Tuesday, January 31, 2012
Yes to "Cultivating Conscience" But More, Please
Like all the others who have commented on Lynn Stout's Cultivating Conscience, I enjoyed it thoroughly. I found her critique of rational choice theory to be fresh and persuasive. I loved her contention that homo economicus appears to have all the characteristics of a sociopath as defined by the DSM. Very clever and thought-provoking.
Let me join in all the praise that others have heaped on the book, and spend my comment picking a nit and asking for a follow-up from Lynn.
First, the nit. Lynn spills a lot of ink to criticize law and economics. I understand her criticisms (and those of others who have, for many years, tried to convince readers and law students that law and economics is wrong and pernicious). And I even subscribe to some of them. But ultimately I disagree with these criticisms and think that they miss a central and vital point about law and economics: It has brought to the study of law the practice of clearing articulating a hypothesis (normative or descriptive) about the law and, more importantly, in my view, the urge to confront those hypotheses with data to see whether the real world confirms or refutes the hypotheses. Painting with a very broad brush, before law and economics, legal argumentation largely consisted of making more elaborate and more coherent arguments that amounted to "my hypothesis is better than your hypothesis." The problem with that way of trying to understand the world is that it never gets to the crucial issue of saying "I gathered data designed to see whether my hypothesis explains and predicts actual events in the legal world, and I found that ..."
I would almost claim that law and economics (even in its non-empirical early phase -- the one that critics love to hate) is the father of the burgeoning empirical legal studies movement.I could cite many pieces of first-rate empirical scholarshp that have appeared in the past 20 years that owed their existence to a desire to test some law-and-economics hypothesis. One of my favorites in this regard is Bob Ellickson's "Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County," 38 Stan. L. Rev. 623 (1986). Ellickson went to Shasta County, California, because he believed that differing liability rules in the two halves of the county created the conditions of a natural experiment in which to test the predictions of the Coase Theorem. But he learned something very different -- namely, that people in Shasta County -- including lawyers and judges -- were not being governed by the prevailing liability rules. They only used those rules to resolve end-game disputes. Instead, they were conducting their day-to-day lives so as to comply with a prevailing social norm of being a "good neighbor." What a remarkable finding! And one that might have eventually come to light through some other scholar's work but one that clearly and significantly advanced our understanding of the world.
But there's more to say in defense of law and economics (and of other "law and ..."s). Anyone who is paying attention to what is going on in economics these days will find that economists are doing some remarkably interesting work. To take as one example, consider the remarkable outpouring of work by economists on the difference between intrinsic and extrinsic motivation. (For a terrific summary, see Uri Gneezy, Stephan Meier & Pedro Rey-Biel, "When and Why Incentives (Don't) Work to Modify Behavior," 25 J. Econ. Persp. 191 (2011).) That literature makes it impossible to rely upon an un-nuanced "people respond to incentives" view of how people might respond to the directions contained in legal rules and standards.
So, I think that there is a great deal in law and economics for which all legal scholars should be thankful and a great deal of fascinating work in economics (and many other social scientific fields) to which legal scholars should be paying attention.
Second, I want to challenge Lynn to go a bit further than she has in Cultivating Conscience. Let us grant her the premise that human beings are motivated by conscience and morality (and by other things, too; let us also recognize that they are systematically mistaken about some aspects of conscience and morality and other things, and that we scholars ought to be clear about what those mistakes are when we recommend legal interventions). If we grant that premise, then I am very eager to hear Lynn's detailed proposals for how legal education ought to reform itself in order to cultivate conscience and morality and how, in more details, various areas of the substantive law ought to be reformed so as to foster conscientious and moral behavior. And, importantly, I'd like to see some empirical work to show how those educational and substantive law reforms might, in fact, work.
I can't resist citing -- as a criticism of bringing more conscience and morality into the law -- the marvelous article by Tess Wilkinson-Ryan, "Do Liquidated Damages Encourage Breach?: A Psychological Experiment," 108 Mich. L. Rev. 633 (2010). Wilkinson-Ryan found, through careful experiments that without a liquidated damages clause, contract parties were reluctant to breach a contract that -- on efficiency grounds -- ought to be breached. That is, moral considerations induced contractual parties to over-perform contractual promises. But when a liquidated damages clause was a part of the contract, parties were more likely to breach when breach was Pareto optimal than they were when there was no such clause. So, perhaps we should recognize that morality is a good thing but only up to a point.
Matt and Molly on Conscience
I enjoyed Matt's and Molly's observations, but can't resist offering one of my own: both seem to suggest that conscience is, in fact, a pretty obvious foundation for law. (Matt has a wonderful example of the good faith principle in contracting, Molly points out--quite correctly--that the social and behavioral science literature on prosociality is immense.)
So, why do we see so little explicit discussion of the role of prosociality in modern legal scholarship? Of course some people incorporate the idea into their writing, especially in more philosophical discussions. And Matt is correct that in what I always thought were relatively rare situations--like Posner's opinion on the good faith principle--even law-and-economics types give the nod to the possibility people don't always, and shouldn't always, act selfishly.
But my own impression is that when the rubber meets the road, policy-wise, we see today a very strong tendency to default to the "all we need to do is fix the incentives" approach. Of course, I may be over-sensitive to this pattern,writing as I do primarily in business and regulatory law, where homo economicus seems to reign supreme.
Was I wasting my time writing a book trying to draw attention to the topic of prosocial behavior (conscience)? Blawg readers are invited to respond...
Howdy ... and some thoughts on guns.
Hello Prawfs readers! I asked Dan to put me in for the February rotation after two years of blogging in July. I hope to chat about some of my new scholarly projects, offer some thoughts on contemporary issues in criminal law enforcement and corporate compliance, and cheer on all my friends who are waiting for a signal from Redyip.
For now, I thought I would open with this news report on what appears to have been a flawed operation by the Arizona office of the Bureau of Alcohol, Tobacco and Firearms (ATF) to investigate gun-trafficking. Democrats on the House Oversight and Government Reform Committee have released a report (on the NYT website here) that absolves high-level DOJ and administration officials of any significant role in planning or executing the operation, which was called Operation Fast and Furious. (Anyone else think its a mistake to brand investigations with these silly names?). Attorney General Eric Holder is scheduled to testify before the House Committee on Thursday, and there seems to be a related fight brewing over whether the DOJ has handed over sufficient documents relating to a February 4, 2011 letter that supposedly misled Congress regarding gun-trafficking between the US/Mexican border.
The subpoena and the February 4th letter appears to be a side issue that I'll leave for Thursday, after Holder testifies. For now, I am interested in the crux of the Democratic members' report, which is entitled "Fatally Flawed: Five Years of Gunwalking in Arizona."
Gunwalking occurs when government agents purposely allow a low-level gun trafficker to purchase an illegal firearm (or many firearms) without arresting the purchaser and confiscating his firearm(s). The purported reason for letting the perpetrator "walk" is that it allows government agents to trace the gunwalker to more dangerous, higher-level gun traffickers. The cases described in the report appear to have involved the Arizona ATF's attempt to trace guns across the border to Mexico, with the assistance of the Mexican authorities. In retrospect, it appears pretty obvious that the planned operations were highly risky; if controlled deliveries or investigations fizzled, then firearms that "walked" could eventually be used to harm or kill innocent victims (and eventually, other enforcement agents).
Sound like an obviously untenable risk? Pretty much - except I can think of numerous investigations in which drug enforcement agents have allowed the drug courier to walk away with his drugs, in the hopes that the buyer would lead the government to more powerful, higher ranking drug dealers within an organization. Why do we allow "drugwalking" but abhor gunwalking? I assume that the facial reason is that firearms pose more of an immediate threat to the community than cocaine or heroin. Then again, I'm not sure how convinced I am by that answer. I would be curious to know what Prawfs readers think.
In any event, this report is hardly cause for celebration by high-ranking DOJ officials or Holder himself. It suggests that over a five year period, ATF engaged in a series of "fatally flawed" operations, with the knowledge of the local United States Attorney's office. Were the federal government a corporation, we would likely criticize its compliance function for inadequate monitoring, and for its failure to recognize and respond to serious risks (which apparently spanned over two administrations and five years). But, as I have noted in the past, compliance is difficult and it is easier to champion reform than it is to implement it intelligently. To that end, I am curious to see what Attorney General Holder says when he testifies on Thursday.
News from the Campaign Trail
Its great to be back on Prawfs, and it is also great to be at ground zero for Election 2012 (well ground zero today at least). Florida is a great state to live in if one is interested in politics. It is a swing state; it is the first big primary state (no offense to New Hampshire or SC); and we will always have Bush v. Gore. What other state can claim that little bit of notoriety?
The results of tonight’s primary should be interesting. Gingrich won South Carolina by a landslide but has crashed and burned in the week and a half since. In light of his slipping poll numbers, Gingrich has vowed to put a colony on the moon; pledged not to participate in future debates if moderated by journalists; and has been outspent 5 to 1 in Florida by the Romney campaign. I suspect that it is this last factor that will determine the winner of today’s primary, which according to one group is the most negative primary fight on record.
And this is true notwithstanding history to the contrary.In 2008, Romney lost Florida to McCain (36% to 31%), another candidate who the Republican base was also lukewarm about. Romney is likely to do much better this time around (current polls have Romney beating Gingrich 43% to 31%), and it will be interesting to see what a Romney win tonight will mean for the race going forward.
I can tell you what a Gingrich win will mean however – litigation. Litigation over the RNC’s decision to penalize Florida of half its delegates for moving its primary up, and litigation over Florida’s allocation of delegates, which is currently winner-take-all and in contravention of RNC rules (which mandate proportionality for delegates awarded before a certain date). If the race continues and Gingrich is able to build up a sizable number of delegates in those states that do have proportional allocation, then expect a challenge to the results of the Florida primary at some point in the near future.
At the end of the day, I just don’t think that Gingrich will go quietly, despite the hopes of many in the Republican establishment. In any event, I am looking forward to the next month and engaging with the Prawfs community on some of these issues.
Tomorrow will be a busy day. I've got the object of my bromance in town to speak to my colleagues and students about a few articles. So, in advance of the turn of the page in the monthly calendar, let me take a moment to thank Michael Teter, Adam Zimmerman, and Jessie Hill for their wonderful contributions this last month.
Additionally, please join me in welcoming Trey Childress, who will be with us this month for the first time from Pepperdine, as well as Shawn Crincoli from Touro Law. I'm thrilled to welcome back a great group of Prawf veterans too: Mark Drumbl (W/L); Franita Tolson (FSU!); Debbie Borman (Denver); Miriam Baer (BLS); James Grimmelmann (NYLS); and the inimitable Fenster! Happy February!
Some reading suggestions
In the spirit of procrastinating deep thoughts I would prefer to be having instead, I thought I'd share a few interesting reads from TNR that I found quite thoughtful. First, check out Robert Kagan's challenge to the "America is in decline" meme that has spread the last few years. If the article's good enough for POTUS, it's good enough for you. Second, friends of Prawfs, Don Braman and David Fontana, have a very cool piece summarizing their recent findings that Americans are pretty indifferent to institutional allocations of decisionmaking. Penultimately, if you've been wondering about whether you should wade into that 2 volume set of Parfit's latest reflections, "On What Matters," you might want to read Philip Kitcher's review. It's both fair-minded and critical, so even if he's not right, it's still helpful.
Last, the latest issue of TNR has a brief diarist essay by Leon Wieseltier. The essay is notable for its intensely sharp and justly imposed critique of the latest excesses of ultra-religious forces within Israeli society, and the politicians who fail to adequately contain and castigate those forces. Those of us who love Israel, for all its warts, weep when forced to recognize that the theologico-political sources of internal chaos are as maddening as the external ones with Iran, the Palestinians, et al. The political drama of recent months makes that very clear, even if the current challenges do not yet amount to an existential threat to the grand project of a liberal zionism. But put that fear of overwrought hand-wringing aside, for what we have is, at the very least, an excruciating irritant. And Leon is right to call our brethren to task for baseless hatred, foolish nonsense, and spiritual corruption, and to do so sternly and unequivocally.
Some Thoughts on Lynn Stout's "Cultivating Conscience"
Lynn Stout’s book, Cultivating Conscience: How Good Laws Make Good People is a compelling account of the role that empathy and morality play in every day human interactions. Stout’s argument, that people are motivated by more than personal gains and losses, is not groundbreaking. Prominent thinkers in the fields of psychology, sociology, philosophy, and religious studies (to name of few) have been making this point for as long as these disciplines have been cognizable. Literature is replete with examples of altruistic behavior (selfless acts of courage make for some of the greatest tales of all). Even legal case books contain examples; who can forget the famous tort case, Eckert v. Long Island R. R. Co., 43 N. Y. 502 (1871) in which decedent plaintiff was killed attempting to rescue a small child from an approaching train. I don’t believe that Stout would characterize her claim as novel. The brilliance of the book is not in the novelty of the claim, but in the systematic and thoughtful way in which Stout demonstrates how the law and economics approach has hijacked our assumptions and methods in a variety of important areas—and how misleading and potentially destructive this approach has been. I don’t quibble with Stout’s evidence or application, and I see extensions of her work on several fronts.
Although Stout cites various threads of empirical work, her primary evidence for the notion that people do not always act like law and economics’ rational maximizer comes from game research. The game research paradigm involves placing participants in a variety of situations where they must decide whether to cooperate or refuse to cooperate in order to enjoy various payoffs. This area of research is where Stout places most emphasis, and it has obvious and important implications for a discussion of pro-social human behavior, but it is only the tip of the iceberg. In fact, social psychologist have been studying “pro-social,” “altruistic,” or “helping” behavior for decades. So much has been done in this area that the Social Psychology Network page makes it one of the main headings, and a quick search of PsychArticles reveals more than 700 studies having one of those terms in the title (this probably underestimates the real number of research articles on pro-social behavior, and it certainly does not account for the file drawer studies that have never been published). The very existence of this empirical social psychological literature is evidence in support of Stout’s claim that pro-social behavior is a real phenomenon. The story Stout chronicles of the increasing prominence of rational choice theory reveals an intriguing lack of awareness, or near total disregard (depending upon your point of view) for behavioral research and theory. When one considers the potential value of empirical psychology to the legal academy, the lopsidedness of the influence seems curious. Even now, the appearance of empirical social science in law reviews is sporadic, and the research that gets the most attention is recycled again and again. With any luck, Stout’s book will encourage law scholars and others to take a fresh look at the rich wealth of empirical research that has profound implications for legal structures, processes, and assumptions.
Stout is interested in showing not only that human beings behave in pro-social ways, but also that they often do so for other than mercenary reasons. The heart of Stout’s argument is that people are programmed to care about others’ welfare, at least to some degree, in most circumstances. Pro-social behavior is not, Stout argues, simply a function of protecting one’s reputation or amassing good will. She points repeatedly to game experiments in which participants behaved in a cooperative or helpful way with other players, even when they were anonymous and even when they knew that the interaction would never be repeated. In essence, Stout argues that most people (sociopaths aside) possess an innate pro-social drive. A natural extension of her argument is a discussion of pro-social behavior toward non-humans. Examples of self-sacrifice benefiting other species abound. One has only to see the Humane Society’s televised pleas for money to be reminded that pictures of wounded dogs and cats get people to open their wallets. Seeing images of injured and neglected animals seem to trigger feelings of compassion similar to that which you might expect in reaction to seeing starving or sick children (although perhaps to a different degree). What explains the willingness of thousands of people to pay a premium for “dolphin safe” tuna? Why do criminal codes contain prohibitions against the mistreatment of animals? This point is not simply academic. It illustrates to a broader sense of responsibility toward many forms of life, a kind of pro-living-thing instinct. Just as Stout argues that attention to human conscience should inform policy decisions, mindfulness of the human instinct to preserve and protect other creatures—and possibly the natural world more generally—has important implications for environmental and land-use law.
Any parting advice?
My first stint at blogging is over – the month really flew by. I want to thank Dan and all of the folks at Prawfs for letting me join you. I’d like to take advantage of the last day I have as a guest contributor here to once again benefit from everyone’s experience. There are many new prawfs out there who, like me, began reading this blog during the meat market process and became hooked. I’ve read and heard lots of advice for candidates and for first-year professors, but I’m wondering what advice you’d offer those of us who will be sophomores next year. Should we ask to teach the same courses again next year (I assume so, but is there a reason to expand our repertoire earlier rather than later)? How can we become more involved in the larger legal academic community? What’s the best way to take stock of our first year teaching and to learn how to improve as teachers and scholars? What other advice have you given your new colleagues? Thanks in advance – and enjoy the rest of your semester!
Whether good or not, conscience exists and can be used as tool or weapon
Brett, Chad and Adam make a number of good points. In particular, their posts raise some common themes I'd like to highlight and respond to:
First, is conscience unambiguously a good thing (and by implication, is selfishness always bad)? Of course not!
Selfishness can be great when it motivates people to do things that make the world a better place, whether one defines "better" in utilitarian terms or more philosphically (e.g., "flourishing"). I'm perfectly happy to let selfishness be the primary motivation for the guy who clears the snow out of my rented Ithaca driveway.
But there are times when selfishness is suboptimal; think the classic tragedy of the commons. Here, sometimes, conscience (unselfish, prosocial behavior) produces better results, because it can motivate people to do things that make the world a better place where material incentives are too expensive, too awkward to employ, or otherwise unavailable to do the job.
Second, that is not to deny that, just as material incentives can motivate people to do things that make the world a worse place (selfishness might also motivate a mugger to part someone from her wallet), so can conscience be used to motivate people to do bad things. To understand this, it's important to remember that the "society" in "prosocial" is a relative term. You might sacrifice your own material welfare to benefit one group, while harming another. Think of the self-sacrificing suicide bomber, or the loyal gang member who refuses to "rat out" his colleagues. Indeed, sometimes one's "in-group" might include animals to the exclusion of people (there was a recent case in California where animal rights activists fire-bombed a UC biology professor's house), or supernatural beings to the exclusion of people (violent religious extremists).
So saying that conscience can be used to pursue good policy goals, should not be read to imply that it can't be sadly misused, too. It can. In my view, that's just another good reason we should pay attention to it.
Schwartzman, "What if Religion is Not Special?"
Just a quick note here as I race to a February 1st deadline on some work of my own. My friend Micah Schwartzman at UVa has posted on SSRN a paper titled What if Religion is Not Special? I have been hearing about it from friends for some time and can't wait to read it. Here's the abstract:
This Article argues that leading accounts of the First Amendment’s Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the Religion Clauses. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under non-originalist theories, there may be interpretations of the constitutional text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.
Diary of a Nutty Professor
I'll admit it: I'm a crazy Torts professor. That's me on the right, waiving my toy electric chainsaw over Ernesto's head to illustrate the tort of Negligent Infliction of Emotional Distress. (Ernesto missed class that Tuesday). And here's me, performing the world's worst Ken Feinberg imitation for the New York Post--in a bald cap, no less--to illustrate how the BP Fund might compensate fisherman and hotels under different state laws. And over the past few weeks, I've dressed up like Iron Man (a lesson on intentional misconduct); threatened to spray students with silly string (assault and battery) or seltzer (overdetermined causation); and in return, I've been shot in the face by a student with nerf gun, while another student put me in a full nelson (joint and several liablity).
Yup, I'm that guy. And it's not because I'm an immature person determined to humiliate himself -- even though I probably am and I certainly do -- but instead because I've long believed that some stunts reinforce concepts that stick with students, while bringing life to a late afternoon class. Stunts also serve as a warm-up for the main event in some of my classes. That is, in many of my lecture courses, I ask students to apply their readings to projects typically associated with "skills" oriented classes: interviewing a witness or client, negotiating damages or a new administrative regulation, drafting a complaint or an exhibit, or engaging in oral argument.
I've been experimenting with a project-based curriculum in my Torts and Administrative Law lectures for some time. The idea has been to selectively use the crucible of litigation as a tool to make the doctrine, policy and theory more concrete, while exposing students to skills that they may refine with more supervision in another class, like a clinic or a simulation-based course. I don't pretend to teach students skills in depth. Having taught small simulation-based classes in the past, I've learned that large courses of 80 or 90 students lack the intimacy necessary for students to take risks, reflect with the professor and their peers, and build upon their skills. But, when done right, I think some skills-oriented projects nicely complement my doctrinal lessons, and visa-versa.
But not every project neatly translates into large doctrinal courses. There can be tensions between good projects that reinforce skills and those that reinforce law or policy. Below the fold, I describe three examples of class projects that, with some tweaks, have worked for me. I'd love to hear what others have done, as well.1. The Negosh. I enjoy using negotiations in my substantive classes. I've used negotiation exercises in my Torts classes to teach damages, as well as in administrative law to teach negotiated rulemaking. But negotiations are tricky because, in many cases, the law underlying the negotiation may become secondary to other important lessons of negotiation practice: identifying bargaining authority, approaches and ranges, developing questions, thinking through justifications for taking new positions in the negotiation. On the other hand, students negotiating for the first time, for example, tend to make lots of legal arguments--which is good for illustrating, say, the law of compensatory damages for emotional distress, but not so good for learning critical information about your counterparties' motivations or positions, much less arriving at a satisfying negotiated solution.
To adjust, I've made most of my negotiations about information assymetry: thinking about the legally material facts you have, those you don't, those you intend to share, and those you intend to hide. For example, in my Torts class, I ask students to negotiate a settlement in a case that involves an automobile accident. The facts are based upon a famous ethics case—Zimmerman v. Spaulding—where the defendant’s attorney failed to disclose life-threatening information in the negotiation about the plaintiff that the defendant discovered in an independent medical examination. Before class students are (1) divided into defendants and plaintiffs and given memos describing different facts, just like the parties in Spaulding, and (2) instructed to craft settlement strategy and figures in light of the economic and noneconomic loss principles described in their cases. They are also prompted to think carefully about any questions they would like to ask, as well as any information they deem material to share or hide in the course of the negotiation. I ask teams of students to perform the negotiation in front of the class, rotating new students in every two to three minutes for 15 minutes just to make sure everyone is paying attention. A debrief about the negotiation, compensatory damages and punitive damages, then follows.
Invariably, the defendants refuse to disclose the very same information that Zimmerman's attorneys refused to disclose in Zimmerman v. Spaulding. I find that by focusing on the information and justifications students planned on using in the negotiation, we can have both a good discussion about the law of damages (how does one value future income or medical loss, how does one support different numerical valuations for another's emotional distress; and how do such information differences support or undermine the greater interest in punitive damages) as well as the dynamics of negotiation (what did you assume in a negotiation, what questions should you ask, what are the ethical limits of negotiation).
2. Interviews and the "Reverse Socratic". I'm also a fan of using witness or client interviews in class to force students to refine their distinctions between cases. In many cases, I'll ask a friend with a real legal problem or a professor with a fake one, to be interviewed in class. Before class, I'll give students a memo with a brief description of the client's problem, but inform them that they will have to ask questions of the client to evaluate the client's potential liability in light of the day's readings. In many cases, I try to refine the legal problem so that it falls somewhere in between two lines of cases, and spend time with my "client" to think through student questions and answers. During the first 15 minutes of class, I'll ask students to prepare as a group by brainstorming potential questions for the client. A panel of students conducts the interview, subject to the same "tag-team" rule I use in negotiations. The pedagogical idea behind the class isn't very different from the Socratic method -- students must make distinctions and analogies between cases and apply them anew-- only this time, they're asking the questions, in an environment made to simulate the attorney-client interview.
For example, in one class, students receive a memo before class announcing a client visit. We prepare, as a class, to interview the CEO of a corporation sued by former employee’s ex-spouse. The plaintiff claims that her ex-husband uploaded pornographic photos of her daughter through the former employer’s servers. The complaint, based on a real New Jersey case, asserts that had the employers followed up on warnings about this particular employee, it would have discovered the information and revealed it to the mother. Students must ask the right questions to determine how the case compares to Tarasoff, where a psychologist was held to owe a duty of reasonable care for the actions of his patient to a victim, in light of a pending motion for summary judgment. In the process, students learn information that then (arguably) places themselves, as lawyers, in the same position as Tarasoff.
Other interviews may involve expert witnesses (scientific causation in Ernst v. Vioxx), lay witnesses (res ipsa in Byrne), law professors up for tenure (Roth and Sindermann), and institutional clients (Feinberg and the BP oil spill). But, like the negotiation, there are tensions between using this method to reinforce a particular doctrine in tort law--affirmative duties--and to teach client interviews. An important skill in client and witness interviews is to learn how to ask open questions and to listen carefully, before jumping to legal conclusions. And this exercise, in some ways, forces students to do just the opposite. I've refined my approach by asking students to think of the questions as though it were a checklist of issues they would like addressed by the end of an interview, and displaying them on a chalkboard. Then, I encourage them to think about how to ask questions and how the questions they ask impact the information they receive.
3. The Complaint/Demonstrative. I'll also ask my students to craft complaints or demonstratives, with the goal of encouraging them to identify the most material facts in their cases and apply them. In one class, I may ask them to prepare a demonstrative, like a "reasonable alternative design" for a device, in a products liability case. In others, I've asked students to draft complaints based upon the case of Gene Cranick, the man from Tennessee whose home was burnt to the ground, as firefighters watched by, because he failed to pay his $75 firefighter fee. Students receive modified facts from the incident, watch a video interview of Gene, and are divided into teams of 7, given large sheets of paper, and instructed to draft complaints in light of the exceptions to government immunity embodied in famous New York cases like Lauer, Riss, and Cuffy. We then discuss some model student complaints as a class, as a way to draw distinctions, highlight the holdings of those cases, and discuss the underlying policies behind government immunity.
Depending on your view of complaint drafting, this kind of exercise also may present tensions. If you were trained to avoid overcommitting to factual or legal positions in a complaint, you will soon find that students flout that rule as they struggle to create a powerful narrative to frame facts they deem material to their complaints. However, pushing students to trim their complaints to include only the most essential facts necessary to sustain a motion to dismiss can be a valuable exercise. (I do this by posting the most detailed complaint on a wall and asking students what can be cut, without sacrificing the case).
My biggest challenge -- a challenge for any lecture format, but particularly in a project-centered approach -- has been finding ways to ensure that students are able to see the projects, the cases, as well as the theory and policies behind them, as part of a bigger picture. When I first began this approach, students approached me half-way through the semester to tell me that my class was their most difficult course, and that they were drowning. I expected them to not only understand their cases, but immediately apply them to another even-more complicated project. They also complained that note-taking in such a forum was extremely difficult.
After some thought, I've adapted by providing a short, mini-lecture at the beginning of each class, as well as offering my own notes for students to build upon. These modifications mean rethinking what work I expect from the students in terms of note-taking, synthesis, and application. However, I think it's worth it, and that this approach can be applied with modifications to many different courses. Anyone interested in using one of the projects should feel free to reach out to me. I'd love to hear how others, applying these kinds of methods or others, are doing.
Monday, January 30, 2012
"Cultivating Conscience" for Contracts
One of the biggest questions for me coming out of "Cultivating Conscience" is whether or not legal scholars can adapt the existing law & economics "utility-maximizing" framework to our new understandings of human behavior. Jolls, Sunstein & Thaler imported the psychological work on heuritics and biases into the existing L&E framework through the nomenclature of "behavioral law and economics." They sought to adapt, rather than replace. But it seems to me that other strains of law & psychology research, such as the scholarship on procedural justice by Tom Tyler and others, call the entire framework into question. If we are actually motivated by fairness, rather than utility, can we just label the taste for fairness as a type of utility? Or do we have start over?
Stout states in her conclusion: "It would be a grave mistake to put down this book thinking . . . that the homo economicus model should not be taught in our schools and universities . . . . Rather, the message is that the homo economicus model is not the only model of of human behavior that should be taught." (P. 252). This statement seems at first a conciliatory gesture -- a recognition of the value of the law & economics framework. At the same time, however, I think it is a rather audacious move, because it heralds the creation of another model of human behavior. What is this other model? Is there only one, or more? Stout gets us started by focusing on the role of conscience in our behavior and demanding that conscience get accorded its proper role. But if we are truly creating a new paradigm, much work remains to be done.
Of course, the immediate L&E move is to incorporate conscience -- or, perhaps, a utilitarian taste for fairness -- into the existing L&E model. And so we see this in the realm of contract. Stout's chapter on contract law focuses on incomplete contracts and the role that conscience plays in filling out their terms. As Stout acknowledges throughout her chapter, there has been a lot of economics/law & economics research about how to avoid opportunism in incomplete contracts. Stout suggests a greater role for conscience in these contracts by prompting contractual partners to reveal their prosocial preferences ahead of time, making room for prosocial behavior in courts' enforcement of these contracts, and even giving"spite" its due.
It is not clear, however, whether Stout's reforms fall outside the traditional L&E model. Consider, for example, Judge Posner's law and economics defense of a rather robust version of contractual good faith in Market Street Associates Ltd. Partnership v. Frey, 941 F.2d 588, 593-95 (7th Cir. 1991):
So we must consider the meaning of the contract duty of “good faith.” . . . The duty of honesty, of good faith even expansively conceived, is not a duty of candor. . . . But it is one thing to say that you can exploit your superior knowledge of the market . . . . It is another thing to say that you can take deliberate advantage of an oversight by your contract partner concerning his rights under the contract. Such taking advantage is not the exploitation of superior knowledge or the avoidance of unbargained-for expense; it is sharp dealing.
. . .[C]onduct that might not rise to the level of fraud may nonetheless violate the duty of good faith in dealing with one's contractual partners and thereby give rise to a remedy under contract law. . . .This duty is, as it were, halfway between a fiduciary duty (the duty of utmost good faith) and the duty merely to refrain from active fraud. Despite its moralistic overtones it is no more the injection of moral principles into contract law than the fiduciary concept itself is. It would be quixotic as well as presumptuous for judges to undertake through contract law to raise the ethical standards of the nation's business people. The concept of the duty of good faith like the concept of fiduciary duty is a stab at approximating the terms the parties would have negotiated had they foreseen the circumstances that have given rise to their dispute. The parties want to minimize the costs of performance. To the extent that a doctrine of good faith designed to do this by reducing defensive expenditures is a reasonable measure to this end, interpolating it into the contract advances the parties' joint goal.
The contractual duty of good faith is thus not some newfangled bit of welfare-state paternalism or (pace Duncan Kennedy, “Form and Substance in Private Law Adjudication,” 89 Harv. L. Rev. 1685, 1721 (1976)) the sediment of an altruistic strain in contract law . . . .
Market Street Associates Ltd. Partnership v. Frey, 941 F.2d 588, 593-95 (7th Cir. 1991). Judge Posner's defense of good faith might seem less remarkable if his vision for it were not so strong. But in Market Street, the Court essentially requires a contractual party (A) to inform the other party (B) about a particular contractual clause if A thinks B has forgotten about it. Intent is key; if A knows B is taking an action that B would not take if B remembered the clause, A has an obligation to tell B. If A doesn't know, then there's no obligation.
That's a rather surprising result to me, especially given that in the actual case, A is a relatively small investing group and B is a huge pension fund which should be able to take care of itself. And it raises the question: does prosocial behavior have a role in law & economics? I think Judge Posner would certainly think so, and he would justify it as what the parties would have negotiated for, had they had the foresight/ability to do so. If that's the case, then maybe "Cultivating Conscience" will simply fill out our existing understandings of the rational actor, rather than challenging that framework itself. But then how far can homo economicus take us, if he ultimately has a conscience?
Sympathy for the devil?
Adam’s post has already provided a sense of the depth and range of Lynn Stout’s book. It has something for everybody, both lawyer and non-lawyer alike. I second Adam’s praise. Parts I and II of the book are more general, but Part III and gets down to specifics: in tort, contract, and criminal law. I want to say I liked all of the book except for maybe one or two paragraphs in the chapter on criminal law.
Of course, I’m going to focus on those paragraphs.
In the chapter on “Crime, Punishment and “Community,” Stout’s target is (again) law and economics, and I am generally sympathetic to her critique, although when she quotes the economist George Stigler as saying that “the uses of criminal sanctions is erratic” and that “there is a widespeared failure to adopt rational criteria” (208), I find myself nodding in agreement. There are a lot of problems from a strictly law and economics point of view with America’s system of crime and punishment, and we should be open to ways to make criminal sentences more cost-effective in addition to more just. It’s not only possible but probable that we’re using prison too much, and that the benefits in deterrence gained by it are marginal when compared to its huge cost.
So, with Brett, I worry that law and econ might be something of a straw person here (a couple more examples: when totalling up the cost for prison, Stout seems to ignore prison’s deterrent value when she concludes that prison “makes no economic sense” ; she also writes that criminal law “punishes intent more than consequences,”  but completed crimes are almost always punished more harshly than attempts).
I want to focus here not on economics and the criminal law but conscience and the criminal law. Stout doesn’t want to defend all of the criminal law in terms of conscience, and she is keen to focus on those parts where she thinks law and econ doesn’t explain the law all that well. Her aim, she says, is to explain “how our criminal justice system relies on conscience.” (200). But can’t we use conscience not only to explain how criminal law operates, but also to criticize it? Shouldn’t we?
Start with a front page photograph in the Saint Louis Post-Dispatch from a few months ago, showing eighteen prisoners sleeping on the floor of the library in the Jefferson County Jail. It is hard not to feel that something has gone wrong here: whether it is that not enough money is being spent for prisons and jails or that we are putting too many people away for too long for the wrong things. One needs only to read the Supreme Court’s description of prison conditions in Brown v. Plata to see how awful things have become.
What does conscience say about these types of conditions? What should it say? Stout briefly mentions the problem: she says, rightly, that “many people seem indifferent to the horrific conditions convicts often endure in jail, including overcrowding, lack of medical care, and physical and sexual abuse by guards and other prisoners.” (214). Stout’s use of the term “horrific” signals rightly, I think, that these conditions ought to trouble our consciences more than they actually do.
Stout does not spend much time discussing this side of conscience: sympathy even for those behind bars. Indeed, in an odd sort of distancing from the horrific treatment she has just described, Stout seems to suggest that such conditions may be necessary to deter some. “There is inevitable tension between using prison as a deterrent and using it for rehabilitation. Harsh confinement conditions that may be essential to deter a true psychopath may simultaneously prove counterproductive for nonpsychopathic convicts, if ill treatment makes them feel less connected to society.” (214).
Well, true enough, some may be deterred only by horrible conditions (or maybe not: some may never be deterred). But certainly not all, and what about the deeper objection that some conditions are simply wrong to inflict on people, no matter how necessary for deterrence? Strangely, in discussing prison conditions, Stout seems to slip into the law and economics rhetoric she elsewhere (and very eloquently) condemns. Horrific (or “harsh” ) conditions justified if necessary for deterrence and not outweighed by the need for rehabilitation.
There is a similar kind of rhetorical disconnect when Stout discusses the case of Robert DiBlasi, a person who, as a result of stealing a package of batteries was sentenced (in California, home of Brown v. Plata) to thirty-one years to life. How, Stout asks, could such a prison sentence be justified? One answer, a pretty plausible one to my mind, is that it can’t. It probably doesn’t deter much other crime, and seems disproportionate to his crime (this is complicated a little, but not much, by his previous crimes, one of which was violent).
Stout says that the three-strikes-and-you’re-out policy can be justified in DiBlasi’s case by the fact that crime is “contagious” and that imprisoning DiBlasi means that others wouldn’t see him committing crimes and “imitate his behavior.” (224). In a footnote, Stout relates this idea to general deterrence. (277 n.44)
This again, sounds like law and economics but with the added and rather troubling reference to crime as “contagious,” and (a sentence later) that “we” might be “infected” by criminals (244) if we see them committing crimes. I don’t like the rhetoric, and am dubious about the contagion theory of crime, both in DiBlasi’s case (who happens to have AIDS) and more generally. I think our consciences should act as a check against seeing other people, even those who commit crimes, as diseased, and so needed to be put in “quarantine” (244) to protect the rest of us healthy and clean people. This type of language no doubt contributes to the indifference we feel when offenders are put in overcrowded conditions, with poor or no health care, and subject to rape.
There is a lot to like about Stout’s chapter on criminal law, but in some places, the tone just seems wrong. Her purpose, in part, is to explain the criminal law. I just wish she had spent more time on the ways in which our current criminal justice system (and I have not even raised the issue of race) surely “shocks the conscience.” We need explanations in the criminal law, of course, but we just as surely need suggestions for reform. It is the great value of Stout’s book as a whole that it shows how our care can extend beyond our own selfish interests, and so gives us hope that such reform is possible.
The Ambiguity of Conscience and the Prisoners' Dilemma
In reading Lynn Stout's "Cultivating Conscience," I went back and forth as to whether or not I felt she was treating law and economics as a bit of a straw horse. There is plenty within the field, especially with the growth of behavioral law and economics, that is sympathetic to her position. But I do think there is a resistance to her position that goes deep into the DNA of economics, and after reading the book I felt both that her big point (people aren't as selfish as economists normally assume, and we need to consider how the law can promote a lack of selfishness) is worth hammering home and that she has many good specific ideas and examples. But to keep things interesting, I will focus here on one big point to which Stout pays too little attention.
With occasional caveats, Stout treats conscience ("an internal force that inspires unselfish, prosocial behavior") as unambiguously good. In reality, there is often much ambiguity, and it really matters. We can see that right in the classic game theory example of prosocial behavior, the Prisoners' Dilemma. The story, of course, is that two criminals have been caught, and prosecutors are trying to get each one to squeal on the other. "Cooperation" is defined as not squealing, and from the point of view of the prisoners, both not squealing is the optimal outcome. But from society's point of view, that's not right at all. We want them to squeal, in order to better punish the crime. Honor among thieves is great for thieves, but not for society as a whole.
More generally, the question is prosocial behavior in whose favor? What if there are conflicting possible groups towards whom one might be loyal? The question is ubiquitous. Within my and Stout's core field, corporate law, this comes through in the question of to whom officers and directors owe their fiduciary duties. I think that Stout adds great value by putting a focus on how fiduciary duty affects social norms. But consider the standard formulation that directors should advance the interest of shareholders. Stout is critical of this where the interests of shareholders diverge from broader social interests, and she makes some great points. But, getting directors to advance shareholder interests is itself prosocial behavior compared with them advancing their own personal interests, and that is the core object of fiduciary duty. How can and should corporate law best help shape the norms that guide directors? If we formulate those norms as much broader than advancing shareholder interests, will the resulting vagueness undercut the law's strength?
Stout's framework, and her focus on how the law affects norms, is the right starting point for asking questions like this. But that framework needs to be much more aware of the possibility that individuals may face claims from competing social groups and interests, and which ones the law should encourage them to follow can be a hard question.
Interesting pedagogical divide
On the Civ Pro Prof Listserv, Tom Rowe conducted a survey of preferences for which recent Erie case to use and how--Gasperini or Shady Grove, major or note case, etc. Tom and his co-authors, Suzanna Sherry and Jay Tidmarsh, are trying to put together the new edition of their casebook.
The always-delicious pie chart at right shows the result. A strong plurality prefers Shady Grove as the major case, a smaller percentage prefers both as major cases, and a still-smaller prefers Gasperini only.
I am in the third camp, so the results at least give me pause. My logic has been that I don't teach class actions in my four-hour course and some basic understanding of class actions is needed to fully grasp Shady Grove. By contrast, Gaspeini involved FRCP 59, so the case is a nice opportunity to introduce basic post-trial motions and standards of appellate review. But perhaps there is benefit to covering a three-year-old case instead of a 16-year-old case, especially given the new line-up of justices.
A numeric and percentage breakdown is after the jump.
Include Gasperini but not Shady Grove as a principal case 15.7% (14 responses of 89 total)
Include Shady Grove but not Gasperini as a principal case 36.0% (32)
Include BOTH Gasperini and Shady Grove as principal cases 21.3% (19)
Include NEITHER Gasperini nor Shady Grove as a principal case because I won’t teach them 11.2% (10)
Include BOTH as note cases 14.6% (13)
"I don’t care enough to choose – that’s why I use someone else’s casebook!” 1.1% (1)
Tidmarsh on Resnik on Access to Courts
January's essay on the Courts Law section of JOTWELL is by Jay Tidmarsh (Notre Dame), reviewing Judith Resnik's Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, published in Harvard Law Review. Resnik's article draws an unexpected parallel between two class-action cases (Concepcion and Wal-Mart) and the "civil Gideon" case of Turner, linking both to the issue of court access. Both the article and the review essay are worth a look.
Might Cultivating Conscience Perpetuate Injustice?
Was this book written especially for me?
I’ve had that thought before: reading, say, The Catcher in the Rye at age 14 and sensing something very familiar in Holden Caulfield’s voice, almost feeling it in my own throat. But it is rare these days—especially when I’m flipping pages in my capacity as a law professor. The type of research I do (at the intersection of law and psychology) and the way I teach courses like business organizations (offering up and then tearing down a neoclassical economic perspective) leave me sometimes feeling a bit out on my own.
Lynn Stout’s new book, Cultivating Conscience, however, suggests that I’m not as alone (or crazy) as I might sometimes fear.On nearly every page of the book, I came across something that I have taught in one of my classes, written about, or pondered in a quiet moment. I, too, have drawn insights from the work of Stanley Milgram in my scholarship, delved into research on why people “cheat” with my students, and wandered into the worlds of game theory and evolutionary psychology. I share many of the conclusions that Stout draws, from those at the core of the book’s message (e.g., “Outside anonymous markets . . . the assumption of rational selfishness may be of questionable value in helping us address social problems like failing schools, rising crime, poor medical care, political corruption, or CEO malfeasance.” (246)) to those that are slightly more peripheral (“[W]e should have different legal rules for natural persons and for corporations.” (171)).
Yes, I am somewhat biased, but I feel confident that even with a truly objective pair of eyes, I would have reached the same ultimate judgment: this is an important book of significant and lasting value. It is thought-provoking, nimble, and engaging. The writing is sharp and the examples are lively (e.g., I particularly liked the notion that “litigation in relational contract cases” can resemble “the medieval practice of trial by combat” (182)). I suspect that even those who come to Cultivating Conscience as deep skeptics will find it to be a rewarding read. It’s worth us all spending more time to consider the incongruity between the rational actor model and how real humans behave, the incredible power of conscience on our actions, and the ways in which “unselfish prosocial behavior” may be encouraged in society.
Perhaps because I feel so close to a lot of the material, I did occasionally disagree with Stout on small matters. For instance, I think at points, the law and economics movement is portrayed as more homogeneous than it actually is (e.g., as I’ve suggested with Jon Hanson, even at its origin, Guido Calabresi and Richard Posner offered quite different paths forward) and occasionally the economic arguments are depicted as more flimsy than they actually are (e.g., I don’t think that punitive damages pose as significant a challenge to deterrence theory as Stout implies when one factors in the probability of a harm being detected). At other points, I think Stout might have pushed harder on why law and economics has been so dominant in legal academia over the last few decades. She is right to focus on its “appealing scientific patina” (44) and the fact that people “tend not to notice unselfish prosocial behavior” (44) (which might undermine the rational actor model), but it might have been worth also emphasizing more directly that law and economics provides a vision of ourselves that is both intuitive and affirming, that it is a model that benefits those at the top of society, and that it has been actively promoted by those both outside academia (e.g., think tanks like the American Enterprise Institute) and within (e.g., through the Olin Foundation, which has donated millions of dollars to top law schools to support scholars in this area).
These minor points to the side, I think that Stout’s overall message is compelling: “the homo economicus model is not the only model of human behavior that should be taught. . . . [and] material incentives are not the only tools we should use to change behavior . . . .” (252) I could not agree more.
Given my strong affinity for Cultivating Conscience, it is, thus, rather difficult to provide the grist for a good blog discussion. I think Stout has hit the nail squarely on the head and I don’t want to distract from my overall message: this is a great book.
That said, if I were to choose one area where I think Stout and I might diverge on a more fundamental level, it’s my concern that cultivating conscience might not actually promote fairness and justice. My worry is that encouraging “unselfish prosocial behavior” may merely reinforce the status quo and protect the most privileged in society.
Take the story of Franco Gonzales, the man who returned $203,000 that he found in a bag that fell out of an armored truck. Stout uses the example to open the book and returns to it at several points as an example of the marvelous nature of conscience. She also uses Franco to show that a person can be moral and virtuous in one area of his life, and not in another: Franco, it turns out, is an immigrant, who is living illegally in the United States. My initial reaction was to feel very heartened by Franco’s “moral” decision to return the money, but as I thought about it more I became unsure. Does the moral dictate that Franco call the police and turn over the cash he found actually promote justice? How about the moral dictate that he not enter the United States illegally or that, once there, he turn himself in to the authorities for deportation?
It may have been conscience that prevented Franco from keeping the $203,000, but why was that the optimal or fair outcome for anyone other than the owner of the $203,000? Franco was extremely poor (he was a dishwasher in a Chinese restaurant, with “little or no formal education or savings” (234)) and, if he had kept the money, we learn from Stout’s description, he would have sent a large chunk of the money to his “mother, who lived in a farming village in Mexico” (3) and worked as a house cleaner (234). Given that the money fell out of an armored truck, it seems reasonable to assume that it belonged to a large bank, which was insured by a large insurance company. A $203,000 loss to the bank or insurance company would have been nothing—a rounding error on the CEO’s salary—but for Franco and his relatives, it might have made all the difference in the world.
Similarly, in Stout’s account, it should have been conscience that prevented Franco from illegally entering (and remaining) in the United States. Indeed, if his conscience had been properly cultivated in this regard he wouldn’t have broken the law. But would this be the just outcome?
The definition of “unselfish prosocial behavior” is extremely malleably and, to a large extent, is set by those with power, wealth, and influence. In a society with slavery, it can be “selfish antisocial behavior” to run away from your slave owner, depriving him of his property. In a society in which women are second class citizens, it can be “selfish antisocial behavior” for a woman to drive a car, show her ankles, or go to college. I don’t dispute Stout’s claim that “[j]ust as thin and fragile reeds can be woven together to make a basket that is strong enough to carry a heavy load, when many small acts of restraint and consideration on the part of many individuals are woven together, they form a peaceful and prosperous society.” (61) The problem is that such a society may be deeply unjust and the basket weave itself may make it very hard for those born without rights, property, and respect to gain any of those things. Indeed, it may be their own consciences that prevent those at the bottom from gaining equal footing.
"Government and its Rivals"
A (long) while ago, in this essay, "The Story of Henry Adams's Soul: Education and the Expression of Association(s)," I wrote:
[W]e not only speak through associations and rely on mediating institutions for the civic space in which to engage in such expression, but we are also . . . spoken to and formed by them. Indeed, this is one reason why associations are able to play their structural role, described above, as society’s hedgerows. It is not only that they are concentrations or blocs of political power, which can be marshalled against that of the state; they are also the state’s competitors in the arena of education and formation. . . .
[T]he state competes with the mediating institutions of civil society, and its expression competes with that of associations, for the privilege of educating. The freedom of expressive association, then, is not only the freedom enjoyed by individuals of expressing themselves through their associations, but also the freedom of associations to serve and speak as rival sources of values and loyalties.
I "heard" Ross Douthat making a similar point the other day, in the New York Times, in this piece (which I thought was very thoughtful but which quite a few commenters seemed not to like), "Government and its Rivals," which addresses the recent decision by HHS to require most religious institutions and employers to provide coverage, in their health-care plans, for contraceptives. He noted, among other things, that:
When government expands, it’s often at the expense of alternative expressions of community, alternative groups that seek to serve the common good. Unlike most communal organizations, the government has coercive power — the power to regulate, to mandate and to tax. These advantages make it all too easy for the state to gradually crowd out its rivals. The more things we “do together” as a government, in many cases, the fewer things we’re allowed to do together in other spheres.
Sometimes this crowding out happens gradually, subtly, indirectly. Every tax dollar the government takes is a dollar that can’t go to charities and churches. Every program the government runs, from education to health care to the welfare office, can easily become a kind of taxpayer-backed monopoly.
But sometimes the state goes further. . . .
Paul Horwitz, author of the soon-to-be-groundbreaking First Amendment Institutions, and John Inazu, whose Liberty's Refuge is already out and burning up the charts, might (along with other Prawfs readers) have some helpful thoughts and reactions here.
Lateral hiring news at The Faculty Lounge
Over in The Faculty Lounge, Dan Filler is, once again, tracking the latest in lateral moves. Help him keep his list current and accurate!
Book Club on "Cultivating Conscience" Begins Today
Our book club on Lynn Stout's "Cultivating Conscience: How Good Laws Make Good People" begins today. You can find an introduction to the book, author, and club participants here. We are looking forward to the posts from our participants and your comments.
Saturday, January 28, 2012
Rubio, Republicans, and immigration
My FIU colleague Ediberto Roman has a piece at The Huffington Post discussing a recent speech by Florida Sen. Marco Rubio on the subject of immigration, in which Rubio, while not endorsing the DREAM Act, called for changes in Republican rhetoric and discussion on the topic. Rubio apparently is on the short list for Vice President (I have not been paying attention), so Ediberto is even more enthusiastic that a top GOP leader would bring a different voice.
Ediberto has often stated his belief that Latino and Hispanic voters may not support President Obama because he has not done enough on immigration. The key, of course, is finding a Republican alternative. Perhaps Rubio, even if only the # 2 on the ticket, would provide that.
Law Review Submission Tracker
Click here to download a spreadsheet to help you track your law review submissions during the upcoming law review submission cycle, and thus to create an illusion of control over the process.
The spreadsheet has two worksheets. The main sheet, "S12," gives you information about journals and lets you enter your own information. The second sheet, "Data," automatically calculates, based on your entries on the main sheet, the number of journals that have made a decision about your piece (by response), and the number of journals from which there is not yet a final resolution.
For the main journal of each school, the spreadsheet lists (1) the name of the school, (2) the date the journal starts accepting submissions (if I could find this information), (3) the most recent US news ranking, (4) the most recent Washington & Lee journal ranking (based on the number of citations to the journal), and (5) the preferred method of submission. (It's Expresso for almost all the journals, except that a few top journals strongly prefer that you submit through their website.) The spreadsheet also includes a handful of specialty journals.
There are blank cells for you to add information such as the date you submitted it, the date the journal acknowledged it received, the date you expedited and the method by which you expedited, and the date it was accepted, rejected, and so forth (If you enter the date in the regular format in those columns, the "Length" column will automatically calculate for you the length of time between when you submitted it and when you heard back from the journal.) There is also a "Notes" column where you can enter things like the ID number some journals assign to entries.
1. This spreadsheet should include more main journals. It lists only the main journals of the top 100 schools by US News ranking (omitting the two schools, Chicago-Kent and Northeastern, that appear from their respective websites to publish only symposia issues).
2. This spreadsheet should include more specialty journals. It lists only about 15 specialty journals, relevant only to certain kinds of submissions (not mine, actually, to be honest). (The specialty journals are all about civil rights and gender.)
3. This spreadsheet should include more information about when journals open. It includes only the information I could glean from Expresso and from the journal websites about a week ago.
4. Submitting through Expresso is very expensive if you are not part of a law school that has a subscription, and the spreadsheet does not include information about any other way to contact law schools that prefer Expresso (e.g., email addresses).
5. All rankings are flawed, and the US News rankings are really, really flawed.
For a far more complete document, consult Nancy Levit and Allen Rostron's amazing law review submission guide, fully updated as of August 31, 2011. They also have a list of links to many law review webpages.
PrawfsBlawg has had a number of posts on the law review submissions process, many of which have very helpful comments sections.
Friday, January 27, 2012
BU Symposium on "The American Right to Health"
As I write this, I am on my way to Boston for a symposium, sponsored by the American Journal of Law & Medicine (AJLM), on "The American Right to Health: Constitutional, Statutory, and Contractual Healthcare Rights in the United States." The symposium runs from about 9 to 5 tomorrow, Saturday the 28th, and it promises to be an interesting lineup (present company excepted, of course).
My own contribution (which, like the others, will be published in the AJLM) will focus on constitutional implications that may arise from the government's definition of concepts such as "medical necessity" and "essential health benefits" under the ACA. I plan to argue that, depending on how narrowly the states or federal government may delineate the benefits to which Americans are entitled under the Act, individuals' constitutional right to protect their health may be infringed. (Of course, this also assumes that individuals have a constitutional right to protect their health--a proposition that I have argued elsewhere). To the extent that the government will virtually occupy the field of health care, it will come to control individuals' private health care decisions to a greater extent than ever before. As such, it is possible that the courts will have to decide whether individuals truly possess a constitutional right to make certain health care decisions autonomously, and if so, when the government has violated that right.
The paper is not yet ready for prime time, so not available on SSRN, but I'd be interested in hearing any initial reactions to this very sketchy idea. Or just come on down to BU and check out the symposium!
Thursday, January 26, 2012
Quick Exclusive Submission to the FSU Law Review
See update below.
I was told yesterday that FSU's Law Review has one spot in the current volume that opened up at the last minute. If any of you have a piece that you want to submit for both exclusive and quick review, please feel free to send it (along with CV and cover letter) to Senior Articles Editor, Hannah Monroe, and feel free to cc me. Hannah's email is hdmonroe16 at gmail.com
The story is that the Review will basically occur over the next few days until a suitable piece is found. If you submit now, you agree to publish it with FSU if it is selected. Straightforward and simple. The board will turn over later this spring and the new volume will open up to submission around then. Thanks.
1/27 Update: The FSU LR has asked me to shut the spigot off by tomorrow (Saturday) at 12pm (noon). So please send something to Hannah before then. There very well may be an exclusive submission window that reprises itself later on this semester so watch this space (ie, read Prawfs) for more information.
Sometimes lower courts are not paying attention
One point I have been making repeatedly in my jurisdictionality scholarship (here and in two forthcoming pieces) is that the Supreme Court is working hard to drop hints to lower courts that what is truly jurisdictional is extremely narrow and what is merits is comparatively broad. Lower courts are mostly getting it.
But not always, unfortunately, as this Fifth Circuit case demonstrates. (H/T: Scott Dodson).The Miller Act provides a cause of action for subcontractors to recover for unpaid work on federal construction projects; the suit is bought to recover on the payment bond, which the general contractor must furnish. In this case, the Fifth Circuit held that the bond requirement goes to the district court's adjudicative jurisdiction and that because no bond was provided, the district court lacked subject matter jurisdiction over the plaintiff's claim.
This cannot be right, both as a normative matter and in light of SCOTUS's recent jurisdictionality jurisprudence (which the Fifth Circuit did not even bother to cite or discuss). As to the latter, it is hard to imagine that if registration of a copyright as a prerequisite to a copyright action is not jurisdictional, then the bond requirement cannot be. can be jurisdictional. As to the former, the bond requirement obviously is going to a merits element, since the statute provides for "a civil action on the payment bond for the amount unpaid at the time the civil action is brought. Obviously, a claim to recover on a payment bond cannot succeed if there is no payment bond. But that defect is in the claim as defined in the statute; it does not affect the court's jurisdiction. Ironically, the court asserted early in the opinion that there is § 1331 jurisdiction "when a plaintiff[ ] set[s] forth allegations ‘founded on a claim or right arising under the Constitution, treaties or laws of the United States.’” That is correct. And it is unaffected by any problems with that claim. Given that, there is no way the bond requirement, contained in the cause-of-action-creating provision, is jurisdictional.
The opinion could be read not as making the bond requirement jurisdictional, but rather as looking to the "requirement" (not always taken seriously) that any federal claim be "substantial" in order for § 1331 to be satisfied. Because the Miller Act claim had a "fatal defect"--the absence of a payment bond--§ 1331 was not satisfied. In other words, the Miller Act claim failed on its merits, but that failure made it insubstantial and thus deprived the court of jurisdiction. I have argued that the substantiality doctrine is wrong and unnecessary. But even accepting the doctrine, the court's analysis was still wrong. An "insubstantial" claim is one that is frivolous or somehow unconnected to the rest of the case and asserted solely to manufacture federal jurisdiction. A case does not become "insubstantial" merely because of a defect in the claim. If that were enough, then every 12(b)(6) dismissal would become a 12(b)(1) dismissal.
Interestingly, this actually is a case in which the characterization made more than a formalist difference. After the district court dismissed the Miller Act claim because of the absence of a bond, it went on to resolve several state law claims, asserting supplemental jurisdiction. And the district court believed it could do this because it understood the dismissal of the Miller Act claim as being on the merits, giving it discretion to retain supplemental claims. In holding that the failure of the federal claim was a failure of federal-question jurisdiction, the court of appeals undid that. A district court cannot assert supplemental jurisdiction over state-law claims unless it at some point had jurisdiction over some federal claim. Because the district court never had jurisdiction over any federal claim, it never had federal jurisdiction and thus cannot assert supplemental jurisdiction.
Just a bad decision all around.
Wednesday, January 25, 2012
Baude on removal under the JVCA
Back in December, I posted comments from Art Hellman (Pittsburgh) on the newly enacted Jurisdiction and Venue Clarification Act, which worked some significant changes to the law of diversity jurisdiction, removal, and venue. Art was involved in the drafting process, particularly the removal provisions.
Now comes Will Baude, a Fellow at Stanford's Constitutional Law Center, in Michigan Law Review's First Impressions, pointing out some remaining holes in the removal provisions, as they relate to removability in diversity cases where there is uncertainty as to the amount in controversy.
Learning from exams
I survived my first round of exam writing and grading, and now I’m meeting with students from last semester who want to go over their exams. As I do that, two questions keep coming to mind.
First, while I’m willing to accept that most of the students are just interested in knowing why they got the score they did and in seeing if they can argue their way to a higher grade (which they can’t, absent a math error on my part), I do wonder if anyone has suggested techniques for encouraging students to use these exams to further their substantive understanding of the subject.
Second, what can I do to learn from these exams? How do I assess whether it was fair? Whether it was too long? Too short? Too easy? Too hard? I’d love any suggestions people can share. Thanks!
Tuesday, January 24, 2012
Ironic, crass, stark reminder, reclaiming imagery? You decide
Courtesy of Eric Muller, who has thought (and written about) the experience of the Holocaust, is this web site selling this shirt (and others) to mark Yom Ha'Shoah. The shirts purport to be a statement of memory and solidarity.
Ironic? Crass? Offensive? Stark and meaningful reminder? Show of solidarity? Reclaiming of hateful imagery? Something else?
Predicting FCC v. Fox: Counting the Oral Argument Tea Leaves
Political science research suggests that the more questions the Supreme Court asks a party at oral argument, the more likely that party is to lose. The tenor of the questions counts, too: hostile questions help predict hostile outcomes. (For some of the research, see Sarah Shullman here, and Timothy Johnson et. al. here). Moreover, a study by Epstein, Landes and Posner suggests, "Justices are more prone to question at oral argument parties against whom they will vote than parties for whom they will vote."
With this in mind I examined and listened to the recent oral argument (1/10/12) in FCC v. Fox Television Stations et. al (docket 10-1293). When decided, Fox will be the first Roberts Court case directly involving the mainstream media, so it is highly significant for media lawyers and anyone concerned about press (and specifically broadcast) freedom. The Fox case asks not only whether the FCC's policy against use of "fleeting expletives" violates the First Amendment, but also whether the entire indecency enforcement regime for broadcasting is unconstitutional. [My analysis of the oral arguments is below.]
Predicting the outcome of Fox is a challenge. Only eight justices will decide the case, because Justice Sotomayor is recused. In the Fox case's prior trip to the Supreme Court for resolution of whether the FCC's adoption of the fleeting expletives policy was arbitrary and capricious, Justice Thomas already clearly signalled his belief that Red Lion and Pacifica, which underpin the FCC's authority to regulate broadcast content in ways that would be unconstitutional in other media, are no longer valid; in that same case, Justice Ginsburg signalled her belief that the FCC's fleeting expletives policy exceeds the bounds of permissible regulation of indecency outlined in Pacifica, and she questioned whether cultural changes might have undermined the entire edifice of indecency regulation constructed pursuant to Pacifica. In light of this, getting the three additional votes necessary to strike down the current system of broadcast indecency regulation does not seem like such an uphill battle.
The oral argument tea leaves, however, arguably aren't as auspicious for dramatic change. Oral argument was an hour long. The Solicitor General Donald Verilli argued for the FCC for 26 minutes initially and then spoke four minutes in rebuttal. Verilli was questioned by Kagan (3+1 during rebuttal), Scalia (3+1 during rebuttal), Kennedy(2), Ginsburg(4+1 during rebuttal), Breyer(1), Alito (1), for a total of 17 questions during his initial argument and his rebuttal. [Note: I didn't count it as a separate question if a Justice asked a clarifying questions incident to his/her first question; for example, Justice Breyer asked only one question of the SG, but he pursued it for some time. Also, I counted as "questions" instances in which the Justice interjected with a statement, because the advocates felt bound to respond or react to these statements. Obviously, however, I made a few judgment calls at the margin that some might disagree with.].
This evidence might signal that Kagan, Scalia, and Ginsburg are highly skeptical of the SG's arguments, and perhaps more prone to vote against him. At least in the case of Kagan and Ginsburg, my bet is that they will vote against the FCC, though whether on narrow or broad grounds is harder to say. However, when one looks at the tone of the questions, there is a difference in the tone of Justices Kagan's and Ginsburg's questions and the tone of Justice Scalia's. Justice Kagan and Ginsburg both sound more skeptical in their questions of the SG's arguments on behalf of the FCC than does Scalia. For example, Justice Kagan kicks off the questioning of the SG with "But, General Verilli, it seems to me that this contract notion of yours can only go so far." (emphasis mine). Justice Ginsburg's first question to the SG, which is the fourth question from the bench, refers to the FCC as "the censor" and asks about the "appearance of arbitrariness" of its indecency decisions. Justice Scalia, on the other hand, seems to be asking a question to help the SG sort out whether regulation of broadcast indecency is justified by the history of regulation, by the acceptance by broadcasters of free and exclusive use of public spectrum, or by precedent and whether the FCC's context based approach to identifying indecency is unconstitutionally vague. Justice Kenndy also questions the SG, but in his question, he seems to be reaching out to "assist" the SG to articulate his best argument for a broadcast "safe haven." The SG takes the cue and seizes upon the lifeline Justice Kennedy has thrown him, and the Justice follows up with more assistance; finally, Justice Kennedy's point is even seized by Justice Scalia, who says "Sign--sign me up as supporting Justice Kennedy's notion that this [regulation of indecency on broadcast airwaves] has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court . . . these are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth." Justice Ginsburg, for her part, enters the fray (cutting off the SG) noting that the words that the FCC is regulating are "in common parlance today" and "the children are not going to be shocked by them the way they might have been a generation ago."
Carter Phillips argued the case for Fox. Phillips was questioned by Roberts (3); Kagan (2); Alito (3); Breyer (1); Scalia (2); Kennedy (1), for a total of 12 question. Then Seth Waxman argued on behalf of ABC and others regarding the FCC's sanctions on the broadcasting of nudity and was questioned by Roberts (3); Breyer (4 total with a very extensive follow-up on one of the questions); Kennedy(2); Scalia (1); Alito (1), for a total of 11 questions. It is noteworthy that Philllips and Waxman were asked a total of 23 questions, 6 more questions than the SG was asked in the same amount of time. It is also noteworthy that Chief Justice Roberts took a very active role, asking six questions of the two advocates, even though he asked no questions of the SG. Chief Justice Roberts also tipped his hand in the manner of his questioning. Roberts stated at one point: "People who want to watch broadcast where these words or expose their children to broadcasts where these words are used, where there is nudity, there are 800 channels where they can go for that. All we are asking for, what the government is asking for, is a few channels where you can say I'm not going to --they are not going to hear the S word, the F word. They are not going to see nudity." It seems very clear from this "question" that the Chief Justice is actually stating an argument he finds persuasive. At another point, the Chief Justice also interjects to support Justice Scalia's criticism that Mr. Waxman's argument regarding selective enforcement of its nudity prohibition is "not a very powerful argument" given the number of broadcasters sanctioned "over 85 years." In addition to all of this, Justice Breyer made it relatively clear in his questioning that he was troubled by the FCC's actions in these cases but was looking for a way NOT to overrule Pacifica. At one point, Justice Breyer even asks Mr. Waxman: "Does this case in front of us really call for the earthshaking decision that you all have argued for in the - - in the briefs? [overturning Pacifica]" (emphasis mine)
Based on this analysis, it appears as if Roberts, Alito, Scalia are in no hurry to overturn Pacifica. Kennedy and Breyer are a little harder to predict, but I wouldn't bet on them overturning Pacifica, either. With regard to Alito, this is certainly no surprise, for he voted in favor of government restrictions on speech in the "funeral protest" case of Snyder v. Phelps and the "crush video" case of U.S. v. Stevens, and thus indicated his support for regulation of offensive speech. But Chief Judge Roberts has previously voted against government interference in the marketplace of idea in cases like Citizens United v. FEC, U.S. v. Stevens, and Snyder v. Phelps. Furthermore, Justice Scalia wrote for the Court in the "violent video games" case of Brown v. Entertainment Merchants Ass'n, which might be labelled a "new media" First Amendment case decided by the Roberts Court: not only did the Court there strike down California's attempts to prohibit the sale of "violent video games" to minors, but it also flatly rejected the argument that any "medium-specific" characteristics of the games, such as their interactive or immersive nature, justified softening First Amendment prohibitions on content-based regulation. Justice Scalia even wrote that although the First Amendment exists "to protect discourse on public matters," full First Amendment protection extends to entertainment media since "we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try." How can the discrepancy between these cases and the Justices' likely approach to FCC v. Fox be reconciled? I can explain, but it will take me a lot longer than this blog post to do so.
The Grand Mortgage Crisis Bargain
The New York Times reports that as many as one million homeowners facing foreclosure could have their mortgages cut by about $20,000 each as part of a long-awaited deal being negotiated between "state attorneys general, federal officials and the nation’s largest mortgage servicers." The grand bargain, which may reach as much as $25 billion, would use up to $17 billion to reduce principal for homeowners facing foreclosure. Another portion would be set aside for victims of improper foreclosure practices, with about 750,000 families receiving about $1,800 each. Of the chief obtacles to a final settlement are the battles between state attorneys general over the size and distribution of the final award. New York's AG wants the banks to pay more, overall. California also apparently sought a specific set aside for its own region, one of the hardest hit in the country, which put off other state AGs.
Given the size and importance of a national relief package like this, one might think that the most natural place to resolve these kinds of regional battles would be in Congress. The tendency to rely on state AGs for such a broad national package, instead of Congress, dates back at least as far as Congress' failed attempt to broker a resolution to the national tobacco litigation in the 1990s. I describe the reasons for the rise of this kind of "executive branch compensation" over legislative funds here, as well as its implications for transparency, fairness and public participation in such massive settlements.
For those interested in a more detailed discussion the federal or state executive branch role in such settlements, see Adam S. Zimmerman, Distributing Justice, 86 N.Y.U. 500 (2011) (tracing the rise of federal agency based settlement funds, which collected over $10 billion over the past decade); Adam S. Zimmerman & David M. Jaros, The Criminal Class Action, 159 U. Pa. L. Rev. 1385 (2011) (tracing the rise of massive criminal restitution funds in deferred and non-prosecution agreements between corporate defendants and federal prosecutors); Donald G. Gifford, Impersonating the Legislature, State Attorneys General and Parens Patriae Production Litigation, 49 B.C. L. Rev. 913 (2008); Jack B. Weinstein, Mass Private Delicts: Evolving Roles of Administrative, Criminal and Tort Law, 2001 U. Ill. L. Rev. 947 (2001).
Hail to the Harvard Law Review
The January issue of the HLR reminds me yet again why it is the finest journal in legal academia, and its student editors the best and most perceptive in the business. Especially when it comes to the Recent Publications section. (Yes, this is another attempt to sell my book, which receives a short but positive notice in that section. Incidentally, my brother turns 50 later this week and it would make an excellent gift.)
Monday, January 23, 2012
What happened in Jones?
SCOTUS decided United States v. Jones today, on the surface deciding 9-0 that placing a GPS device on a car and monitoring the car's movements for four weeks constituted a search requiring a warrant. But a lot more is going on beneath the surface.
Justice Scalia wrote for five justices--himself, the Chief, Kennedy, Thomas, and Sotomayor--holding that a search occurred because the government trespassed in installing the GPS device and adopting a property-based conception of the Fourth Amendment that he argues prevailed until Katz in 1967 and that exists as a complementary approach to the Fourth Amendment. Justice Sotomayor concurred, joining Scalia's opinion and making it a majority, but arguing that Katz lives, explaining why this also constituted a search under Katz's privacy-based approach, and explaining that the physical intrusion "supplies a narrower basis for decision."* Justice Alito wrote a concurring opinion for four--himself and Justices Ginsburg, Breyer, and Kagan--to reject this property-based approach and explain why this was a search under Katz.
I don't know much about the Fourth Amendment jurisprudence. But I do wonder what went on behind the scenes. Is this a first move towards eventually overturning Katz and moving back to a property/trespass conception? Does the "political" divide (three of the four "liberal" justices did not join the majority) reflect a liberal attempt to push back against the attack on Katz? And what was Sotomayor doing? Alito would have had a majority if Sotomayor had joined; what sort of lobbying went on behind the scenes to get her to join one opinion or the other? Did he have the initial majority, then lose it when the opinions began circulating?
* This is one of those "I-join-the-majority-but-write-separately-to-explain-what-the-majority-means" concurrences.
Rival Settlements, Rival Fees
Several reports (here and here) over the past few weeks describe a controversial decision by Judge Charles J. Barbier—the federal judge overseeing thousands of lawsuits lodged against British Petroleum (and others) for the Gulf Coast Oil Spill—to set up a fund to pay fees for the lead attorneys. Among other things, Judge Barbier's order would fund lead attorneys in his court by deducting money from awards to people who applied to the Gulf Coast Claim Facility, a no-fault alternative to the litigation, established with the assistance of President Obama, and now overseen by Special Master Kenneth Feinberg. Judge Barbier's decision raises fundamental questions about the value attorneys contribute to each others' work in large, complex lawsuits--particularly, when they must compete with a large government-created settlement fund.
Generally, these "common benefit" funds are a familiar part of complex litigation. In many cases, the sheer size and complexity of litigation often requires a court to appoint “lead” or “liason” counsel to coordinate motions, conduct depositions and manage discovery on common issues that generally benefit potentially thousands of other plaintiffs. See, e.g., In re Diet Drugs, 582 F.3d 524 (3d Cir. 2009) (approving fund for electronic document depository that organized 80 depositions and nine million pages of documents made available to every plaintiff in the multidistrict litigation proceeding); Manual for Complex Litigation, Fourth §§ 14.215, 20.312 (2004). See also Charles Silver & Geoffrey P. Miller, The Quasi-Class Action Method of Managing Multidistrict Litigation: Problems and a Proposal, 63 Vand. L. Rev. 107 (2010).
The question then becomes, "Who pays for all that work, particularly if it benefits everyone else?" The answer, in many cases, is: everyone else. Courts will levy a kind of tax, typically between 4 to 6 percent of all of the plaintiffs' recoveries, to create a reserve fund to pay those attorney's fees. See William B. Rubenstein, On What A “Common Benefit Fee” Is, Is Not, and Should Be, 3 CLASS ACTION ATT’Y FEE DIG. 87, 88–90 (Mar. 2009). The policy has old roots. See, e.g., Trustees v. Greenbough, 105 U.S. 527 (1881)(“He has worked for them as well as for himself; and if he cannot be reimbursed out of the fund itself, they ought to contribute their due proportion of the expenses which he has fairly incurred.”) In short, the idea is that those who passively benefit from big lawsuits must bear their fair share of the cost.
What made Judge Barbier’s order unusual was that it also sought to tax those who chose to participate in a no-fault alternative to the litigation, the Gulf Coast Claim Facility, overseen by Special Master Kenneth Feinberg. Parties who seek awards from the GCCF give up their rights to a lawsuit, in exchange for compensation from the Facility. The GCCF does not require that claimants prove BP is liable, only their individual damages. Accordingly, Barbier’s order does not depend on the traditional justification for a common benefit fund—that individual plaintiffs directly benefit from a common theory of liability, or some "smoking gun" unearthed in discovery. Rather, Judge Barbier’s order depends on a more indirect concept of “common benefit" work.
The Court reasoned that lead plaintiffs in the multidistrict litigation improved transparency, as well as potential awards, in the GCCF. See, e.g., In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010. 2011 WL 6817982 (E.D.La. Dec. 28, 2011). For example, based on an application of the plaintiffs' counsel in the private litigation, the Court (1) ordered the GCCF to inform claimants of their right to counsel, (2) to provide translated documents, and (3) to avoid communicating directly with represented parties. The private litigants have also pressed for a more “liberal causation standard” and for “punitive damages,” which may also enhance the “settlement value of compensatory claims” before the GCCF. Id. at 2-3.
Barbier’s theory has some interesting implications for rival settlement schemes--large public funds established ostensibly for the purpose of luring people out of private litigation. (The September 11 Victim Compensation Fund and the National Vaccine Compensation Program, to name two, work similarly). On the one hand, there is no question that the existence of private litigation, as an alternative for those who consider filing with a large settlement fund, may foster competition and lead to higher settlement awards in a fund like the GCCF. But those abstract improvements are extremely difficult to quantify. After all, couldn't one make the opposite argument ? Are there cases where the existence of a large settlement fund actually increases the value of private litigation? I offer some thoughts about the law of common benefit funds, and the dynamic relationship between public settlements on private lawsuits, below.
The Law of Common Benefit Funds. There have been some analogous successful efforts by rival attorneys to collect attorney’s fees, under a common benefit theory, in class action settlements. For example, when attorneys representing objecting class members to a proposed settlement succeed, they may be entitled to a fee for the efforts expended to improve the size of the settlement. See, e.g., White v. Auerbach, 500 F.2d 22, 828 (2d Cir. 1974) (objectors entitled to attorneys fees for improved settlement); Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994); Richard L. Marcus, et. al., Complex Litigation, Cases and Materials on Advanced Civil Procedure 594-5 (5th Ed. 2010). Although the common benefit doctrine has been limited to class actions and "quasi-class actions"--like the coordinated litigation before Judge Barbier--I suppose that one could stretch that theory to those attorneys who object to the structure of a public fund, particularly when the structure impacts someone's ability to effectively consent or to find an attorney. But see Charles Silver, A Restitutionary Theory of Attorneys’ Fees in Class Actions, 76 Cornell L. Rev. 656 (1990) (setting out conditions for the application of the common fund doctrine in class actions).
In the September 11 Litigation, for example, many attorneys represented and advised clients who had to choose between private litigation and filing a claim with the September 11 Victim Compensation Fund. A similar threshold question for many attorneys advising clients in the Gulf will be whether and how to choose between a lawsuit and a no-fault alternative like the GCCF. Thus, all attorneys, and their clients may benefit, at least theoretically, when they can choose counsel and make decisions in an informed way. Then again, courts also have been far more hesitant to apply the common benefit doctrine to cases where the shared benefit is some kind of structural reform, instead of common work that increases the likelihood of damages. Compare Geier v. Sunquist, 372 F.3d 784 (6th Cir. 2004) (denying common benefit fund “where litigants are vindicating a social grievance”) with Silver & Miller, supra (collecting cases and describing examples of common benefit work, as including "deposition of a fact witness," as well as "common pleadings, motions, briefs, depositions summaries, and document reviews.")
The Problem of Rival Government-Settlements. Courts may also be skeptical of efforts to “tax” parties for improvements in a large government-initiated settlement based on the indirect efforts of private plaintiffs' counsel in a totally separate lawsuit. For example, less than two weeks before Merck publicly agreed to pay $950 million to settle criminal and civil claims by the federal government over its marketing of the painkiller Vioxx, the private plaintiffs in a parallel Vioxx litigation filed a little-noticed emergency motion to hold back a percentage of the government's award for their own attorneys fees. The Court found that there was "an apparently insurmountable disconnect” between the private attorney's work in and the DOJ settlement fund. In re Vioxx Products Liability Litigation, 2012 WL 10548 at*3 (E.D.La. Jan 3, 2012). A decent argument could be made that the private bar’s well-developed theory of liability, scientific evidence and individualized settlements in their own cases likely contributed to the size of the government’s $950 million dollar award. But the connection wasn’t “obvious” or “direct” enough for criminal investigations launched around the same time as those private lawsuits. Id. Accordingly, the Court found that plaintiffs were already adequately compensated out of their own $4.85 billion dollar settlement with Merck.
Can A Settlement Fund Increase the Value of Private Litigation? But another interesting wrinkle to Barbier’s order is that the private attorneys who represent clients before the GCCF may actually create higher norms and expectations for any final global settlement in the multidistrict litigation taking place before Judge Barbier. Individual applicants to the GCCF, represented by counsel, act as first movers. On a daily basis, they test novel theories of damages before Special Master Feinberg. As a result, those awards may set an even higher bar for any final, global settlement accomplished in the ongoing litigation. But see Silver & Miller, supra (observing that even though most "settlement leverage" comes from the work of individual attorneys who "identify potential clients, evaluate their claims, contract with them, and file lawsuits for them," courts generally do not consider this work as "common benefit" work.).
There is some--admittedly very poor--past evidence of this phenomenon. The small minority of families who passed on the September 11 Victim Compensation Fund and sued, rather than take money from the Fund, technically made out better financially: 93 of those 96 claims were settled, for an average of $5 million, or more than twice the average payment from the special fund. Of course, that number may have been self-selecting. As the judge overseeing those settlements observed, some families with high incomes chose to sue because they believed that the Fund would not adequately compensate them. And many who opted out of the Fund also ended up paying higher legal fees and court costs, not to mention waiting much longer for money they could have received earlier and invested.
But is it that speculative that attorneys who make claims in a rival settlement fund might raise expectations and awards for those who later settle their private lawsuits? If so, how should courts weigh the value those attorneys contribute to a final settlement? Is it fair to discount awards to those filing with the GCCF, by the real, but arguably less-direct, financial benefits private attorneys have conferred on GCCF claimants? (For those of you litigating before Judge Barbier, or who have filed claims with the GCCF, I'd be interested in hearing your perspective about this).
Fourth Annual Junior Faculty Federal Courts Workshop
The web site for the Fourth Annual Junior Faculty Federal Courts Workshop, at FIU College of Law February 2-4, is now up. Papers are available for downloading. The conference remains open to non-presenting senior and junior faculty; the cost of attendance is reading the papers and being ready to make comments.
Be Fair to Newt
One last post, simply as a point of fairness. On the VC, Jonathan Adler points to a proposal by then-Speaker Newt Gingrich for a law that would require the execution of those who imported a sufficient amount of marijuana or other drugs into the country. Given the libertarian bent of many of the VC's readers, and for all I know the number of them who smoke dope, this might be taken as a disqualifying action by Gingrich in his current candidacy for the Republican nomination.
That hardly seems fair to me. There is absolutely no reason to believe that Gingrich meant it then, that he means it today, or that he will mean it tomorrow. True, there is also no reason to think that he wouldn't denounce such a law today, champion it tomorrow, and go back to denouncing it on Wednesday. But I hardly think we can blame Gingrich for his views on any particular occasion, or at least not for long. That would be like blaming the wind for blowing in an easterly direction in the morning, when you know perfectly well it will blow in three other directions by sunset. Let's be fair.
"Law, Religion, and Kissing Your Sister"
I'm going fairly dark for the next few weeks as I try to finish a book and an article. In the meantime, it being Monday, what better way to start your week than with some light reading.
I've posted on SSRN a draft paper--decidedly a draft, and comments are welcome--titled Law, Religion, and Kissing Your Sister. Some background: in October, my law school held a splendid conference called "Matters of Faith: Religious Experience and Legal Response." The speakers were first-rate and the discussion was excellent. My job was to comment on my friend and fellow blogger Rick Garnett's paper. But what I found especially striking about the conference as a whole was that the conference was "tied," as it were, 2-2, with Rick and Steve Smith representing one side of the church-state (or state/non-state) debate and Caroline Mala Corbin and Corey Brettschneider the other. (A fifth speaker focused on history and religious studies, and so didn't demonstrate the same degree of normativity as the other four. Go figure; she was the non-lawyer in the group.) Of course much of the reason for the tie was that it was an artifact of the selection of speakers. But it seemed to go beyond that, and point to the ways in which, and reasons why, church-state debates become fundamentally deadlocked. So rather than focus narrowly on Rick's paper, I decided that sometimes it's betta' to go meta, and focused instead on the nature of church-state "ties" themselves.
As readers of Mitch Berman's recent work know, interesting connections can be made between law and sports. In this paper, after discussing the "tie game" that resulted from the Matters of Faith conference, I do three things. 1) I talk about standard methods that law and religion scholars employ to tie to break ties in the area of church-state jurisprudence, and why they don't succeed. 2) I compare the treatment of ties in law and sports. I argue that, precisely because tie-breaking mechanisms in sports are unnecessary and can be wholly arbitrary, it is easier to command general acceptance of them; by contrast, tie-breaking mechanisms in church-state relations are necessary, but they are impossible to justify and cannot justify or capture general agreement. 3) Finally, I discuss how we might feel about this and whether we can or ought to do anything about it.
I hope students of church-state law--or sports fans!--read and enjoy the paper, and I invite comments and criticisms. Let me add two reading references for those who are interested, besides my book (which does, however, make a terrific Tu B'Shevat gift). First, I must recommend a little-noticed and, as far as I can tell, as yet uncited paper by Frank Michelman on the relationship between law and sports or games: "Adjudication as Sport: Rhetoric Astray," 38 Osgoode Hall Law Journal 583 (2001). 2) In my book and in the new article, I talk about the importance, from a constitutional agnostic standpoint, of courts finding language with which to speak to the losers in church-state cases. Similar lines of argument can be found in Robert Burt's book The Constitution in Conflict and in Emily Calhoun's recent book Losing Twice: Harms of Indifference in the Supreme Court.
It's a short paper and, I hope, a pleasant way to start your week. Enjoy! And wish me luck on cleaning out the Augean stables finishing my book.
P.S.: The title? A coach once compared ties in sports to "kissing your sister."
Sunday, January 22, 2012
Frost on Fallon on Scholars' Briefs
A while back there was some discussion in these parts about scholars' amicus briefs, their relative value or lack thereof, and what scholarly or other standards ought to apply to participating in one. The discussion stemmed from a recent draft piece by Richard Fallon. A link to that piece, and some summary and discussion, can be found here and here.
A few weeks ago, Professor Amanda Frost posted a draft reply, titled "In Defense of Scholars' Briefs: A Response to Richard Fallon." It deserves more attention than it has received so far.
Frost's admirably short and readable response first sets out her differences with Fallon:
* * *
I agree that a law professor should not sign onto a scholars‘ brief unless she has some special knowledge or expertise in the subject, and has then carefully read the brief and is satisfied that it contains reasonable arguments and advocates a result with which the professor sincerely agrees. Beyond this we part ways, for I do not believe that scholars‘ briefs must satisfy standards similar to those that govern scholarly publications. . . . Fallon argues that the norm of trustworthiness requires that a professor make explicit when any argument in a brief is at odds with that professor‘s purest beliefs about the law. So, for example, a law professor who believes that the death penalty is unconstitutional should not sign onto a brief that cites and relies upon precedent upholding capital punishment, even to argue that a particular defendant should nonetheless escape that penalty, unless the professor makes his views about the constitutional status of the death penalty clear. . . . I disagree that such candor is called for in a scholars‘ brief. [P] Furthermore, I think it is appropriate for a law professor to sign onto a scholars‘ brief even if she has not read, or read recently, every authority cited within it; even if she thinks some of the arguments made in the brief are not the best arguments from a scholarly perspective; and even if some significant counter-arguments are omitted.
* * *
Frost's defense of her differences with Fallon is based on two points. First, even where a scholar's brief is "not imbued with the attributes of legal scholarship," it may still contribute a number of things to the Court's store of knowledge and arguments: in particular, expertise and disinterestedness. Her other point is that she has "a different understanding of the relationship between law and politics" than Fallon, and places greater practical significance on "the differences in form and context between an amicus brief and legal scholarship." Because law and politics are not so easily separated, this helps justify professors in "signing onto amicus briefs that contain reasonable arguments that promote results they prefer, even if there are competing arguments that are a better fit with existing precedent or other authorities." And because the goal of a brief is to persuade within a relevant context, the rules should differ from those applicable in scholarship. For instance, "a brief that explicitly noted every precedent or doctrine that at least one signatory disavowed would lose some of its power to persuade. . . . The primary goal of filing such a scholars' brief is to influence the outcome, and thus Fallon's suggestion comes at a high price for those who write or sign such briefs with the hope of having such an effect."
I applaud Frost for setting out her views so clearly. But I disagree with her. I do not think she succeeds in demonstrating that A implies or requires B, and that leaves her response with the distinct quality of being a non sequitur. More below.
A brief, Frost writes, sets out to persuade, and she makes clear that by "persuade" she means to encourage the court to reach a particular outcome. But the value provided by scholars' briefs, she says, lies in the expertise and disinterestedness of its contributors. If that is true, then a brief that sacrifices disagreement on details and candor about counter-arguments achieves its persuasive power precisely by throwing overboard the main qualities that, she says, make a scholars' brief a distinct contribution. Certainly, to refer back to one thing she says, a scholar who signs on to a brief without adequate knowledge of the cases and arguments involved, and does so because she wants to influence the court to adopt a specific outcome, is displaying neither expertise nor disinterestedness. I question how such a person can even be said to be "persuasive," except by misdirection--ie., these signatories imply to the Court that many experts share the views expressed in the brief, despite the fact that Frost doesn't demand true expertise or its exercise by these signatories.
Whatever the merits of Frost's arguments, I don't think they hang together: her arguments for the special value of scholars' briefs tend to contradict, rather than support, her arguments that because law and politics are interrelated, scholars have a lesser duty when signing amicus briefs as scholars. A carefully, thoroughtly, and fairly written scholar's brief can indeed provide the Court with something: it can give it expertise and disinterestedness on a particular legal or factual question, without immediate regard for the outcome. If it doesn't do that--if it is just a standard rhetorical exercise in persuasion--then, whatever value it may have, it lacks special value as a scholars' brief, and the signers really ought to abandon their implicit claims of authority and sign without adding their academic affilliations.
To repeat what I said in the earlier discussion, I do think there could be considerable value in a group of scholars in an area getting together a network in which they look at upcoming cases for the purpose of preparing disinterested amicus briefs on questions in which they have genuine expertise and that are unlikely to have already been noticed by the Court or fully canvassed by the contending parties. Those briefs would add something genuine to the stock of knowledge available to the Court in deciding the case, and would demonstrate far more than the typical scholars' brief does today that the academy has something real to contribute to the judicial process, other than just a large group of scholars with enough time in their day to sign on to a ghost-written brief. Today's scholars' briefs are often the equivalent of Super-PACs: heavily coordinated with the parties and generally parroting the same points. But a group of scholars interested in canvassing the Court's docket for cases and questions in which they could say something genuinely new and important, without caring who wins or loses, could do a good deal to aid the Court.
Again, someone ought to at least try this, and of course I'd be happy to help coordinate it. But I'm afraid that I think Frost's defense of the status quo ultimately doesn't succeed.
The Modern Plague of the Law Review Process: The Originality Graf
The post I wrote below about cycles and eternal returns in public law scholarship, and the wonderful exchange I got to have with a commenter on that post (thanks again; you made my morning), leads me to reflect on two things.
The first is simple enough. In hiring new law professors, committees and faculties often place a high premium on originality. This has much to do with the increasing availability of writing on the part of candidates and the insistence that they have a fully worked-out job talk. Compare this to stories of hiring in the past, particularly at elite institutions (for examples, see Julius Getman's wonderful memoir, or Steven Breyer's recent GW piece discussing the genesis of one of his early articles, or the memoirish piece by Joe Vining in a recent symposium dedicated to him). Once, a "likely fellow" might have been hired on the assumption that he could follow his muse where it took him; originality did not need to be proved up front. There were problems with this approach: 1) it was elitist, and based on few criteria at that; and 2) although we can focus on the Breyers and Vinings, we must remember the number of scholars chosen in this manner who quickly rose to mediocrity and stayed there. I prefer the current approach. But too much focus on originality, particularly when it often really means novelty or Farberian "brilliance," can miss much. I would rather that we look for a curiosity and independence of mind that suggests that a scholar will add value over the long run, following her train of thought wherever it takes her and without fear.
Second and more central to this post is a recent phenomenon I have noticed in law reviews and on SSRN: the dreaded "originality graf." Every article now seems intent on including high up a paragraph that not only establishes (or argues) why the article is important, but why it is original. And not just original, but why no one, in the history of scholarship in this area, has spotted this "neglected" or "crucial" issue or problem. I hardly need add that these paragraphs are sometimes the height of grandiosity or hubris. This trend has several problems:
1) It's rarely true. Again,read your Ecclesiastes, please. If one digs back a mere hundred years or so, one may find that the issue was indeed discussed in one way or another. If one looks even closer still at hand, one may again find recent examples of scholarship discussing precisely this question, even if the focus in some way differs. I can't recall how many originality grafs I've seen that then drop a footnote with a long "see also" that demonstrates that the piece at hand is nowhere near as original as the author pushily asserted in the main body of the text. They may try to distinguish those pieces, but absolute and true originality is understandably rare.
2) Originality and importance are not always the same thing. Some "original" pieces are only trivially original, or are absolutely original but on a trivial point that is not worth the space devoted to it. The same author will then often make inflated claims about why this trivial point is actually far more important than anyone realizes. Those claims are rarely very convincing.
3) It's perhaps an unhealthy emphasis to push on new scholars. There is good reason to think that they ought not start off by doing more than they're yet capable of. Finding new problems is one way to address this. But that doesn't mean they should have to convince themselves of the need to find novel and important questions. One understands the desire to place well, but surely there is not only room but need for junior scholars to focus on pieces that are narrow enough to suit their skill sets and answer questions that have been left unanswered by their seniors (who often end up gravitating to big picture pieces that leave many important questions unanswered), but that are not truly "important." Surely filling in the details is an admirable place to start, and one that is useful for legal scholarship as a whole.
4) It leaves the evaluation of the originality and importance of an article in the hands of non-experts. Now, law reviews are increasingly farming out preliminary evaluations of this kind to professionals, and more power to them (although many of those judges have themselves been infected over time by the same lure of originality). Still, it's fair to say that neither the young author him- or herself nor the law review editors are necessarily the best judges of originality or importance.
5) It asks the wrong questions. Originality can certainly be valuable, and importance can certainly be, um, important. But I value more the idea that the author has something interesting and valuable to say, and that his or her approach is suitable to the topic--to its relative greatness or lack of greatness, the relative scarcity or depth of pre-existing material.
I doubt we will get rid of this graf, and of course it has some purpose. But I do wish everyone could tone down their originality grafs a great deal, and appreciate that a question well-asked and well-answered is more important than being the first person to stand on a distant mountain that has no foot traffic because it deserves none. Law review editors, I think, should view these paragraphs with great skepticism rather than, as a matter of practice, demanding that the author put it in his abstract, his proposal, or especially his final piece. And they should, at some point, have a useful discussion en famille about whether it's really what they should be looking for. They might ask instead: Is this piece thoughtful? Thorough? Suggestive? If it deals with a narrow question, does it do so well and completely? Even if it purports to be "original," does it demonstrate enough historical perspective to look for and relate the predecessors to the "original" question being asked? "Original" or not, does it usefully answer an interesting question, or will it provoke useful further conversations?
Of course, these questions are more wide-ranging than just looking for novelty, and I suspect (as with word limits) that whatever the value of novelty or originality, looking for an originality graf has become a proxy, in the absence of more qualitative judgment on the part of the editors, that helps them decide whether to put a paper on the "read" or "reject" pile. That's understandable but insufficient. There is probably nothing new under the sun, and in any event not all that's new is terribly important or worthwhile. (And, while I'm at it, all that glitters is not gold.)
Saturday, January 21, 2012
More on Corporate Personhood: The Eternal Return of Public Law Theory and Scholarship
It's not just Citizens United that has had people thinking about corporate citizenship and group personality in the past little while. The recently released decisions in Hosanna-Tabor, too, are directly relevant to these issues. Coincidentally, for the book I'm finishing (or desperately trying to finish) on First Amendment Institutions, I've been delving back into the work of a century and more ago: the age of the British pluralists, some of whose key figures include Maitland, Figgis, Laski, Barker, and others, and some of whom also drew on the German jurist Gierke. I am struck, and not for the first time, by just how much constitutional law and the debates it produces represent an almost eternal cycle, an eternal movement of the pendulum back and forth between different modes of thinking about some of these issues. That goes for both sides of the debate, certainly; it's a treat to dig into the Holmes-Laski or Holmes-Pollock correspondence and find Holmes expressing his skepticism about these writers' views on group sovereignty and personality. Doubtless one could go still further back to Athanasius. (I am not surprised that one of the finer constitutional law scholars working today, Adrian Vermeule, increasingly relies not just on the latest social science literature, but on close analyses of much older writers.)
The longer I am in this line of work, the more I think there is a kind of inevitable pattern to many scholars' lifecycles in this area. One starts with immediacy and certainty: one dives into the present debate, and does so more or less loyal to a particular position and aiming at definitive reform consistent with one's views. Some remain there for their whole careers. But if you want to stick with these issues and deepen your understanding of them, you are eventually going to find yourself going further and further back--not to the Founding, necessarily, since (in my humble view) people who move between the Founding and the present with no stops in between or further back are going to make little real intellectual progress. At a minimum, to understand Hosanna-Tabor or Citizens United at least, you will have to go a century back. Whether you choose to go still further in time and place, to the reception of Roman law in Germany and Italy, is up to you. However far you go, the shine will surely be taken off your sense of immediacy, as you realize that all this has happened before, in one form or another. And it is little wonder too that, for many of us, the longer one does this, the less faith one places in either certainty, doctrinalism, or reform. (To be sure, there will always be die-hard reformers who, oddly enough, insist on living in the present.) It's all very well to argue that corporations are persons or not persons. But the longer one examines these issues, the clearer it is that these debates have all aired before, and that the stronger the position you push on one side, the likelier it is that the pendulum will eventually swing back in a fairly short period of time -- say 50 or a hundred years. As usual, Ecclesiastes has us all dead to rights: there is nothing new under the sun, and all is vanity. Too much of this realization and you will cease being fun at parties.
This seems like a bit of a frolic and detour, but there's a point here. Of course there is something to be said for being deeply engaged in the issues of your time; you don't go to norm enterpreneurs for a sense of historical perspective. But if you would like to understand these issues rather than merely influencing them, you would do well to abandon today's newspapers and go digging in the basement of your law library. For those who have been interested in these issues in the context of church autonomy and Hosanna-Tabor, or corporate personhood and Citizens United, I strongly recommend that they look up books like this one or this one or this one. They won't tell you much about whether the Supreme Court was right or wrong in either of those cases, but they will tell you a good deal about the subterranean foundations of the arguments in those cases, and remind how you thoroughly the foundation has been left neglected: by most scholars, virtually all "norm enterpreneurs," and all of the judges. It's a shame that more people writing about these issues, certainly including the judges, have not so much as heard of the Wee Free Church of Scotland.
Greenfield on corporate personhood
Kent Greenfield (Boston College) had this op-ed in Thursday's Washington Post. Yesterday's Occupy the Courts ralliy has as its major target Citizens United (the rally was timed to the decision's second anniversary, which is today) and the idea that corporations possess First Amendment liberties. The group is pushing a constitutional amendment, which is garnering smatterings of support, providing that that corporations are not people, money is not speech, and constitutional rights are only for people.
Greenfield does a good job undermining the first and third of these goals:
This is exactly right and is entirely missed in the knee-jerk progressive/liberal reaction to Citizens United. It reflects de Tocqueville's view of associations as important and beneficial means to enhance individual power for all sorts of purposes--business, political, and personal. If only natural persons enjoy constitutional liberties and GM cannot speak, then neither can The Times or ACLU.
The Constitution protects the rights of various groups and institutions — whether Planned Parenthood, Bob Jones University or the AFL-CIO — though they are not “natural persons.” Humans gather themselves in groups, for public and private ends, and sometimes it makes constitutional sense to protect the group as distinct from its constituent humans.
The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.
On a separate note, are all social and political protests (at least from liberals) now going to be titled "Occupy ____", just as every political scandal is "---Gate"? I sure hope not.
Friday, January 20, 2012
"You Are an Idiot For Agreeing With Me"
Let me make one other observation inspired by a VC post, although I'm not trying to target that post or poster particularly. In a recent post discussing a brief he has submitted in the mandate litigation, David Kopel writes:
Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning.
Aside from its lack of good manners, I have absolutely no problem with this, and the sentiment is common if not always so boldly stated. But it strikes a chord for me because it relates to something I think about increasingly as I grow older. In my time on this fine planet, I have often heard someone criticized for criticizing something he or she knows little or nothing about. How utterly common it is to read of a politician, or a writer, or a public figure saying not of one person but of a whole host of people who disagree with him or her that those people haven't done the work, don't understand the issue, simply have no idea what they're talking about, and should be quiet. (For a similar example, drawn this time from the left, see some of the largely disingenuous statements by Corey Robin in this article in yesterday's Times.)
But in an equal length of time, I don't believe I've ever heard anyone criticize someone who agrees with him or her for not having read the complete book/article/brief/etc., or for not understanding it well enough, and so on. Clearly, Kopel is poised to say to anyone who dares shallowly criticize the brief that he is an idiot. But is he equally prepared to say the same thing to someone who writes in with shallow praise for the brief? I grant that I sometimes go a little overboard in demanding humility, but I see no reason, as long as most of us are so prepared to somewhat haughtily dismiss the criticism of others as uninformed and inadequate, why we should not show equal disregard for those who tell us we are right. I find it a fascinating, ridiculous, and pretty well universal aspect of human nature. (One to which I am hardly immune, I should add.)
Does "No Commandeering the People" Exist?
Of all of Randy Barnett's arguments against the individual mandate, which he has developed assiduously and succeeded very well in bringing, to paraphrase Larry Lessig (back when he did constitutional theory) into the realm of the contestable, the one I find the weakest and most curious is his argument that the mandate violates a constitutional principle forbidding the "commandeering of the people." Nevertheless, he gives the argument a clear and lengthy exposition today in a post on the Volokh Conspiracy, and it's worth reading. (For a longer treatment, see this article.) He argues that just as the Court accepted in Printz and New York v. United States an anti-commandeering principle with respect to some otherwise valid Commerce Clause laws that infringe on particular aspects of state sovereignty relating to the political process and structure in those states, so, by virtue of the language referring to the people in the Tenth Amendment, it also prohibits mandates that "commandeer the people."
It's a clever argument, but one that I think was far afield from anything contemplated by either of the principal opinions he draws on. Those opinions were about key structural aspects of state government and state sovereignty, which in turn serve to preserve political accountability and individual liberty; they were not about individual liberty in any direct fashion. Quite unlike in those cases, when the federal government, through one of its enumerated powers, directly "commandeers" the people by demanding some action (or, really, requiring a tax penalty when that action is not undertaken), there is no blurring of the lines of political accountability. Everyone understands whom to blame. Nor, as in Printz, is there any question of separation of powers: the mandate will be enforced by the Executive Branch, and the people will know it. To read those cases as so much as implying a rule against "commandeering the people" is, I think, an unfaithful reading. (Although I do find his textual argument from the Tenth Amendment interesting.)
A couple other things are curious about this argument. For one thing, Barnett proceeds as much or more by way of analogy than text, arguing that "[t]he principle that the people may not be commandeered is reflected in several other constitutional provisions," such as the Third, Fifth, and Thirteenth Amendments. So we are squarely into the penumbral reading style of Justice Douglas, or the "essential postulates" (ie., as I write in a humor piece elsewhere, "made-up stuff" not written in the Constitution) approach of the latter-day Court. I would have thought, though, that the fact that these particular provisions say what they say and not something else, as well as the fact that they are all specific side-constraints on what is otherwise apparently permitted by the Constitution, is better evidence that a fair legal reading of the text should read those provisions as particular, not illustrative. I am also struck by the fact that Barnett's post recognizes that "line drawing" is a "pervasive" problem in all of the law, which runs against his general insistence on line-drawing (more particularly, on judicial line-drawing). And he concedes that his reading of the anti-commandeering principle is entirely "novel." Novelty, of course, has been a hotly ridden hobby-horse for some time in Barnett's arguments against the mandate.
In his post, Barnett says that the only reason the principle is novel is because the mandate itself is novel. He attempts to reassure the Court that given the "unprecedented" nature of the mandate, his "no commandeering the people" rule, although fully applicable here, will be the Bush v. Gore of essential constitutional postulates, good for one trip only. This is a nice jiu-jitsu move, but I think the general principle he has argued elsewhere still holds here. The fact that he is advancing a wholly novel constitutional principle, and arguing that it is a judicially applicable principle, surely counts against it. Indeed, given the extent to which he views this principle as a broader implication from the constitutional text as a whole, it is far from clear why it would not have appeared in some guise or other before, so I think his general anti-novelty bias is far more damaging to his anti-people-commandeering rule than to the law he seeks to attack with it.
In short, I find the "commandeering the principle" argument novel, unprecedented, and unpersuasive. But for those who are interested in it, Barnett's post today at least presents the argument briefly and clearly. Comments are welcome here; they are also, rather unusually, also permitted at Barnett's post.
The Privatized Attorney General
For years, commentators have compared class action attorneys to "private attorneys general" – a private complement to otherwise overburdened, government actors unable to respond to fraudulent marketing schemes, patterns of employment discrimination, and unconscionable consumer contracts. But, as Myram Gilles and Gary Friedman point out in their forthcoming article in the University of Chicago Law Review, class actions are now “on the ropes.” This is because of the Supreme Court’s April 2011 decision in AT&T Mobility v. Concepcion, which broadly validated arbitration provisions containing class action waivers. The Supreme Court’s ruling means that many of the companies that touch consumers’ day-to-day lives can now place themselves beyond the reach of collective litigation, including “mortgage lenders, health clubs, nursing homes, retail banks ... and the sellers of all manner of goods and services.” After AT&T Mobility, the question remains: who will fill the vast, and growing, enforcement gap once occupied by those “private attorneys general”?
Their intriguing solution: a State Attorney General, with the option to go private. Gilles and Friedman argue that State Attorneys General can represent the interests of their citizens in the same consumer, antitrust, wage-and-hour disputes that have “long provided the staple of private class action practice” through parens patriae lawsuits that are not subject to arbitration clauses. (In parens patriae cases the State AG sues for injunctive relief or damages on behalf of its citizens under common law, or most often, under a state or federal statute.) Although the state generally has to claim that it is seeking funds on behalf of the state, or a substantial population in the state, none of the traditional rules limiting class actions apply. And most intriguingly, those cash strapped or inexpert state AGs can, in turn, hire private attorneys well versed in complex litigation to litigate these cases. That is, AGs can literally deputize the very same private class action attorneys who have long carried the mantle of "private attorneys general." (Perhaps the most famous example of this practice occurred in the course of the national tobacco litigation. Richard P. Leyoub & Theodore Eisenberg, State Attorneys General, the Tobacco Litigation, and the Doctrine of Parens Patriae, 74 Tul. L. Rev. 1859 (2000). But for a recent example, consider the Louisiana AG, Buddy Caldwell, who recently hired private counsel in the multidistrict BP litigation.)
Gilles and Friedman don't claim that class actions are "dead," only on the ropes. Indeed, there still seems to be some signs of life at least for federal actions and even class wide arbitrations. See, e.g., Jock v. Sterling Jewelers, 646 F.3d 113 (2d Cir. 2011) (upholding an arbitrator’s decision to certify an employment class action in arbitration). See also Paul Kirgis' and Jean Stearlight's commentary on the NLRB’s decision to limit waivers in D.R. Horton, Inc. and Michael Cuda. But their article raises several important questions for those interested in the future of complex litigation. If some class actions survive AT&T Mobility, will those class actions and state attorney general suits compete not only for the same funds, but the same private lawyers? How should federal actors -- federal prosecutors and agencies -- who also have power to seek restitution and disgorgment coordinate with state AGs? What mechanisms will ensure that AG’s pick private counsel fairly, transparently and competently? I discuss one more big question, below the jump.
If parens patriae lawsuits take on the role once served by class actions, one big question involves what should happen at the back-end of these big settlements. What happens to the settlement proceeds? Should courts apply the same level of judicial scrutiny as class actions, or a more deferential one in light of the public actors involved? Should victims entitled to receive compensation receive the right to notice or to opt-out? Should there be a res judicata effect on those who do not?
There are some models for what happens on the back end. State AG parens patriae settlements commenced under Hart-Scott-Rodino require “publication” (although not individualized notice), rights to opt out, and have a res judicata effect on those who participate in the settlement. 15 U.S.C. 15(c). There are also offset provisions for duplicative settlements. 15 U.S.C. 15(a).
Other kinds of state AG parens patriae settlements are governed by different state laws. California for one, requires notice, opt-out, and judicial review of attorney general settlements. Cal. Bus. & Prof. Code 16760(b)-(c). However, many, like Washington State, do not. Wash. Rev. Code. 19.86.080. And no state or federal law deals with potential intra-class conflicts.
At first blush, it does not seem like state AGs need to have all procedural safeguards that exist in class actions, which may require more rules to ensure private attorneys adequately represent the interest of non-participating class members. After all, AGs have no independent financial stake in the final settlement. In some cases, Congress has even adopted policies to encourage state AGs to act as watchdogs to ensure class action settlements are fair. Under the Class Action Fairness Act of 2005 (CAFA), for example, class counsel must distribute copies of any class action notice to the DOJ and to all fifty state attorney general offices. See, e.g, 28 U.S.C. § 1715(b) (2006). The rational is that AGs may then intervene to provide an “extra layer of security for the plaintiffs” and to ensure that abusive settlements are not approved without “a critical review.” 151 Cong. Rec. 660 (2005) (statement of Sen. Herb Kohl). To the extent class action rules were designed, in part, to ensure that individuals enforcing the law as “private attorneys general” do so in the public interest, such procedures would seem unnecessary for real attorneys general.
Conflicts will exist, however, even when public officials are charged with representing victims. State AGs may seek quick settlements to resolve embarrassing missteps in regulatory policy, or lack incentives and input to address victims’ interests. Even the most well-meaning AG may lack information necessary to effectively serve different classes of victims. It is, in part, because of those conflicting interests that the Supreme Court has rejected attempts by state attorneys general to recover civil damages on behalf of state residents, absent express authorization from Congress. See Hawaii v. Standard Oil Co., 405 U.S. 251, 266 (1972) (reasoning that there should be sufficient private attorneys to litigate antitrust laws since the statute provides the winning plaintiff with court costs and attorneys fees). But cf. Farmers Grp., Inc. v. Lubin, 222 S.W.3d 417, 422 (Tex. 2007) (discussing insurance-policy class actions which the Department of Insurance, the Attorney General, or a private citizen may bring as authorized by statute).
In the end, the variety of procedural safeguards that exist for parens patriae suits will have to come to grips with the complicated trade-offs that exist in class action litigation between deterrence, compensation, and victim participation. As Gilles and Friedman recognized several years ago, additional procedures to afford victims additional rights to compensation may impact other very important values, like closing the very “enforcement gap” left by the shrinking class action device. See, e.g. Myriam Gilles & Gary Friedman, Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U. Penn. L. Rev. 103 (2006).
Thursday, January 19, 2012
Defending JoePa, redux
Right after Penn State fired Joe Paterno back in November, shortly after the grand jury report about Jerry Sandusky was released, thousands of people, maninly Penn State students, took to the streets in protest/riot. At the time, I wondered what they were protesting and why they thought JoePa had someone been wronged in all of this. At the time, many simply chalked it up to "stupid college kids" who did not really give thought to (or care about) the broader issues involved.
On the other hand, it appears to not be limited only to PSU students. New PSU president Rodney Erickson has been holding a series of town hall meetings with alumnae to discuss the scandal. And the overriding theme of these town halls is that the Board of Trustees was wrong, and should all be fired, for terminating Paterno. The bad thing was firing Paterno, not the mishandling of the allegations against Sandusky. It was tears for all Paterno had done, not the fact that, by all accounts, Sandusky was still a presence on campus and around the footbal progran long after the administration knew about these allegations. Here are two accounts of the New York town hall, where questions all focused on why JoePa was fired and not why Sandusky was not called out sooner. Here is a New York Times piece on the Board and their actions and thought processes. And here is a short commentary from Torie Bosch, a PSU grad and writer at Slate, expressing "dismay" over the reaction of many alumni.
Again, I think I could understand an argument of "Sandusky is wrongly accused, so JoePa did nothing wrong in failing toand should not have been fired." But, at this point, no one is (or, frankly, can) make that argument. Instead, like the students, the argument is "How could you fire our wonderful coach?", with no consideration of the bigger picture.
Who said that?
With Rick Perry exiting the presidential race, I'd like to take a moment to mention what I consider his highpoint. In this video, Perry refuses to respond to a reporter’s questions that are premised on anonymous campaign aides’ statements about the struggles within the campaign. This may well be the first and only time I ever say this: kudos, Mr. Perry! I haven’t read the paper yet today, but if you go to the New York Times’ website and click on any national news story, I’ll bet that you’re likely to find a major premise of the piece supported by undisclosed sources. Heck, just recently Newt Gingrich himself was being cited as an anonymous source in a New Hampshire Union Leader piece about, get this, Newt Gingrich.
Should this bother us? I suppose it depends on why someone is requiring anonymity. There are certainly important reasons to use unidentified sources. I know that most media outlets have guidelines for using anonymous sources, but I think it’s impossible to know whether those standards are actually being followed. The absence of any enforceable rules leaves it to the norms of the profession, and given the pressure reporters feel to get the story and to get it before anyone else, I doubt those norms are sufficient. I also doubt that there’s any way to create a norm among readers to look more skeptically at those pieces that rely on unidentified sources.
What’s the answer? There probably isn’t one. But it did get me thinking: refusing to name my sources would make Bluebooking a lot easier. “See, e.g., Unnamed Law Professor, supra note 2.”
Mims and jurisdictional clarity
Lost in the anger over yesterday's opinion in Golan was the Court's brief unanimous opinion in Mims v. Arrow Fin. Servs., in which the Court held that the creation of a private federal statutory cause of action against telemarketers making robocalls, with explicit allowance to bring such actions in state court, did not divest federal courts of jurisdiction over the same claims under § 1331. There is some good stuff in the opinion, particularly in providing some further guidance for what "arising under" means at the core--when "federal law creates the right of action and provides the rule of decision". It also establishes parallelism in the concept of concurrent jurisdiction. There is a presumption that state courts have concurrent jurisdiction over federal claims unless Congress otherwise explicitly provides for exclusive jurisdiction.The converse presumption also holds: because § 1331 grants federal jurisdiction over any claims established by federal law, there is a presumption of federal jurisdiction over any federal right of action, unless Congress explicitly provides otherwise.
This decision also could help the courts in future jurisdiction/merits conflicts. When Congress creates a right and right of action, jurisdiction automatically vests under § 1331. It should follow that any defects in a claim under that federal statute do not affect the court's jurisdiction and instead go to the merits.
Wednesday, January 18, 2012
An Update on "Teaching Legal Ethics in a Recession"
I wanted to put up a quick teaching note, especially for those who teach Legal Profession/Legal Ethics courses, since I talked a while back about teaching legal ethics in a recession, or more broadly in a period in which there are serious questions about the legal economy and about law schools themselves.
As I said in that discussion, last year I found that the very fact of the economy made many students resist the entire class altogether. I use a problem-based method more or less, and the students 1) felt alienated from the exercise of pretending to be a lawyer, when jobs themselves were so scarce; and 2) were more inclined to choose courses of conduct that would make sure they didn't lose a client or their jobs, even if that conduct skirted ethical lines or might be harmful to their reputation and career in the long run. So this year, I started on the first day of class by discussing the economy, the law schools, and students' own hopes and expectations before and since entering law school; that included assigning relevant internet material about the legal economy and about recent critiques of law school dishonesty and so on. I made a kind of bargain with them: I would make sure those issues were not forgotten or ignored in class, and would bring their complaints about the Law School itself to the administration; and they would try to enter into the spirit of the enterprise, thinking not only about their short-term prospects but about what might help build their reputations and make their work more rewarding over the long term.
I kept my end of the bargain, but more importantly the students kept up their end quite splendidly.I've just gotten through grading their exams and short-papers (I had each student, over the course of the semester, write a five-page single-spaced paper engaging in deep analysis and reflection concerning one of the assigned problems), and they were of very high quality. So was class discussion. For those of us who grade on a curve, it can sometimes be easy to forget that our goal is to actually teach, not just to assign grades. This year, regardless of what the curve says, it was evident to me that the students had really grasped and dug into the material. It was a very rewarding experience for me, I must say, and the credit goes to them. I'm not willing to draw too many conclusions from this experience, but I will say a couple of things:
1) For many students, having a professor who actually talks about the legal economy, the general economy, the job hunt, and problems with law school in general and their own law school in particular, is like finding water in the desert. I don't mean that in a self-aggrandizing way; the point is that students are keenly aware of these issues and would like to feel that someone is listening to them and their concerns. Talking about these issues, and being willing to report students' concerns "up the chain," was in my view not only relevant and part of my duty as a teacher, but also a fundamental aspect of the mutual trust and commitment that I felt in this classroom last semester.
2) Talking about these issues, and even reading fairly cynical Internet sources, didn't turn my students into Legal Ethics cynics or cynics about the law and legal education in general. That doesn't mean they don't have complaints, or that they aren't hunting hard for scarce jobs. It's just that 1) actually talking about these issues helped the students feel they weren't being ignored, and 2) by putting them on the table, students were also willing to think about the building of a career, a professional identity, and a reputation over the long run.
3) This is a narrow and obvious pedagogical point, but 100-percent MPRE-like finals are a terrible idea for Legal Profession classes (just as 100 percent finals in general are a terrible idea for other law school classes). The students really came alive in their short papers, digging deep into particualr problems, using a variety of sources well, and often adding valuable personal reflections based on their own experience in the law or elsewhere.
Tuesday, January 17, 2012
McGinnis, Mangas, and Rodriguez on "Killing the Law Schools"
In the Wall Street Journal, John McGinnis and Russell Mangas suggest "killing" (not really) the law schools as a way to increase the number of attorneys and lower legal fees. At his new "Word on the Streeterville" blog, now-Dean Dan Rodriguez of Northwestern responds:
. . . What would this reform do to legal education generally? Not much good, from my perspective. The legal profession is becoming considerably more, rather than less, complex over time. Appeals to, as they write, the “ancient common law” is rather quaint. There is, to be sure, a core and a canon which every well-trained lawyer should have exposure to, and two years may do the trick. But there is much beyond this core, as lawyers grappling with a technologically sophisticated, globally interdependent, socially and economically diverse legal and business world well appreciate. Lawyers tell us in the academy that we are not doing enough to get our students ready to practice. They insist on greater skills training, more clinical experience, more integrated law/business curricula, and opportunities within the post-graduate structure to gain on-the-job practical experience through internships and externships. And what McMangas has on offer is tossing that aside to be replaced with two years worth of presumably in-class exposure to the “ancient common law” and a few additional goodies. Leave aside the self-interest of the professiorate. That’s not what lawyers tell us that they need. . . .
Rodriguez has also posted a detailed reply by McGinnis and Mangas. Thoughts? Certainly, there are loads of smart undergraduates who could, without the assistance of an increasingly expensive law-school education, pass a bar exam after an undergraduate law course and competently provide a range -- though not the full range -- of legal services. And, since I'm inclined to think that more than a few of the standards and regulations that are imposed (by the A.B.A. and the A.A.L.S.) on law schools as a condition of producing bar-eligible lawyers are homogenizing, heavy handed, simplistic, misguided, and/or products of special-interest lobbying, rather than careful responses to the demonstrated needs of students, clients, and the profession, I see some appeal to the McGinnis / Mangas call for a "more flowers blooming" market. On the other hand . . .
What do you think?
The Rise of Executive (Branch) Compensation
Better late than never is what I always say. Last month, shortly before the winter break, Gerard Magliocca at Concurring Opinions raised several interesting questions about "The Increasing Use of Compensation Funds" -- that is, government-created funds that compensate victims of a disaster in exchange for their decision to forego litigation, like the September 11 Victim Compensation Fund, the Minnesota Bridge Collapse Fund, the National Vaccine Injury Compensation Program, or more recently, the fund for a stage collapse at the Indiana State Fair. Among other things, he asks why legislators choose to create these otherwise ad-hoc, workers compensation-like funds in some cases, but not in others. (Consider the victims of the bombing of the Alfred P. Murrah Federal Building in Oklahoma City who did not receive compensation through a special legislative fund).
Better late than never, I responded over the winter break. My view is that, even though legislative-based compensation funds date back to the Revolutionary War, legislators rarely create them because they require intense political capital and must appeal to a deep, moral narrative to justify spending funds on those "deserving" of compensation. It is also for that reason, in part, that the real action for publicly-created funds is taking place not in Congress, but in another branch of our political system: the executive branch.
I offer my thoughts about the history of legislative funds, the political hurdles they face, and some implications for the rise of what I call "Executive Branch Compensation," after the jump.Some History. Michelle Landis Dauber has written extensively on the history of legislative compensation funds. See Michele L. Landis, “Let Me Next Time Be ‘Tried By Fire’”: Disaster Relief and the Origins of the American Welfare State 1789–1874, 92 Nw. U. L. Rev. 967 (1998). As she notes, large compensation funds are not unique to the Twentieth Century, but rather, share a history almost as long as the development of Tort law in the United States. Compare Landis supra with, e.g., G. Edward White, Tort Law in America: An Intellectual History 14-15 (1999); 1 Francis Hillard, The Law of Torts, or Private Wrongs 82 (1859) (“the liability to make reparation” rests upon the “original moral duty, enjoined upon every person, so to conduct himself or exercise his own rights as not to injure another”). In the early 1800s, Congress passed individual bills to compensate victims for specific harms suffered in the wake of the Revolutionary War. See, e.g., Landis, supra 978-79; An Act for the relief of John Stewart and John Davidson, ch. 37, 6 Stat. 3 (1790) (remission for duties on salt destroyed by flood). When that process of case-by-case legislation became unworkable, Congress passed laws designed to compensate victims of natural disasters, the Revolutionary War, and other calamities by relying on commissioners who oversaw public funds that resembled modern administrative agencies. Those commissioners assumed broad authority to evaluate claims, accept evidence and distribute money according to well-defined rules. Early examples include public funds created in the wake of the Whiskey Rebellion, the Haitian “slave insurrection,” and the War of 1812. Tracing the history of large funds, Dauber explores the underlying policies, motivations and moral dimensions of the public’s decision to compensate people for collectively felt harm.
Some Patterns and Problems in Legislative Compensation. I can't do justice to Dauber's facinating and nuanced argument, but among other things, Dauber found that the decision to create such funds turned on sudden, catastrophic, inexplicable harm, to very discrete classes of "deserving" victims. I suppose even this pattern doesn't explain why Congress did not compensate victims of the 1998 embassy bombings in Dar es Salaam, Tanzania and Nairobi, Kenyra. But it does suggest that, in addition to the difficult political obstacles to any form of compensation that resembles social insurance, large legislative funds require a powerful moral narrative. See, e.g., Robert L. Rabin, The Renaissance of Accident Law Plans Revisited, 64 Md. L. Rev. 699 (2005) (observing the unique political difficulties associated with creating legislative compensation funds); Robert L. Rabin, The September 11th Victim Compensation Fund: A Circumscribed Response or an Auspicious Model?, 53 DePaul L. Rev. 769 (2003); see also, Franklin, Rabin, & Green, Tort Law and Alternatives 874-890 (9th ed 2011). In other words, large funds require a kind of "corrective justice" writ large.
But even that kind of collective, corrective justice is no guarantee. The recent near-demise of the James Zadroga Act, which re-opened the September 11 Fund for the discrete claims of a very sympathetic class of people, and the failed efforts to create a legislative fund to resolve asbestos claims, despite repeated calls by the Supreme Court to do so, demonstrates that the stars really have to align for a legislature to create a fund. See, e.g., James Stengel, The Asbestos End-Game, 62 N.Y.U. Ann. S. Am. L. 223 (2006) (describing obstacles to the creation of national asbestos fund in Congress). I guess that’s one reason why our Tort system remains so durable; it’s our only remaining default system designed to serve very similar values as public compensation funds; that is, it attempts to compensate narrow, discrete and "deserving" claims for compensation, and it does so, generally, without the same obstacles of a political process.
The Rise of Executive Branch Compensation. The resistance to legislative-compensation funds also explains why the real action for public funds is taking place not in Congress, but in another branch of our political system: the executive branch. Over the past ten years, in a variety of high profile corporate scandals, members of the executive branch -- prosecutors, states attorneys general, and agencies (like the SEC, OCC, FTC, and FDA) -- have sought billions of dollars in restitution for crimes and regulatory violations ranging from environmental dumping and consumer scams to financial fraud. (And in the cases of the British Petroleum Oil Spill Fund, the Holocaust Victim Settlement Fund, and the Libyan Airline Settlement, even the President has become involved.) Those government actors then distribute that money to groups of victims like a civil class action, through large public compensation funds. Because these “executive branch” compensation funds may act more quickly than Congress, and because they enjoy a more powerful moral narrative (they take money directly from wrongdoer for the benefit of a victim), they have been growing with far more frequency than legislative funds. Adam S. Zimmerman, Distributing Justice, 86 N.Y.U. 500 (2011) (observing that agency based funds collected over $10 billion over the past decade); Adam S. Zimmerman & David M. Jaros, The Criminal Class Action, 159 U. Pa. L. Rev. 1385 (2011) (tracing the rise of massive criminal restitution funds in deferred and non-prosecution agreements between corporate defendants and federal prosecutors).
But, the overlap of public funds with our private litigation system creates new problems of duplication, transparency and fairness. Private attorneys, regulatory agencies, state attorneys general, and criminal prosecutors often commence duplicative actions seeking the same funds against the same defendant, for the same conduct, and on behalf of the same set of victims. Moreover, many of these kinds of executive branch funds lack critical safeguards for victims entitled to compensation. While public actors are encouraged, and in some cases, required by statute, to provide victim restitution, they often lack adequate rules to (1) hear victims’ claims, (2) identify conflicts between different parties, and (3) divide the award among victims.
There may be important reasons for the executive branch to continue to play a role in compensating victims for widespread harm. As Myriam Gilles and Gary Friedman explain in a forthcoming article in the Universityof Chicago Law Review, for example, state attorneys general may provide the only antidote to the loss of the small claim class action after AT&T v. Concepcion and Walmart v. Dukes. However, when members of the executive branch compensate multiple victims, they should consider how to balance their own interests in deterrence with rules to ensure that the victims receive fair and efficient compensation. The trick is to give victims more voice in their own redress while preserving prosecutorial discretion. Four potential solutions include: (1) that government actors coordinate overlapping settlements before a single federal judge, (2) that government actors find ways to involve representative stakeholders in distribution-plan discussions through a mediation-like process; (3) that courts subject government and private distribution plans to independent review to police potential conflicts of interest, and (4) that government officials adopt the distribution guidelines the American Law Institute developed for large-scale civil litigation to balance victims’ competing interests and avoid strategic forum-shopping. Adam S. Zimmerman, Distributing Justice, 86 N.Y.U. 500 (2011) (describing potential solutions). Only by holistically coming to terms with the increasingly dynamic, convergence of executive, legislative and judicial compensation can we better understand the scope of the state's responsibility to provide compensatory justice to the victims of mass harm.
(Dis)owning Religious Speech
Now available on SSRN for your reading pleasure is a not-quite-final version of my draft (Dis)owning Religious Speech. Here is the abstract:
To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality.
The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its own speech a facially religious monument of the Ten Commandments. The second, Salazar v. Buono, which dealt with an establishment clause challenge to a Latin cross in the middle of the Mojave Desert National Preserve, was resolved primarily on the basis of the literal ownership of the religious speech at issue in the case. What both cases have in common is a claim, on one side, that the government has improperly and unconstitutionally excluded one religious group, both literally and metaphorically, and a response, on the other side, that is formulated in the language of ownership, property, and sovereignty.
This Article explores the possible causes and implications of the Court’s recent embrace of property concepts and property rhetoric. It argues that the Court has turned to the language and even the law of property partly as a way of avoiding knotty First Amendment questions. But the rhetoric of property functions on another level, as well. Property rhetoric legitimates and naturalizes the acts of exclusion and subordination inherent in the Court’s decisions. It also gives the appearance of a concrete stake held by some in the religious majority - and a material loss that is incurred - when dominant religious symbols are removed. Ultimately, this article concludes that, for all their flaws, the endorsement test and public forum doctrine, which the Court appears to have temporarily marginalized, are superior approaches to the problem of public displays of religious symbolism.
Comments, via Prawfs or email, are more than welcome.