Friday, October 14, 2011
Matters of Faith, Part II
The lunch and afternoon papers have also been very strong, and quite differently oriented from the morning papers. Our lunch talk was given by our own Prawfsblawger Rick Garnett, who spoke on freedom of religion and the nondiscrimination norm. Rick argued, in obvious contrast to Caroline Corbin's talk, that "discrimination," or perhaps even "wrongful discrimination, is not sufficient to answer difficult questions about how much we should accommodate religious individuals or groups. For one thing, we have to figure out what constitutes "wrongful" discrimination in this context, and that is hardly self-evident, especially where religion is involved. For another, there are important reasons why we might identify some of these matters as simply falling outside government's sphere: as belonging to God, not Caesar. I'm obviously in sympathy with Rick, but I think two challenges for him are 1) to identify and distinguish between coercion and funding/subsidy cases, to distinguish between different forms of subsidy/funding, and to justify church autonomy especially in the latter cases; and 2) his own "reasonableness": it would help to identify precisely what he means and what he wants if he can push on some tough cases.
Amanda Porterfield, a religion scholar and historian at FSU, gave (unsurprisingly) a more historical, less loaded talk. She discussed the ways in which American law and society have always influenced the shape of American religion (for instance, in the development of the prosperity gospel), and vice versa.
Steve Smith of USD is now speaking on "Freedom of Religion or Freedom of the Church?" His argument is that many of the "embarrassments of modern religion clause jurisprudence" result from the supposition that "the First Amendment's religion clauses are about *religion.* They are not. They are about *the church.*" Or at least, that is the historical root of freedom of religion, dating back at least to Canossa. The confusion comes from the ways in which it morphed over time into a concern with individual conscience. Steve does not pretend that it is costless or obvious that we should return from the present approach to one focused on freedom of the church, but suggests that there may be reasons to regret what we have lost.
A terrific set of papers. Indeed, the reason I have bothered with these posts, and the reason I like to read blog posts about conferences in my field even if they were thoughtless enough not to invite me, is so that anyone who is interested in these issues gets to know what people are talking about and, if they want, to write the authors directly to ask for a copy of their papers, so they can get a look at them long before they actually appear in book form many moons from now.
Match the One Star Amazon Review Quote to the Relevant Classic
With a book coming out in a couple of weeks, I'm once again obsessed with Amazon and watching the rankings and the pre-pub reviews coming in. My book was released to some select Amazon reviewers through something called the "Vine" program, and in googling to find out what that is, I came across a funny discussion of how many people give classic novels one star reviews. That made me curious, and so I did a little looking around, and in the spirit of providing a fun way to usher in the weekend, I offer you this small quiz to see if you can match the quote from the one star review to the relevant classic. The books are: Anna Karenina, The Great Gatsby, Goodnight Moon, The Trial, and Crime & Punishment. The quotes are:
a) "I think that my life has become worse after reading this book"
b) "This is the worst classic I have ever read"
c) "It is inane"
d) "Disgusting creepy horrible stupid book about disgusting creepy horrible people"
e) "A meaningless, maddening maze with no point, no beginning and no end, no purpose, no plot and especially, no prose"
Answers after the break.(a) The Trial
(b) Anna Karenina
(c) Goodnight Moon
(d) The Great Gatsby
(e) Crime and Punishment
Apologies if any of you are the ones who wrote these reviews and are offended. Everyone's entitled to their opinion.
Walking on Eggshells vs. GlassGreetings from the FRC in D.C. The words of wisdom shared here before the conference regarding interviewing are invaluable. I just wanted to add one recommendation to something rather basic, not regarding content, that may seem obvious: don't wear high heels that look great but that you have never worn before for a period of 4-12 hours. Your morning interviews may go swimmingly, but by afternoon your focus may drift to "when in the Sam Hill can I get out of these shoes," while at the same time discussing your teaching technique. And yes: that was me walking around in stocking feet in the carpeted area of the lobby a bit ago. Shhhhhh.
Liveblogging the Matters of Faith Conference
I'm privileged today to be attending a conference at the University of Alabama School of Law titled Matters of Faith. It's moderated by our friend Austin Sarat from Amherst and the papers will be published in an edited book. The papers are terrific and I hope the authors will put them up on SSRN in time.
The first paper was given by my friend Caroline Mala Corbin of the University of Miami. Titled "Expanding the Bob Jones Compromise," it argues that the holding in Bob Jones should be expanded to withhold government funding, tax-exempt status, and other forms of support from churches that engage in invidious sex discrimination. Although I disagree with her, Caroline does a great job of pushing this argument, especially from a doctrinal perspective. During the discussion, as I understand it, she was pushed on just how far the "moral energy" that undergirds her project extends, what limits it has, and why, if properly applied, it does not require government to go even further. Part of her answer is that freedom of association protects churches in many such cases, although it does not require positive government support. I hope that Caroline will grapple more with whether she genuinely thinks Dale was rightly decided (in theory; she believes it was wrongly decided on the facts) and, if so, how it should be applied. Many people who might find her proposal intuitively attractive might feel differently if it turned out that it ultimately pushes us toward more intrusive government action. I also, and this is a pet issue of mine, think that her proposal can't avoid making some very strong truth-claims about religion, religious doctrine, and the relationship between those things and public values.
Right now Corey Brettschneider, of the Department of Political Science at Brown, is giving a paper called "How Should Liberal Democracies Respond to Faith Based Groups That Advocate Discrimination?: State Funding and Non-Profit Status." He argues, quite similarly to Caroline but even more stringently, that the state must refrain from using its coercive power to restrict discriminatory speech by private groups, but ought to use its "expressive" power, including the denial of non-profit status, to "criticize" groups that discriminate, in both their conduct and, in some cases, their speech. (For instance, he thinks Westboro Baptist Church should be denied tax-exempt status.).
We will be seeing some very different points of view this afternoon. More later.
Transfer of "Legal Technology"
I just heard a talk about technology transfer (a piece by Jennifer Carter-Johnson). Roughly speaking, the inventors are scientists with academic positions and the technology transfer process enables inventions originating in universities to be licensed to industry. I don’t think an equivalent exists in law schools, although maybe this model will be – or has been - explored as law schools search out new funding sources.
Why no transfer of "legal technology"? The broad answer might be that it just doesn’t fit with the academic mission of law schools, and raises concerns about academic freedom and how monetary incentives might influence research. The narrow answer probably lies in what is patentable – do law professors generate anything patentable?
But my suspicion is that some information generated in law schools is worth good money. For example, sometimes law professors are like analysts. A passage from Michael Lewis’s new book, Boomerang: Travels in the New Third World, described Meredith Whitney’s prediction of municipal defaults. She’s a Wall Street analyst, but the description of what she did to identify this risk rang a bell. She needed the answer to some question. When she did the research, she discovered another pattern. This led to more research and ultimately to a conclusion that challenged common wisdom. It sounds like what law professors do at least some of the time.
Behind the Scenes of Six Strikes
Wired has a story on the cozy relationship between content industries and the Obama administration, which resulted in the deployment of the new "six strikes" plan to combat on-line copyright infringement. Internet security and privacy researcher Chris Soghoian obtained e-mail communication between administration officials and industry via a Freedom of Information Act (FoIA) request. (Disclosure: Jonathan Askin and I represent Chris in his appeal regarding this FoIA request.) The e-mails demonstrate vividly what everyone suspected: Hollywood - in the form of the music and movie industries - has an administration eager to be helpful, including by pressuring ISPs. Stay tuned.
Posted by Derek Bambauer on October 14, 2011 at 11:10 AM in Blogging, Culture, Current Affairs, Film, Information and Technology, Intellectual Property, Judicial Process, Law and Politics, Music, Web/Tech | Permalink | Comments (0) | TrackBack
Two good recent con law discussions on the blogosphere. First, Leslie Griffin has posted part three of her discussion of the Hosanna-Tabor oral arguments. She argues that it should be permissible, if not mandatory, for courts to ask whether the reason for a church decision with respect to the employment of a minister is based on religion or whether that was a mere pretext. Of course, there has been disagreement about this in the caselaw.
She ends with this: "Perhaps it is the justifications for the ministerial exception that are a sham?" I think it's unfortunate; it ends a good discussion of a perfectly legitimate question about the scope of the ministerial exception with a broadside questioning the motives of all churches. I might add that there are no doubt those out there who think that the justifications of those who oppose the ministerial exception are similarly a sham: that what they would really like, at the end of the day, is to require--at the point of a gun, so to speak--Catholic priests to hire women, Orthodox Jewish synagogues to require men and women to worship together, and so on. I don't think that: clearly there are some opponents of the ministerial exception who are wholly sincere in believing that churches require some freedom to make choices of this time, but believe there are a host of reasons why the ministerial exception cannot exist as a matter of law, or believe that some form of religious exemption exists, but that it must be narrow and religiously based. And just as clearly, there are some proponents of the ministerial exception who believe that it must exist as a matter of law regardless of how they feel about the outcomes, or who believe that there are sound reasons why it must be broad, and are genuinely concerned that allowing for pretext analysis will end up dragging courts into theological disputes that they are not competent or empowered to enter. Given that, I would just as soon that Griffin had killed that last sentence and that we could all have a good-faith discussion.
For free speech scholars and students, you may find interesting this discussion on SCOTUSBlog's new "community" page on the Stolen Valor Act, the litigation over which may be finding its way to the Supreme Court soon. It's a terrific discussion of the issues raised by the Act, which ultimately turn our attention to the surprisingly unresolved question of the First Amendment's treatment of both true and false facts. It's an issue I hope to start working on soon, and it has drawn a good deal of recent attention from some of the top First Amendment scholars, including Eugene Volokh, Mark Tushnet, Ashutosh Bhagwat, and others. Let me make particular note of a forthcoming Comment by a University of Chicago law student who participates in the discussion. It looks like a terrific and well-timed student piece. Enjoy.
Churches and the Alabama Immigration Law
The Decatur Daily the other day posted this, um, interesting story about a local charitable ministerial-alliance group, the Committee on Church Cooperation, which is taking "extra steps to make sure undocumented immigrants do not obtain food, clothing and other assistance, much of which is donated to the agency by Morgan County churches." Needless to say, doing so is not barred by law, but neither is it required by the Alabama immigration law, whose provisions on harboring and aiding and abetting were enjoined by the district court in its recent decision. The executive director of the group is quoted as saying: "It used to be about 10 percent (Hispanics) that we served. . . . Since cracking down, I haven't seen anybody, especially in the last month."
It appears that many of the churches that belong to this group were unaware of the group's policy. In the story, many of them refrain--understandably, but perhaps far too much--from saying anything negative about the CCC. But a number of them make clear their disagreement with the policy. One of them says: "That's just ludicrous. . . . That's embarrassing as a Christian. Our Lord was an undocumented immigrant to Egypt as a baby. He was taken to Egypt the same way most kids are brought to America, without having a say in the matter."
I do find interesting a strain of unwillingness to judge that comes through in the story. Thus, a state legislator from the area who supported the immigration law is quoted as saying: "If they have citizenship as one of their requirements, I certainly would not oppose that. . . I would not have an opinion on whether that would be right or wrong." And then there is this extraordinary quote from the minister quoted earlier about Jesus's immigration status, who clearly disapproves of the policy: "All I know is Jesus said poor people are closer to God's kingdom than rich people. I don't like that Jesus said that, but unfortunately he did. I know what I'm deserving of, and thank God he does not deal with me according to my desserts. To me, this is another absurd intrusion of political ideology into Christian work."
"Unfortunately he did?" Jesus wept.
Thursday, October 13, 2011
The Pirates' Code
There have been a number of attempts to alter consumer norms about copyright infringement (especially those of teenagers). The MPAA has its campaigns; the BSA has its ferret; and now New York City has a crowdsourced initiative to design a new public service announcement. At first blush, the plan looks smart: rather than have studio executives try to figure out what will appeal to kids (Sorcerer's Apprentice, anyone?), leave it to the kids themselves.
On further inspection, though, the plan seems a bit shaky. First, it's not actually a NYC campaign: the Bloomberg administration is sockpuppeting for NBC Universal. Second, why is the City even spending scarce taxpayer funds on this? Copyright enforcement is primarily private, although the Obama administration is lending a helping hand. Third, is this the most effective tactic? It seems more efficient to go after the street vendors who sell bootleg DVDs, for example - I can buy a Blockbuster Video store's worth of movies just by walking out the front door of my office.
Yogi Berra (or was it Niels Bohr?) said that the hardest thing to predict is the future. And the hardest thing about norms is changing them. Larry Lessig's New Chicago framework not only points to the power of norms regulation (along the lines of Bob Ellickson), but suggests that norms are effectively free - no one has to pay to enforce them. This makes them attractive as a means of regulation. The problem, though, is that norms tend to be resistant to overt efforts to shift them. Think of how long it took to change norms around smoking - a practice proven to kill you - and you'll appreciate the scope of the challenge. The Bloomberg administration should save its resources for moving snow this winter...
Have you ever taken a class at your university?
One very nice benefit that Boston University gives to all of its employees is the opportunity to take classes for free pretty much anywhere at the university. Despite its greatness, I had not availed myself of this opportunity for my first nine years here. Nor was I alone in my nonavailing. As far as I know, very few if any faculty members had taken a class here during that time (of course, it's possible--quite possible, actually--that I've just been oblivious). Last summer, though, I took first semester Spanish during the summer session. I have various personal and professional reasons for wanting to learn Spanish that I won't bore you with here, and the timing worked out well, and, as I mentioned before, the class cost me exactly zero dollars, so I took it. It was a blast. Apart from one other person who was around my age, everyone else in the class was 20. I kept waiting for someone to ask me to buy them beer. I made flash cards and studied them. I got stressed about upcoming exams. I tried to work the phrase "I like to ride a horse" into every class session. It was all very fun.
I also have to say that's it's a great change of pace to be a student again instead of teaching, and you get a little bit of a feel, anyway, for what it's like to be a student these days, which is probably a good thing because it's easy to forget. I can't help but think it will make me at least a tiny bit better of a teacher.
I wonder if anyone else out there has done a similar thing at the school where you teach. Do most/none/all/some schools give a similar benefit? I would think that if you wanted to get all interdisciplinary and what have you, taking courses in the relevant other discipline would be a good way to get started on that. Indeed, maybe this could tie in to some of the other discussions going on here at Prawfs and on other blogs about what AALS candidates should ask in the last 5 minutes. "I was thinking of doing some cutting edge work in law and epistemology. Could I enroll in Epistemology 101 at your university for free?"
Last Advice on the Meat Market: Have Fun!
Seriously: Have fun.
This may sound like (and may be, in fact) unhelpful or cruel advice. But I think it has a payoff. I went through the meat market process more than once--a point I make not to discourage anyone, but to say that if you have a strong vocation and persist, you may yet find yourself succeeding in the process even if the next couple of days don't work out as you wish. The first time through, I remember that I an into a friend on the elevator who asked how things were going. I responded with what I thought was the usual socially appropriate grumbling about the ordeal, etc. He replied that he was finding it all incredibly fun, and indeed I could see a spring in his step about the whole thing. (It may be relevant to note here that he was a former Supreme Court clerk with a list of top-flight interviews and a great record.) When I went through the process successfully, I tried to approach things with that attitude: how enjoyable to get a chance to talk about my work and how excited I am about my research agenda, to get to meet people, and to share my enthusiasm for law teaching! I can't tell whether it was genuine, put on, or something in the way of both acting the part and becoming the part. But I think it made my interviews more pleasant and productive, both for me and the hiring committees. So try to have fun, even if it is all a bit of an ordeal; it may help you.
I suppose my final advice for hiring committees would be to remember your own duties, and remember that it's not always fun being on the other side of the process. Remember in particular that you're looking for someone who has the vocation of a teacher and scholar and will grow into that role over time--and that there are many ways of being someone who fills that role creditably, from showing enthusiasm to being quite and thoughtful but incisive and committed. Don't reward facility with a 30-minute interview for its own sake, but think hard about what the many ways in which someone can fit (or not fit) what you're looking for, and the ways in which what you're looking for may change depending on the candidate before you. Treat questions as an opportunity to get to know someone, to open a process of dialogue in which both of you are capable of adjusting your goals depending on the answers you get, rather than as a test in which one wrong answer can ding a candidate. It's an interview, not a quiz. And try to enjoy yourselves too! After all, even if you don't call someone back, these are people who in many cases will end up in teaching and may have stellar careers; what a privilege it is to meet all these people now and get to know them. And keep your room clean!
Wednesday, October 12, 2011
Playground Social Stigma Hits SCOTUS
Justice Scalia mentioned "cooties" today in questioning the parties arguing the Florence case. That got me to thinking: I thought cooties was merely a made-up childhood game promoting the separation of boys and girls, and involving miming a sort of disinfectant spray on the school desk seat where the child of the other gender was previously seated. But I looked it up and cooties has quite a history and meaning, dating back at least to the WWI (my source: Wikipedia. Check sources cited within). I just thought it was an interesting choice of reference in a pretty serious argument. I figured that perhaps J. Scalia may be hearing cries of "cooties!" from his grandchildren.
One Risk (But for Whom?) of Informed Questioning at the Meat Market
I hope to get around to responding to the comments on my post on the last five minutes of the meat market interview. I thought, though, while it's fresh on my mind, that I'd add another detail. One of the ideas I've seen floating around in the recent discussions is that one of the valuable things that a "what else would you like to know about our school"-type question does is help weed out folks who have no interest in your school, and let you know whether they've done at least some basic research into this particular institution that they can use as the platform for a question. ("Tell me more about your Center for the Study of Law and Thermodynamics. It sounds great!")
There is some truth to this, of course. That said, and as I will say if I get around to a response to the last post, to the extent I apply this I would do so with a heavy measure of leaven.I already know the candidate has displayed sufficient interest in teaching in general, and at my institution in particular, to 1) submit to the FAR process, 2) agree to interview with the school, 3) show up, and 4) not leave in the middle. And I know that I have the power to help doom their candidacy at any moment. There are good reasons to look for fit with my institution, and to that extent the questions and answers that might be supplied at such a moment could be diagnostically useful. But I also know that I am dealing with human beings, who can get tired and distracted, especially after a half-hour interview (or ten of them). And while I agree with the commenter on an earlier post who said that there are distinctions between law schools, I also think too much can be made of this point. Sure there are distinctions, sometimes major ones, but there are also all kinds of commonalities, especially between similarly situated schools. There are differences between Arnold & Porter and Covington & Burling (or whatever they are called these days) too, and it makes sense to figure out what they are, but they have plenty in common, and those commonalities are far greater than the common ties between one of those firms and a two-person criminal defense firm. By all means let us look for interst and fit, but let's employ some reason and mercy here, and not take this question for more than what it's worth.
I might understand someone saying, "Well, in any event, the fact that this person cared enough to research my school and ask an appropriate question is itself a good signal of her interest in the school, or of her general level of thoroughness and energy." Maybe, but let's not overstate the point, and in particular let's not let it lead us down the wrong path. It may signal that this person is sufficiently committed to the hiring process in general to do the research and ask an appropriately detailed question, but that in itself doesn't really tell me much about her particular interest in or likelihood of coming to my institution, I think. As for the second point, I think energy and enthusiasm are good things, but I also know that many incredibly valuable colleagues may have soft-spoken, mild personalities. I would like my decision about a candidate's "fit" to keep those factors in mind. In looking for interest and enthusiasm, we shouldn't end up insisting on mere counterfeits of those qualities, just as we should look for genuine scholars rather than candidates who can skillfully but glibly talk a good game.
But another, less-discussed reason that this kind of detailed, research-driven question poses a risk, for both candidates and committees, is that the kind of information it digs up may be slightly or even wildly misleading. For reasons having little to do with candidates, a school may put up information on its website about the law school or in its promotional materials that bear little resemblance to reality.* If the argument is that the value of letting candidates ask questions about the school is that it shows they have enough interest in the school to do some research, then keep in mind the old adage: Be careful what you wish for. Perhaps your school's web site brags about your rich concentration in civil litigation, or some fascinating course experiments in this area--all of them now moribund. Perhaps the Center for the Study of Law and Thermodynamics is one under-funded, essentially nominal phone extension somewhere, invented so a lateral candidate could have a fancier-sounding job. And so on.
What is a candidate to do? To ask an informed question, sometimes, is to risk an embarrassed and embarrassing answer, and worry that the committee will either not know what you're talking about, or be offended or awkward, conclude (wrongly) that you are so strongly interested in what you have just asked about (as opposed to just showing off your Google skills) that, if you don't have those claimed resources or aren't interested in developing them, the candidate won't be interested in the school and shouldn't be called back. ("She asked about the Thermodynamics Center, which is really just one professor. Ergo, she really wants only to teach and write about thermodynamics. Let's ding her.") Conversely, what is a committee to do when it insists on the candidate doing enough research to ask an informed question, and she comes back with a question about something the committee doesn't know anything about, because it really exists only on a web site?
I'm not trying to make anyone's life more unpleasant by asking these questions. Of course these exchanges can still be fruitful and useful. But they should be undertaken in the right spirit. The fact that a candidate asks a question about your Center for the Study of Law and Thermodynamics doesn't necessarily mean that he won't or shouldn't come there if you don't really have such a Center; he may just be making polite conversation based on your own school's faulty information. Of course, there's nothing stopping you from saying, "Well, we don't have anything like the "concentration" in civil litigation that the web site suggests. Is that a problem for you? Is it something you might be interested in building if you came here? If so, here's how and why we could help and would be enthusiastic about it. If not, that's fine too; let's talk about your other interests."
* Yes, I am aware of the opportunity to point out that that information was likely put up there to perpetrate a criminal fraud on prospective students, the many ironies involved in this, etc. Let's take it as a given for present purposes.
Janine Turner/Maggie O'Connell, Will You Go on a World Tour With Me to Discuss the Constitution?
Remember the show "Northern Exposure"? If you're like me, you missed much of the show when it originally aired because you were doing things like working as a legal assistant for a weird law firm in Xiamen, China, but then watched it religiously every night of 1L and 2L year after you finished your homework and had cracked open the beer that signaled the end of serious labor for the day. It's the fantastic show that featured a Sam and Diane relationship between Fleischman, the conservative doctor from New York City, and Maggie O'Connell, the fiery liberal Alaskan bush pilot who (mostly) couldn't stand him.
Well, the actress who played Maggie O'Connell (and many other roles, including a recent stint on Friday Night Lights and an early one on Dallas, the best show ever of all time in the history of the world), is Janine Turner, a conservative commentator and activist who runs a group called Constituting America, the mission of which, according to its website, is to "utilize the culture and multi-media outreach such as music, film, internet, and social media to reach, educate and inform America's adults and students about the importance of the U.S. Constitution and the foundation it sets forth regarding our freedoms and rights." Among other things, the organization put together a collection of essays by scholars on pretty much all of the different clauses of the Constitution, including what I like to refer to as the "odd clauses."
A while back, I issued an open invitation to Ms. Turner to tour the country and/or universe with me to debate the various parts of the Constitution, as well as to provide me with an autographed picture. Sadly, I never heard from her. She didn't even accept my friend request on facebook. :(
I thought that since I now have this more public forum at my fingertips, I might as well reissue my invitation, though this time I want to make it clear that what I've got in mind is not really a debate, because, let's face it, I suck at debating and would get crushed and mangled and ridiculed at every stop (really, ask Sam Bagenstos about our debate round back in 1985), but rather a fun-filled discussion tour to engage the citizenry and also spread the word about our respective projects (Constituting America and The Odd Clauses, that is) and generally bring happiness and joy to every great city and small town we visit.
I would also, in the alternative, accept that autographed picture.
Getting Ready for X, Y, or Z
I’m so pleased to be back as a guest blogger. In honor of the AALS meeting, I am thinking about entry into legal academia. Does it (and should it) matter to law schools to place students in law teaching? Numbers and barriers to entry suggest that putting limited resources there may not always make sense. On the other hand, I know how much I enjoy seeing former and current students interested in law teaching (i.e., interested in what I do). When introductions to law teaching or similar courses are part of the curriculum, what should these look like? I’ve seen and participated in a few models. Presentations by junior faculty of work in progress is one approach. A seminar that looks at articles, syllabi, and other aspects of being a law professor, without guests, is another. Finally, I wonder whether law schools should (or do) have the equivalent for other jobs in the legal profession (“introduction to being a law firm associate,” prosecutor, judicial clerk, sole practitioner…)? Thoughts?
The Last Five Minutes of the AALS Meat Market Interview
At the Faculty Lounge, Bridget Crawford has a post about the hiring interview. She notes that her school sends candidates a memo prior to interviews with "information about our summer research grants, conference funding, research assistants, summer works-in-progress series, term-time colloquia with outside speakers, internal workshops, course relief policies, etc." I think that's a terrific idea, and completely applaud it. I've talked here before about thinking about the duties of both candidates and hiring committees. Given the strongly emerging norm that candidates are coming in with a written research agenda to give to schools, it seems fitting to me that hiring committees can do something in return.
Given the memo, she writes, she finds it especially silly that candidates then, when asked if they have further questions, still ask what research support the school offers. That's a fair point, although I think that we can leaven it with a good deal of mercy: it's tough enough to figure out where you're going at the Marriott Wardman, let alone to remember all the materials you've looked at from a school. And then, quite frankly, although law schools differ in all kinds of ways, it seems to me that this is an area in which the differences between them are not generally profound (although there are outliers in either direction).
Given the duties of hiring committees, rather than candidates, perhaps a better question to ask is what those committees can do to make the last five minutes of an interview useful.The memo certainly helps, and again I think Bridget and her school deserve praise for it, but evidently it doesn't help enough. Especially given that the whole process is about to start, perhaps we can think collectively about what would make those last five minutes more useful and less canned.
Generally, when I serve on the hiring committee, I take it upon myself in the last few minutes to talk a little about what I think makes my school distinct, what actually distinguishes it from other schools or at least makes it a good place to work. That might make for a more productive and useful exchange with candidates, who will at least know what one faculty member thinks is special about this particular school and be able to respond to it with particular questions (or canned responses like "that sounds great," but who can blame them).
The other thing I think gets way too little attention at the meat market, and in discussions of the meat market, is that we are asking candidates to think about moving somewhere. Although I sometimes harbor the suspicion that what everyone really wants to know is whether there will be a decent number of acceptable Thai restaurants in town (remember--my next project is about class/social status and the legal academy, so Thai restaurants, as a proxy, have been much on my mind lately), the fact is that moving somewhere is a major step. Some candidates--especially, in my view, those who have always moved in elite circles--clearly have not thought much about what that entails. But whether they are moving themselves, or a whole family, this is an incredibly important point. Especially if research support packages are mostly pretty fungible, and I think they are, it ought to matter a lot more what life is like after hours. What are the housing costs, and what kinds of neighborhoods are there? Do faculty live near each other, or is it an urban school where faculty live all over the place? What are the schools like for kids? What job opportunities are there for spouses? What's the community like as a community? All these are tremendously important questions.
I personally have loved living in Tuscaloosa--where there is a lovely historical district and faculty can afford lovely places to live--and for reasons I didn't necessarily anticipate. I understand that the Deep South is foreign territory to some candidates, especially if they have been slumming it in Cambridge and Arlington for the past 25 years. But I have found that I have an incredibly strong network of friends here, not just from the law faculty but from across the university and outside the university too. Our son was born here and was significantly premature; when we went into the hospital, a neighbor ran over to look after our daughter, a faculty colleague soon came over, spent the night, and looked after my daughter in the morning; we had tons of visitors and care while my wife was in the hospital and lots of support after my son was born and spent ten weeks in the NICU. My wife ran for and won a seat on the city board of education, and is deeply involved in civic affairs. When we take our kids places, we run into tons of friends with their own kids. We shared a beach house at Gulf Shores this fall with eight other families and their kids, all of them involved in the university in various ways and none of them at the law school. We will see many of them tonight at the local Hillel sukkah. Our friends run local arts activities, and I help select films for the annual Jewish Film Festival. And on and on. Candidates often ask about proximity to Birmingham, and I get that; but what I am struck by, in terms of what has made my life here in Tuscaloosa so full, is the powerful sense of community I have here. The fact that, as everyone should know, we were struck by a tornado has, in a sense, made life here even more precious. You learn a lot about a community in times of adversity.
Perhaps candidates ought to think more strongly about what makes life in particular places unique and special, and what tradeoffs are involved. (Among other things, they might think more carefully about the frequent bias in favor of living in one of the standard big cities. It's not just that life there is expensive. It's that your colleagues will probably be scattered far and wide, the school will have more of a commuter vibe, and you may get lots of bookstores and Thai restaurants but lose a good deal of community and quality of life.) And perhaps hiring committees can say more about what unexpected challenges and benefits they have found in living in a particular place. These kinds of rich details and thick commitments are a major part of our lives, and they can lead to discussions that are far more productive, and more important to a person's day-to-day life, than "what support do you offer for faculty research."
Free speech for me but not for thee?
Occupy Wall Street is beginning to take hold in many places throughout the United States (a rally is scheduled for Miami this Saturday) and now in the mainstream media, although that took some time. And it tells us a lot about how elected officials and the public views the actual exercise (as opposed to possession of) First Amendment liberties.
A new theme compares OWS to the early days of the Tea Party movement, a comparison the Tea Parties do not like. The comparison makes sense in that both are seemingly decentralized grassroots movements that have taken hold at a national level in response to some triggering event. Objections to the comparison--coming from Tea Party leaders, elected GOP officials, and GOP candidates--have emphasized differences in the groups' political goals (or the absence of any specific goals in OWS) and the fact that OWSers have clashed with police, something that happened less often with Tea Party rallies. As to the latter point, Tim Zick reminds us that there was a lot of tension at some early Tea Party rallies and events--people showing up with automatic weapons, to say nothing of the way protesters disrupted health-care Town Hall meetings in summer 2009, frequently heatedly and confrontationally. In any event, Zick argues those early confrontations--with arrests and pepper-spraying--may have helped generate sympathy for the movement and energize its participants.As to the former point, we might wonder why Tea Party officials and supporters are so resistant to the connection. GOP presidential candidate Herman Cain derided the Tea Party analogy as an attempt by OWS supporters to "legitimize" themselves through the comparison. But if the point is only that both movements involve people taking to the streets for expressive purposes, that both have slowly grown and expanded nationally, and that both have tapped into a feeling of opposition to something, the comparison seems uncontroversial and even apt. Two expressive movements need not share every characteristic to share some characteristics or to be comparable as socio-political phenomenon.
But that leads to a different point: How we view the public exercise of First Amendment liberties too-often depends on our agreement with speakers' substantive positions (something Dan Kahan et al wrote about earlier this year). Implicit in Cain's comments about OWS legitimizing itself is the view that the movement is not otherwise legitimate. House Majority Leader Eric Cantor referred to OWS as a "mob." He later explained that he was criticizing OWS (and the Democratic officials who have supported the protesters) for "pitting Americans against Americans" and "aiming their ire at others in our society." The difference, Cantor seems to suggest, between OWS and the Tea Party is:
The Tea Party were individuals that were attempting to address their grievances, seeking redress of their grievances, from the government they elected. It's different, from what I see, of the protesters on Wall Street and elsewhere, that are pitting themselves against others outside of government in America. That's the difference. . . . [T]he Tea Party, are worried about government and its policies. It's not pitting one part of our country against another.
This is so incoherent that it is hard to take seriously.
First, is Cantor drawing a distinction between "petition" "attempting to address their grievances, seeking redress of their grievances" and "speech" not directed at government? Even if such a distinction exists, the First Amendment, by its very terms, protects both and would appear to make one as constitutionally legitimate as the other. Second, OWS' argument is that big business shares too close a relationship with government, is using its wealth and power to control government, and that government policies are unfairly benefitting big business. That sounds a lot like a protest of central government policies. Actually, more than a protest of any particular government policies, it is a protest of the very structure of government and of democratic society. Cantor sees "government" as something different than the society, and citizens, it purports to govern. But even accepting that difference, certainly the freedom of speech must mean that one can question, criticize, and protest not only government, but the entire structure of civil society.
Third, does this mean that Cantor also would criticize mass blockades and protests at abortion clinics (think Operation Rescue's Summer of Mercy in Wichita in 1991)? Adopting Cantor's framework, that was speech directed not against government and government policies, but against the private clinics, doctors, and clients who operated or acted in a way that protesters did not like (because allowed to do so by laws and policies the protesters opposed). They were protesting the behavior of private people--fellow Americans--who acted in a way the protesters opposed. Aren't such protests "pitting one part of our country against another," just over the issue of abortion rather than wealth? Aren't they "aiming their ire" at other members of society (those seeking and performing abortions)? True, that was on a smaller scale, but the idea seems the same. Plus, in the era of social media, a committed organization could plan a series of simultaneous "mercy protests" on the same level as OWS (and with similar likely conflicts with police and likely arrests of protesters). Would Cantor similarly deride such mobs as engaging in, essentially, un-American activity? Would he similarly deride government officials who supported such protests as "condon[ing] attacks on others in this country"? I didn't think so.
Cantor, like everyone else, insists that "[e]veryone in this country has the right to speak out. That's the beauty of our system." But there always seems to be a "but" after that sentence when you don't agree with the people speaking out.
More on Teaching Duty: Offering Both Inside and Outside Perspectives
Giovanna asks below about imparting a sense of duty to law students. I don't believe she's being self-important or overly aspirational, although of course these are dangers. In large measure a professional education is a process of acculturation, in which we are absorbing students into a professional role identity, both symbolically--consider the day on which medical students are given their white coats--and simply by requiring themselves to absorb themselves in the materials and classes. That's one purpose of class discussion, aside from the "answers" that emerge from it, answers that many students have observed are not always as good as the ones they could get from the teachers directly: it's a kind of language class, in which we ask students to talk and think and interact like lawyers. It's one reason that when I teach controversial subjects in con law, I remind them that we are less interested for purposes of discussion in what they personally think about issues like abortion, and more interested in how they think about these questions as lawyers.
In the current climate, I think it fair to say that there may well be strong questions about teaching duty. There is a certain split--not an absolute or mutually exclusive one--between those students and others who think that law schools have failed to offer enough practical training, and those who think the real problem is that, because there are no jobs at the end of the trail, there is something hollow in encouraging students to think of themselves as lawyers. (I am setting aside the "scam" question, but obviously not because I don't think it's important.) I should note that those who believe we should be doing more by way of skills training are implicitly agreeing to accept some degree of acculturation. But even those students may wonder whether law schools fail if they talk about duty for three years and then fail to make real efforts to either place their students or admit fewer students in the first place. These are valid questions.
My view in part, and I think it would hold regardless of the legal economy, is that in teaching duty and acculturating students, we should encourage the adoption of both an inside perspective and an outside perspective. On the one hand, we should encourage students to think like lawyers, to truly become part of the profession and think in terms of their duties within the system: duties to clients, duties to the court, duties to others, duties to the legal system and legal reform [ie., you are free to be a zealous advocate for clients but also have an overarching duty to think, in a non-client-specific way, about how your area of the law might be reformed to achieve its proper goals], and duties as specially trained citizens. From this perspective, the acculturation in an inside view should be genuine, not cynical or partial. On the other, the legal system is a system, capable of becoming blinded to its own limitations and imperfections; it's also a business, with various implications as a result; and its assumptions, if not examined from an outside perspective, can become ossified and even harmful. So students also need to understand law as an institution and engage in some outside institutional analysis, using tools from all kinds of disciplines, including economics and sociology. That certainly also includes cultivating an outside perspective on legal education and its virtues and flaws.
It may be difficult to do both, but from my perspective both are valuable and perhaps both are necessary. A student who absolutely refuses to engage the process and resists all efforts at acculturation will cultivate a perspective that is too cynical, unleavened by a deeper sense of how and why some of the commitments--including commitments to clients: very little of the talk about failings in legal education and the legal economy brings in clients. A law teacher who never considers those outside perspective is engaging in a kind of willful naivete, and I can understand why students may wonder if that professor is not ignoring some very real facts on the ground. I grant that this perspective is natural for one who has written about "empathetic agnosticism" in law and religion, but I would like to think that what is needed is to encourage students to do both: to cultivate a sense of being in and part of the profession, with all the myriad duties that involves, and a sense of being outside the profession, with some of the clear-headed (but not necessarily cynical) skepticism that is required to make sense of what is going on. Human beings are complex, and surely it is possible to encourage both romanticism and realism at the same time.
A few weeks ago, David Brooks wrote a piece in the New York Times that got me thinking about the work that we do in law teaching, and, for me, specifically in Professional Responsibility. The op-ed, entitled The Limits of Empathy, discussed a new book by Harvard psychologist Steven Pinker called The Better Angels of Our Nature (NYT review here). According to Brooks, Pinker says that we are living in an "empathy craze," with many efforts focused on cultivating empathy. But Brooks presses the point that empathy actually does not motivate people to act in positive ways (or inhibit them from behaving badly). Citing studies including work by CUNY scholar Jesse Prinz, Brooks argues: "People who actually perform pro-social action don't only feel for those who are suffering, they feel compelled to act by a sense of duty. Their lives are structured by sacred codes." He continues: "The code isn't just a set of rules. It's a source of identity. It's pursued with joy." Isn't this one of the things that we would like to offer our law students? The opportunity to forge professional identities, structured by rules that help them to navigate not only law practice, but also those relatively rare moments when they serve as guardians of the rule of law? Or is that overly aspirational and self-important (wouldn't be the first time)? I'd welcome others' thoughts.
NY Times on police, video, and the First Amendment
The New York Times reported yesterday on increasing police use of body-mounted video cameras, the rise of competing videos of public encounters coming from police, involved individuals, and bystanders in the age of small, portable, always-available technology, and the related First Amendment issues (the district court decision I discuss in the post is now on appeal). I (and an article I wrote a couple of years ago) am quoted in the story (thanks to Dan passing my name along to the reporter).
Tuesday, October 11, 2011
"My story? Okay. It was never easy for me . . . "
On the twentieth anniversary of the confirmation hearings of Clarence Thomas to the Supreme Court, npr's Nina Totenberg reported that the The Thomas hearings altered the landscape of the Q & A and established the "Pinpoint strategy," named for the Georgia town where Thomas was raised: "At his confirmation hearing, Thomas spoke of the grim poverty of his early childhood, describing how he and his family 'lived in one room in a tenement . ... And we shared a common bathroom in the backyard, which was unworkable and unusable.'" Totenberg noted that in subsequent confirmation hearings, now-Justices Alito, Sotomayer and Roberts employed a similar strategy, detailing "humble beginnings" in answers to the questions of the panel. The Pinpoint strategy does not strike me as a bit new in politics, and perhaps it is the oldest political strategy. But is this strategy only twenty years young in use during judicial confirmation hearings to the U.S. Supreme Court? How vital to confirmation is it to regale the Senate with a Horatio Alger story - and does it make a difference in the result?
Courts-Martial for Contractors: U.S. v. Ali and the Path to the Supreme Court
A couple of years ago, I blogged about a habeas petition seeking collaterally to bar the trial by court-martial of a civilian contractor for his alleged role in destroying by arson a Predator drone in Iraq. The government dropped that case, and so the habeas petition went away...
But the underlying issue--the constitutionality of a 2006 amendment to the Uniform Code of Military Justice that authorizes the trial by court-martial of "persons serving with or accompanying an armed force in the field" during a "contingency operation" (in addition to the preexisting jurisdiction during "a time of declared war")--is back again, thanks to the federal government's trial by court-martial of Alaa Mohammad Ali (a civilian contractor) for offenses committed in Iraq. Ali pled guilty while preserving his right to appeal of the constitutionality of the military's assertion of jurisdiction. In July, the Army Court of Criminal Appeals (ACCA) affirmed, resting on the conclusion that:
[W]e can discern no manner in which the exercise of military jurisdiction over a non-U.S. citizen who knowingly accepted employment supporting U.S. forces in a combat zone during a declared contingency operation would be fundamentally hostile to either military or civilian due process, nor have we found any Supreme Court precedent that specifically precludes the exercise of such jurisdiction.
My own view is that the ACCA's opinion is dancing on the head of a series of pins given the Supreme Court's near-total repudiation of military jurisdiction over non-servicemembers in a host of decisions culminating with the January 18, 1960 trilogy--Kinsella v. United States ex rel. Singleton, Grisham v. Hagen, and McElroy v. United States ex rel. Guagliardo. That doesn't mean, of course, that this Supreme Court will feel the same way; only that I suspect this case is headed that way, and in a hurry...
Of course, the Court of Appeals for the Armed Forces would have to grant review first, since the Supreme Court lacks certiorari jurisdiction over the military courts in cases in which CAAF denies review, but one constitutional problem at a time!
Justice Stevens and State Sovereign Immunity
Lots of folks have been writing about Justice Stevens' new memoir, Five Chiefs, and the various interesting tidbits and/or omissions in/from the book. One point I haven't seen addressed yet, though, is the book's near-obsession with the topic of state sovereign immunity, especially in its summary of the Rehnquist Court and the Epilogue. It's quite striking to me, for example, that in a Term that included Wal-Mart, Concepcion, al-Kidd, Bennett, Winn, and a host of other cases (i.e., the October 2010 Term), Justice Stevens singled out VOPA v. Stewart in the book's Epilogue as perhaps the most significant decision the Court handed down last year.
Don't get me wrong--I've written quite a bit on why Stewart was and is such an important case; I just never thought anyone else agreed with me! More to the point, I wonder if others reading the book had the same reaction that I did--and have any explanation for why, of all the cases with which to end such a story, Justice Stevens decided to go with a little tiny case about the ability of state-created agencies to pursue relief under Ex parte Young? I have my own thoughts, including that, from Justice Stevens' perspective, state sovereign immunity might be one of the more vulnerable bodies of Rehnquist Court jurisprudence going forward (see, e.g., his majority opinion in Central Virginia Community College v. Katz), but am curious if I'm alone on this one...
Griffin on the Ministerial Exception, Part II
I wrote a couple of days ago on Leslie Griffin's first set of comments on the oral arguments in the ministerial exception case, Hosanna-Tabor. She has now put up part two of her comments. As I said in my earlier post, we disagree on the right outcome in this case, but because of and not despite that, I think her comments are tremendously valuable and I am grateful to her for posting them. I have only one question to raise about her latest observations.
In her new post, Griffin talks about Justice Sotomayor's question about "whether the ministerial exception should apply to 'a teacher who reports sexual abuse to the government and is fired because of that reporting.'" She says the justices ought to be "rightly concerned about" that case, and about many others in which complainants are fired for raising questions about church misconduct. In each of these cases, she writes, "we do not know who would win or lose. What we do know is that the ministerial exception kept the plaintiffs from having their day in court, or as Justice Kennedy said soon after Laycock answered Alito's question, 'you're asking for an exemption so these issues can't even be tried.'
For what it's worth, I agree with Griffin that the Court is entirely entitled to be concerned about the kinds of cases she mentions--just as opponents of the ministerial exception can and should be concerned about the possibility that the absence of such a doctrine might lead courts in some cases to impose harmful costs on the internal relationship between churches and their ministers. The fact that one thinks that a particular outcome--ministerial exception or no ministerial exception--is ultimately compelled or preferable as a matter of law or policy in no way entitles one to be indifferent to the costs of one's position.
That said, I think the way Griffin puts things is somewhat ambiguous in a way that raises a larger question about the debate over the ministerial exception: Is having a "day in court" a means to an end, or an end in itself? That is, are we concerned about making sure there are ways to curb dangerous and harmful conduct by churches, and thus want to ensure a judicial avenue for curbing them? Or is our concern to provide potential litigants with access to the courts because we believe, for reasons of equality, the rule of law, etc., that having a day in court is a good in itself? The two are not mutually exclusive, of course; one may care about both. But I think the distinction matters.
Take a hypothetical example. Suppose there is a church that rigorously invokes the ministerial exception. But that church also has a process for hearing and resolving whistle-blowing by ministers that is in every way superior to that provided by the courts: a fairer process, paid counsel, greater damages, and so on. Would Griffin be satisfied in that case? Or does she believe that the very fact that the whistle-blower in such a case is forced to resolve her claims though a (superior) church process rather than through the courts is reason enough to reject this state of affairs?
Of course it's just a hypothetical. One can certainly argue that as long as many or some churches, or even just one, don't offer something as good as the legal process in such cases, it is necessary for consequentialist reasons to continue to ensure that one has a right to a day in court. (Incidentally, I discussed the consequentialist nature of many arguments against the ministerial exception in an earlier post. If we take that approach seriously, I think that position has broader implications. There would then be good reasons to question even those cases in which, by statute, we offer a more limited carve-out from the civil rights laws for churches who discriminate on religious grounds. To her credit, Griffin has made precisely this point in one of her articles on the subject, although I'm not saying that she thinks such a carve-out is never justified.) But if what we care about is the misconduct itself, then nothing prevents us from thinking about other ways of preventing it besides the courts. (I wrote about that in this article.) If what we care about is the day in court itself, on the other hand, then the question of misconduct becomes, at an extreme, irrelevant. What we are really saying is that churches ought not be above the law, regardless of whether that status has any practical or harmful consequences. We are making a statement about the status of churches within the legal regime. Or, from another perspective, we are making a statement about the nature and reach of the legal regime in general. (As I said in my earlier comments on the Hosanna-Tabor oral argument, I think that's one way to understand Justice Kennedy's questions.)
Again, the two are not mutually exclusive. My general sense is that some opponents of the ministerial exception are largely concerned only with practical consequences, in which case it is reasonable to think about non-judicial ways of guarding against misconduct, while others are also (or primarily) interested in the "day in court" as an end in itself. Still, I think asking this question helps clarify what's at stake for both sides in the debate.
A welcome back to . . .
Well, since Arrested Development is coming back I figured I should return to blogging as well. Actually, I've never seen that show and don't really intend to. But I did think this would be an opportune time to fire up the old blog, as lots is going on in the world of disability law.
The Somewhat False Theory vs. Doctrine Split in Legal Scholarship
There is an interesting exchange in the comments to Lyrissa's post offering AALS interview tips. One commenter, "Prawf-in-waiting," describes her (or his, but I'll use "her" for ease of reference) reluctance to enter the meat market as stemming from an uncertainty about whether it is possible for legal scholarship to "improve[ ] the law as applied to real people's lives." She writes: "From the outside, it seems as though most law review articles at most contribute that an academics-only dialogue about the law--and that seems like a poor substitute for getting to improve real people's lives in practice. However, if I was able to write articles that tangibly moved the law forward in a practical sense, then pursing a legal academic career might be sensible." She elaborates that her "quandary concerns the academy's evolution away from doctrinally oriented scholarship." She wonders whether
legal scholarship is destined to have decreasing influence on the law, because legal academia as a whole is willfully opting out of participation in the practical (but still intellectually intense!) dialogue between appellate practitioners and judges. For me, the quandary is that if I became an academic, I would want to continue to participate in this exchange of ideas related to concrete issues pending before the courts -- and my impression is that doctrinally-focused writing would bode poorly for my chances of getting tenure.
The other side of things is represented by commenter TJ, who argues (in brief) that doctrinal work can be valuable but can also take you only so far, and that more theoretical or interdisciplinary work is often necessary to really make something of a doctrinal question. TJ adds: "In the end, though, it sounds like you like doing what appellate lawyers do. And if so, there is no reason for you to change jobs. What law professors do is different, and so you will probably not like it as much."
Obviously, this is an age-old debate, but it's interestingly put here, not least because the first commenter appears to have a serious and sincere conflict about whether her place is in the legal academy or not. I suppose one answer to that question is a quote from the movie Frida: "If you're a real painter, you'll paint because you can't live without painting." (And that involves more than scholarship: scholarship is part of our vocation, but so is teaching.) But that hardly seems enough of an answer. (Frida's response to that advice: "I have to work to earn a living, so I don't have time to fool around just for vanity.") What advice might we give the commenter?Well, for starters, I think it's a mistake to think of the "doctrinal vs. theoretical scholarship" question as completely binary, as an either/or question. There is more than one way to be a legal academic, more than one way to write, more than one place to do it in, and more than one way to influence the development of the law. Among other things, as TJ points out, a good deal of legal scholarship (sometimes to its detriment, sometimes not) exists at a middle level, somewhere between pure doctrine and pure theory or empirics, interdisciplinary work, etc.
Even if you posit a clearer split between the two, there's no law that says you can't do both on different occasions. Many tenure pieces are still pretty doctrinal; while there may be a difference between a well-executed scholarly doctrinal piece and a more ALI-ABA-ish piece, it is certainly possible to write a doctrinal piece that gets full credit for tenure purposes. And, of course, it's always possible to divide one's time between more immediate doctrinal pieces, perhaps for other publications besides law journals, and pieces that are more suited for law reviews. There's no requirement that one choose once and for all to do one or the other. Moreover, some schools will give more credit for more doctrinal or practical pieces than other schools might, although I think that's less true than it used to be. Prawf-in-waiting observes that she is dissatisfied with some of the more practical or doctrinal work out there in law reviews, which can often be out-of-date or insufficiently in touch with current law. Fair enough, but that can be a spur to do it better, not to stop doing it at all.
Of course, there's still the question whether Prawf-in-waiting really wants to do both. What I would say here is that I think many legal academics, and Prawf-in-waiting might find too, that examining doctrinal problems often leads one to bigger and often more theoretical or empirical issues. Let's say you have a doctrinal issue on which there are opposing lines of authority, both of which are reasonably plausible. What tools will allow you to crack open or resolve the difficulty, besides just saying "choose A, not B, because it's more just, or because I flipped a coin?" You will end up dealing with the competing values involved; or the competing theories that lie behind both lines; or competing views about institutional competence and which rule is better suited for which actor; and so on. Or you will decide that the doctrinal debate can best be understood by looking at history, policy, economics, and so on. Or you will want to learn more about the real-world effects of choosing one or the other approach, which can lead to empirical studies, comparative law, etc. No matter how close to the ground you start, the more interested you are in the question and dogged and honest in pursuing it wherever it leads, the more likely you are to end up with some big questions.
There are some nice examples of this tendency. Look at Joseph Vining's recent article, "The Filaments of the Vicarious," 55 Vill. L. Rev. 1089 (2010). No one would describe most of Vining's work as doctrinal. But his work as an academic began with some very concrete practical questions, drawn from his practice experience. From that practical beginning, he was drawn inexorably upward and outward. Or look at Stephen Breyer's recent look back at his first article. Granted, as he tells the story, he wrote it to get tenure, not to change the law as such. But he too started with a practical issue, drawn largely from practice, and ended up wanting to show that economics has a "serious use" in copyright law. My first piece on First Amendment institutions had to do with a narrow question: what happens to specific legal questions (say, the use of hate speech codes by public universities) if we take seriously what the Supreme Court had to say about the First Amendment underpinnings of Grutter v. Bollinger. Here, too, I found that that interest led me ever outward, to places I didn't necessarily expect to reach.
It's true that the further outward you go, the less likely you are to have an immediate impact on the law as a concrete matter. (But see this recent study.) Prawf-in-waiting sees this as a dilemma and is perfectly entitled to do so--although, again, there's no reason she can't do both. But my point is that, taking her interest in having an influence on the law through straightforward doctrinal work as a starting point, she may find that the kinds of questions she's interested in now will lead to more and more questions, and to more and different tools for examining those questions, as an organic matter rather than for reasons of tenure or professional advancement. For me at least, that's one of the joys of the scholar's life. She is fully entitled to decide not to start down this path if she believes that this would not be a productive contribution of her own skills, so she's better off precommiting herself not to go down this path. But she might also consider, in deciding what path to take, the possibility of surprising herself.
Although I do think that straight doctrinal work is valuable, and that it is possible even today to continue doing that kind of work as a legal scholar and attain professional security, I admit that I do believe that to follow the true scholar's vocation, one ought not to take changing the law, or the world, as a primary goal. Others emphatically disagree with this, I should add, and some of them do great work by any standard, although I also think some of them end up kidding themselves about whether they are still changing the world, or, if they are serious about changing the world, could achieve that goal better in a non-academic position. My point, I think, is that one must be willing to follow one's work wherever it leads, without immediate concern for whether it has an immediate practical impact or not.
In the end, I still find TJ's point perfectly valid: perhaps Prawf-in-waiting would be happier, or consider herself to have more impact on legal change, by not being a scholar, and if so it would be more than reasonable for her to remain in practice. Better to think about that at the outset, surely. I just want to suggest both that it is possible to continue doing doctrinal work even if one is a full-time legal scholar, and that Prawf-in-waiting may find that the concrete work she starts with may lead her to a different and broader set of questions and tools.
I have said little in this post about teaching, but it's important to add two comments about that. The first is that Prawf-in-waiting has addressed only the scholarship side of things, but also must consider whether she has a calling to teach. The second is that, in truth, most of us, whether we write doctrinal pieces or more abstract pieces, will probably have more of an impact on the law through our students than through our scholarship. It's a less predictable impact, to be sure, but it can be just as rewarding and far more important.
Monday, October 10, 2011
Ten AALS Interview Tips
I'm going to give some obvious advice below. I don't mind because (a) it is sometimes helpful to be reminded of the obvious; and (b) the advice below isn't necessarily obvious to everyone, especially to those who aren't fortunate enough to be coached about the conference by their law schools. So here are some tips for those of you interviewing at the AALS conference this week.
1. Spend some time researching the law school with whom you're interviewing before the conference. If you know the names of the Appointments Committee members, figure out what their areas of expertise are. Research about the school will enable you to show that you will "fit" there, and research about the committee will enable you to judge the types of questions committee members will ask or the range of answers they're soliciting.
2. Don't ramble unduly when answering questions. Interview time is precious, and you want to wring maximum value out of every moment. Your interviewers probably have four or five questions they ask every candidate, and you want to make sure you answer all of them. By the same token, you should have in mind two or three things you want to convey about yourself in every interview. Make sure you use your time wisely to convey them.
3. Don't assume every interviewer is an expert in your field. Make sure you can explain your research in a way a non-specialist can understand it.
4. Don't sprawl in the interview chair, but don't perch right on the edge, either. You want to look engaged rather than relaxed or anxious.
5. The interview team may offer you food or drink. Do not accept. Eating or drinking during the interview will be unduly awkward. You may, however, accept a bottle of water for later.
6. Be prepared to discuss in depth anything you've published. By the same token, be prepared to discuss your teaching philosophy, your ideal course package, your desire to live in a college town or urban area (as needed), and your future plans for research.
7. Don't be afraid to show some passion. I want to hire people who love research and teaching and who will commit their lives to improving the legal profession one student at a time and the law (even if only a small niche) one article at a time. It may sound hokey, but I prefer to hire people for whom being a law professor is a calling. [More selfishly on my part, I prefer candidates with passion because a twenty minute interview can seem like an eternity when the candidate has a flat affect or is low energy, and besides, I can't remember those candidates later.]
8. Don't tell the interviewers that you want to go into law teaching because you're tired of law practice or you think law teaching will be a lot easier than law practice.
9. Emphasize how your practice experience will benefit students and benefit your research. For bonus points, show that you understand how the practice of law has changed in the past few years, and that you've contemplated how law professors should respond to these changes.
10. Make sure you shake the hand of every interviewer at the outset and make eye contact. This feat can be difficult to pull off if the interview team is large, but it is important.
Bonus Tip: When the interview team asks if you have any questions, don't ask simply: how does your school support faculty research? You can ask the same thing in a (slightly) more creative way. For example, you can ask what opportunities the school gives untenured faculty members to workshop papers, and whether there are any formal mechanisms in place that encourage or assist untenured faculty members to present their papers at conferences outside the law school. If you know the school has an Associate Dean for Faculty Development/Research, you can ask about his/her role in supporting the research endeavors of untenured faculty members. You also might try asking: What makes your law school different than other schools? What is the biggest challenge facing your school? What (if anything) is special about your student body? Try to use the question not just to gather information but to show something important about yourself.
Best of luck!
Spying, Skynet, and Cybersecurity
The drones used by the U.S. Air Force have been infected by malware - reportedly, a program that logs the commands transmitted from the pilots' computers at a base in Nevada to the drones flying over Iraq and Afghanistan. This has led to comparisons to Skynet, particularly since the Terminators' network was supposed to become self-aware in April. While I think we don't yet need to stock up on robot-sniffing dogs, the malware situation is worrisome, for three reasons.
First, the military is aware of the virus's presence, but is reportedly unable to prevent it from re-installing itself even after they clean off the computers' drives. Wired reports that re-building the computers is time-consuming. That's undoubtedly true, but cyber-threats are an increasing part of warfare, and they'll soon be ubiquitous. I've argued that resilience is a critical component of cybersecurity. The Department of Defense needs to assume that their systems will be compromised - because they will - and to plan for recovery. Prevention is impossible; remediation is vital.
Second, the malware took hold despite the air gap between the drones' network and the public Internet. The idea of separate, isolated networks is a very attractive one in security, but it's false comfort. In a world where flash drives are ubiquitous, where iPods can store files, and where one can download sensitive data onto a Lady Gaga CD, information will inevitably cross the gap. Separation may be sensible as one security measure, but it is not a panacea.
Lastly, the Air Force is the branch of the armed forces currently in the lead in terms of cyberspace and cybersecurity initiatives. If they can't solve this problem, do we want them taking the lead on this new dimension of the battlefield?
It's not clear how seriously the drones' network has been compromised - security breaches have occurred before. But cybersecurity is difficult. We saw the first true cyberweapon in Stuxnet, which damaged Iran's nuclear centrifuges and set back its uranium enrichment program. That program too looked benign, on first inspection. Let's hope the program here is closer to Kyle Reese than a T-1000.
The Life Raft Debate, Lawyer Edition
This Thursday, the University of Montevallo in Alabama will have its "Life Raft Debate," made sorta famous by a March 2010 segment on NPR's This American Life. The premise is simple, and arguably brilliant. Incoming undergraduates, stuffed in an auditorium, are asked to imagine that they are the survivors of some apocalyptic event. They are told that they are being transported via "raft" to a place where they will reconstruct civilization. There's one spot left on the raft, and each of five to seven professors from different academic disciplines must convince the undergraduate audience that (s)he should get the remaining seat on the grounds that the discipline (s)he represents is the most indispensable to the Reboot. The academic panel always includes a "devil's advocate," who argues that none of the academic representatives should be taken aboard. (This American Life featured a year in which the Devil's Advocate won, an outcome that reveals mind-boggling problems for the way eighteen year olds view their education.) Just a quick google search shows that "Life Raft Debates" are increasingly increasingly featured in undergraduate orientations.
I looked over the winners: Medieval Literature, Mathematics, Political Science, Devil's Advocate, University Presidency, Culinary Arts, History, Sociology, Philosophy, Theatre, English, Biology, and Math again. (University Presidency? Really?) Anyways, nobody defending "law" has ever won. Ok enough. I went back and looked at the entrants and, in fact, no lawyer has even been asked to represent the field. The absence of lawyers may just be because Life Raft Debates are supposed to engage students on the value of a liberal arts education, but I doubt that's the reason. "Business" and "Business Administration" have both had been featured as part of the Debates. So have a lot of other "disciplines" that one might not consider to be part of a liberal arts discussion. So, my first question is, for those who might know, why has law never been featured? Is it because we all know the lawyer would never win? Is it because the Debates reflect a consensus of the non-legal academy that law is just a combination of other "purer" disciplines?
My more important question: do people think that a law-school version of the the Debates would be a viable exercise for incoming or second-year students? Of course, various torts and contracts professors could make a pithy case for why those fields are so important, but a Life Raft Debate for Laywers would also create some other interesting dynamics. How many law school students would vote for the Devil's Advocate (presumably, a vote against all lawyers)? Would this number get smaller as students approach graduation? Could the exercise create additional interest in comparative law? Would the format allow students to assess the value of law as an academic discipline versus the value of law as a vocation? And, to touch a third rail, does the race, gender, and socioeconomic background of the selected lawyer matter? These ideas are just a couple of the interesting possibilities. I'd love to hear other ideas about such an exercise.
Religiously Affiliated Law Schools reception at AALS hiring conference
For all current and aspiring law faculty who are attending the upcoming hiring conference, here (thanks to Tim Zinnecker and "The Faculty Lounge") is the information about this year's reception sponsored by the Religiously Affiliated Law Schools and the AALS Law and Religion section. I am not going to the conference this year, but have always enjoyed this reception in the past.
Scattered Thoughts on the Hosanna-Tabor Oral Argument
I promised at least to offer some thoughts on the oral argument in Hosanna-Tabor (the transcript is here). Here goes. Rather than try to read tea leaves, predict a result, or try to push my own views too much, I thought I'd try to note some of the key themes and questions that arise in the oral argument. I have less time to do this right than I would like, so it will be a little scattered.
1) Concern about scope of application. This is evident in, for instance, Justice Sotomayor's question about whether the ministerial exception would be relevant in a case involving a teacher who is fired for reporting sexual abuse. More broadly, she is concerned with the question why we can't do "what society needs" in such cases, or in other words, what role social/governmental interests have in fixing the scope of the ministerial exception: whether it is a categorical rule or allows for balancing.
2) Kennedy, retaliation, and the reach of law. Justice Kennedy argues that the problem here is that Perich can't even get a legal hearing on her claim of retaliation. Clearly he is concerned about whether the ministerial exception will extend to retaliation claims. (Justice Ginsburg also presses on this point later in the oral argument, around page 23.) But I think we can see Kennedy as voicing a broader concern, one that I dare say is consistent with the views of Kennedy as a fairly aggressive protector of the Court's prerogatives. The notion that a retaliation claim might be foreclosed at the outset clearly troubles him, and I think we can see this as suggesting a view that where courts or tribunals are left without jurisdiction, plaintiffs are left with no recourse--no legal recourse, anyway, but I think Kennedy equates legal recourses with recourses simpliciter.
3) Who is a minister? Unsurprisingly, this drew many questions. Laycock's position, as I understand it, is that one is a minister either by virtue of being formally recognized as one by the church (although he would allow for the exclusion of utter sham recognitions), or if that person is performing some of the functions of a religious leader and/or teaching doctrines of faith. Justice Scalia, who also could be characterized as viewing the reach of law and the rule of law as important values, intercedes here to point out that what constitutes a minister is a legal question, to be determined by the law and not by the church, although both Alito and Laycock argue that courts should apply this test deferentially. For a couple of justices, particularly Ginsburg, a problem in this case, one that seems largely equality-based, is the question whether one can be a minister if one performs the same functions as other employees who are concededly not ministers. And Justice Breyer seems to lean in favor of (or at least to want to explore) a test in which the church must invoke specifically religious reasons for dismissal, and give the employee some notice of those reasons, in order to use the ministerial exception. To this line of inquiry, Alito responds that once we get into pretext analysis, it will end up in an impermissible evaluation of the religious doctrines and tenets of church employers.
4) Governmental interests. Leondra Kruger, arguing on behalf of the government, begins by focusing on the ministerial exception cases and the role of governmental interests, arguing that any freedoms of association (wherever derived) enjoyed by religious associations "must also accommodate important governmental interests in securing the public welfare." There has been some argument subsequently about whether she intends to say the ministerial exception exists purely as a matter of freedom of association, whether it also has a Religion Clause component, and whether, even if it does, the test should be any different under one than the other; it seems to me she ultimately presents the case as almost entirely a freedom of association case, while arguing that religious freedom concerns will affect the balancing of interests within that freedom of association framework. She does add that "we don't think that the job duties of a particular religious employee in an organization are relevant to the inquiry." And she adds that, at least where we are dealing with retaliation claims rather than with the interference with "fundamental" relationships within a religious community, the governmental interests can more easily overcome any claimed right on the part of the church. (Hence suggesting that it is possible to distinguish between retaliation claims and other claims.) Thus, she says that the government's "general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine." But the government has a "compelling and indeed overriding interest" in ensuring that church employees can blow the whistle on their employers for illegal conduct. The latter, she says, "is foundational to the rule of law"--again raising the broader question, noted above and in my earlier posts, about what the rule of law requires with respect to the reach of the state and the autonomy of the church.
5) What the church does and how. Kruger also argues that this case does not truly involve the internal operations of a church, because the church "has decided to open its doors to the public to provide the service, socially beneficial service, of educating children for a fee, in compliance with State compulsory education laws. And this Court has recognized in Bob Jones that church-operated schools sit in a different position with respect to the--the permissible scope of governmental regulations." Later, she refers to the difference between more internal matters such as who will administer the sacrament, and "the more public relationship between a church and a school teacher and others that provide services to the public at large." She only extends this point to retaliation claims. Her distinctions, she suggests, are not about the importance of either function to the religious association. Rather, they are "a question of the realm of permissible governmental regulation." Some of the same arguments are raised by Walter Deliinger, arguing on Perich's behalf. With respect to retaliation claims, he emphasizes "the State's interests in allowing citizens to have access to its courts and to its agencies" in "cases like child abuse, reporting of school safety problems and others." Later, speaking more broadly, he argues that this case presents "a circumstance in which an organization is going into the public arena providing a public service," and argues that "in that situation, it ought to be governed by the same rules" as other organizations providing similar services. He seems willing to allow for further legislative exemptions if the legislature sees fit to provide them, but his general position is that where something like a church school is providing public services and is capable of receiving public funding, when it "leave[s] the cloister and go[es] into the public arena and provide[s] public services," it must comply with the same rules--anti-retaliation rules, at least, if not more--as other groups.
6) The role of Employment Division v. Smith. This is raised by both Kruger and Dellinger but doesn't seem to have gotten much traction. Kruger argues that this case may be treated as a "hybrid rights" case under Smith involving associational claims in combination with religion claims. Dellinger goes further, arguing that this case is much more similar to it and that church schools, as "public institutions," must comply with generally applicable employment laws in this area. Scalia denies that this case has any relevance to Smith, which "had nothing to do with who . . . the church could employ." Later, Kagan raises the Smith question again, wondering whether, "in order to make an argument of the ministerial exception, you in some sense have to say that institutional autonomy is different from individual conscience; that we have said in Smith that state interests can trump individual conscience. And you want us to say that they can't trump institutional autonomy." Laycock denies that this is so, arguing: "It's not that institutions are different from individuals. It is that the institutional governance of the church is at a prior step." Scalia adds, interestingly (although I'm certainly not sure I agree with him) that it may be the case that the Establishment Clause applies to institutions, while the Free Exercise Clause applies to individuals, which may supply the distinction between Smith and this case.
I won't add a ton of substantive commentary or prediction here. I think understanding the categories of conerns that the Court appears to have is enough for one post. I will say the following. 1) The court seems to treat the question of who is a minister and how to decide that question as important but largely technical and not an absolute barrier. 2) There are a great many questions about whether retaliation claims are different from other employment discrimination claims. 3) It seems to me that there is a substantial, if somewhat subterranean, concern about the nature and reach of state power, and about the very idea of denying someone a legal remedy. 4) Dellinger and Kruger's arguments concerning the "public" nature of the church school and the services it provides, and their arguments that a church providing such public services must come substantially if not entirely under the reach of generally applicable laws in this area, are very interesting. They raise important questions about what it means to be a private or autonomous institution in an age in which there is so much government funding and regulation of so many "public" activities. For the same reasons, those arguments are quite troubling and have broad implications. (Recall that Dellinger also represented Harvard Law School in arguing against the Solomon Amendment, although his argument there was based on narrow statutory grounds.) They suggest, if taken to their limit, that any group, no matter how distinct in identity and autonomous in tradition, that provides ostensibly "public" services or receives any government funds must accept any number of government strings and conditions.
Sunday, October 09, 2011
Religion Returns to the Romney Race
In the wake of the last presidential election, I wrote an article comparing three famous speeches about the relationship between religion and American politics by three politicians: John F. Kennedy, Mitt Romney, and Barack Obama. What had, until this weekend, interested me about the 2012 election was the relative absence of controversy surrounding Romney's Mormon faith. It seemed as if the issue had become less important to the relevant constituency than the prospect of putting up a viable challenger to President Obama.
Perhaps I spoke too soon. This weekend, the issue arose again, in connection with this year's "Values Voter Summit." Here is the New York Times report. According to the report, "On Saturday, a conservative activist speaking after Mr. Romney, Bryan Fischer, said without naming Mr. Romney that the next president had to be a man of 'genuine' Christian faith. On Friday, a backer of [Governor Rick] Perry described Mr. Romney’s faith as a cult." (The reports also suggest that Fischer questioned whether the Mormon faith is genuinely Christian.) Romney then used his remarks to criticize Fischer more generally for making comments that step over the line, without using his name or being too specific about matters. (Keeping in mind the usual questions about reliability, here is the Wikipedia entry for Fischer.) Perry, to be clear, expressed his disagreement with Fischer's views, and some evangelical leaders took the same position; to the extent they were concerned with Romney, they said, it was with the consistency of his social views, not with his faith.
As far as talking heads go, I think Fischer will remain an outlier on this issue in the current election. I can't speak to the religious rank-and-file's views, although I tend to think that 1) they are less likely to take as strong a position on this as they did in the last cycle and 2) if they do, it will express itself more in lukewarm support than in outright opposition. So I continue to think that this issue will remain less salient than it was last time. But it's certainly interesting to see it persisting in some quarters.
I should say that I am not in a position to speak strongly on this issue, except on my own account. As I wrote earlier about Romney, I think people are entitled to take their own views on Mormonism's relationship to Christianity, and I think they are entitled to take their own views on the relevance of a candidate's faith to his fitness for office or whether they will support another candidate--keeping in mind that if they rely on generalizations, they are unlikely to spot many relevant nuances in how particular individuals live out their own faith commitments, both in general and with respect to public policy specifically. As I wrote in the New York Times this summer (kind of fun to put it that way), I think voters are alsofully entitled to withhold their support for Perry on the basis of his willingness to work with someone like Fischer on events like The Response, even if they are willing to publicly disagree with him; but neither should one assume that Perry's views on this issue are the same as Fischer's, especially if he says otherwise.
Incidentally, if you're interested in these issues, you may find the comment thread on this VC post interesting, although in this case I mean "interesting" in a value-neutral way.
RICO and Labor Racketeering
I am blogging about my new book, BREAKING THE DEVIL's PACT, DOJ's 1988 civil RICO lawsuit that sought to purge organized crime influence from the (at the time) nation's most populous and most powerful labor union. The lawsuit was settled in 1989 and then litigated in hundreds of cases during the remedialhse which lasted from 1989 to the present.
Passed in 1970, RICO has proved to be the government's prime statutory weapon in the war on organized crime. To say the least, RICO is a complex statute. It established four new "enterprise-type" crimes. In addition to providing draconian punishments (including forfeiture of profits) for those convicted of RICO, the statute provided two civil remedies. First, the victims of a RICO violation could recover treble damages against the perpetrator. However, for obvious reasons, organized crime victims have never tried to recover damages from organized crime figures. Second, RICO authorized the U.S. attorney general to bring suit to restrain future RICO violations and authorized the federal courts to exercise their full equitable powers to make such restraint effective. It is this government- initiated RICO provision that has proved to be so effective in reforming systemically corrupted organizations like the Teamsters. (After U.S. v. IBT was filed, DOJ brought similar suits against three other international unions -- the Laborers International Union of North America, the Hotel and Restaurant Workers International Union and the International Longshoreman's Union.)
The first civil RICO lawsuit against a union was brought in 1982 by the federal organized crime strike force in New Jersey against Teamsters Local 560, perhaps the most "mobbed-up" union local in the country. After a year-long trial, Judge Ackerman gave the DOJ a resounding victory. He appointed a trustee to run and reform the union. That lawsuit was the trail blazer. U.S. attorneys, including Rudy Giuliani (SDNY) brought civil RICO suits against several other union locals in the next five years. Then Giuliani decided to use civil RICO against the the entire leadership of an international union, the International Brotherhood of Teamsters.
BREAKING THE DEVIL's PACT provides a close examination and analysis of DOJ's, the judges' and the court-appointed officers' 22 year struggle to reform the IBT. Today, I simply want to stress the importance of switching to a civil remedy to attack systemic corruption and racketeering in a formal organization. Scores of criminal prosecutions over three decades had sent many mobsters and corrupt IBT officials (including general presidents) to prison without in any way changing the underlying "devil's pact" between Cosa Nostra and the IBT. The labor racketeers who were sent to prison were simply replaced with equally corrupt individuals. Criminal prosecutions could not change reality on the ground.
Civil RICO provided a fresh approach. It allowed the federal courts to exercise on-going supervision of unions to enforce remedial decrees. Court-appointed monitors were tasked with finding strategies of organizational-change including expelling corrupt officers, recruiting and training new leaders, and making union governance democratic and transparent. Even then, success was not guaranteed. Of the approximately 22 civil RICO suits brought by the government, perhaps half could be declared successful and perhaps a quarter possibly successful. Success or failure has turned on the determination and skills of the federal judge and the court-appointed oficers. The international Teamsters case will clearly count as success.
To return to a theme that I raised last week, given the revolutionary employment of this civil rememdy to attack entrenched organized crime in core societal institutions, including the nation's largest and most powerful private sector trade union, it is beyond curious that legal academia (criminal law and labor law profs) has not seen this as a topic for research and analysis. Moreover, neither the National Institue of Justice nor any other federal funder has ever sought to sponsor research on these civil RICO union cases in order to identify best practices. How can this be explained?
James B. Jacobs
NYU School of Law
Griffin on the Hosanna-Tabor Oral Argument
There have already been some fine commentaries on the oral argument in Hosanna-Tabor, mostly from a point of view sympathetic to the church and its legal arguments. (You can find a couple of entries at National Review Online by our own Rick Garnett.) I still hope to add my thoughts, although the press of events is such that I'm not sure I'll get around to it. At Concurring Opinions, Leslie Griffin offers what she calls part one of her own thoughts on the oral argument. I find this especially noteworthy and valuable both because she is an excellent law and religion scholar and because her views tend to be opposed to the church's position, and to the ministerial exception more generally. (I'm leaving out some nuances; she's not, as I understand it, always opposed to it.) It's a good thing to get both sides of the issue. I encourage you to read her thoughtful post. Not incidentally, Griffin is one of the co-writers of an important amicus brief against the ministerial exception and its application to this case, which I questioned in this post and criticize in my forthcoming Northwestern University Law Review Colloquy piece.
Griffin's perspective is evident in the opening line of her post: "Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?" She adds: "Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, 'doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?' That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?" She notes that the government's position in the case appears to require the courts to balance the church's interests against the government's genuine interest in enforcing its antidiscrimination laws, and questions this approach:
That balancing is the whole problem with the ministerial exception. It leaves courts choosing which religions are acceptable and unacceptable based on vague balancing tests. . . . Petitioner Hosanna-Tabor would solve this problem by exempting religions from all the laws whenever religions assert ministerial performance is involved. Justice Scalia’s questions suggested the Establishment Clause requires that outcome. That solution is exactly backwards. The starting point should be a rule that requires religions to obey the law. The Establishment Clause should be violated by a rule that lets courts determine which theologies override government interests and which do not. The Court should be wary of issuing an opinion holding that religions are free to disobey the law.
It's a good post that raises good questions. I hope she delivers on her promise and posts more. I do, however, disagree substantially with her post, for reasons I elaborate on below the fold.
First, I do think Griffin's post raises some useful questions about the scope of the ministerial exception and whether there is a principled basis for some of the limits on church immunity or autonomy that the courts have accepted without much difficulty or discussion in previous cases. She cites some excellent examples, which I have not excerpted here. I am sure she would agree that the outcome of those cases leaves us with hard questions about fit and consistency, but does not tell us which way that should cut: in favor of a result here that is consistent with those cases, or in favor of revisiting the earlier decisions. Similarly, I should think that supporters of the ministerial exception can agree with Griffin that it is difficult to answer the questions raised in a host of very different cases involving the conflict between churches and generally applicable laws through a general test or formula, at least without leaving one queasy about the results in certain cases. I happen to think that this is true not only of the general formula "church autonomy," but also of the general formula "churches should obey the law," and that supporters of that approach should similarly either acknowledge that this formula doesn't help us much in particular cases, or that, to the extent it is rigidly administered, it should similarly leave us with queasy feelings about the outcome of particular cases. But she is right to point to those complexities in any event. One of the critical things I say about the pro-church-autonomy position in my Northwestern piece, notwithstanding the fact that that is my position, is that arguments of that sort often make too little of the difficulties of particular cases and questions.
That said, I don't think the question "Are religious groups entitled to disobey the law?" is terribly useful, and for similar reasons. It reminds me of Marci Hamilton's efforts to place "the rule of law" front and center in church autonomy debates, and it leaves me unsatisfied for similar reasons. To say that churches should obey "the law" is to raise the very question what "the law" is and what it requires. We can imagine more or less fancy versions of this question. A basic version would have to argue about what "the law" is given the First Amendment. A more elaborate version would ask about the scope and reach of "the law." No one would think that because American law requires the enforcement of civil rights laws, the United States should seek to enforce Title VII in Saudi Arabia in a case involving Saudi employees of a Saudi company with no connections to the United States. It would be understood to be absurd, even if the statutory text did not mention territoriality or citizenship, because no one understands American law to reach that far. One of the broader arguments made by some champions of the ministerial exception--myself included--is that this case raises questions about the reach of American law, and whether the fundamental church-state settlement that is as much a part of "the law" as anything else really reaches into the internal employment relations of churches with their ministers. We could reverse Griffin's question somewhat by asking: "Just how extensive is the imperial reach of the state? How far does 'law's empire' go?" I think there are good reasons to conclude that it doesn't reach as far as the church's relationship with Perich, and I think some of the questions in the oral argument (especially from, say, Justice Kennedy) are really about this deeper question of the law's jurisdiction in church-state matters. I would quite understand why judges (and supporters of civil rights laws) would be uncomfortable with an answer that stresses the limitations on the state's jurisdiction, and I think it raises important and potentially troubling implications (although not as troubling as some opponents of the ministerial exception suggest; to say the law does not reach that far is not the same thing as saying that churches will necessarily act arbitrarily or wrongly, or that there would be no non-legal remedies if they did). I can't deal with all those questions and concerns here. I just don't think that the question Griffin asks is self-defining or self-answering.
Even if we take a less exalted, big-picture view, the question is still incomplete. Let's say we all agree that the rule of law is important and requires generality. We can still argue about what that means and requires. The point of generality is to treat like cases alike and different cases differently, in light of both the particular statute and background legal principles. We would not say that a sign at a state-run fair that says "You must be this tall to board this ride" fails to respect generality and must either allow everyone or no one to board the ride, because we think height is a salient qualification for boarding the ride. Even if it leads to over- or under-application, we would still accept the drawing of a line somewhere. Similarly, in the ministerial exception cases, we can't answer the question whether generality as a rule-of-law principle has been violated without asking, and trying to answer, the question whether churches as employers of ministers are similarly situated to other employers, or whether there are salient reasons--including reasons of background legal principles, such as church-state separation--that demand "different" treatment for them in order to render their treatment "equal" in a relevant sense. (To that we might add the point made by Abner Greene, Michael McConnell, and others: that the Religion Clauses disadvantage religion too, in some ways. A believer in generality as the solution to church-state questions ought to be thinking carefully about the implications of this position for his or her views about a variety of Establishment Clause cases; or they ought to be thinking about whether the right way to achieve a certain kind of fidelity to the rule of law in church-state cases is to think about the ways in which churches are supposed to be both disadvantaged and advantaged in different circumstances.) This is what I like about the debates between opposing sides in the ministerial exception cases: everyone agrees that the issue is simple; the two sides both disagree about why the issue is simple and which way it points; and both sides may be wrong, and the issue may actually be quite complex.
One last point: Griffin argues that the problem with balancing approaches is that they require courts to engage in an impossible or very difficult inquiry about church vs. state interests, and that they will lead to courts distinguishing between faiths on unsustainable or very difficult bases. Hence the courts should avoid doing so, which for Griffin points to a rejection of the ministerial exception. Thus, the quote above: "That balancing is the whole problem with the ministerial exception. It leaves courts choosing which religions are acceptable and unacceptable based on vague balancing tests. . . . The Establishment Clause should be violated by a rule that lets courts determine which theologies override government interests and which do not." I discuss this argument a little in my Northwestern piece.
There is a kind of inconsistency here (perhaps on both sides, but I am focusing on ME opponents for now). To quote that article: "Critics of the ministerial exception insist that the best way to avoid entanglement in the retaliation area is to accept the court’s assertion of religious grounds on a blanket basis, but dismiss them as irrelevant under the rule in Smith. Elsewhere, however, they argue that courts must not accept at face value a church’s assertion that a particular employee is a minister, but must instead engage in a careful consideration of the employee’s ministerial status; they then argue that this case-by-case approach would entangle the court in theological questions, and that the ministerial exception should therefore be abandoned. See, e.g., Professors’ Brief, supra note 26, at *32-*35. These critics, in short, argue for deference to the church’s determinations in some cases and against deference in others; in both instances, their arguments ultimately favor the employee." Where balancing approaches are concerned, it seems that churches can't win for losing. Of course, there is more than one way to resolve this conundrum. We could get rid of balancing by getting rid of the ministerial exception; but we could also largely get rid of it, or at least of any implicit balancing that requires courts to consider who is a minister and who isn't, by generally deferring to churches' own determination that a particular employee is a minister. Both approaches have costs and benefits, and our conclusions about which is preferable depend on deeper normative arguments. (That is, if we really reject balancing altogether. Some opponents of this instance of judicial balancing are fairly comfortable with balancing tests elsewhere in constitutional law. Justice Scalia in Smith suggested some reasons why this area might be different, and they are fair arguments, but it is also true that if we think courts are generally up to the job of judicial balancing, it might not be fatal in this area in particular.) Again, I'm not trying to settle the issue here. But, at least on a reading of the brief that Griffin co-wrote, I think it is fair to say that some opponents of the ministerial exception have a somewhat inconsistent view of when balancing is acceptable and when it is unacceptable, and I also think that if we do reject balancing, we are just as capable of doing so in a way that favors the ministerial exception as we are of doing so in a way that undercuts it.
Notwithstanding--really, because of--my disagreements with Griffin's post, I encourage you to read it and I'm grateful that she posted it.
Citations: A Small Rant
If a sentence in an academic legal paper states, "Many scholars argue X," that sentence ordinarily should have a citation, and that citation should list more than one scholar! The only exception occurs when the sentence is the topic sentence for a textual discussion of the "many scholars" with appropriate citations included.
If a sentence in an academic legal paper states, "Professor X argues that the sky is blue," the sentence ordinarily should have a citation to the work of Professor X, rather than to the work of Professor Y discussing Professor X.
That is all, for the time being. Now I shall return to reviewing scholarship.
Taking Attendance: Class Actions against Law Schools Expand Enrollment
Last week that Kurzon LLP expanded its class action lawsuits to include 15 more law schools alleged to have tortiosly misrepresented job placement statistics. Above the Law reported that in an organized "media call," the plaintiffs' attorneys stated they believed "almost every law school in the country will be sued by the end of 2012." Setting aside for a moment the ongoing debates about law schools' alleged manipulation of employment statistics, applicants and students' reasonable reliance on such statistics, and the potential/wishful attorneys fees resulting from the settlement of such a class action, is anyone wondering how these attorneys intend to certify the class in the first place?
Friday, October 07, 2011
Symposium on Class in American Legal Education
Thanks to Rick Garnett & TaxProfBlog, I see that the Denver University Law Review has published a symposium called Class in American Legal Education. It is built around an article of that title by Richard Sander, who's written a good deal in this area and on race-based affirmative action in law schools. It includes ten responses, mostly by folks whose prior writing is on race and race-based affirmative action, but also by some whose interest has been more directly in issue of class, such as Richard Kahlenberg.
I am particularly eager to read the article by Denver's Eli Wald, who has written so well on issues of class and ethnicity within law firms, both historically and at present, and whose response to Sander quarrels with what it describes as Sander's argument that socioeconomic status is invisible, and thus that socioeconomic preferences in law school admissions will remain invisible, so that students who benefit from them can't be singled out. Wald argues, in contrast, that "socioeconomic status and, in particular, social and cultural capital, play a significant role and have a considerable impact on the experience of law students while at law school and on their legal careers after graduation. Importantly, socioeconomic status, the possession of social and cultural capital and lack thereof[,] is highly visible, and students of lower socioeconomic status are unlikely to be able to pass for affluent students or cover their status effectively even if they tried."
I should note a strong personal interest in this issue. My next big project--hopefully another book--will involve class and the American legal academy, an issue that has gotten some attention from a few scholars (Jeff Harrison obviously being an especially salient example here) but, in my view, hardly enough. It certainly has received far less interest and attention than is given in legal academic circles to many other identity traits: race, disability, gender, sexual orientation, and so on. (See my brief observations about that in this book review.) The Sander article and symposium seem, on a brief review, to be almost entirely focused on students and not professors, but a variety of interesting issues arise with regard to the latter category, and the ways in which professors' class and social status, as well as general American views about class, influences what they write about and how they write about it. There has been some sociological study of class in the academy as a whole, but much less work devoted to how it plays out in the legal academy in particular, and I am very excited about this project. (And I mention it here by way of avoiding preemption somewha, but mostly to encourage those who are interested in the issue, or have cites to useful material, to feel free to get in touch with me.) My goal in thinking about these issues will be largely descriptive, not prescriptive. I'm not urging law professors to take a particular view about class and the law, let alone a particular political or policy view. (There is some such material out there, and I think its political orientation is what makes it less likely to receive serious attention.) I am interested in discovering what I can about law professors' social class/status (if you get a survey, please fill it out!), and in encouraging greater self-knowledge about these issues. I can't imagine a more fun project, and I look forward to reading this symposium as I try to educate myself on the issues.
You can find the TaxProfBlog post, linking to all of the articles in the Symposium (as far as I know), here. Enjoy.
Cameras and media coverage
Justices Scalia and Breyer testified before the Senate Judiciary Committee on Wednesday and were quite the hit. One of the themes was media coverage and cameras in the Court, with both justices reaffirming their opposition to them (although not in Souteresque "they'll roll them in over my dead body" terms). Dahlia Lithwick writes:
the justices both said they remain opposed. Said Breyer: “You can make people look good or you can make them look bad, depending on what 30 seconds you take. And it’s already a cult of personality, and let’s not make it worse.” Scalia was more blunt: “Now, if I really thought the American people would get educated, I’d be all for it. And if they sat through a day's of our proceedings gavel-to-gavel, boy, would it teach them a lot. … But for every 10 people who sat through our proceedings gavel to gavel, there would be 10,000 who would see nothing but a 30-second takeout from one of the proceedings, which I guarantee you would not be representative of what we do.”
The "30-second snippet" argument is a common one. But the argument ignores that most of the mainstream-media coverage of oral arguments mostly feature reporters quoting 30-second snippets of questions and comments from the justices (most often Scalia, of course), on television voiced over a sketch of the bench. Is there really a difference between having Nina Totenberg read the 30-second snippet and having video or audio of the words actually coming out of the justice's mouth? Is the latter really somehow appreciably more problematic? In fact, isn't the latter preferable because more accurate--it captures the intonation, tenor, and emphasis in the words.
This argument conflates media coverage with cameras. Or, more precisely, the argument relies on a purported harm (incomplete reporting that focuses on pithy comments by recognizable personalities) that comes not from cameras but from all coverage of the Court. Most people do not and cannot watch gavel-to-gavel coverage, so they only can gett short reports based on snippets. If such snippet coverage is a problem (as Scalia seems to believe), it is a problem that logically compels not elimination of cameras, but elimination of all media coverage. It makes no sense to think it is a greater problem (or even any different problem) if those snippets come from a television or radio feed as opposed to an intermediary reporter (who, again, may not fully and accurately capture what the justices or attorneys said or how they said it).
Timing, Courtesy, and the Meat Market
In response to my post earlier this week on the duties of faculty members serving on hiring committees and at the Meat Market, I got an email from a (successful) applicant on last year's job market, urging me to point out that a couple of those duties involve what he or she calls common courtesy, especially with respect to timing. My correspondent contrasts two different experiences. One school ended up not hiring him or her; didn't offer a callback, even. But it was excellent at communicating with him or her, keeping the correspondent apprised on where things were going and why, what was taking so long, and so on. At the end of it, the correspondent felt good about that school, even if hiring didn't work out. By contrast, other schools were lackadaisical at best about timing, not keeping him or her informed about where things stood in the process and breaking, without apology, their own promises about when they would tell the candidate whether he or she was being hired, given a calback, and so on.
It's simple but good advice. The correspondent adds a specific plea, and a broader point about the implications of displaying or failing to display this kind of courtesy and organization:
So, hiring committees: remember that this is not the last time you will meet this person, if he or she makes it into the legal academy. Indeed, you may find yourself individually wanting or needing something from this person. Not everyone can get a job, especially at every given school. But we can try to keep our promises about timing, apologize and explain when we can't keep those promises or not make them in the first place, and generally treat candidates as we would wish to be treated. I understand all too well the curse of lack of organization, but we certainly should demand more of ourselves.
Thursday, October 06, 2011
On two-academic couples
Jeffrey Harrison, on his blog Class Bias in Higher Education, had a post a few weeks ago on what he calls The New Cronyism, at the core of which is schools' practice of finding jobs for spouses of faculty candidates and members. Harrison labels this "cronyism" because it involves hiring or pushing someone for a job on something other than merit, in this case the identity of who that person is married to. Harrison identifies three common forms of this cronyism: 1) the Dean calling in favors around town to help the spouse land a job; 2) another department in the university hiring (or at least considering) the spouse; and 3) the law school hiring (or at least considering) the spouse. Harrison argues this is no different than the old-boys'-network hiring of the 1970s.
But it seems to me there is a difference between cronyism that creates and perpetuates a closed hiring system and steps taken, at least in appropriate cases (whatever that means--see below), to enable couples and families to create a workable living situation while both pursue successful careers. Given modern realities of two-career/often two-academic couples and the fact that the numbers of such couples are only going to increase, schools must consider accommodating or trying to arrange accommodations for spouses, of all genders (a heterosexual male faculty member is just as likely these days to have a wife with a career as the converse). And this is no longer limited to lateral couples; more and more entry-level candidates either have a spouse already in teaching or a spouse on the market at the same time. Last year, we made four entry-level offers and three had academic spouses. The year before, two of our entry-level candidates had spouses who already had been teaching law for several years. In the end, we were not able to hire any of them, for a variety of reasons, but considerations of the spouses' career were part of every conversation.
This also may be an example of academia (especially legal academia) being a unique business, given the small number of jobs, their often-smaller locations, and the lack of geographic control that (most) faculty have. If I am a practicing lawyer and my wife is a teacher and we live or move to Chicago, there is a good chance we both (eventually, assuming a decent economy) will be able to pursue our careers. Or, if I am a practicing attorney in Chicago and I decide to change jobs, there is a pretty good chance I will be able to find something in Chicago and my wife will not have to change jobs at all. By contrast, my chances of getting a teaching job in Chicago are relatively small. If my only teaching opportunity is in Norman, OK (sorry to pick on you, Sooners), my lawyer wife's options to pursue her career are going to be more limited and may require the assistance of someone (such as the law school dean) who can at least put her on the radar of potential employers. And if we both are academics, her options are even more limited. Without the possibility of a hire at the same university (in or out of the same department) or at least some help in the community, the option is surrender one of our careers or live apart--neither of which is appealing to many couples and families.
Harrison's argument against these sorts of hires or actions rests on three points. One, he believes it is a bad idea, that having spouses occupy two positions in the same department is worse than having two unrelated people in those positions. Two, and related, the spouse often is someone the school would not otherwise consider. Three, he believes it is unnecessary to hire the spouse to keep the faculty member, because losing the faculty member is not that big a deal--"from about the 20th ranked law school on down we are all basically fungible. No faculty member leaving any of those schools will create a hardship or a change in quality." Jeff has been teaching much longer than I have and I have no first-hand experience with same-department spouses, so I cannot speak to the first point. I question the fungibility of all faculty, if for no other reason than an equally capable teacher and scholar may not be as good a colleague as my current one.
One way to think about this may be to fine-grain our understanding of hiring spouses within one department. We can identify four possible scenarios: 1) Both people are independently strong and needed (in terms of curricular fit) candidates who would be hired independently; hiring both becomes a recruiting tool so they can be in the same place and allows us to fill two needs at once; 2) One person is needed, the spouse isn't, but the spouse is a credible candidate who is qualified (or better) for a faculty position at the school and would, in fact, be a good addition to the faculty; again, hiring them both is a recruiting tool so they can be in the same place and we benefit from having another good person on the faculty; 3) the trailing spouse truly is just along for the ride and would not be a viable or hirable candidate on his own; and 4) the trailing spouse is not an academic but thinks an academic job would be a lot of fun, so please hire him.
I agree that numbers 3 and 4 are problematic, in that standards are genuinely being changed or ignored and could come back to haunt the school. But the other two situations might work to the benefit of a hiring school (especially a lower-ranked one) in attracting faculty. And the line between #2 and # 3 certainly is highly subjective and fuzzy, if not ethereal; faculty will disagree about which category a particular spouse/candidate falls into. And there is a risk that we may convince ourselves, wrongly, that a # 3 really is a # 2 just because we want the spouse/primary candidate so much. On the other hand, at a school that is less bound to curricular needs and can do a lot of "best-athlete" hiring (usually not us, unfortunately), the line between # 1 and # 2 largely disappears. And it may be a question of degree--if the spouse is in category # 3, how far below our standards does he fall? And if only a little, sometimes the trade-off be worth it for some other benefit.
What is not clear from Jeff's post is the objections to hiring a faculty spouse, beyond the cronyism (which, again, strikes me as less nefarious in form than older versions)? Let's assume spouses who fall in my first or second categories. What is the problem? Is it a concern that the couple will vote as a bloc or that one spouse will control the other, thus giving that faculty member "two votes" (sort of like the old joke about Justices Scalia and Thomas and how they should just give Scalia two votes in every case)? Is it that they will bring their domestic spats into the workplace, creating tension? Is it that the marriage might fail and then you have two faculty members who fundamentally do not get along? Is it that they will get special accommodations (say, with scheduling) to manage their family obligations that other faculty do not receive? Is it that we will be unable to make difficult, principled P&T decisions if one of the couple does not pan out as a scholar/teacher, knowing that the denial means losing the spouse, or, at the very least, really angering the spouse? The last one carries some heft, but is it only a difference of degree from the reaction to any P&T denial? If, to the extent possible, we ensure that both partners fall within # 1 or # 2 (or even not to far out of the range in # 3) in my division, we reduce that risk. To say nothing of the fact that only 5 % of tenure candidates in the legal academy are denied tenure.
The problems with other-department hires are even less clear. It could raise financial issues, if the law school is contributing funds to pay the spouse's salary in another department (a practice at some schools). Of course, at other schools, the provost's office gets involved, recognizing this new reality and the need to get the university behind some efforts to recruit and retain faculty. It still puts the faculty and administration in the other department in a bind come P&T time, knowing that the law school is depending on a favorable decision from this department to keep the law professor. It potentially strains relations between the law school and other departments, at least depending on how heavy a hand the law school dean plays--"please take a look at X" is very different than "you must hire X." Again, the hope is that the spouse we are recommending is a # 1 or # 2 for that other department and that we are not asking them to lower their standards for their tenure-track hiring. Quality control need not be lost.
Finally, from personal experience, I would like to think that some cases work out well. When I was hired at FIU, I asked the dean for help getting my wife entree with FIU's School of Social Work and/or School of Criminology and Criminal Justice (she has masters' degrees in both areas). At the time, we were not truly a two-academic couple in the usual sense, since she had never held an academic job and she was not necessarily looking for a tenure-track position. The School of Social Work hired her as a visiting faculty member and assistant coordinator of their externship program and eventually put her on a non-tenure-track line and made her the coordinator. Would they have interviewed her without a "can you take a look at her?" from the law school dean (category # 2 of Jeffrey's model)? Hard to say. But nine years later she is associate director of the school and was chosen for a university leadership development program. And I have turned down potential opportunities at other schools so we both can pursue what we have here, which features administrative opportunities she would not have elsewhere, at least right away. So I guess that school is grateful that my position on the law faculty presented her to them and the law school (or at least one or two people at the law school) are grateful that her position in Social Work connects us to the university. Even if it is a form of cronyism.
Of course, things might have been different if I also had been trying to get her hired at the law school or into a tenure-earning job in Social Work. And maybe we just got lucky and so did the other department. My point is that, while there are risks, per se opposition to the practice may deprive law schools, other departments, and universities of real benefits. And labeling it with a pejorative like cronyism does not help.
Update: Jennifer Hendricks picks up the thread and notes an underlying gender issues that I did not address: Even if the overall trend is that more and more faculty of both genders have "trailing" spouses/partners with out-of-the-home careers who will need some help, male faculty remain more likely to have a stay-at-home spouse than female faculty do. Thus, any flat refusal or reluctance to hire or help spouses potentially has a disparate impact on hiring women.
Another Update: A reader emails and makes a good point: Recruiting couples (or helping a spouse in another department in the university) is as likely (if not more likely) to allow a school to get people they would not otherwise get as it is to stick a school with someone it doesn't want. And I think that's right. If A is a law professor with 2d tier credentials and his spouse is a law professor with Top-50 credentials, maybe a lower-ranked school could get both by being willing to hire both.
The Curious Case of Rule 8.3
As has been reported elsewhere, at argument on Tuesday the Supreme Court Justices seemed astonished by attorney lapses in the Alabama death penalty case Maples v. Thomas. Justice Scalia asked what would happen to the attorneys in question if they were found to have "abandoned" their client. His question came at an opportune time in my Professional Responsibility class, as we had just finished a unit on attorney competence, including discussion of MRPC 8.3, which mandates that members of the bar report ethical violations that raise "a substantial question" about another attorney's "fitness as a lawyer." Justice Scalia's query underlined some of my own questions about the operation of this rule.
For those who have not yet read it, here is the exchange between Justice Scalia and the attorney for the State of Alabama, courtesy of the transcript on the Supreme Court web site:
JUSTICE SCALIA: "If we find that these lawyers did abandon their client, will there be some sanction imposed upon them by the bar? I often wonder, just as when we find that there's been inadequate assistance of counsel in a capital case, does -- does anything happen to the counsel who have been inadequate in a capital case?" MR. NEIMAN: "Your Honor, I suppose it would depend on exactly what the allegations are -" JUSTICE SCALIA: "Have you ever heard of anything happening to them? Other than they're getting another capital case?" (Laughter.) MR. NEIMAN: "Your Honor, I have not. Certainly the rules provide that a breach of the rules of professional responsibility would be sanctionable by a State bar, both against the Alabama attorney here and the New York attorney." Certainly, it would be understandable that not every finding of ineffective assistance of counsel (IAC) would lead to a referral to bar counsel. In a system in which review of constitutional violations in death cases may hinge on a finding of ineffective assistance of counsel, courts may be loath to refer counsel for disciplinary hearings in cases of run-of-the-mill IAC. However, courts have sometimes noted egregious attorney misconduct, on the part of both defense counsel (Holland v. Florida) and prosecutors (Connick v. Thompson). That's why I'm perplexed by the lack of clarity here. And, more generally, I have wondered about the workings of Rule 8.3. There are few reported decisions involving the rule, and little scholarship on it, although in class I do pose a hypo involving a supervisor from this piece by Nathan Crystal. It would be interesting to have more empirical information about Rule 8.3--beginning with the number of reports in each jurisdiction, and the nature of violations reported. Beyond that, qualitative research might reveal the professional norms affecting the workings of the Rule. I welcome other's thoughts about this exchange from the Maples argument, and about the operation of Rule 8.3.
JUSTICE SCALIA: "If we find that these lawyers did abandon their client, will there be some sanction imposed upon them by the bar? I often wonder, just as when we find that there's been inadequate assistance of counsel in a capital case, does -- does anything happen to the counsel who have been inadequate in a capital case?"
MR. NEIMAN: "Your Honor, I suppose it would depend on exactly what the allegations are -"
JUSTICE SCALIA: "Have you ever heard of anything happening to them? Other than they're getting another capital case?"
MR. NEIMAN: "Your Honor, I have not. Certainly the rules provide that a breach of the rules of professional responsibility would be sanctionable by a State bar, both against the Alabama attorney here and the New York attorney."
Certainly, it would be understandable that not every finding of ineffective assistance of counsel (IAC) would lead to a referral to bar counsel. In a system in which review of constitutional violations in death cases may hinge on a finding of ineffective assistance of counsel, courts may be loath to refer counsel for disciplinary hearings in cases of run-of-the-mill IAC. However, courts have sometimes noted egregious attorney misconduct, on the part of both defense counsel (Holland v. Florida) and prosecutors (Connick v. Thompson).
That's why I'm perplexed by the lack of clarity here. And, more generally, I have wondered about the workings of Rule 8.3. There are few reported decisions involving the rule, and little scholarship on it, although in class I do pose a hypo involving a supervisor from this piece by Nathan Crystal.
It would be interesting to have more empirical information about Rule 8.3--beginning with the number of reports in each jurisdiction, and the nature of violations reported. Beyond that, qualitative research might reveal the professional norms affecting the workings of the Rule. I welcome other's thoughts about this exchange from the Maples argument, and about the operation of Rule 8.3.
Wednesday, October 05, 2011
Have you ever been to a bar (or other entertainment establishment) named after some part of the Constitution?
I'd like to second Rick Garnett's endorsement of Daniel Okrent's book on Prohibition called Last Call. It's a great read, and I relied on it a lot when writing the chapter of my forthcoming Odd Clauses book on section 2 of the Twenty-First Amendment, which says that "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." As Larry Tribe once pointed out, this is one of only two instances where the Constitution directly regulates private individuals rather than the government, with the other instance being the Thirteenth Amendment's prohibition on slavery.
I should probably say that I enjoyed Okrent's book somewhat more than the Ken Burns special on Prohibition that's been airing over the past few days, but that might be the historical present tense, wildly overused in these kinds of documentaries, tends to make me vomit.
Unsurprisingly perhaps, there are a lot of bars around the country named after the Twenty-First Amendment. We have one here in Boston, and there are also such places in San Francisco and Washington DC. Not to mention Fayeteville, Arkansas. I've been thinking of doing a tour of them to promote my book. Not really.
This makes me wonder whether there are other bars, restaurants, or different kinds of entertainment establishments named after parts of the Constitution, and if not, whether there should be, and what they would look like. I've thought about opening up an Incompatibility Clause Theater here in Beantown next to my new Letters of Marque Clause teahouse, but frankly, I don't have any idea what would play there. Thoughts?
A Cynical Take on the Death Penalty
My question: Is the recent spike in public attention to the death penalty a fleeting feature of Republican Primary coverage, or does it signal a more durable interest in capital process and outcomes.
I am a native Texan, so identifyng a most-repulsive Rick Perry moment is no mean feat. I do, however, represent Texas capital inmates, so I have one. At Perry's first Republican primary debate, Brian Williams asked Perry whether he "lost any sleep" over any of the 234 offenders executed during his gubernatorial tenure. Maybe, Williams asked, one or more could have been innocent. Before Perry could tell Williams that he didn't miss a wink, the debate audience erupted in a cheer that I can only describe as homicidal. After the ghoulish Death Cheer, the media carpet bombed the death penalty issue. Perry's rapid rise to Republican frontronner status coincided with two other stories, each of which reflects a different critique of the death penalty.First, the Troy Davis case became a vehicle for the media to convey to a mass audience what anybody who has enjoyed sustained exposure to capital procedure already knows - states have killed innocent people. I don't know whether Troy Davis was innocent or not. I can't tell you whether Cameron Todd Willingham was a murderer. I do work with one death-row exoneree, Anthony Graves, who puts it pretty simply: "The State of Texas tried to kill me for something I didn't do." Anthony is one of 273 DNA exonerees. The information we know from DNA and other wrongful conviction cases renders the fact that states have executed many innocent inmates a statistical certainty. To believe otherwise is to live in denial of basic probability. The best death penalty defenders can say is that we can't pinpoint the specific cases. That's not the point.
Second, the Supreme Court stayed a Texas execution in a case where a Texas "expert" testified that the offender was more likely to be a "future danger" because he was black, thereby increasing the likelihood that he would receive a death setnence under the Texas capital statute. That "expert" had in fact testified to the same effect in many other cases. After Atkins v. Virginia (2002) established that states could not execute offenders with mental retardation (MR), a different psychiatric "expert" spent years testifying that IQ test scores for black people were deflated by "cultural factors", an assessment designed to death qualify offenders that were otherwise ineligible under Atkins. Texas executed my client, Milton Mathis, on June 21. Milton murdered two men and paralyzed a woman in a drug-deal-gone-bad. Milton also had two full-scale Wechsler IQ scores in the low 60's (70-75 is considered the MR cutoff). The State didn't even bother with the witness in Milton's case; it expressly found that Milton's IQ was artificially low because of "cultural factors" without any expert. Five days before Texas executed Milton, it lethally injected Lee Taylor. Out of the 470 modern-era Texas executions, Taylor's was the second that involved a white killer and a black victim. You read that correctly. The death penalty is racist to the core. McCleskey v. Kemp (1987), which will ultimately assume its rightful place in the anti-canon next to Dred Scott and Korematsu, involved an equal protection challenge to the death penalty. Recently-deceased Professor David Baldus provided as evidence a study that showed that, controlling for other variables, non-white offenders were 1.7 times as likely to receive a capital sentence as white offenders. Killers of white victims were 4.3 times as likely to be capitally sentenced as were killers of non-white victims. This, the Court ruled, was just the cost of doing the states' capital business.
So, back to my question. In light of these two critiques - featured prominently alongside Perry's bruising ascent through the primary field - is the recent spike in focus on the death penalty durable? Will any lasting coalition for legislative change develop? Or is the interest a byproduct of our cable-tv fascination with jarring political personalities? I don't feel optimistic. The first calls on Milton's case from the national media were from well-intentioned reporters seeking to situate the execution in a broader narrative about Perry. And media coverage of the death penalty generally has sputtered while Perry's star fades.
But maybe even the passing surge of interest is enough to counter the inertia in death penalty states? Nope. The problem is less Rick Perry per se than it is the constituency to which he genuflects. While general support for the death penalty has fallen to 67 percent nationally, and while the public is particularly concerned about wrongful executions, let's not confuse a national sample with the audience at that Republican debate. That audience looks a lot like the electorate in Republican primaries of deep-red, high-execution-volume states like Texas and Alabama. And I'm guessing support for the death penalty in that ampitheatre approached 100%, innocence and systemic racism be dammed.
Tuesday, October 04, 2011
Doogie Howser, Law School Edition
Law education is not as easy as it used to be. (Wait - was it ever easy? I’ll start again). Because of the legal market, the economy, for many reasons (see other posts . . . ) schools place greater emphasis than ever before on teaching ethics, professionalism, client interviewing, counseling and negotiation (and I am not talking about third year electives, I am talking about first year, first semester) than in the past. Schools focus hotly on practice skills so that students can straight into practice after graduation: “practice ready.” New lawyers cannot rely on “on the job training” anymore; firms and other employers can’t afford to eat the training time and need new hires to be ready to lawyer on Day 1. So with all of this in mind, practice-ready emphasis, teaching advanced skills, I wonder: is there an age that is too young for a law student? I ask because I have had students who are under the generally-recognized drinking age and I can identify emotional maturity issues in these (obviously smart, they skipped whole school years) students that, in my opinion, do not “play” well either in the classroom or in the workplace. Some law schools have an interviewing process for applicants and, akin to the business school model, require or at least recommend several years of work experience for admission consideration. I think it’s fair to say that the practice of law requires a certain level of emotional maturity. People complain that doctors have no “bedside manner,” and medical schools have added curricula to teach medical students how to interact with humans. So should law schools do that, too, teach human interaction skills, in addition to the practice skills? Or should law schools screen applicants for their emotional ability to handle law school, like the FBI, the CIA and the Foreign Service do in the interviewing processes?
America Censors the Internet
If you're an on-line poker player, a fan of the Premier League, or someone who'd like to visit Cuba, you probably already know this. Most people, though, aren't aware that America censors the Internet. Lawyers tend to believe that a pair of Supreme Court cases, Reno v. ACLU (1997) and Ashcroft v. ACLU (2004), permanently interred government censorship of the Net in the U.S. Not so.
In a new paper, Orwell's Armchair (forthcoming in the University of Chicago Law Review), I argue that government censors retain a potent set of tools to block disfavored on-line content, from using unrelated laws (like civil forfeiture statutes) as a pretext to paying intermediaries to filter to pressuring private actors into blocking. These methods are not only indirect, they are less legitimate than overt, transparent regulation of Internet content. In the piece, I analyze the constraints that exist to check such soft censorship, and find that they are weak at best. So, I argue, if we're going to censor the Internet, let's be clear about it: the paper concludes by proposing elements of a prior restraint statute for on-line content that could both operate legitimately and survive constitutional scrutiny.
Jerry Brito of George Mason University's Mercatus Center kindly interviewed me about the issues the article raises for his Surprisingly Free podcast. It's worth a listen, even though my voice is surprisingly annoying.
Cross-posted at Info/Law.
Posted by Derek Bambauer on October 4, 2011 at 06:14 PM in Civil Procedure, Constitutional thoughts, Current Affairs, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Web/Tech | Permalink | Comments (3) | TrackBack
Garnett, Berg et al. on the Ministerial Exception
Not to steal his thunder, but Prawfs colleague and good friend Rick Garnett, along with Tom Berg, Carl Esbeck, and Kimberlee Colby, have posted their contribution to the Northwestern University Law Review Colloquy on the Hosanna-Tabor case (oral argument tomorrow!) on SSRN. It's titled Religious Freedom, Church-State Separation, and the Ministerial Exception. It joins Colloquy pieces by me and Caroline Mala Corbin, with others to come; and while at SSRN, check out Chris Lund's terrific general piece on the ministerial exception. Chris, Rick et al., and I all write in support of the ministerial exception, and Caroline criticizes it; that said, I think Caroline's piece is great, and although Chris's piece is a defense, it's also a very able general discussion of ministerial exception doctrine and justifications that can profitably be read by both supporters and opponents of the doctrine. I haven't read Rick et al.'s piece, but I read their brief and thought it was terrific.
UPDATE: As I was writing and posting this, Rick posted his blurb on Prawfs. So no worries about stealing his thunder. Still, I'll chime in to recommend that you read his piece, and to encourage those who are interested in the case to canvass all the pieces noted above. (All media inquiries, of course, should come to me directly--or, even better, to Chris Lund, whose piece really is terrific.) Those of us who are participating in the Colloquy (and, as I said, there are a couple of others to come, at least one of which, I believe, is critical) add our thanks to the editors there and our hope that the whole shebang will be up soon. Doubtless many of us will be posting reactions to the oral argument in the next couple of days. Enjoy! And, if I may add a personal note, good luck to Doug Laycock, who will be arguing the case for the church tomorrow.
Berg et al. on "Religious Freedom, Church-State Separation, and the Ministerial Exception"
Tom Berg, Carl Esbeck, Kim Colby, and I co-authored an amicus brief , on behalf of Prof. Eugene Volokh and a diverse range of religious groups, in support of the Hosanna-Tabor school, whose case is being argued in the Supreme Court tomorrow. We also contributed a streamlined version of the brief to the Northwestern University Law Review Colloquy; the paper is not available yet at Colloquy, but it is available here, on SSRN. Here's the abstract:
The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism – the project of protecting political freedom by marking boundaries to the power of government – has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects – as ours does – both the importance of, and the distinction between, the spheres of political and religious authority is one in which the fundamental rights of all are more secure. A government that acknowledges this distinction, and the limits to its own reach, is one that will more consistently protect and vindicate the liberties of both individuals and institutions.
The “ministerial exception,” at issue in Hosanna-Tabor, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Because any worthwhile account of religious freedom would respect the authority of religious communities to select freely their own clergy, ministers, teachers, and doctrines, any such account must include something like the ministerial-exception rule. Reasonably constructed and applied, this rule helps civil decision-makers to avoid deciding essentially religious questions. In addition, and more importantly, it protects the fundamental freedom of religious communities to educate and form their members. Although the exception may, in some cases, block lawsuits against religious institutions and communities for discrimination, it rests on the overriding and foundational premise that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law’s corrective reach. The civil authority – that is, the authority of a constitutional government – lacks “competence” to intervene in such questions, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdiction.
News You Can Use From the University of Alabama
Here are two recent stories from my home institution worth spotlighting:
1) Recently, the president of the student government association at the University of Alabama suddenly resigned, in the wake of a brewing controversy about whether the student government had violated its own selection procedures with respect to a freshman student group within the student government. (The back story, as near as I can make out but I may be wrong, is that there was a concern that the process was being bent to select students likely to be future members of the much-fabled "Machine," a shadowy group of undergraduates at the university who allegedly use the Greek system and other resources to advance themselves and their own interests within the university; many Machine alumni have gone on to prominent state government positions later in life.) The Crimson White, the UA student paper, sought records related to the resignation, and was informed that the University insisted on shielding those documents from disclosure, citing FERPA. A spokesperson for the university also made clear that the university considered students who have knowledge of the university's investigation of the matter to be prohibited from talking to the press about it. Here is the story from the Crimson White. I certainly encourage anyone involved in student press rights to contact the Crimson White and offer their assistance, or just to publicize the story.
2) Here is another, slightly older story, relating an answer to interview questions from the CW provided by the University of Alabama's president, Robert Witt. The question concerned the near-total, if not total, failure to racially integrate fraternities and sororities at the University of Alabama, an issue that rears its head every few years when some splendidly qualified African-American undergraduate rushes the traditionally white Greek houses and is fairly inexplicably turned down. Here's what Witt had to say, in its entirety:
“Approximately 25 percent of our student body participates in the greek system at UA,” Witt said in an e-mailed statement. “[This] includes traditionally African-American, traditionally white and multicultural sororities and fraternities. As independent social organizations, it is appropriate that all our sororities and fraternities – traditionally African-American, traditionally white and multicultural – determine their membership.
“The University offers a wide range of options for students to become involved on campus. I encourage all students to take advantage of the many academic, social and volunteer opportunities available at the University during their time on campus.”
Now, given my writing on institutional pluralism and autonomy, including within freedom of association, a natural implication of my views is that I probably think the Greeks should not be forced to integrate, even at this public university; that's not my final position, since I haven't fully thought through this, but it's certainly implied in what I've written. But I don't see anything in my views that prevents us from arguing with associations like this that they are doing wrong and pushing them to do the right thing or justify their refusal to do so. I certainly don't see any reason why the president of the university can't at least push for integration of the sororities and fraternities, something he has done in the past, instead of offering such a milquetoast statement. What a shameful failure on the part of the president of my own university. Both stories are depressing and deserve to be publicized.
Succeeding at the AALS Meat Market Interview--For Hiring Committee Members, Not Candidates
At the Faculty Lounge, Tim Zinnecker has a nice (useful, funny) post offering advice for job candidates looking ahead to interviews at the AALS "meat market."
I've written about this before; just Google "Paul Horwitz" and "glib." (Warning: You may find many unrelated--and thoroughly unfair and untrue!--links besides the ones you're looking for.) My point was that there are ways in which the interview format and process, as well as the inclinations of law professors, may favor the glib or "brilliant" student over the quietly thoughtful and promising candidate. Alas, this is an area in which polish and confidence seem to matter as much as substance. It may also be worth noting, in connection with this piece by James Atlas in the Sunday New York Times about "Super People," that a Matthew effect may be increasingly important here. Those students who do the best in law school, often by virtue of prior credentialing and class background, are more likely to get noticed by their own schools, to get good fellowships, and, especially, to get more and better chances to moot their job talk before a panel of faculty at their school before heading to the Marriott Wardman Park. They will increasingly stand out from others who are less well prepared, and the less well prepared will seem all the more unprepared. Moreover, there will be a flattening effect: the prepared candidates will all be prepared in the same way, and although they will be almost uniformly impressive there will be less idiosyncrasy and differentiation between them. We, the hiring professors (although not me, this year), will increasingly look for these qualities and make fairly strict first-order cuts between those who meet the pattern and those who don't. This isn't all bad news, not by a long shot. We will have more candidates who are prepared, sophisticated, and ready to hit the ground running, and less reliance on hiring generically well-qualified candidates who may turn out to be half-hearted about or ill-suited for teaching and/or scholarship. But we can still reflect a little on what is lost, and about some of the inequalities that will work themselves into this system.
As always, then, I would like to shift the focus away from the candidates and toward the moral, ethical, and professional obligations of the members of the hiring committees.It's understandable that most of the blogging on the meat market focuses on advice for candidates, who need it the most. But perhaps, in keeping with a good deal that I have been blogging about recently, we should think about the duties of hiring committees. (If you're on a committee, feel free to email a link to this post to your fellow committee members!) Before the interviews start, they might want to sit down and have a serious talk about what they're looking for. They might want to remind themselves that they're looking for a long-term investment in a person who will provide years of thoughtful, and not just flashy, scholarship and teaching. They might want to go back and read Martha Nussbaum's piece on Cooking For a Job. They might think about what they can do to make the process more meaningful, both for themselves and for the candidates. And they might reflect on the Tolkienian observation that all that glitters is not gold.* I would be happy to hear from other folks with experience on the hiring end of the meat market process about other obligations that faculty members serving on hiring committees have with respect to the upcoming interview season. In any event, I think it's worthwhile for hiring committee members to reflect on the idea that the candidate won't be the only person in the room with a duty and a burden to meet.
I will offer one piece of advice for candidates, though: if you can help it, moot your interview. You are better off mooting it before faculty members and others with experience in this specific market; but if you don't have those resources, at least do it before friends. And remember that although it's a job interview, it's also a "fit" interview, and if you can seem as if you're enjoying talking about your work and about law teaching (or if you can actually enjoy it!), you'll be a more attractive candidate than someone who just seems as if he or she is trying to pass a test or clear a hurdle.
* And, of course, they should keep in mind to be fair and open-minded toward holders of Canadian law degrees!
"Reducing Reliance on Incarceration," D.C. Oct. 27-28
For those who debate whether law profs have anything of value to say to practitioners, or vice versa, a group of profs has bet eight months of work that we do!
In a few weeks, on Oct. 27-28th, the American Association of Law Schools Criminal Justice Section will co-sponsor one track (and the opening plenary) of an ABA Criminal Justice Section conference devoted to the theme of "Reducing Reliance on Incarceration." The conference, organized by law profs including star prawfs blawg contributor, Shima Baradaran (BYU), includes a plenary convened by Chris Slobogin (Vanderbilt) devoted to reducing incarceration in a time of fiscal austerity, followed by break-out sessions on judicial decision-making in sentencing, state legislative initiatives to reduce reliance on incarceration, and alternatives such as specialty courts and restorative justice. Moderators include Shima, Cecelia Klingele (Wisconsin), and Lisa Smith (Brooklyn). Andrew Ferguson (UDC) served as the D.C.-based organizer. Events will include profs, judges, practicing attorneys, and criminal justice professionals.
For those who arrive on Thursday evening, there is also a participatory roundtable workshop at which nine scholars working in the area will present works-in-progress. Works will be presented by Laura Appleman (Willamette), David Ball (Santa Clara), Cara Drinan (Catholic), Cecelia Klingele (Wisconsin), Alex Kreit (Thomas Jefferson), Andy Taslitz (Howard), Anne Traum (UNLV), J. Glass (independent), and Jill D'Angelo (Buffalo).