequences of different conclusions. Even where one thinks one side definitely ought to win and the stakes are high, I still think the scholar's own particular contribution at the Supreme Court level, given the likelihood that the advocates themselves will make all the basic arguments, should be to explore the difficulties that are often elided or neglected by both sides. I assume they will have difficulty getting the consent of the parties, and if that leads to fewer amicus briefs, so be it.
Second, Fallon discusses problems with "expertise." One fairly regularly sees amicus briefs signed by individuals with no particular expertise on the issue at hand, a famous if slightly different example being the petition filed by many law professors in the midst of the Clinton impeachment debate. I do not think scholars qua scholars should sign briefs or petitions on issues in which they lack expertise. Where they do, they should make clear in their statement of interests that some or many of the signatories lack any particular wherewithal on the issues raised in the brief; where petitions are involved, they should sign as citizens rather than bringing in their institutional affiliations, which obviously are meant not just to give their business addresses but to appeal to their purported authority. If a brief or petition signed by several hundred people that begins, "Most of us don't really know what we're talking about except insofar as we are generally educated individuals," lacks persuasive authority beyond the merits of the arguments made, again, so be it. There's no point calling something a "scholars' brief" if most of the scholars involved are not, effectively, acting as "scholars" on that issue. It is technically accurate but verges on dishonesty.
Third, Fallon writes early on: "For the professors who are asked merely to sign a scholars' brief, participation may be even harder to resist. Dangled before them, with little or no work required, is the possibility of having an impact on the development of the law. As long as the brief supports the right side, it is hard for a professor who wants to influence the law's trajectory . . . to say no." It seems to me that one can make precisely the opposite argument on the same basis. If little or no work is required to say "no" to signing on to a brief, then it should be utterly easy to say no, and all the more troubling that people don't.
To end where I left off, I find all of this quite obvious, although again I think Fallon does an excellent job of laying out the issues. I assume the scholars who sign these briefs do so in good faith, but it is equally evident to me that they can hardly agree in every case with all the details--including, even, many of the basic arguments--in a brief, and that in some cases they lack any decent claim to expertise on the issues raised in a case or in a brief. So I am quite sincere in asking: aren't these strictures obvious, and if so why are they not followed by absolutely everyone?
I must add a personal note that may affect my credibility on this point. Fallon writes up front: "At least within the loosely defined domain of public law, any law professor who does not get asked to sign 'scholars' briefs' is not much of a scholar." Except insofar as I belong to listservs, receive mass email requests, and so on, I don't get asked to sign many scholars' briefs. Maybe that's because I avoid mail-groups and associations devoted to the like-minded. Or maybe it's because my scholarship so regularly takes complex positions that do not fit especially fit well into either the appellant's or the respondent's mode of thinking that I am just too damn much of a scholar to be asked to sign. That's my favorite candidate for an explanation. But Occam's razor suggests that Fallon's "not much of a scholar" theory might be the most accurate explanation--unless he is wrong and, outside of certain rarefied circles, fewer people are asked to sign amicus briefs than he thinks.
Sunday, October 30, 2011
FIU College of Law says "It Gets Better"
I am proud to link to the video that FIU College of Law for the "It Gets Better" Project. Our Stonewall Alliance produced the video for October 11's National Coming Out Day, featuring several faculty and administrators (including me), as well as numerous students.
Saturday, October 29, 2011
Generosity on the students' dime
Greetings from a snowy(!) New York City. I'm delighted to be back for another stint of blogging here on Prawfs. Thanks to Dan for the opportunity.
I want to start with something small, but maybe illustrative of a bigger issue. As I was in the back of a taxi on the way to the airport after a conference last week I started calculating the tip as we pulled onto the airport grounds. I think I'm a good tipper (though I also think I'm a good driver, as an impossibly large percentage of Americans do). At least let's assume I tip well. The question then hit me, should I really be tipping generously on a fare that students are ultimately going to pay for?
It was an interesting moment of "on the one hand, but on the other hand" thinking. On the one hand, I think service people generally work hard for little pay; as long as the person is doing her best I'm inclined to be generous. On the other hand, some of that generosity is, I think, based on some intuitive sense I have that I've been very fortunate and I really shouldn't scrimp when it comes to compensating people who work hard and make (a lot) less than I do. But that reason doesn't apply to my students, at least not now in their lives. Of course, the loans won't come due until they have jobs and are earning decent salaries. But of course in this economy some of them may not be getting those salaries for quite a while. And anyway, who am I to be making that calculus for them? But of course I have to do something -- the driver is waiting. ...
Anyway you get the idea. Of course, it goes without saying that we should all be a little -- OK, a lot -- more careful about how we spend our students' money in this economy. But assuming the cab ride or the restaurant meal or the hotel porter help (or the conference travel generally) is justified, what's appropriate for the discretionary part of the bill when it's our students paying for it?
Friday, October 28, 2011
The Pope reads Paul Horwitz
At the recent interfaith gathering and conference in Assisi, Pope Benedict XVI said something that made me wonder if he's been reading Paul Horwitz ("The Agnostic Age") up at his place in Castel Gandolfo:
In addition to the two phenomena of religion and anti-religion, a further basic orientation is found in the growing world of agnosticism: people to whom the gift of faith has not been given, but who are nevertheless on the lookout for truth, searching for God. Such people do not simply assert: “There is no God.” They suffer from his absence and yet are inwardly making their way towards him, inasmuch as they seek truth and goodness. They are “pilgrims of truth, pilgrims of peace.” They ask questions of both sides. They take away from militant atheists the false certainty by which these claim to know that there is no God and they invite them to leave polemics aside and to become seekers who do not give up hope in the existence of truth and in the possibility and necessity of living by it. But they also challenge the followers of religions not to consider God as their own property, as if he belonged to them, in such a way that they feel vindicated in using force against others.
These people are seeking the truth, they are seeking the true God, whose image is frequently concealed in the religions because of the ways in which they are often practised. Their inability to find God is partly the responsibility of believers with a limited or even falsified image of God. So all their struggling and questioning is in part an appeal to believers to purify their faith, so that God, the true God, becomes accessible. Therefore I have consciously invited delegates of this third group to our meeting in Assisi, which does not simply bring together representatives of religious institutions. Rather it is a case of being together on a journey towards truth, a case of taking a decisive stand for human dignity and a case of common engagement for peace against every form of destructive force.
Prawfs get results!
ABA Citizen Amicus Project for Law Students
I'm writing from the American Bar Association Criminal Justice Legal Educators Colloquium, where I've helped to organize a track of programming co-sponsored by the Association of American Law Schools Criminal Justice Section. One of my fellow organizers, Prof. Andrew Ferguson of UDC, has put together an ABA initiative that may be of interest to your law students, particularly if you teach Fourth Amendment. In conjunction with the ABA, Andrew has created a "Citizen Amicus Project" focused on the warrantless GPS-tracking case at the Supreme Court this term, United States v. Jones. The Citizen Amicus Project is a web-based initiative through which law students can weigh in regarding whether a "reasonable expectation of privacy" exists in a warrantless GPS tracking scenario. I understand that prizes will be awarded for the best student entries. Why should law professors have all the (blogging) fun? Enjoy!
Revisiting the Exploding Offer
Update: I've amended this post somewhat based on subsequent information.
We had a good thread with useful comments on exploding offers here a couple years ago and I wanted to make sure it was something folks knew about if they were on the job market this year or had some influence on the extension of expiring/exploding offers for the law prof gig.
In that earlier thread, I tried to explain what considerations should be relevant to setting a floor for the expiration date of a given law school hiring. Although I am probably more sympathetic to some shorter deadlines than some others under certain circumstances, I wanted to take a moment also to flag and express concern over one school's practice this year, which seems to me to be unusually short and unreasonable. (It may occur elsewhere too; I earlier identified the school but at this point, for the point of discussion, the particular name doesn't matter.)
The law school gave only seven days to a candidate who lived in another city and had a significant other to consult. It's possible that this little time was given to others as well (ie., both laterals or rookies). It's also likely that candidates might have been told that if an offer were to eventuate, the candidate would have about a week to consider it although there wasn't (from what I understand) clarity about when the offer was to eventuate. Notwithstanding the apparent notice, this "offer" seems to me to be an unreasonable and unfair offer. If it doesn't give people a reasonable opportunity to plan to visit with family or others impacted by the choice in advance of the offer's expiration, then it puts undue pressure on candidates. Again, I don't think all offers with less than a month of time are unreasonable or unfair. But if a school is unclear about the date on which the offer will be extended and doesn't give adequate time for persons with families or sig others to perform some due diligence and make a visit, then that strikes me as an unwise and indeed unfair choice to put to candidates. After all, it doesn't make sense for sig others to have to start doing due diligence or looking for jobs before the offer to the prof candidate materializes (especially when doing that could be harmful or costly to the affected family members). Well, that's my view, fwiw, not the views of the candidates who might still acquiesce to these conditions. I hope this practice ends.
Thursday, October 27, 2011
Scholars and the Briefs They Sign (qua Scholars)
I'm back in the 'Hassee after a quick trip to NYU earlier this week. Unfortunately, I'm missing the colloquium today for Dick Fallon's paper on scholars and the amicus briefs they sign. Somewhat oddly, the paper is part of the festival of ideas hosted weekly by Dworkin/Nagel. I say oddly because the colloquium is ostensibly about social, legal, and political philosophy, and the paper doesn't really have much to do with any of those topics. That's not a mark against the paper. Like all of Fallon's work that I've read, it's careful and thoughtful, and indeed philosophically informed. It's just a mite odd given the venue. That said, because the venue frequently attracts leading con law scholars who sign amicus briefs of the sort that worries Fallon, maybe it makes good sense for Fallon to go into the proverbial lions' den.
In any event, I had a chance to peruse the paper earlier this week and I think Fallon's right to push legal academics to be more circumspect about the amicus briefs they sign. Fallon cites Ward Farnsworth as having raised some of these issues a decade ago. Here's Farnsworth's basic point: "when academics offer opinions in their professional capacities, they should use the same care and have the same expertise called for in their published professional work, or should disclose that they are adhering to a lesser standard. Equivalently, they should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented." It seems that Fallon largely agrees with this. Count me in too. But Fallon proposes a few other norms to guide the development of scholars' briefs.
FWIW, I think I've only signed fewer than a handful of amicus briefs, but it's true that I haven't always been as familiar with the sources cited in them as would be appropriate under Farnsworth and Fallon's prescriptions. Since I have a non-trivial interest in the ethical standards of legal scholarship, I find myself feeling a bit shame-faced. I'm glad Fallon's new paper provoked this greater mindfulness on my part, and I hope his essay and the norms it seeks to promote will find a warm and welcome embrace by other prawfs as they contemplate their participation in the seemingly growing practice of filing scholarly amicus briefs with the courts.
Occupying Public Forums
"When an individual seek[s] to take advantage of an effective, convenient means of communication, the Constitution cannot permit what are often in reality relatively trifling objections to stand in his way." Geoffrey Stone wrote this sentence more than a quarter century ago, and yet it has resonance today. The question, of course, is what objections are "trifling"?
In Oakland protesters are returning to the amphitheater in front of City Hall today after the police used force and violence to evict them yesterday. The City attempted to justify the forcible removal, tear gas and all, as necessary to preserve public order in what appears to be a public forum. The Supreme Court has held (in Clark v. Community for Creative Non-Violence) that the right of citizens to use public forums for protests does not entail the right to sleep overnight in them, even if the sleeping is designed to send a message. For my own part, I believe that the Supreme Court's public forum jurisprudence as a whole gives undue deference to government interests in controlling government property. Regardless, established precedent suggests that the City of Oakland did not violate the First Amendment rights of the protestors by demanding that their overnight occupation of its public forum cease. [Whether it violated other rights of the protestors by the use of excessive force is another issue entirely.]
But can the City demand that the daytime occupation cease because the protest has gone on too long? The City might argue that the prolonged daytime occupation interferes with the flow of traffic to and from City Hall, that it interferes with the rights of other citizens to use the public forum, that the property itself is being degraded by wear and tear, that providing the necessary police presence at the forum is unnecessarily burdensome, or so forth. Without knowing the physical layout of the forum, I find it hard to evaluate the factual plausibility of some of these arguments. But how about the constitutional plausibility? The City's arguments for restricting forum access appear to be content neutral. Are they nonetheless, in the words of Geoffrey Stone, "trifling objections" insufficient to overcome the First Amendment rights of the protesters to speak, assemble, and petition? The Supreme Court has upheld content-neutral restrictions within public forums that were justified based on government interests in aesthetics, preventing traffic interruption, or curtailing excessive wear and tear on public property, but the cases upholding regulations based on those interests were factually distinguishable from the situations presented by the "OCCUPY" protests.
Furthermore, whether we find asserted interests such as those listed above to be substantial or significant depends to a large extent on how much deference we give to the judgment of the public officials asserting them. Just because a public official asserts a threat to public order doesn't mean such a threat exists. Justice Thurgood Marshall once noted that public officials "have strong incentives to overregulate [public forums] even in the absence of an intent to censor particular views." Protests are inherently inconvenient, messy, and even costly for public officials to manage. They are also essential to the health of our democracy.
Job talks: topics to avoid
Once again the law blogosphere is alive with discussions of the hiring process. A few years ago (okay, six) I posted some job talk topics that I thought candidates should avoid. Since recycling is now part of our moral duty, I'm recycling this old material -- with five new topics added in to justify it.
Here are the top-ten topics to avoid from 2005:
10. Time Travel and Originalism: Using Technology to Learn What the Founders Really Meant
9. The Right to Bear Arms Should Include Surface-to-Air Missiles
8. The Law and Economics of Negligence: What I Learned in 1L Torts
7. The Sex Life of Law Students: My Three-Year Empirical Study
6. Does Anybody Really Know What Time It Is? A Deontological Approach to Epistemological Failure
5. The Law & Economics of Law & Order
4. La Cosa Blogstra: Why volokh.com is a Criminal Conspiracy under 18 U.S.C. Sec. 371
3. Barking Up the (Wrong) Poisonous Tree: Is Tainted Evidence Admissible If It Would Have Been Found By Dogs?
2. Parsing Rule 10b-5: Thoughts from Das Kapital
1. In re Random Corp. Class Action Litigation: Illuminating Points I Made in My Brief
I think #9 looks a little different in hindsight, no? And here are five more:
11. Rethinking the Eighteenth Amendment: An Argument for Repeal
12. Scoop or Else: Using DNA Evidence to Track Down Dog Waste Offenders
14. Don't Mess with Texas: Why Secession Just Makes Sense
15. Capital Punishment for Misdemeanor Offenses: A Retributive Approach
Intellectual v. Emotional Intelligence, Law School Edition
I have a number of things on my mind that may seem like non-sequitors, but I am going to try to weave them together here.
First, a listserv discussion recently revolved around the oft-discussed (and oft-discussed by me) subject of "practice ready." A couple of practitioners wrote a short article about how teaching students to be prepared for law practice should not exclude concepts and ideas from the social sciences and other professions. The ensuing discussion hotly debated professors' obligations to become current on every field of study and profession in order to teach a sort of liberal arts version of law, and whether that was just too much to handle and beyond necessity. Intellectual law intelligence trumps emotional other-disciplines intelligence.
Second, Steve Jobs, as you all know, died very recently, and every news outlet that you can possibly think of has a story about his genius and his new biography. There is a bit of deification going on, in case you haven't noticed. I heard interviews with Jobs's biographer on NPR Morning Edition, Fresh Air, and saw the bio author interviewed on The Daily Show, all in the same day. The upshot is the story of a strong-headed man with an incredible level of creativity and a mission, who made billions and changed the world. The unverified back story is an unpleasant person who may or may not have ever donated any of his millions to charity.
Finally, and I bring this home: the hierarchy between the doctrinal tenured, the doctrinal non-tenured and the contract or shorter term "skills" professors is more than a myth in the law school setting. Benefits (i.e.. funds) are allocated accordingly in an ongoing uneven distribution, according to perceived or realized intellectual value.
How are all of these things related in my mind, you might ask?Well, work with me because I think they are. In our society there tends to be more value placed on suceess and money than on creativity. In my first vignette, the suggestion that the study of law be integral to life, that other disciplines and ideas are not remote from the study of law, is rejected. In my second example, an inventor is heralded for his creativity, but possibly only because of or after he made millions of dollars. Add to that that he may not have been such a nice guy. And in my third, a social hierarchy is strictly enforced in favor of professionals who have (potentially?) more value financially to an institution. Want me to throw something else in so that it becomes even clearer? When I worked in a hospital, the ER would get the shortest shrift on the budget ladder. Why? Majority non-paying (medicaid) patients v. "regular" insured patients.
The emphasis on intellectual intelligence vis-a-vis money at the expense of emotional intelligence vis-a-vis understanding others undervalues the individual in the work setting and inhibits creativity. I truly believe that law, or the study thereof, does not exist in a vacuum from the rest of all other thought, scientific, social scientific and otherwise. And how are "skills" profs not equal to other professors? We are all attorneys.
B.A., Sports Performance, University of Florida
Sally Jenkins of the Washington Post proposes a very different reform for college sports: Allow athletes to major in "Performance of Sport," building around participation on the team a (hopefully) rigorous curriculum looking at history, law, ethics, policy, and business of sports. Jenkins discusses her proposal on a Slate podcast. Sports, she argues, should be like drama or music or dance or art, all of which are accepted as intellectually and academically worthy enough to be integrated into the life of the school. All are pre-professional majors--athletes (at least stars in top-level football and men's basketball programs) are in college to prepare to be professional athletes, just as theatre majors are in college to prepare to be actors. The similarity extends further in that, like athletes, theatre or music students bring unique extra-academic talents to the mix and spend significant time outside the classroom practicing and honing those skills. A further similarity is that all come to a school less for the school than for the person at the school (a coach or a particular cello teacher) and may be tempted to change schools if that person leaves.
This is an interesting idea. Arguably, major basketball and football schools already do a poor-man's version of this with majors such as "Leisure Studies," although these do not go the full step of awarding academic credit for playing on the team. But is Jenkins right that this would eliminate much of the corruption in college sports? Under her model, "the worth of an athletic scholarship would suddenly be clearer. We could stop worrying about “exploiting” athletes and whether to pay them. Yale drama undergraduates don’t get a cut of the box office — their recompense is first-rate training for the stage. They aren’t exploited. They’re privileged." Jenkins makes a slightly different point that I also agree with: We actually treat student-athletes worse than regular students (including students in performance majors) by not allowing them to work, to perform professionally away from school, make money off their images, etc.The devil is in the details, as Jenkins recognizes in the Slate conversation. First, I am not sure this takes away the pressure to share the money with athletes (at least football and men's basketball), which still make money and produce fame and recognition for the university. That we are forthright that the students are majoring in being athletes does not change the fact that they are making money for the school and may want a piece of it. And the analogy to theatre or music breaks down because those departments are not connected to billion-dollar television contracts. Are players going to be any happier that they are receiving scholarships but no salary to be football players than that they are receiving scholarships but no salary to be Leisure Studies majors?
The big risk is that some universities would not take this major seriously, that it would be a series of gut courses that will allow student-athletes to slip by without having to do any real work. This somewhat ties into the fact that many athletes are less prepared for college than their classmates and that schools typically give more admissions leeway for athletes than for cello players. So how easy would it be for some schools to create a major to further protect (and keep eligible) its more academically marginal players. On the other hand, all departments have such courses that all students in all majors take advantage of (at Northwestern, there was a basic statistics course in the Math Department nicknamed "Math for Medill," for all the journalism majors using it to satisfy a requirement). And athletics is not the only area or reason for which such admissions benefits are provided.
Jenkins said she has received many responses from university professors who like the idea. It will be interesting to see if the idea catches on. Thoughts?
Wednesday, October 26, 2011
How Baseball Made Me a PirateMajor League Baseball has made me a pirate, with no regrets. Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake. Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number. My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud. Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not. So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.Cross-posted at Info/Law.
Posted by Derek Bambauer on October 26, 2011 at 07:48 PM in Criminal Law, Culture, Information and Technology, Intellectual Property, International Law, Music, Odd World, Sports, Television, Web/Tech | Permalink | Comments (34) | TrackBack
Public Judges and Private Judging
Judges on the Delaware Chancery Court are being sued for participating in “secret judicial proceeding[s].” The back story is that the Delaware legislature passed a statute and then rules a few years ago allowing chancery court judges to act as arbitrators. (Here is early commentary by Larry Ribstein.) Arbitration filing fees (an initial $12,000 and then $6000 per day) in Delaware are deposited in the court’s Arbitration Fund Account. In other words, professional responsibility rules may prevent judges from acting as paid private arbitrators - basically moonlighting - while also public judges, but that is not what is happening here.
The complaint was filed yesterday by the Delaware Coalition for Open Government, Inc., in the federal district court in Delaware. It essentially alleges that an arbitration under these rules violates the First and Fourteenth amendments and the Civil Rights Act because the documents are confidential and not part of a public record or docketing system. As the complaint says: "Although the statute and rules call the procedure 'arbitration,' it is really litigation under another name."
Can this be? I ask not as a constitutional scholar, but because I think our court system already facilitates private negotiated contract in some ways, including using public judges to settle cases. Delaware is unusual in the extent to which it is developing a service that competes with private arbitration services, but other courts have integrated arbitration and mediation into their court system, including into specialized business courts. A difference in kind or degree?
Tuesday, October 25, 2011
Activist athletes and modern sensibilities
Gerard Magliocca at CoOp argues that NCAA reform will come when one of the NCAA Men's Basketball Tournament finalists refuses to play unless the players receive a share of TV revenues. He continues:
Now this kind of strike would not be easy. Most of a team would have to agree and risk expulsion from school and the loss of a once-in-a-lifetime chance to play for the national championship. They would be called all sorts of nasty names by fans and alumni. On the other hand, Curt Flood went through something like that to create free agency for professional athletes. Who will be the Curt Flood of college sports?
It's a great point and I agree with Gerard it could work. A few broader thoughts.
First, there is precedent for a group of players achieving union goals by refusing to play a major televised game. NBA players achieved their first significant collective victory when they refused to play the 1964 All-Star Game, deciding to strike in the locker room right before game time, with ABC ready to broadcast. Bill Simmons has a nice discussion of this in his Book of Basketball and righly says there ought to be an HBO Sports Documentary on it.
Second, Gerard is right that such a move would require group solidarity among the entire time, including, probably most importantly, the stars of that team. It worked for the NBA players in 1964 because that game featured Bill Russell, Wilt Chamberlain, Jerry West, Oscar Robertson, and Elgin Baylor. Gerard says that the players would "be called all sorts of nasty names by fans and alumni," comparing them with Curt Flood, the man often (although not entirely accurately) credited with bringing about free agency in baseball by refusing a trade to a new team, and who was similarly criticized and shunned for his efforts.
But I am not sure that is true in modern times. Sports reporters and columnists in 1970 were incredibly conservative and old-school, very cozy with the owners and the league's establishment, and therefore very critical of anyone who dared to challenge the league's dominance and control. They took the owners' side in all of these disputes and the "spoiled players" meme was largely a media creation. Most of the criticism directed at Flood came from those reporters. Sports media today are far-more diverse, far-less pro-establishment, and seemingly more progressive. There are more voices being heard in more foca (hello, bloggers), and at least some of these voices will do more than give a knee-jerk rejection of the players' point of view. The same probably goes for fans. Fans dislike the NCAA and many polls show support for players receiving some form of compensation and some right to control the games they play. Fans are more diverse, more progressive, and (importantly) more well-informed about the business and economic side of the game (as a result of the greater number of media writing on these issues). My speculation is that a substantial percentage of fans would be behind the players--certainly more than were behind Flood in 1970.
Third, it also is worth noting that, while Flood was certainly criticized for his stance, he was not blackballed or denied opportunities to play. As the recent HBO documentary showed, Flood came back in 1971 (paid $ 110,000), but only last 13 games, his skills having faded from his one-year layoff and, perhaps, from the pressure and stress of his stance and the criticism he endured. We also have another modern comparison--Maurice Clarett, who unsuccessfully challenged the NFL's draft eligibility rules by trying to leave college and enter the league following his freshman year at Ohio State. After losing his antitrust suit, Clarett was drafted in the third round and signed a four-year contract, although he was waived before the end of training camp because he was out of shape, rusty, hurt, and generally not able to play at that level by then.
These two historical points are important because, as Gerard correctly notes, such a boycott of the Finals only works if the entire team, including its best players, is on board. But that superstar player not only has to worry about losing a "a once-in-a-lifetime chance to play for the national championship;" he also has to worry about hurting his NBA prospects, either by not being seen on the big stage or by being seen as a troublemaker. The former is not a real problem; given private workouts and the other processes teams use in settling on draft choices, performing well in the Final Four is less essential to getting drafter. The latter also is not a real problem, given that the NBA will accept that "troublemaker" if he can play.
Update: Gerard is not the only person talking about this today. Deadspin reports on a petition by the National College Players Association signed by more than 300 football and basketball players, calling on the NCAA to institute a host of reforms, including increasing the total value of scholarships and putting TV money into a trust fund for athletes. The Deadspin story links to a piece by Yahoo!'s Dan Wetzel calling for a team to boycott a lower-tiered bowl game, which would not require the same level of sacrifice as boycotting a BCS bowl or Final Four game, but still will be high-profile enough to get people's attention.
JOTWELL: Pfander on Dodson on Jurisdictionality
Another Case on Garcetti and the Speech of Academics
Thanks to Eugene for posting about a recent district court opinion applying Garcetti to the speech of an academic who appears to have been pressured and punished by his institution, LSU, for publicly stating views (about what he believed to be the Army Corps of Engineers' responsibility for flooding in the wake of Katrina), and then for disclosing that LSU had pressured and punished him for doing so. I haven't looked closely yet at the opinion, but here's a key quote from the decision:
Van Heerden was not acting within his official job duties....Viewing the facts in the light most favorable to van Heerden, the Court cannot say he was acting under his official job duties because genuine issues of material fact still exist. The actions of LSU administrators when dealing with van Heerden make clear that, whatever the formalities of his job description or the general parameters LSU sets for all its academics’ relations with the media, LSU considered van Heerden to be acting outside his employment when he spoke on Katrina-related matters with the media. LSU administrators repeatedly warned van Heerden not to speak with the media.
To reiterate a point I have made often in my writings on First Amendment institutionalism, whether the court or the law are right in this area or not, and whether this professor should have any legal recourse or not, we are of course quite free to call attention to LSU's conduct and to criticize it for failing in its institutional mission. As the excerpt from the decision notes, most of the relevant facts concerning LSU's behavior were undisputed. For those of us who care about universities in particular, or about central speech institutions in general, we might even view it as a kind of civic duty to engage with and criticize behavior like this, whether we are members of that institution or not.
I do thank the university for one thing. It has offered another excellent reason for the Crimson Tide to kick LSU's ass in a couple of weeks.
Nominal Non-Profits and Mergers & Acquisitions
If I may steal a page from Above the Law, the "wedding of the week" in the Sunday Times wedding section this week was, without a doubt, the nuptials of Anna Handzlik and Jordan Sekulow. Details are here. Here is a key paragraph:
The couple and the bridegroom’s father all work for the American Center for Law and Justice, a conservative legal advocacy group in Washington. The bride is a social media adviser and blogger. The bridegroom is the executive director, overseeing the organization’s work in the United States and abroad. His father is the chief counsel. The bride also works on the bridegroom’s syndicated radio program, “The Jordan Sekulow Show,” as an on-air contributor.
And more on the groom's parents:
His father is the host of “Jay Sekulow Live,” a program on the Christian Radio network. He is also a trustee of the Supreme Court Historical Society. The bridegroom’s mother, who works in Washington, is the executive vice president of Regency Productions, which produces both the bridegroom’s and her husband’s radio programs.
Monday, October 24, 2011
Writing in a Crowded Field
In the calm before and after the job market frenzy, planning the research agenda seems key. What advice do you give either students or junior faculty? Mine tracks my advice for things like student notes or, frankly, job decisions overall: it should be driven by passion and sustainable interest, as well as past experience/expertise. But maybe equally important advice is to identify underwritten areas (i.e., to avoid writing in a crowded field). Maybe something you see in the world that people - or at least legal academics - ignore or gloss over? Maybe something complex that not all are willing to dive into (ERISA, anyone?)? What advice do you give?
Hope to See You in D.C.!
Yes, I hope to see you at the AALS Annual Meeting in D.C., but I also hope to see some of you in D.C. at the end of this week. This Thursday and Friday (Oct. 27-28) the ABA and the American Association of Law Schools Criminal Justice Section are hosting a Legal Educators' Colloquium within a larger ABA fall conference. We academic-types have planned the plenary as well as a break-out session, all on the theme of "Reducing Reliance on Incarceration." Here's a link to the program.
If you register for the conference, you are also welcome to join us on the afternoon of Thursday Oct. 27th to workshop exciting works-in-progress by some of our colleagues. Workshopping starts at 2:00 pm in the Connect Room at the Capitol Hill Liaison, and the line-up of presenters is after the jump.
I've taken some license with these titles/summaries, so my apologies to our presenters if they are not spot-on.
Round Table on Legislative Initiatives, Democracy, and Mass Incarceration
David Ball (Santa Clara) -- "Why Should States Pay for Prisons When Local Officials Decide Who Goes There?"
Cecelia Klingele (Wisconsin) -- State Legislative Initiatives for Early Release
Andy Taslitz (Howard) -- "The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration"
Round Table on Social Consequences of Mass Incarceration (and Alternatives)
Jill D'Angelo (Buffalo) -- Study of Incarcerated Mothers with Children in NY Child Welfare System
J. Glass (independent) -- "Beyond Incarceration"-- Effects of Incarceration after Release
Alex Kreit (Thomas Jefferson) -- "Lessons From Portugal: Decriminalizing Drug Courts"
Round Table on Possible Interventions in Mass Incarceration
Laura Appleman (Willamette) - "Justice in the Shadowlands: Bail, Jail & Extralegal Punishment"
Cara Drinan (Catholic) -- "Clemency in a Time of Crisis"
Anne Traum (UNLV) -- "Mass Incarceration at Sentencing"
Saturday, October 22, 2011
The Retributivist Tradition...and its Future: A Conference on Friday Nov. 4, 2011
If you are in or about New York City on November 4, please consider attending The Retributivist Tradition And Its Future at St. John's University School of Law. The conference will take up many of the chapters in Retributivism: Essays on Theory and Policy (Mark D. White, ed., 2011). My own contribution to the conference will have to do with an essay I wrote called, What Might Retributive Justice Be?
The conference description follows and the program is after the jump. Hope you can make it.
Retributivism as a justification of punishment is a very old idea, with sources in ancient codes of religious law and morality. After a period of dormancy in the 20th century, retributivism is now ascendant again as a theory of punishment, as scholars have reinterpreted the commitment to just desert in novel and provocative ways.
This conference, The Retributivist Tradition and Its Future, brings together leading thinkers in punishment theory to reflect on retributivism's past and present, with an eye toward what retributivism and punishment theory generally might become. Many of the speakers are also contributors to the recently published volume, Retributivism: Essays on Theory and Policy (Mark D. White, ed., OUP 2011), which will also be considered at the conference.
9:00-9:15 Welcome: Dean Michael Simons (St. John’s University School of Law)
9:15-10:45 Panel I: Conceptualizing Retributivism
Panelists: Michael Cahill (Brooklyn Law School)
Dan Markel (Florida State University School of Law)
Kyron Huigens (Cardozo Law School)
Discussant: Youngjae Lee (Fordham University School of Law)
Moderator: Matt Lister (Villanova Law School)
11:00-12:30 Panel II: Philosophical Perspectives on Retributivism
Panelists: Sarah Holtman (University of Minnesota, Philosophy)
Jane Johnson (Macquarie University, Philosophy)
Mark White (CUNY, Political Science, Economics, Philosophy)
Discussant: Ekow Yankah (Cardozo Law School)
Moderator: Larry Cunningham (St. John’s University School of Law)
1:30-3:00 Panel III: Retributivism and Policy
Panelists: Mark Tunick (Florida Atlantic University, Political Science)
Luis Chiesa (Pace Law School)
Marc DeGirolami (St. John’s University School of Law)
Discussant: Adil Haque (Rutgers School of Law – Newark)
Moderator: Elaine Chiu (St. John’s University School of Law)
Friday, October 21, 2011
Small Change, Big Case
In my American Indian Law class, I just finished teaching the case of McLanahan v. State Tax Commission of Arizona, which held that the state of Arizona could not tax the income of an enrolled member of the Navajo tribe earned on the reservation. It's a pretty big case about state power to tax American Indians in Indian Country. The actual monetary amount at issue was $16.20. While I was teaching the case, I thought of how Wisconsin v. Yoder, the case holding that the Wisconsin Amish had a right to keep their older kids out of school despite a state mandatory attendance law, involved a fine of $5.
What other cases out there involve disputes over big principles but small amounts of money? What do you think about a book collecting discussions of these cases? What would it be called? Will you contribute a chapter? If you're an editor, will you publish it?
The Passive-Aggressive Virtues
As part of a series of papers reflecting on the post-September 11 decade (and in light of next month's fiftieth anniversary of Bickel's Harvard Law Review Foreword), the Columbia Law Review Sidebar has posted an essay by me titled "The Passive-Aggressive Virtues."
I'll leave the details to readers, but the gist of the paper is that the Supreme Court's approach to terrorism cases over the past decade has not been activist or passive as a general matter, but has instead featured repeated judicial intervention when institutional self-preservation was at issue, but withdrawal (bordering on abdication) in cases more purely raising the "merits" of particular counterterrorism policies. Although the paper doesn't take an absolute bottom line on whether this is a "good" or "bad" thing, I do try to suggest ways in which this kind of passive-aggressive judicial decisionmaking may not have as salutary an effect as most might think--and ways in which it might not be better than the (perhaps equally unappealing) alternatives.
As always, I'd welcome reactions/comments/etc.
Thursday, October 20, 2011
Teamsters Nationwide Election -- James B. Jacobs
Thanks to the blockbuster 1988 civil racketeering (RICO) lawsuit brought by then Manhattan U.S. Attorney Rudy Giuliani, today ballots are being mailed to 1.4 million members of the International Brotherhood of Teamsters (IBT).
Prior to the lawsuit, the IBT president and general executive board were chosen behind closed doors with the advice and consent of Mafia bosses. Local union delegates, who were beneficiaries of pervasive corruption and racketeering, ratified these selections at quinquenial conventions. If a “dissident” union member managed to infiltrate the convention, he would be shouted down, beaten and dragged from the hall. In 1986, the President’s Commission on Organized Crime called the IBT the union most heavily influenced by organized crime. Former IBT president, Roy Williams, cooperating with the Justice Department after his bribery conviction, testified that “every big IBT local has some connection with organized crime.” Giuliani’s lawsuit was settled on the eve of trial, the parties agreeing that “there should be no criminal element or Cosa Nostra corruption of any part of the IBT,” and that “ it is imperative that the IBT, as the largest trade union in the free world, be maintained democratically, with integrity and for the sole benefit of its members and without unlawful outside influence.”
The current election is supervised by an court-approved elections officer (a former federal prosecutor) who promulgates and enforces comprehensive rules governing every phase and particular of the election process -- voter and candidate eligibility, electing delegates to the nominating convention, convention procedures, campaign donations and expenditures, placing “battle pages” in Teamsters Magazine, and filing protests about election rule violations. Two candidates, Fred Gegare and Sandy Pope, are challenging James P. Hoffa, the incumbent since 1998. While the incumbent still enjoys many advantages (including praise from President Obama and a convention embrace by Vice-President Biden), the election, though vigorously contested, has been free of violence, intimidation and fraud. Today, it would be hard to find a private sector organization that chooses its leaders more democratically than the IBT.
After 22 years of court-supervised free elections and disciplinary actions, organized crime’s influence in the IBT has been nearly eradicated. The only blight on this extraordinary experiment in union democracy initiative is low voter turnout. Despite the best efforts of the election officers, in each election cycle fewer Teamsters have bothered to mail in their ballots. In 2006, only 19% of eligible voters voted. Sadly, such formidable apathy threatens the premises and future of rank and file union elections. One is reminded of the wise adage that those who do not participate in democratic institutions are in danger of losing them. That would be tragic for the Teamsters, the labor movement and American democracy.
Policing Copyright Infringement on the Net
Mark Lemley has a smart editorial up at Law.com on the hearings at the Second Circuit Court of Appeals in Viacom v. YouTube. The question is, formally, one of interpreting Title II of the Digital Millennium Copyright Act (17 U.S.C. 512), and determining whether YouTube meets the statutory requirements for immunity from liability. But this is really a fight about how much on-line service providers must do to police, or protect against, copyright infringement. Mark, and the district court in the case, think that Congress answered this question rather clearly: services such as YouTube need to respond promptly to notifications of claimed infringement, and to avoid business models where they profit directly from infringement. The fact that a site attracts infringing content (which YouTube indubitably does) can't wipe out the safe harbor, because then the DMCA would be a nullity. It may be that the burden of policing copyrights should fall more heavily on services such as YouTube than it currently does. But, if that's the case, Viacom should be lobbying Congress, not the Second Circuit. I predict a clean win for YouTube.
Conflicting Laws Kill Exotic Animals
I don't know about you, but I am heartsick today about the news of fifty exotic animals being shot, maimed or otherwise lost in Ohio:
Apparently, loopholes, gaps and inconsistencies among and between state and federal laws somehow either permitted this individual to maintain exotic animals (including rare Bengal tigers) or were not clear enough to prohibit him from keeping the animals. I have never studied these laws, but is anyone here working on a study or an article (or within an organization), in an attempt to create clear and consistent state and federal rules regarding the private ownership of exotic animals? Or have you addressed this cluster of incomprehensive laws in an animal law class? Something needs to be done at all levels of government - maybe you are already working on it.
Ten tips for giving a job talk that doesn't suck
The following was written by my FIU colleague Joelle Moreno. Joelle is the Associate Dean for Research and Faculty Development and a former Guest Prawf.
Remember you are salmon swimming upstream
Every school that paid the big bucks to attend the meat market is bringing back a slate of candidates. It may only be six, but more likely it is ten to twelve. This means that the faculty is exhausted before the first candidate even arrives.
Most of you have received bad advice.
If the 75 job talks I have attended over the past dozen years are any indication, most faculty candidates have been advised that the goal is to convince the faculty that you are a deep thinker and the smartest person in the room. This is bad advice. Your goal is to be interesting, to make us understand why you care, and to leave us wanting more.
Here are 10 tips for giving a job talk that doesn't suck:
1. Don't be Boring
Your most important and challenging task is not to convince us that you are smart. Assume that all of the candidates we have invited to campus are smart. You have 30 minutes to make us care about your ideas and your work. The best way to do this is to explain why you care.
2. Be Clear
Use road maps and signposts. Begin with a road map for your talk that explains why you are interested in this topic and what you hope to accomplish in your talk and your research. Use sign posts to signal transitions (e.g., "I'll begin with a brief discussion of the legal history." "Now I will explain why recent developments in behavioral economics provide new insight.")
3. Don't be Slick
If you try to sex-up your talk, name drop rock star academics, or imbue your talk with jargon, you don't sound smart, you sound arrogant.
4. Be Organized
Start strong and end strong.
5. Don't be a Techie, Unless....
Don't use PowerPoint unless you plan to show us: (1) pictures (e.g., If your work focuses on the environmental impact of particular regulations on a rare spotted songbird; show us the bird); or (2) a simple graphic that illustrates complex information (e.g., a graph showing trends, a timeline). If you must use PowerPoint do not trick your slides out with fancy animations or cute cartoons.
6. Be Prepared
A good job talk provokes questions and debate. This is not a happy accident. You must make this happen. If you present your ideas clearly and explain why these questions are interesting, we will engage with you. The best way to provoke good questions and comments is to practice giving your job talk to three of the smartest people you know -- who know nothing about the subject -- and then revise based on their suggestions.
7. Don't be Unrealistic
Don't waste time during your talk regaling us with the details of your brilliant and ambitious research agenda. Instead, near the end of your talk raise three provocative questions that you intend to explore in the future and invite us to respond.
8. Be Relaxed, but not too Relaxed
Use notes. It is a short talk and you need to stay on task especially if you are interrupted with questions. Besides, Spaulding Gray needed his notebook and he was a more interesting speaker than any of us will ever be. But don't ever read anything especially a PowerPoint slide.
9. Don't be a Suck-Up
Do not tell us that at dinner last night our colleague Bill offered wonderful insight that has really changed the way that you are looking at these questions. Even if you are genuinely nice person who hopes befriend our entire faculty, you sound like an obsequious sycophant. Besides, Bill may be the biggest and most vacuous blowhard on our faculty (we all have at least one); so you are not sucking up, you are sucking down.
10. Be Reasonable
Do not, under any circumstances, speak for more than 30 minutes.
Finally, remember it's not just what you say, it's how you say it. Communicate your enthusiasm. Use your voice (volume and pacing) for emphasis. Use your space; don't trap yourself behind the podium. Make eye contact with us and assess our interest. If we start to look bored, change it up, throw us a question, or grab our attention by telling us the most interesting thing you can think of about your work.
Is Creative Writing About Law an Academically Worthy Interdisciplinary Endeavor?
Let's face it, we're all interdisciplinarians now. Even if we aren't. But what other disciplines count, such that if you put them together with law, you get something that law schools consider worthy? Obviously, the mainstays of interdisciplinary work--law and economics, history, philosophy, and political science--are here to stay, and these days we're happily seeing other disciplines added to the mix--anthropology, religious studies, various hard sciences, and the like. But what else should count, be welcomed into the legal academy with open arms, respected at tenure time, attract the attention of appointments committees, and so on? At Boston University, our schools and colleges grant degrees in over 250 disciplines, from archaeology to journalism to sculpture to oral and maxiollfacial surgery. Should we be looking to start hiring in the field of law and sacred music? Should we at least signal somehow that this is something we would be happy to consider, were somebody to show up with such a specialty?
Specifically, I'm wondering about whether Law and Creative Writing should "count" as a serious interdisciplinary endeavor. About 200 universities and colleges offer creative writing programs that teach students how to write fiction, poetry, and creative non-fiction. Some of these programs exist within English departments; others stand alone. All, I presume, see their mission as a serious academic one that deserves respect and support from their universities. As an example, here's a beautifully written statement of purposes from a top program at the University of North Carolina Wilmington.
Clearly, many law professors engage in creative writing endeavors. Some write stories. Some write novels. More would probably write novels if they thought that their schools would value such work. Of course, to "count," the novels would have to be good, as measured by those who are professional creative writers. A tenure letter evaluating a novel about law would have to come from Joyce Carol Oates, not your friend who is a fifth year associate at Debevoise. But I get the sense that even strong creative writing about law is presumed not to count. For example, look at page 144 of the Green Bag's introduction to its "Deadwood Report" project. The piece says that, in reporting on scholarship listed on the web pages of law schools, the Report will be "taking account of "scholarly books and articles in scholarly journals. Not novels." Now, the piece does thoughtfully go on to note that if the school's website includes official regulations stating that works of fiction count for tenure, and if further inquiry reveals that the school has in fact granted tenure on the basis of such work, then the Report will consider those works in its faculty measurements, "with a flag and a note about your interesting tenure policy." My sense is that this document accurately encapsulates the academy's view about law and creative writing--absent super duper exceptional circumstances, it doesn't count as an academically worthy interdiscplinary endeavor.
But of course, creative writing can help us see and understand the world in ways that academic writing cannot. There are some truths that cannot be conveyed by traditional expository writing. This has got to be the same for law as it is for other potential subjects of fiction and creative non-fiction. Try and express what Kafka gave us with The Trial in a law review article, I dare you. It's an extreme example, of course. But then again, one wonders whether, if Kafka were coming up for tenure at an American Law School, his classic novel would be considered a "plus in the file."
Balkin and Pasquale, Meet Samaha
Jack Balkin and Frank Pasquale both have interesting points about the OWS movement and the Constitution. Balkin argues that "the Occupy Wall Street protests offer a still deeper vision of the Constitution than simply a rejection of Citizens United," one that argues that the government has lost a sense of responsiveness that is essential under the Guarantee Clause. He ends with this: "A broken government, unresponsive to the public, is more than a misfortune. It is a violation of our basic charter--our Constitution." Pasquale adds that "problems caused by political and economic inequality have now reached constitutional dimensions," and points to the Alabama immigration law, coupled with an increase in the use of private prisons and prison labor, as an example of "a politico-economic system that can render the undocumented immigrant (and indeed, almost anyone who makes a few too many mistakes in life) a pariah."
A nice complement and/or counterpoint to these posts is a wonderful new paper by Adam Samaha, Talk About Talking About Constitutional Law. Samaha's piece was written in response to Balkin's forthcoming book, and it places it within the framework of what he calls discourse theories of constitutional law. Here's how he describes the discourse project:
If we use the Constitution as a common language or source of authority that is not too restrictive, the argument runs, we might bridge several societal divisions: cultural divisions over values, status divisions between commoners and legal professionals, and intergenerational divisions between our judgment and ancient judgments. Each generation will fight over fundamental questions, but all sides may point to the Constitution at any time, and the losing side might have "faith" that the prevailing regime will be "redeemed" in due time.
Samaha raises some interesting and critical questions about this approach. Here's a summary from his introduction:
I will not show that discourse theorizing is necessarily wasteful, but I will offer uncomfortably mixed views on recent talk about talking about constitutional law. My principal doubt involves whether a relatively loose constitutional discourse tends to increase the legitimacy of a political system. An inclusive discourse that allows for many possible answers to constitutional questions does sound friendly. But talk can accomplish only so much, and constitutional talk can raise the stakes of disputes in a way that discourages rather than encourages compromise, creativity, and trust. If a large domain for constitutional discourse crowds out nonconstitutional argument, participants in the political system may find themselves further divided, not united, by easy recourse to constitutional claims.
It's a terrific paper, respectful but skeptical, careful and clear. It doesn't seem to me to offer a rebuttal to the Balkin and Pasquale posts, and I don't think that was Samaha's intent, even with respect to Balkin's book. But it does usefully remind us that there are a variety of forms of discourse that can revolve around the Constitution--constitutional meaning, constitutional construction or implementation, and non-constitutional talk--and that changing the mix can have both positive and negative effects. Converting the OWS discussion into a discussion of the Constitution can raise its sense of structure, coherence, and high principle, but we also lose something when we convert non-constitutional talk into constitutional talk, and talk about constitutional implementation into talk about constitutional meaning, and may end up raising the rhetorical stakes in counter-productive ways. I'm sure Frank and Jack would have excellent responses, and Samaha is clear that he offers his skepticism in a humble fashion. But I think the discussion he offers is well worth thinking about, and I highly recommend his paper.
Wednesday, October 19, 2011
Imaginary About-Faces by Law Professors
My post about honest about-face moves by law professors, to which both Dan and Micah Schwartzman have made some valuable contributions in the comments, led me to thinking this morning about whether we could put together a library of imaginary about-faces. (As I've written here before, I am taking a lot of strong pain pills.) Mostly within my own field of con law, I could imagine some indispensable entries:
Bruce Ackerman, 4 We The People: Never Mind (forthcoming 2027, Harvard University Press)
Jack Balkin, An Originalist Theory of Constitutional Interpretation
Robert Bork, The Seduction of America II: I Was Seduced--and I Love It!
Ronald Dworkin, Taking Rights Less Seriously
---, Justice For Foxes
---, Contract With America, 2nd ed. (with Gingrich, N.)
Lani Guinier, The Color-Blind Constitution
Marci Hamilton, God vs. the Gavel: An Argument for Religious Freedom [thoroughly revised ed.]
Larry Kramer, We the Court: Reconsidering Popular Constitutionalism in Light of Actual, Thoroughly Unpleasant Encounters With "We the People"
Brian Leiter, How to Win Friends and Influence People [it's a joke, Brian, I swear!]
Alexander Meiklejohn, Why New England Town Meetings Turn Out to Be Boring and Unhelpful
Richard A. Posner, Overcome By Law
Hon. Antonin Scalia, Originalism Without Fear
Cass N. Sunstein, Judicial Maximalism
And, of course:
Kathleen Sullivan with Gerald Gunther, Constitutional Law 18th ed., special ed. (featuring substantial case excerpts, no law review citations, and no more than one question mark per paragraph of "notes and questions")
I welcome other contributions for the library! Remember that in Borges's world, all of these books already exist.
Best Faculty Workshop [Format] Ever!
Under the leadership of my colleague Professor Sudha Setty, WNE's newly-appointed Associate Dean for Professional Development, we are initiating a conversation to examine our faculty workshop format. I'm interested in hearing about formats that have worked well at other law schools, including frequency, focus, and structure. Do you have a set weekly time? Monthly? Workshopping by your faculty only or by outside guests as well? A designated moderator? Circulation of the draft beforehand, or workshopping of more nascent ideas? All/some/none of the above? I have in mind a platonic ideal of a faculty workshop, based on the norms of the institution that educated me. However, it would be great to hear about different models, especially those that have worked well.
On Not Getting Callbacks
At the Faculty Lounge, Carissa Hessick has sound advice about callbacks: when they come, how they vary both across and within schools, etc. Dan and Sarah here at Prawfs have excellent arguments in favor of collecting information, but I think it is also valuable for individual aspirants to remember that their mileage may vary. Let me add two things:
1) Carissa writes about the value of making alternate plans, such as applying for VAPS and so on. This is excellent advice. I thought I'd say one more time, by way of reassurance, that I did not succeed in my first go-round at the meat market. Ultimately, through a friend, I heard about a school that likes to hire additional visiting faculty to help teach its small-group substantive courses, and I did that for a semester; it led to an offer to stick around for the summer semester to teach another course. At the same time, I checked SSRN's "new positions" email every week, and saw TWO notices from schools looking for visiting professors in my field. I applied, and in part because of my experience at that first school those applications led to two offers, and to a very enjoyable year spent at the University of San Diego teaching federal courts, legislation, and con law, and getting to know one of the single best faculties in the American legal academy. By the time I went on the market again, I had a published article and a serious draft, I'd had a chance to present that draft at USD and thus get some good practice on job-talks, and I had serious teaching experience to commend me as well (yes, it's a plus). Reader, I got the job. I have friends who have had similar experiences.
Again, your results may vary. But I think Carissa is right to suggest that if you don't get any callbacks or offers, it's not the end of the world or, if you're serious about entering the academy, the end of the road. In addition to VAPs and the like, keep an eye (and ear--talk to your faculty friends and mentors) out for visiting positions, which can pay pretty well and give you some great experience and qualifications. And make sure that one piece of the visiting offer is that you get a chance to deliver a workshop while you're there. In the meantime, at least for those who have a serious vocation, take heart.
2) Perhaps while candidates are thinking about pooling and sharing information, they might share information on one more piece of the puzzle: what the schools are offering by way of entry-level packages. Those packages are individually negotiated and may vary even within schools, but it would probably help your own bargaining position if you knew what other schools are offering. And, not to beat a dead horse, but as I have found in Tuscaloosa, there are all kinds of rewards involved in living outside one of the four or five cities that everyone wants to flock to; keep in mind issues of livability while you're at it, including housing prices and what the community is like.
Tuesday, October 18, 2011
Stanley Fish on the Ministerial Exception Debate
In his latest New York Times column, Stanley Fish discusses the Hosanna-Tabor case and the debate over the ministerial exception. It's not quite as incisive or provocative as some of Fish's columns, but it does provide a useful rehearsal of the arguments over this issue and some of the deep conflicts involved. It's certainly well worth reading for those who are looking for a basic summary and discussion of the ministerial exception and the Religion Clauses.
Alvarez and the First Amendment's Epistemological Crisis
Thanks to TJ for posting below on Alvarez, the Stolen Valor Act case, on which the Court just granted cert. Eugene Volokh has an excellent post about it here, which also contains links to earlier posts on that subject. I also recommend the pieces on this issue by Mark Tushnet and Chicago law student Josh Parker. (Kudos to Josh for a terrific student piece and for getting ahead of the curve.)
I wanted to post an idea about this area that I've been thinking about lately for a variety of reasons, and which will be the subject of a piece by me in the next few months. It seems to me that we could see the scholarly interest in this case (see also these pieces by Ashutosh Bhagwat and Fred Schauer), which addresses some questions that the Supreme Court has danced around but never quite answered, as part of a broader concern with what we might call the First Amendment's epistemological crisis. Particularly but not exclusively if one starts from the standard truth-seeking justification for freedom of speech, then an interesting question presented by law and scholarship in this area is how we know what the truth is, how and when we know whether particular speech constitutes "facts" or "opinions," and how we know whether particular instances of fact-based speech are "true" or "false." Of course, we sometimes do know that particular statements are true or false: someone either served in the military and received military honors or didn't. Even in those cases, however, we may still ask, not whether we know this, but how we know it, who ought to be left with this determination--courts, juries, legislators, citizens, etc.--and how the courts ought to go about addressing these issues and reviewing the decisions of finders of fact in such cases. We also will want to know what value true and/or false speech have for purposes of public discourse and the First Amendment. Even if we all agree that particular statements are true or false, moreover, and on what value those statements have for public discourse, we may still, for a variety of reasons, end up with a second-order approach that only imperfectly and indirectly corresponds to that consensus. These can be interesting and thorny questions, and it may be that our difficulty in dealing with them suggests a deeper crisis about truth and knowledge in First Amendment law.
Some of the same issues arise in another area that has drawn a good deal of attention recently: the role of various speech or knowledge-formation institutions, such as universities or professional speech. An oft-quoted line from First Amendment jurisprudence suggests that there is no such thing as a false idea, but at the same time public discourse depends on the existence of places in which true facts are generated, ideas are held up to disciplinary standards and expert scrutiny, and expertise means something. It would be a bad thing if a public university could not deny tenure to someone on the basis that her ideas, if not "false," were sloppily generated. For whatever reason, there is an increased interest in the role of these institutions in generating knowledge and expertise, and how they fit into First Amendment doctrine. I have written about this issue in a number of articles, and have a forthcoming book on the subject titled "First Amendment Institutions." Robert Post, the dean of Yale Law School and a leading First Amendment scholar, has a forthcoming book on expertise and the First Amendment. Although it raises a different set of epistemological questions, the recent debate over the ministerial exception arguably involves a parallel set of issues, and so do some recent unconstitutional conditions cases involving state laws requiring physicians to provide particular statements or information to patients considering obtaining an abortion. Moreover, these questions arise at the same time that we are continuing to work through the leveling effect of the Internet and crowd-sourcing technologies--an era in which many people have wondered whether our traditional institutions ought to be trusted at all and whether we can, in a sense, popularize the production of knowledge and expertise.
It seems to me, in short, that we can see a lot of these recent cases and pieces of scholarship as converging, more or less, around a set of epistemological questions about the First Amendment, truth and falsity, and public discourse. It's always interesting to see a trend emerging, and to ask questions about why it is emerging. I look forward to the discussion that will result.
Guest Post by TJ Chiang: The Stolen Valor Act as Trademark Protection
The following post is from GMU's TJ Chiang, an occasional guest with Prawfs:
On Monday, the Supreme Court granted certiorari in United States v. Alvarez, on whether the Stolen Valor Act, which criminalizes falsely representing oneself as having been awarded a military medal, violates the First Amendment. Most of the debate so far has focused on whether the First Amendment contains a categorical exclusion for false speech, and the primary analogy the Solicitor-General has tried to draw is to defamation. In my view, this is the wrong way to view the problem. The far better analogy is trademark law.
If one thinks about it, labels like “Medal of Honor” and “Purple Heart” would not have much intrinsic value but for the fact that Congress has chosen these names as the names of military decorations. The only reason that these labels have value is that Congress has built a brand around them, associating the brand only with people having desirable characteristics such as courage and valor. This is much the same as the fact that the label “Prada” has built-up value, because the company has associated the brand only with products that have desirable characteristics.
What Congress is trying to counter with the Stolen Valor Act is basically what a manufacturer is trying to counter when it sues counterfeiters for trademark infringement: If other people who do not have the desirable characteristics come to be associated with the brand, then the brand will lose its value. And this means three things. First, the closest common law analogy to the Stolen Valor Act is not defamation, but the old tort of “passing off”—the product being passed off is the defendant himself, who wishes to pass himself off as having desirable characteristics such as courage and valor, but it is still passing off. Second, if one regards federal or state trademark law as constitutional, then there is almost no argument that the Stolen Valor Act is not. Third, the problem with stealing valor is not its falsity as such, but also the fact that the falsity diminishes Congress’s investment in the brand, which the presentation of the problem as a falsity issue does not capture.
Monday, October 17, 2011
My thesis is as follows: Habeas Corpus, as a unified body of law, is becoming increasingly difficult to teach. That pedagogical challenge is reflected in the diminishing quality of habeas workmanship on the federal bench, particularly as it pertains to post-conviction review. The bifurcated pedagogy invites students to think of habeas as a powers-separating device, but has diminished the degree to which courses teach habeas as a federalism-balancing device.
Habeas is not just one hopelessly complicated subject; it's several. I'm interested in the experience that those of you have had in teaching habeas as a stand-alone course, or the experience that you have had in teaching habeas as part of an upper-level criminal procedure or federal courts course. I'm interested in whether you agree with my characterization of the pedagogic(al?) trend, and also in whether you think the bifurcated pedagogy is meaningfully affecting the way clerks contribute to opinions in the federal courts.
Habeas is rapidly becoming two bodies of law - one that pertains to executive detention, and one that pertains to post-conviction review of criminal judgments. My sense is that the former now gets taught as part of a federal courts or constitutional law course, and that the latter gets taught as part of a criminal procedure course. (There's also a couple of other threads of habeas law, but they are not substantial enough to create the concerns that I express in this post.) My (very) informal survey of criminal procedure professors suggests that they either (1) don't teach the military detention cases or (2) do teach the military detention cases, but don't have the time to very effectively connect the suspension clause questions therein to the important post-conviction cases. I've even heard that some criminal procedure curricula don't teach habeas at all. My (very) informal survey of federal courts and con law professors suggests that they have time for only some habeas, and the habeas triage usually eliminates the post-conviction cases.
The result, I think, is that law schools are teaching away from any unified concept of "habeas," with attributes that are shared between the post-conviction cases and the military detention cases. This compartmentalized habeas pedagogy is then reflected in the federal reporter, with federal judges and their clerks increasingly attentive to the separation-of-powers role that habeas plays in military detention cases, and decreasingly interested in the historic role of habeas as a test of the lawfulness of state criminal proceedings.
One last thought. In many ways, this tendency reflects the outlook of the central player in modern habeas jurisprudence, Justice Anthony Kennedy. I'm about to identify endpoints on a spectrum, and these cases are of course imperfectly representative of the habeas bifurcation that I discuss here. Boumediene v. Bush, the most important Guantanamo detention decision and probably the most important habeas case the Court has ever decided, is as thorough and careful an exposition of habeas corpus as there is in an Anglo-American legal reporter. It reflects extreme sensitivity to the judiciary's role in checking the wartime powers of the co-ordinate federal branches. Contrast that case with Harrington v. Richter. Harrington involved the amount of federal deference owed to a state criminal decision that lacks an opinion, is one of the most poorly supported, sloppily drafted Supreme Court habeas opinions that I can remember. In Richter, Justice Kennedy seems rather content simply to analyze habeas as a modified res judicata question. (Whatever you think of the intutive merits of the res judicata analogy, it's a very modern graft onto habeas doctrine.)
Am I identifying a real pedagogical phenomenon, is my instinct about its effect on habeas doctrine wrong, or am I way off on all fronts?
The Myth of Cyberterror
UPI's article on cyberterrorism helpfully states the obvious: there's no such thing. This is in sharp contrast to the rhetoric in cybersecurity discussions, which highlights purported threats from terrorists to the power grid, the transportation system, and even the ability to play Space Invaders using the lights of skyscrapers. It's all quite entertaining, except for 2 problems: 1) perception frequently drives policy, and 2) all of these risks are chimerical. Yes, non-state actors are capable of defacing Web sites and even launching denial of service attacks, but that's a far cry from train bombings or shootings in hotels.
The response from some quarters is that, while terrorists do not currently have the capability to execute devastating cyberattacks, they will at some point, and so we should act now. I find this unsatisfying. Law rarely imposes large current costs, such as changing how the Internet's core protocols run, to address remote risks of uncertain (but low) incidence and uncertain magnitude. In 2009, nearly 31,000 people died in highway car crashes, but we don't require people to drive tanks. (And, few people choose to do so, except for Hummer employees.)
Why, then, the continued focus on cyberterror? I think there are four reasons. First, terror is the policy issue of the moment: connecting to it both focuses people's attention and draws funding. Second, we're in an age of rapid and constant technological change, which always produces some level of associated fear. Few of us understand how BGP works, or why its lack of built-in authentication creates risk, and we are afraid of the unknown. Third, terror attacks are like shark attacks. We are afraid of dying in highly gory or horrific fashion, rather than basing our worries on actual incidence of harm (compare our fear of terrorists versus our fear of bad drivers, and then look at the underlying number of fatalities in each category). Lastly, cybersecurity is a battleground not merely for machines but for money. Federal agencies, defense contractors, and software companies all hold a stake in concentrating attention on cyber-risks and offering their wares as a means of remediating them.
So what should we do at this point? For cyberterror, the answer is "nothing," or at least nothing that we wouldn't do anyway. Preventing cyberattacks by terrorists, nation states, and spies all involve the same things, as I argue in Conundrum. But: this approach gets called "naive" with some regularity, so I'd be interested in your take...
Posted by Derek Bambauer on October 17, 2011 at 04:43 PM in Criminal Law, Current Affairs, Information and Technology, International Law, Law and Politics, Science, Web/Tech | Permalink | Comments (7) | TrackBack
Smith on "Freedom of Religion or Freedom of the Church?"
As Paul mentioned, the other day, one of the papers that was presented at the (excellent) "Matters of Faith" conference at Alabama was Steve Smith's Freedom of Religion or Freedom of the Church? You can get a version of the paper on SSRN (here). Here is the abstract:
This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church - a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church - both the institutional church and the inner church - came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.
My first reaction to this (as per usual, for Steve) fascinating paper, and to Steve's presentation at Alabama, was "crap. What's left for me to say, for the 30 years or so until I retire? Time to re-tool as a Third Amendment scholar . . ." Thinking about it more, at the conference and on the plane home, I asked myself what the implications for judicial doctrine and practice would be, were the First Amendment to be understood (as I think I think it should be) along the lines Steve suggests. Three come to mind:
First, the Religion Clauses -- specifically, the "secular purpose" requirement -- would no longer have a job to do in identifying the constitutional limits on morals legislation. There are, certainly, such limits, and should be, but the enterprise of finding them would not involve trying to identify and categorize as either "religious" or "secular" the purposes or motives that were thought to produce that legislation.
Second, the Supreme Court's Smith decision would be, pretty much, right, at least when it comes to exemptions for religiously motivated conduct from otherwise religion-neutral and (truly) generally applicable laws.
Third, the project of evaluating symbolic expression by governments and public officials would be taken from "endorsement test"-wielding judges and given to citizens, acting in and through politics, and (I hope) taking seriously the demands of civic friendship, and plain old common decency, in a diverse political community.
Anyway, check out the paper.
I'm sure many of you saw the October 9th N.Y. Times article on Judge Denny Chin's experiences in sentencing as a district court judge. I'm thinking about how I might make use of the case studies in the article in next semester's courses. In my view, the piece was notable because it followed a few defendants who had appeared on a single judge's docket, and because it interviewed them post-release. Although anecdotal, I found it to be richly textured. Probably inspired by my experiences in Prof. Dan Freed's Sentencing Workshop, I try to use vignettes to get my students to think about what factors should (and should not) matter to courts in sentencing, and also how different sentencing schemes operate. I also contrast some commentators' views about whether different factors should play a role (e.g., comparing articles by Dan Markel and Myrna Raeder on the role of "family ties"). I'd be interested to hear how others approach issues of sentencing and punishment. This is one area in which I think that appellate opinions possess limited (although some) utility as teaching tools.
More federal jurisdiction on TV
I love when TV even indirectly or incidentally throws some law into the mix. Last night's episode of HBO's Boardwalk Empire actually turned on federal jurisdiction.
For those of you who don't watch the show, the main character is Enoch "Nucky" Thompson, an Atlantic City (N.J.) government official/political-machine boss/bootlegger/gangster in the early 1920s, loosely based on real-life Atlantic City boss/bootlegger Nucky Johnson). In early 1921, Thompson has been charged in state court with election fraud. His lawyer discovers that part of the fraud included bringing prostitutes from Philadelphia to Atlantic City to provide sexual favors for certain individuals in exchange for voting Republican. This violates the Mann Act of 1910, which generally prohibits the transportation of women across state lines for "immoral purposes." This means that Thompson now can be charged in federal court.
The lawyer arranges for the women to "report" Thompson to the New Jersey Attorney General, who is prosecuting the case. And while he is initially thrilled about these new charges and the federalization of the case, the story makes clear that Thompson (and his attorney) welcome this development, since U.S. Attorney General Harry Daugherty (Warren Harding's real AG) is one of Thompson's cronies and likely will make sure the charges are dismissed. Thompson later tells his mistress, with a smile, "I violated the Mann Act."
Hey, the federal government was overcharging even in 1921.
"Flip-Flopping" and Honest About-Faces by Law Professors
At the Faculty Lounge, Brendan Maher asks an interesting question about "flip-flopping" law professors:
I periodically wonder how frequently legal academics sincerely change their minds about things they've written previously. Changing one's mind on the truth of a previous proposition asserted is a different matter than admitting the change; the latter's less frequent than the former, no doubt. Just the same: what's the most famous about-face in legal academic history?
"Flip-flopping" obviously has a negative connotation, and sometimes it is a sign that a law professor has adopted inconsistent positions for the sake of achieiving some political goal. (I have no one in particular in mind here, but, by way of example, in recent years a number of people seem to have argued both sides of Boy Scouts of America v. Dale depending on the issue involved.) Sometimes, however, a scholar reaches a genuine conclusion that his or her prior view just doesn't work or has more problems than he or she initially accounted for, and the public volte-face that results is often not only useful but heartening, as a sign that some scholars take their vocation profoundly seriously. In my own field of law and religion, I think of Chip Lupu's move from being critical of church autonomy to arguing in favor of it. Lest I seem as if only those moves that I favor are praiseworthy, I also think of Fred Gedicks' move from a full-throated support of group rights to his more recent work calling a group rights model of constitutional law, and especially law and religion, into question.
A somewhat different example, but one that has always fascinated me, is the story of Henry Hart and the Holmes Lectures. As Bill Eskridge tells it in his Harvard Law Review article on the making of The Legal Process: "Hart's 1963 Holmes lectures illustrate the intellectual paralysis engendered by his perfectionism. He presented a detailed argument in the first two lectures. During the third and final lecture, Hart announced that his proposed resolution did not work and sat down before a stunned audience. Although the terms of the Holmes Lectures required a manuscript to be delivered for publication, Hart never worked out the problems with his argument and never delivered a manuscript." (The story has been well-told in many places; Laura Kalman's telling in her book The Strange Career of Legal Liberalism is a particularly good one.)
Brendan has asked a good question, and one that in different ways may help us to reflect on what our vocation requires. I take it everyone agrees that scholarly flip-flopping or inconsistency for the sake of politics is a failure of scholarly obligation--and, conversely, that it is worthy of praise, and perhaps even obligatory, for scholars to publicly declare it when they change their views. I hope folks will weigh in, there or here, with other examples, either of less praiseworthy "flip-flopping" or of commendable public changes in position.
Once again (this is my third straight year on appointments), I somewhat enjoyed the hiring conference. We met a number of interesting candidates talking about interesting scholarly and teaching ideas. And however, rushed, that exchange of ideas is enjoyable. In addition, I finally got to meet in person a few fellow prawfs whom I have long known and admired by reputation.
For now, I'd just like to raise some questions and issues that I saw coming up a lot--not all of which are all that important. Candidates and committee members, what do you think?
1) Friday v. Saturday. Is there a different tone on Saturday as opposed to Friday? Are candidates more relaxed on Saturday than on Friday? Having gotten through one fully day, candidates have a better feel for everything--the general feel and flow of interviews, the steeplechase involved with getting around the hotel, how they want to present their ideas. Plus, Saturday is often a shorter day for both candidates and committees; we went to 6:30 on Friday but finished by 2 on Saturday. So does the day feel like less of a slog for everyone? I am thinking less here about the quality of the candidates or the interviews and more about the feeling "in the air" and the attitude that both candidates and committees bring to the rooms and to the hallways.2) Walk, Run, or Ride? Candidates, did you use the steps or ride the elevators? I spoke with a couple of people who said they took the elevators going up, but walked down the steps. This struck me as a good idea; wish I had thought of it ten years ago. Besides saving time waiting and squeezing onto an often-crowded (and stress-filled) elevator, it was a good way to keep moving and keep your energy up without also having to do the extra work of fighting gravity going up. Of course, Shabbos-observant Jews had not choice this year--Friday was the Jewish holy day of Sukkot and Saturday was Shabbos, so some, according to their faith, couldn't ride.
3) Early or Late? Is there an advantage to early-morning interveiws? The obvious advantage to an early interview is that, assuming people can be coherent at 8:30 or 9 a.m., everyone (candidate and committee) is fresher and more energetic, which means the conversation is going to be better. The perceived disadvantage is that, if the committee does not meet until the end of the conference (or even the end of the day), it may have forgotten those early candidates in favor of those it saw most recently ("recency bias" or whatever cognitive psychologists call it). What is going to be remembered by the committee as better come evaluation time: A more-energetic-feeling interview that happened 36 hours ago or one that happened two hours ago but felt less so (assuming two equivalent candidates). This is similar to questions we face in, for example, grading papers (do I judge the earlier papers too harshly because my expectations begin high or am I forgiving at the outset). But it now is influenced by an inter-personal dynamic. Can the committee overcome it by having a quickie discussion or straw poll right after each interview (or during an early break)?
Sunday, October 16, 2011
Leiter on Timing of Callbacks
Brian Leiter has a very helpful discussion of the timing of post-AALS conference callbacks.