Wednesday, April 11, 2012
Request for Information
I've been late in commenting on last week's Fifth Circuit fuss, because I was waiting to learn more about the issues from the National Review Online's Bench Memos blog, which bills itself as "NRO's home for judicial news and analysis." I naturally assumed it would have something to say about the matter, for good or ill. Alas, unless I am missing it, Bench Memos has not so much as acknowledged the affair. I was worried at first that someone over there might be unwell, but new posts keep appearing, and--thank goodness!--Bench Memos is still running its regular "This Day in Liberal Judicial Activism" feature. So everyone seems to be OK, at least.
Would anyone who is a regular reader of that blog let me know when the Fifth Circuit's order last week finally comes up for discussion on the blog? Because I'm not sure it's worth my weighing in as long as I know Ed Whelan and Carrie Severino are on the job. Thanks!
Ayelet Shachar at St. John's Law School, and Some Reflections on a New Kind of Seminar
The Center for Law and Religion is pleased to announce that Professor Ayelet Shachar (Toronto) will visit us at St. John’s Law School next Monday, April 16, at 4:15 pm. Hers is the sixth and final session in our ongoing seminar, Colloquium in Law: Law and Religion. Professor Shachar will discuss her ongoing work involving the legal status of religious tribunals as well as more general problems of religious pluralism. Among the papers for consideration will be her thoughtful chapter on state, religion, and the family in this book.
Academics in the New York area and beyond are welcome to attend. Please let me know.
Because our seminar is now coming to a close, I wanted to share some scattered thoughts about it. My colleague Mark Movsesian and I organized this law and religion seminar primarily as a way to expose students to some of the work that law and religion scholars are up to today. The idea was to invite established scholars to submit works in progress or other new work ahead of time, together with a variety of supplementary materials to give the students a bit of background in the area up for discussion. We and the students read this material and prepare together the week before the speaker arrives, trying to make sure we understand the arguments and chiseling at our questions. When the speaker comes, he or she speaks for only a very short period, and the rest of the session is devoted to question and answer. The students have priority in asking questions (faculty are invited to attend and participate), and they have acquitted themselves admirably in engaging with each of the presenters.
The seminar was experimental -- Mark and I were not sure exactly how it would go. In the end, we have both been extremely pleased with it. I highly recommend this format for others thinking about this sort of course.
Underneath the Law Review Submission Process: Part III Interviews with Those who Reject Us
For this next post on the law review submission process (see intro, part I, and part II on timing of submissions if you are interested), I interviewed a very thoughtful and engaged senior editor from the Stanford Law Review. I have been extremely impressed in my interactions with the Stanford Law Review (despite—or maybe because of—their decision to take three of my articles to final board review and reject all of them). So, in order to understand these rejections and learn from them, I thought it would be appropriate for Stanford Law Review to be my first interview.
My first interview is with 2011 senior articles editor, Andrew Prout. Andrew picked his last article in November and with this year behind him, will answer some questions to help us better understand the process. I enjoyed this interview and I think it is helpful for law professors who may want some feedback on how to improve their articles and submissions. I also think understanding Stanford’s semi-blind review process (see below for details on this) is a good model for other law reviews to consider.
SB: Andrew Prout, welcome back to Prawfsblawg and thanks for helping to further demystify the Law Review submission process. Before I get down to the nitty-gritty, I wonder what pearls of wisdom you may have gained from the law review submission process that you may be able to share with us. As professors, we are always trying to stay in touch with our reviewers and would love to hear your perspective on what we can generally do better. Anything you noticed that you can pass along?
AP: I can't overstate the importance of a clear abstract and a strong introduction. We want to know why your piece is relevant by the end of the first page. And we want to know that you are easy to read: Ideas in law seem complicated enough at times, so we love it when the writing isn't.
SB: If you can address article topic, that would be great. Some of us believe that for instance, Intellectual property or corporate law pieces do not get as much love from top law reviews as constitutional law or pieces that discuss topics covered in the first year. Is there any truth to this or do you specifically try to balance the topics and public/private law breakdown.
AP: It's true that con law pieces get a lot of love. They tend to be the most accessible. Their topics often come from issues with real political salience, and they also seemed to be some of the best pieces at explaining their relevance very early on. But because there are so many good con law pieces, we raised the bar for con law articles as the year went on. It was important for us to remain a "general" law review, so we needed non-con-law pieces.
SB: You started off reviewing articles in February 2011 and continued into November 2011. Anything change for you during this time? Did you find yourself focusing on different factors in your selection in November versus in February?
AP: About two months in, we realized we were con-law heavy. That began a holistic shift to expect more from con law articles while actively promoting other genres in our committee meetings.
SB: We've all received those emails from law review editors telling us that you received thousands of submissions and that unfortunately, there are so many good ones . . . and you unfortunately can't accept ours. Do you really think that putting a rejection in that context makes us feel better? Kidding. That's not the question. The question is, how many of the manuscripts you receive do you think are of good quality or are from authors that you would potentially consider publishing?
AP: Most submissions were either not especially well-written or on a topic that didn't seem important, or they had a thesis that didn't seem novel. I'd say about a fifth or so were good pieces, and among those, most of the selection process came down to personal taste. Every once in awhile, an article stood out as amazing (and the whole committee realized it), but those articles were few and far between.
AP: In your question, you also mentioned "authors that [we] would potentially consider publishing." The truth is, who the author was didn't matter to the committee's review process. The way we ran our review, the only person who knew the author's identity was me, and I was the last to vote. If a committee member happened to know the author's name, it was only because the author didn't follow the submission directions (which say not to include your name on the manuscript). Otherwise, the committee members couldn't see the CV or cover letter, so they were just looking for articles they liked.
This is the first half of the interview, more on the nitty gritty of submissions in my next post.
Tuesday, April 10, 2012
Advanced Civil Procedure: Content?
When Civ Pro profs get together to talk shop, conversation inevitably turns to the pedagogical horror of the four-hour basic course (as opposed to the old six or seven hours). A related question is whether to offer a three-hour upper-level elective (whether called "Civ Pro II" or "Advanced Civ Pro" or "Complex Lit" or whatever) to fill-in the gaps and what to include in that class.
So a question for the Civ Pro types: What do/should/would you put in that course? And how would that affect what you include in the basic course. Does it still cover the basics (Pleading, basic joinder, discovery, summary judgment, PJ, SMJ, Venue, Erie)? Or do you move some stuff around? Does it depend on what sort of enrollment you expect to get?
Please leave ideas in the Comments or e-mail me directly.
Monday, April 09, 2012
Underneath the Law Review Submission Process: Part II More on Timing
As the next step in my series of posts this month studying the Law Review Submission process, I thought I would share a bit more data.
This post, like the last one goes to timing of submissions. Again, here I'm relying on data from the BYU Law Review. But I had a couple of questions that I looked at. First, which days of the week are most submissions made? I guess the theory behind this question is that you may want to submit on days where there are fewer submissions, so that your paper has a higher chance of being read.
The other question was, which days are most submissions received? On the first question, it looks like in looking at a roughly one month period (January 29 to March 2), most submissions were received on Thursdays. Check it out:
What about generally looking at dates: Which dates between January 29 and March 2 were most submissions received: March 1 wins this one. (I wish I had data into March because I think there are likely to be several heavy days into March as well but I don't have this for BYU. I may be able to get this for one of the other law reviews I interview though).
The Self-Defense Argument for Intervention in Syria
News media are reporting today that the combat in Syria has, for the first time, spilled across international borders, with Syrian government forces firing into Turkey last night, killing two people and injuring three others, and also firing into Lebanon. The New York Times suggests that a “large number of reinforcements for the government troops, backed by tanks and helicopters,” may have arrived “close to Turkish territory.” And of course Turkey is already sheltering a large number of refugees from the conflict—over 24,000, by the Turkish government’s estimate.
All of which raises the question of what, if anything, can be done. For the past year, the answer has been very little: Russia and China blocked effective measures in the Security Council; the legitimacy of humanitarian intervention on the basis of the responsibility-to-protect (“R2P”) principle has been contested; and neighboring states seemed to lack a persuasive argument for intervention on the basis of self-defense. But yesterday’s events suggest that the self-defense argument is strengthening. Article 51 of the UN Charter recognizes an “inherent right of individual or collective self-defense if an armed attack occurs against” a member state, “until the Security Council takes measures necessary to maintain international peace and security.” There is at least a reasonable argument that by firing bullets across the border, amassing troops nearby, and forcing Turkey to cope with a significant influx of refugees, Syria is violating Turkey’s territorial integrity and creating justification for an armed intervention on the basis of a Turkish right of self-defense.
To be clear, I’m not necessarily advocating the legality of intervention on the ground of self-defense; I’m saying simply that the argument for a self-defense-based intervention is getting stronger. And, of course, whether intervention makes sense as a practical matter is another issue altogether.
Arizona v. United States: Double Jeopardy and States Mirroring Federal Statutes
One of the best parts of being a professor is watching students go on to exciting accomplishments and careers. My former student Gregory Schneider will certainly be an outstanding lawyer, but before that it looks like he may be going to space.
Prior to his astronautical adventures, however, we co-authored a paper on SB1070. [Link Fixed] Our argument is fairly straightforward. First, if indeed, as defenders of state immigration laws claim, the federal government has invited states to cooperatively enforce federal law, under established dual sovereignty principles of double jeopardy, a state prosecution would preclude a federal prosecution and vice versa. Second, looking at the actual state implementations of federal immigration law (particularly the federal prohibition on concealing, harboring shielding or transporting an unauthorized migrant) the states are not mirroring federal laws at all, but instead passing laws with greater and lesser sentences than federal law, and including exceptions not in federal law, while not including some of the limitations in federal law itself. Thus, while in principle, states could exactly and precisely mirror federal immigration laws or other laws, in this context, they have chosen not to do so.
Saturday, April 07, 2012
Deborah Tussey's "Complex Copyright"
A few summers ago, I became aware of work loosely categorized under the heading "Complexity Theory," which has represented a push-back against reductionist thinking. Associated with the Sante Fe Institute, complexity work examines systems made of small components that give rise to unpredictable behaviors. A nice primer is Melanie Mitchell's Complexity: A Guided Tour (Oxford 2009). As Mitchell explains, a complex system is one "in which large networks of components with no central control and simple rules of operation give rise to complex collective behavior, sophisticated information processing, and adaptation via learning or evolution."
Recently, IP professor Deborah Tussey has authored a book, Complex Copyright (Ashgate 2012) that proposes that complexity theory may shed light on copyright law. She begins with a clear, readable explanation of complexity theory. This includes the concept that complexity embraces not only copyright's complex structure, but also behaviors within the system. She draws parallels between aspects of complexity theory and the generation of creative goods, the law, culture, and markets.
Tussey's work is both helpful and ambitious. By acknowledging that a single answer may not be optimal, she opens doors to other interesting questions. Some of these include how a rigid, ordered system of law operates in a field that is increasingly dynamic. I commend the book--it's a very interesting read.
Friday, April 06, 2012
Binary Search Panel at SEALS, Aug. 2, 2012 . . . and It's Been Real
Dan and the gang have graciously given me until today to finish my March guest-blogging. I don't know if that means that at midnight, my laptop will turn into a pumpkin but I'm not taking any chances, so I'll sign off now.
But I would be remiss if I did not mention an interesting panel on "binary searches" at SEALS that I will be on with Renee Hutchins, Laurent Sacharoff, and Ric Simmons, with Steve Friedland moderating. For those not in the know, a "binary search" is one that is designed to discover only the presence or absence of contraband and is considered not a search at all under the Fourth (and Fourteenth) Amendment. Accordingly, "binary search" is something of a misnomer because it is oxymoronic (perhaps "binary investigative technique" would be better). The paradigmatic binary search is the dog sniff -- when a trained narcotics dog alerts, it tells us only that contraband is present (at least ideally); if it fails to alert, it tells us only that contraband is absent.
The question I plan to explore is whether a binary search is still not a search when (1) the evidence winds up in federal court and (2) the substance discovered is contraband under federal law but not state law. This is a question of increasing importance as more and more States legalize marijuana, for at least some purposes, but the federal government pushes on full steam ahead with its War on Drugs, including marijuana. I hope to use this as a springboard to a larger project that would view search-and-seizure law through a federalism lens -- probably not a surprise to those of you familiar with my work on the Cruel and Unusual Punishments Clause.
Also, kudos to Laurent for having the prescience to put this panel together before the Supreme Court granted cert. in not one but two dog sniff cases, both out of Florida (where SEALS happens to be meeting this year): Florida v. Jardines, to be argued later this Term, and Florida v. Harris, to be argued early next Term. I realize now that I should have consulted Laurent before filling out my March Madness bracket.
That's it. Like me on Facebook, follow me on Twitter. Just kidding.
Why the Supremacy Clause is No Obstacle to a State-Specific Bill of Rights
Every time I present my federalism-based approach to the Cruel and Unusual Punishments Clause, where the word "unusual" refers to the law of the State where the federal crime occurred, I am hit with the same response: what about the Supremacy Clause? Inherent in my claim is that a given sentence for a federal crime might be "cruel and unusual punishment" in one State but not another given the variation in state law. Because federal law is supreme to state law, the argument goes, state law cannot dictate the content of federal law.
First, let's dispense with the notion that it is somehow novel that the Constitution might impose different constraints in different States. There are at least two areas of current jurisprudence where this is already the case: the definition of obscenity under the First and Fourteenth Amendments and the requirement of effective assistance of counsel under the Sixth and Fourteenth Amendments. In Miller v. California, the Supreme Court put its imprimateur on a definition of obscenity that hinged on the contemporary values of a particular State. Thus, the very same material might be obscene and therefore unprotected by the First and Fourteenth Amendments in one State, and non-obscene and therefore protected speech under the First and Fourteenth Amendments in another State. And as recently as last year, in Cullen v. Pinholster, the Court has judged the adequacy of a defense counsel's performance against the norms prevailing in a particular locality or jurisdiction. There, the Court chided the dissent for providing no support for the conclusion that the performance of defense counsel in that case was "inconsistent with the standard of professional competence in capital cases that prevailed in Los Angeles in 1984" (emphasis added). Distinguishing a prior case, the Court noted that "in that case the defendant's trial counsel specifically acknowledged a standard practice for capital cases in Maryland that was inconsistent with what he had done" (emphasis added).
This is not to say that the Constitution means something different in different States, for the meaning of the Constitution can be articulated in a uniform way: the First and Fourteenth Amendments mean in all States that speech is unprotected if it is patently offensive and appeals to a prurient interest based on contemporary community standards in that State; the Sixth and Fourteenth Amendments mean in all States that counsel is ineffective if her persormance falls below reasonable standards of professional performance in that State; and the Eighth Amendment means in all States that a federal punishment is cruel and unusual if it is harsher than the harshest punishment meted out (or meted out for the same offense) in that State. It is only to say that the application of these constitutional rules will be different in different States.
Second, the very reason the Bill of Rights was demanded by the Anti-Federalists was that they feared the vast expanse of power granted to the federal government by the Commerce, Necessary and Proper, and Supremacy Clauses of the Constitution. The combination of these Clauses, they felt, would lead to the annihiliation of the States. They demanded the Bill of Rights to carve out particular areas of state sovereignty in the face of what they saw as the assumption of absolute federal sovereignty by virtue of the Supremacy Clause. Centinel, one of the most influential Anti-Federalist writers, intoned ominously:
Lest the foregoing powers should not suffice to consolidate the United States into one empire, the Convention[,] as if determined to prevent the possibility of a doubt, as if to prevent all clashing by the opposition of state powers, as if to preclude all struggle for state importance, as if to level all obstacles to the supremacy of universal sway, which in so extensive a territory, would be an iron-handed despotism,
included the Supremacy Clause. It would be ironic in the extreme if the Anti-Federalist vision of the Bill of Rights were deemed defeated by one of the very provisions that prompted their demand for a Bill of Rights. To put it another way, the Supremacy Clause cannot trump the Bill of Rights, because the Bill of Rights trumps the Supremacy Clause.
Ultimately, the Supremacy Clause is irrelevant to this issue. If the best interpretation of a particular provision of the Bill of Rights is that its constraints differ from State to State, the Supremacy Clause cannot change that. So the federalism-based construction of the Cruel and Unusual Punishments Clause stands or falls on its own. Either it is a valid view of what at least the Anti-Federalists contemplated by the Clause, in which case the Supremacy Clause can stand as no impediment, or it is not, in which case the Supremacy Clause is unnecessary.
Underneath the Law Review Submission Process: Part I (Timing)
As I mentioned in an earlier post, I hope to get underneath the law review submission process a bit this month. I've done several interviews with articles editors and editors-in-chief at different law reviews and will post those as soon as they are all complete. I don't want to bias the remaining interviews by posting the ones I've already done (indeed, I'm trying to be very scientific about this inquiry).
For today's post, I want to discuss timing of submissions. Law professors are of various minds about submissions. Some are eager to submit articles as soon as the new boards switch--some as early as mid-January. Others like to wait until the law review editors get a feel for reading the articles or until almost all of the new boards are functional and submit mid-February (most of us). Yet others submit towards the end of February and the beginning of March (I'm typically in this camp). Another sizable group of professors seems to submit articles in the middle to end of March. The theory with later submissions is either that the piece is just not done yet (I'm guilty of this one) or there is a theory that at this point law reviews may be scrambling to fill their last spots before finals and may be giving a lot more offers at this point than before.
I have a few thoughts on the timing issue that I want to share, and a little data.I used to be in the submit at the end of February or beginning of March camp but I may switch it up for next year based on what I learned from the BYU Law Review this year (special thanks again to the BYU Law Review for helping out with this).
This first chart illustrates when the articles that received offers from the Law Review were submitted. As you can see, most of the articles that received offers were submitted between February 1-9. Now these offers were not all given at the same time and the review process on these articles took up to two weeks given the several stages of review, but I still thought this was very surprising that there were quite a few offers given on the first wave of articles.
It may be that we learn nothing from what just one law review does and of course BYU may be an outlier here. A comprehensive study on this issue with a lot of law reviews would be really interesting. But, given what the information we have, there may be something to learn: that many law reviews give offers out in waves and submitting your article in the first wave or second wave may be advantageous. If you notice in this chart, there were several offers given on the articles received in the first week of February, then a slight lull and then another large set of offers given. BYU actually had so many people accept offers in these first waves of offers that they ended up not giving offers on articles submitted past March 2.
Again, I would need to do a similar analysis with a good sampling of law reviews to determine any principles that apply to all law reviews but I was definitely surprised by these numbers. What I take away from this is (which may or not be extrapolated to other law reviews besides BYU): 1. There may not be as much credence to the theory that some of us have that law review boards are extremely picky with articles at the outset and become more realistic as time goes on. 2. Letterhead bias may not necessarily be more of a problem for articles submitted early on as those submitted later on. A good number of the articles that were given offers of publication were not from professors at top-tier schools but still were determined to be top quality articles.
So, there may not really be any take-aways here on this next chart but I thought it would be interesting to show a chart of all of the articles submitted to BYU Law Review between Feb. 1 and March 3 to show roughly when most articles were submitted.
I'd be interested to see if anyone else is surprised about any of this information (or if this confirmed what you already knew and I'm just a bit behind the curve on this, which could be true given that I just saw the Charlie bit my finger youtube video for the first time last week. Wow. I know.). Interviews and other interesting submission details to come soon...
I also wanted thank Dan and the Prawfs (aside: great name for a band) for having me here this month (plus a few days).
After sitting in at LAX for 8 hours yesterday with my three kids because of the increased holiday traffic, let me also wish everyone the best on this Good Friday and Passover eve.
Kolber Signs Off
My guest stint at Prawfs has come to an end. My thanks to Dan and the rest of the folks at Prawfsblawg! Here's a recap of my posts (in reverse chronological order):
"Golden Rule" Organ Donation Incentives; Altering the Factual Content of Memories; The Clarification Round; Earning the Title of Your Article (April Fool's Day Post); What Aspects of Punishment Must Be Justified?; Measuring Punishment Severity; Facebook, Employers, and the Keys to Your House; Questions about "For-Pay Laws"; Law Students and High Profile Name-Calling; and Reducing Racial Bias Pharmaceutically.
Thanks to Dan and the rest of the Prawfs for letting me join the party. As in the past, I admire those of you that are regular bloggers – I find it very challenging.
I hope to see many of you in the “real-life-o’sphere” soon. I’ll likely miss you on the summer conference circuit – we’re expecting (twins!) in July, so we’ll have our hands full!
"Golden Rule" Organ Donation Incentives
Joseph Roth, head of New Jersey's organ sharing network recently recounted these two stories:
Caseworkers from our organization recently went to the hospital to visit the family of a woman who suffered a stroke. The woman was dead, but machines continued to keep her organs functioning. She was an ideal candidate to be an organ donor. Her husband, it turns out, was on the waiting list to receive a heart.
Our caseworkers asked the husband if he would allow his wife’s organs to be donated. The husband, to the shock of our caseworkers, said no. He simply refused. Here was a man willing to accept an organ to save his own life, but who refused to allow a family member to give the gift of life to another person.
We have experienced other such cases, including the family of a woman who received a kidney. The donation enhanced and added years to her life. Yet, when she was declared brain dead, the family refused to allow her organs to be used to save others.
Roth goes on to describe an effort to create insurance incentives to register to donate:
Our proposal — we call it the Golden Rule proposal — would permit health insurers in New Jersey to limit transplant coverage for people who decline to register as organ donors. It would be the first such law in the nation. No one would be denied an organ. But under the proposal, insurers could limit reimbursement for the hospital and medical costs associated with transplants of the kidney, pancreas, liver, heart, intestines and lungs.
I don't know the details of this particular proposal, and they are no doubt important. To me, however, these kinds of incentives are a no-brainer.
The Misdemeanor Scholarship Boom
In the last couple of years, there has been a welcome and overdue investigation of the function and effect of misdemeanors in the criminal justice system. It is a boom, not a bubble; misdemeanors evidently compromise the majority of criminal prosecutions. However, the procedural protections associated with them, such as the right to counsel, to a jury trial, and in federal courts, the right to an Article III judge for "petty offenses" are diminished. Erica Hashimoto's thoughtful 2007 William & Mary article The Price of Misdemeanor Representation proposed moving in the direction of misdemeanor exceptionalism, moving resources, where possible from misdemeanor representation to felonies, where more is at stake.
A number of scholars disagree.Jenny Roberts' 2011 UC Davis article Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts turns on the potential for severe collateral consequences, such as deportation. Because there are so many misdemeanors, and they can affect one's legal standing in society, Professor Roberts argues that misdemeanor representation is quite important, and the ABA, National Legal Aid and Defender Association, and other state and national organizations that develop standards for lawyer performance should include performance guidelines for misdemeanors.
Alexandra Natapoff recently published the pithily titled Misdemeanors in Southern Cal. Agreeing with Professor Roberts about the importance of collateral consequences of misdemeanor convictions, Professor Natapoff makes the further argument that misdemeanor procedures are sufficiently informal that many innocent people are likley to be convicted. Also worth reading is John Derek King's chapter Procedural Justice, Collateral Consequences and the Adjudication of Misdemeanors, which also addresses changes in the functioning of the criminal justice system , again making misdemeanor convictions important.
I for one am convinced that misdemeanors are too consequential for them to be imposed without juries, judges and lawyers. After all, the Sixth Amendment grants rights "in all criminal prosecutions", not in cases of felony, which was a term well known to the drafters. In addition, whatever criminal prosecutions meant, surely it should include misdemeanor convictions carrying significant collateral consequences, such as being the basis for a criminal history enhancement if the defendant is every convicted again. That being said, the law could choose, consistent with Professor Hashimoto's basic thought, and with a proposal by Robert Boruchowitz, to have fewer misdemeanor convictions and/or make them less meaningful. In that event, substantial savings might result.
law schools and the crumbling universities that surround us
Hypothetical, but one that might occur at a university near you:
You work at a law school at a state university -- a university that, like many such schools, is facing enormous, unprecedented financial constraints, leading to budget cuts throughout the campus. But thanks to its status and professional-school tuition, your law school has been shielded from the worst of these cuts. While the law school has continued to make new hires (though not as many as in the good old days) and fund research budgets, other parts of the university, especially those involved in undergraduate education and most especially those in the humanities, have not only been unable to hire, but have also lost basic services -- support staff, office paper, even office phones.
The cuts have come so drastically across campus that there's nothing left to cut but faculty. And the cuts must come, the central administration has decreed, because of deep cuts in state funding and popular resistance to increased undergraduate tuition. And so tenure-track faculty in disciplines that are related to law (history, philosophy, english, and the like) are threatened with layoffs, including some acquaintances and perhaps even friends. Meanwhile, your dean announces there will be no faculty raises and there may be some trimming of research budgets. Next year's workshop series will need to be smaller, with fewer speakers coming from out of town, and lunches will be sandwiches or not be on offer at all. The law school's austerity, in short, pales in comparison to what's going on across campus.
What's a law faculty member to do? Conclude that there's nothing you can do, and thank your dean for protecting the law school from having its students' tuition redistributed across campus? Pledge solidarity with your sisters and brothers across campus, argue in favor of redistribution, and seek greater austerity in your own school (e.g., oppose any new hiring, suggest or volunteer pay cuts, argue for closing non-essential programs (which may include layoffs of law school staff), etc.)? Get more involved in all-university governance to protect your own interests and others'?
Dream a little DREAM for me
My former student is in the news. It's an amazing story of resilience and dignity against inertia. Yes, my wife is involved in the litigation as are some dear colleagues.
US representatives support Fla. immigrant lawyer
BY BILL KACZOR
TALLAHASSEE, Fla. -- Eight members of Congress on Monday joined four former American Bar Association presidents in urging the state Supreme Court to grant a law license to an illegal immigrant whose parents brought him to the United States from Mexico on a visitor's visa when he was 9 years old.
Seven U.S. representatives and Puerto Rico's nonvoting resident commissioner sent a letter to the justices supporting Jose Godinez-Samperio's admission to the Florida Bar.
They also expressed support for a "friend of the court" brief being submitted by three ex-ABA presidents. The fourth, former Florida State University President Talbot "Sandy" D'Alemberte, is representing Godinez-Samperio. D'Alemberte, now a professor, was one of his teachers at Florida State's law school.
"Here's a kid who came over not speaking any English, learned to speak English, went to school, became an Eagle Scout, continued helping as an assistant scoutmaster, graduated valedictorian from his high school class," D'Alemberte said.
Godinez-Samperio, 25, graduated from Florida's New College, earned a law degree at Florida State and passed the bar exam.
The Florida Board of Bar Examiners, though, declined to admit him, instead asking the justices for an advisory opinion on whether illegal immigrants can be licensed as lawyers.
D'Alemberte's argument is that requiring proof of immigration is an invalid policy because the board never obtained the Supreme Court's permission to adopt it as a formal rule. Therefore, Godinez-Samperio has complied with all valid requirements and should be admitted to the Florida Bar, he said.
Godinez-Samperio's parents overstayed their visas and never returned to Mexico. He grew up in rural Hillsborough County. His father, a veterinarian in Mexico, milked cows on a dairy farm. His mother, a dentist, worked at a factory that made sliding glass doors.
The congressional representatives, all Democrats, noted the U.S. Supreme Court has found the Constitution requires all states to educate illegal immigrants through the 12th grade so Florida already has made a heavy investment in them.
"To deny these students an opportunity to become doctors or lawyers or practice another profession is to deny the state of Florida and all of our neighbors an educated and talented workforce," they wrote.
Rep. Kathy Castor of Tampa was the only Florida House member who signed. The others are Reps. Charles Gonzalez and Ruben Hinojosa of Texas, Xavier Becerra and Grace Napolitano of California, Luis Gutierrez of Illinois and Raul Grijalva of Arizona as well as Resident Commissioner Pedro Pierluisi of Puerto Rico.
All of the former ABA presidents submitted the friend of the court brief are from Florida: Martha Barnett, Stephen Zack and William Reece Smith Jr.
A call to the Board of Bar Examiners placed shortly after 4 p.m. was answered with a recording saying the switchboard was closed for the day and that no messages could be accepted.
Thursday, April 05, 2012
Dormant Death Sentences
One of the defects of the Supreme Court's current approach to the death penalty is the way its categorical exemption jurisprudence leaves the Cruel and Unusual Punishments Clause frozen in time. Three times in the past decade, the Court has exempted whole categories of offenders and offenses from the death penalty: the mentally retarded in Atkins v. Virginia (2002), juveniles in Roper v. Simmons (2005), and those who rape as child (or perhaps commit any non-homicide offense) in Kennedy v. Louisiana (2008). Its methodology in such cases has been to count up the number of States that authorize capital punishment for each group, also taking into account how often the punishment is actually imposed on each group, and then determining whether those numbers are small enough to indicate a "national consensus" against each practice.
Putting to one side whether a "national consensus" should even be the touchstone under the Clause as incorporated by the Fourteenth Amendment, the approach has been justifiably criticized for not allowing national consensus to shift and evolve over time. For example, although only seven States had authorized the death penalty for child rape at the time Kennedy was decided, that number had been trending upwards. Who knows how many States would have eventually authorized the practice had the Court taken a hands-off approach? The supposed "national consensus" against capitalizing child rape will never be able to evolve and perhaps dissipate because the Court froze into the Eighth Amendment the view of the practice prevalent in 2008.
That's why I wonder whether States have considered passing, or reaffirming, statutes exposing to the death penalty the mentally retarded, juveniles, or those who rape a child.After all, we very often see States passing laws regulating abortion that state legislators must realize conflict with Roe v. Wade. Surely, one purpose of such legislation is symbolic, but just as surely some of the proponents must believe that it might lead to a court case that ultimately topples Roe. Under the Court's current approach, the only way it might reconsider Atkins, Roper, or Kennedy is for a sufficient number of States to pass laws exposing the mentally retarded, juveniles, or those who rape a child to the death penalty.
But, again, the Court's methodology involves looking not just at how many States authorize capital punishment under those circumstances but how many times they actually impose it. More importantly, the only way the Court can overrule one of these cases is for there to be a real live case to use as the vehicle to do so. Thus, States would have to not only pass statutes that seem to conflict with Atkins, Roper, or Kennedy, but to actually prosecute, convict, and sentence to death people under those statutes.
Could they do so? I believe they could mete out such "dormant death sentences": sentences of death that cannot be carried out under current law but that might spring into existence if the law ever changes. The Cruel and Unusual Punishments Clause provides that "cruel and unusual punishments [shall not be] inflicted." Scholars, myself included, have examined and re-examined every word in that Clause -- except "inflicted." Following Nicholas Quinn Rosenkranz's important directive that we read the Constitution carefully to discern who exactly is the addressee of its demands and constraints (The Objects of the Constitution, 63 Stan. L. Rev. 1005 (2011)), we need to discern which branch of government "inflicts" punishment. While legislatures prescribe punishments, and judges impose punishments, only executive officials inflict punishments. Thus, it is at least arguable that legislatures can prescribe the death penalty for the mentally retarded, juveniles, and those who rape a child, and judges can impose the death penalty on them, as long as the penalty is never inflicted until Atkins, Roper, or Kennedy are overruled.
I can foresee two major objections, one pragmatic and one doctrinal. The obvious pragmatic objection is cost: the death penalty is very costly. Why would States undertake such monumental costs in cases where the prospect of ultimately carrying out the capital sanction is dim at best? My one word answer: California. Here we have a State that imposes enormous numbers of death sentences and hardly ever executes anyone -- 721 people on death row but only 13 executions since 1976. (I may have to re-think this answer after November).
The doctrinal objection is that "inflicts" must refer to the imposition of punishment because courts entertain constitutional objections to carceral sentences when the sentence is imposed, rather than dismissing such objections as unripe. If the Constitution is violated only when the punishment is carried out, the argument goes, inmates would have to wait until they have served a certain amount of time to bring a ripe constitutional claim. But it seems to me that at least one reason courts entertain such claims from the outset is that it would impossible for inmates to determine the exact moment in time when a carceral sentence is excessive and therefore a constitutional claim ripe for review. Inmates would have to continuously bring such claims and the court would have to continuously respond: "Nope, not yet." That courts entertain such claims from the outset is more a pragmatic concession to this problem -- like the "capable of repetition but evading review" exception to mootness -- than any reflection on the meaning of the word "inflicts."
Video of Duke Panel on the Arizona Immigration Law
Duke's Margeret Hu, Ernest Young, and Noah Pickus, Lucas Guttentag of the ACLU and Yale, and I were on a panel at Duke on SB1070. It was particularly interesting for me because not everyone on the panel agreed, so there were some moments of cordial debate.
Kids and sports
To the parents out there: I need help on a very specific parenting issue. Both my daughter (6) and son (almost 4) really love baseball. I can take partial credit/blame for their love of the game – I take them to a lot of games, and let them eat just about anything they want while we are there. Same goes for their favorite team (Angels, like me; my kids have a lot of choices in life, but certain sports allegiances just aren’t among them). But their choice of their favorite players is completely their own.
Here comes the problem. In the off season, the Angels signed Albert Pujols, arguably the best player in baseball right now. He will play first base for the Angels for a long time. He displaced Mark Trumbo, who happens to be my son’s favorite player. This means that it is entirely possible that Trumbo will be traded. As excited as I was that the Angels signed Pujols (sorry St. Louis fans, I have great respect for your baseball city), it was tempered by the fact I might need to have a discussion with my son I am dreading. I would really rather talk with him about death than his favorite player being traded. If I need to go there, I’ve tentatively come up on the following rules: (1) we can still hope that Mark Trumbo does well for another team; (2) even if he plays in a game against the Angels, we can still hope he does well, just not so well that the other team wins the game. I’m leaning toward strongly discouraging rooting for whatever team Trumbo might wind up on, for fear it could create confusion down the road. Advice? Am I overthinking this too much?
Here is the letter that Judge Smith demanded from the Department of Justice following President Obama's comments about the Supreme Court reviewing ACA (H/T: LawCourts Listserv). I think Holder did what he could with, basically saying "of course courts exercise judicial review, but courts also regularly recognize presumptions of constitutionality and deference to the political branches, and the President did not say otherwise." That last part may be open to some debate, at least until the President's "clarification. In any event, I'm not sure that should matter, since the President ought to be clear to put forward a constitutional vision that suggests a minimized role for the courts.
Hopefully this all goes away. Robin and I were interviewed for a radio piece on this mess (Prawfs gets MSM attention!) and one question was whether we will see this happen again or whether this was a one-off thing. Robin's answer (with which I agree) is that judges are usually good at self-restraint. I would add that I doubt a bunch of federal judges want to get into it with a sitting President.
Rick Garnett on "Discrimination" and Religion
At The Public Discourse, our co-blogger Rick Garnett has a piece called "Confusion About Discrimination." The occasion is the decision of a Catholic student group at Vanderbilt, a private university, to leave campus rather than comply with a university policy that, in Rick's words, "requires religious student groups (but, interestingly, not all student groups) to open membership and leadership positions to 'all comers,' without regard to religion."
Rick argues that "the goings-on at Vanderbilt reveal a troubling confusion about 'discrimination,' a confusion that, as it spreads, will undermine religious freedom, institutional pluralism, and civil society. This confusion travels with a deeply illiberal failure to appreciate that the kind of liberal democracy we should embrace is not 'total' or 'comprehensive'; in Lawrence Alexander’s words, it is not 'liberalism all the way down,' and it does not insist that the rules that govern in the political sphere and context—non-discrimination, neutrality, 'all comers', etc.—need to, or even should, govern in other spheres and contexts." He suggests that incidents like this risk confusion about two matters: what constitutes not just discrimination but wrongful discrimination and, even when we are confident that we have identified it, when government is or is not empowered to address it. (Rick is quite clear that the Vanderbilt incident itself only involves the first question, not the second. But he notes, accurately, that Vanderbilt draws on the Supreme Court's decision in CLS v. Martinez to justify the policy.)
I am largely, although perhaps not entirely, sympathetic to Rick's argument.Let me first add a factual detail or two about Vanderbilt's policy, as best as I can make it out on a brief examination. (Here's a link to a Vanderbilt page discussing the policy.) The nondiscrimination policy is not directed at religious student groups alone, and is broadly applicable. The major exception, as far as I can tell, is that (go figure) it exempts single-sex fraternities and sororities, as permitted by federal law. The university's description of the policy says, for example, that "Republicans and Independents are eligible to join the College Democrats, and any member may run for office, though it is up to the members to select their leaders. This is true for all RSOs at Vanderbilt."
It's also worth adding this part of the university's statement: "This past year, the University conducted a review of all RSOs’ compliance with the nondiscrimination policy following an allegation of sexual-orientation discrimination. Most RSOs were found to be in full compliance, but a handful were not, often based on a misunderstanding of the policy." I don't know whether the Vandy Catholic group was one of those allegedly non-complying groups. A story about the controversy quotes a group leader as saying, "We require that our leaders be practicing Catholics. And the university’s nondiscrimination policy -- they have made it clear that there is no room in it for an organization that has these faith-based qualifications." On the face of that statement, this appears to be about something other than sexual orientation itself; it is not incompatible with being a practicing Catholic to be gay or lesbian! I would be less sympathetic to the group, at least given what I understand about underlying Catholic doctrine, if it engaged in status-based exclusion based on sexual orientation; if its position is that leaders of a student Catholic group must be Catholic and not, say, Hindu, that would be a different and I think, more sympathetic, policy, even though it would be more exclusive in certain respects.
I agree with Rick (as he knows) that simply invoking discrimination, or even invidious discrimination, is not enough to answer the question when a group is engaged in wrongdoing, much less when the government can or ought to address it. Let us be clear that Rick is emphatic in his editorial that he believes that opposition to invidious discrimination is wrong, as do I. Like him, however, I don't think that belief alone settles the kinds of questions he's addressing.
Does it matter that this case involves Vanderbilt and not, say, Hastings? Under the law, absolutely. I'm less clear about how it figures in for Rick, although I know both he and I disagree with the Court's decision in CLS. (For an excellent critique of that opinion, see this measured but critical piece by John Inazu.) I suspect that, like me, Rick thinks it matters but is not dispositive of what Vanderbilt ought to do rather than what it can do; but I'm not clear, past that, on how we might come out in different cases.
For both of us, the phrase "institutional pluralism," which he uses above, is essential. My own view is that Vanderbilt is arguably free to form, as a matter of institutional mission, a position that disfavors even the requirement that leaders of Catholic (or Jewish, or Baptist, etc.) groups belong to that faith. Both members of that university community, and members of the broader academic community and citizens themselves, are then free to praise or criticize that decision. I would rather that the decision be left open to the university itself rather than being legally compelled, however. From that position, I am both willing to defend Vanderbilt's decision in broad terms of institutional pluralism and inclined to think it was the wrong decision. In any event, I agree with him that simply invoking "discrimination" will not settle the matter.
Read Rick's piece!
A Critique of the Flip-Flopper Critique
With the ongoing Republican primaries, it seems like we’ve been hearing a lot of the “flip-flopper” critique. Ron Paul used it against Newt Gingrich. Many have used it against Mitt Romney. Some have called President Obama the “flip-flopper-in-chief”; others speak similarly of the Governor here in Wisconsin. Its purpose is to suggest that the target is at once unprincipled, untrustworthy, and unpredictable. But “flip-flopper” is often better at obfuscating than revealing. In this post, I want to highlight two problems with the term’s common usage, and then attempt to explain why the critique remains common notwithstanding its defects.
Problem one: while flip-flopper denotes a person who has changed positions without justification, political discourse frequently abuses this meaning by failing to engage sufficiently the question of whether any given change is in fact justifiable. The common implication seems to be that all position changes are tactical and Machiavellian, and that the best candidate is the one who will most steadfastly adhere to his initial policy positions. But not all flip-flops are created equal. By glossing over potential justifications, standard critiques both encourage criticism of some praiseworthy position changes, and encourage praise of some blameworthy refusals to change course.
To highlight how position changes can be positive, consider several broad categories of justification:
(1) Changed facts. Sometimes the objective factual premise for a position will change, and in turn justify a shift in position by the person whose initial stance relied on the prior fact. Outside of politics, we accept and even expect these changes as a matter of course. For example, while I might not oppose a person driving 75 miles-per-hour on a freeway, I might strongly oppose the very same person driving the very same car at the same speed through a school zone, and no one would view the change of position as a “flip-flop.” The change in factual premise—freeway to school zone—justifies the shift. To conclude otherwise would require either ignoring the new fact or rejecting its relevance.
(2) New discoveries of preexisting facts. Sometimes the objective facts stay constant, but the social perception of them changes, perhaps because of scientific discovery. For example, while I might eat tomatoes on a regular basis in view of certain anticipated health benefits, I might stop doing so if it became apparent that tomatoes are in fact bad for human health, and no one would call me a flip-flopper. Once again, criticizing the change in position as a flip-flop would require either ignoring the changed context or rejecting its relevance.
(3) New considerations. Sometimes facts and perceptions of them remain constant, and yet a person will change positions on a matter simply because further reflection has added complexity to his thinking. Another example: I might initially like a movie because of its apparent novelty, but soon after recall that it’s similar to several others, and thus not so novel after all. Or I might simply come to understand the movie in a different light upon further reflection. Either way, few would refer to such a change as a flip-flop or view it as a basis for criticism.
(4) Pandering. Sometimes neither facts, nor perceptions of them, nor opinions change, but a person will adopt a new position to indulge an audience. This is the type of change that “flip-flopper” suggests.
All of these possible explanations transfer to politics. Because of changed facts, a candidate might oppose the use of military force in one context but not another. Because of new discoveries of preexisting facts, or new considerations based upon careful reflection or advice from advisors, a candidate might support a policy regarding mining or space exploration that she previously opposed. And pandering might lead the same candidate to present different positions to different electoral audiences.
Changes within most of these categories should, if anything, improve our perception of the candidate. A candidate who shifts her stance because of changed facts may be better at appreciating nuance. A candidate who changes positions because of new discoveries may be more intellectually honest. A candidate who changes positions because of further reflection may be better at seeing both sides to an argument, and thus less dogmatic and more capable of sympathizing with those who disagree.
Unfortunately, the standard critiques seem to overlook these complexities. They work by implicitly discounting all but the pandering explanation without seriously considering the others. The term suggests that any changed facts or new discoveries are trivial and irrelevant, and that claims of changes in sincerely held views are simply unbelievable. The result seems to be an exaggerated cynicism toward candidates for elected office, and an exaggerated sense of the value of consistency.
Problem two: common usage is problematic because it tends to attack position changes without regard for the public office the candidate seeks, and thus fails to appreciate how the particular constitutional function of the office might make a candidate’s shifts more or less problematic.
For this point, consider the breadth of the common usage. Flip-flopper critiques are obviously a common rhetorical tool in the current presidential race. But they seem to be comparably common—even if less visible—in races for the U.S. Senate and House of Representatives, and in campaigns for state office, including state judgeships. The usage in each of these contexts seems roughly to track that which occurs in the U.S. presidential race—news media and opposing candidates attack apparent inconsistencies or position shifts by labeling them “flip-flops.” Although based on admittedly sporadic observation, my sense is that the attacks don’t vary much by office; those targeting candidates for the U.S. House, for example, don’t meaningfully differ in intensity or form from those targeting nominees for judicial office.
But perhaps they should. The differing functions of these offices are obvious. They have different terms of service. They carry different powers and obligations. And they serve different purposes; the Constitution shields some from popular pressure while directly subjecting others to the very same. As I explained above, position changes can be responses to new facts, responses to new discoveries of preexisting facts, sincere changes in candidate beliefs, or pandering. There is good reason to think that whether explanations within this typology can justify a position change should vary with the unique characteristics of the office at issue.
Imagine, for example, position changes that are based upon shifts in public opinion. We can fit these into the typology by viewing them as changes founded on changed facts, with the facts being two different prevailing public opinions on an issue within a fixed period of time. Whether we should be concerned about this type of change seems to depend largely on the office the candidate seeks. At one end of the spectrum are candidates or nominees for federal judicial office. Here, it seems, a shift in public opinion generally should not qualify as a relevant form of changed fact so as to justify a change in position for at least two reasons. First, the Constitution intentionally insulates the federal judiciary from public opinion. Evidence that a nominee alters his positions to keep up with mercurial majority views could suggest a risk to the judiciary’s independent and insulated constitutional function once the nominee obtains the appointment. Second, the predictability of the common law depends upon respect for precedent. Evidence that a nominee changes positions in response to public opinion might suggest a tendency of disregard for stare decisis that will render the law less stable and predictable.
At the other end of the spectrum are candidates for legislative bodies—such as the U.S. House of Representatives—that are constitutionally designed to be maximally responsive to public opinion. Here, the constitutionally mandated combination of elections and short office terms incentivizes legislators to pay close attention to the majority preferences of their constituents, and punishes those who refuse to shift along with the voters. By doing so, the Constitution makes public opinion the primary guide to the office-holder’s decision-making, and affirmatively encourages position changes that are responsive to changes within the electorate itself. Evidence that a candidate for such an office evolves with public opinion may suggest simply that the candidate will carry out her primary constitutional function.
Explanations: Why, then, does the flip-flopper critique remain so common? I have a few guesses: First, perhaps voters and the media use it in an attempt to simplify the candidate selection process. Position changes complicate candidate identity, and complexity makes it harder to brand and distinguish candidates. By discouraging position changes, the critique facilitates voter choice. Second, perhaps voters use the critique because they know that electoral mandates are difficult to enforce intra-term. If a candidate elected on one platform changes her position on a matter once in office, it is always possible for the electorate to vote her out upon the expiration of the term. But there is little that can be done until then. And in the meantime the official may work to create laws that reflect her new, unpopular position. Maybe voters scrutinize candidates for position changes to reduce the risk of this scenario. The flip-flopper critique, in other words, fulfills a vetting function, weeding out those candidates who are most likely to change positions in an unforeseeable manner. Finally, I think candidates contribute to the ubiquity of the critique for their own reasons. They know that it influences voters. And it provides a way to criticize an opponent for holding a particular position even when the position itself is popular. These guesses explain the common usage, but fail to justify its indiscriminate nature.
The Best Law and Music Article of All Time
There are several excellent contenders. Daniel Farber's "Constitutional Cadenzas" ("The question I want to raise is whether the Constitution contains cadenzas -- that is, instructions for the interpreter to improvise upon the Constitution's grand themes."). The Cardozo Law Review's symposium back in 1999 on "Music and Legal Theory." Jerome Frank's 1948 "Say it With Music" (a bit radical for my taste, but superb nonetheless) as well as his "Words and Music: Some Remarks on Statutory Interpretation." And Richard Posner's (who else?) "Bork and Beethoven."
But the best piece of musico-legal synthesis of all time must surely be Jack Balkin and Sandy Levinson's "Law, Music, and Other Performing Arts" back in 1991. Some back story before getting to the article. In the late '80s and early '90s, one of the controversies in music theory and interpretation had to do with "authenticity" -- the interpretation of musical scores according to the sensibilities of the period in which they were composed. So if you were performing Beethoven's third or seventh symphony, the hip thing was to deprecate the sweeping efforts of the great Romantic conductors like Bruno Walter or the fascist period sloppy extravagance of Wilhelm Furtwangler and try instead to replicate the sound which would have been heard by an early 19th century audience, with appropriate period instruments, period tempo and dynamics, and an appropriately -- that is to say, modestly -- sized orchestra. Perhaps it is not too surprising that a troop of Englishmen including Sir Roger Norrington, Sir John Eliot Gardiner, Sir Neville Marriner and Christopher Hogwood were among the leading exponents of this concern for sensible, restrained periodicity. Alongside these trends came the movement away from the canonical works and toward obscure -- sometimes willfully obscure -- music long since forgotten, early music, unknown song cycles, unfinished fragments, and the like. Good bye Das Lied von der Erde; hello undiscovered baroque canti that nobody ever heard of (sometimes for good reason). And so was born the "Early Music Movement," which might better have been named the "Authentic Music Movement," since it aspired to discredit the traditional, grand style of interpretation.
An interesting feature of these debates, to me, is that the Early Music Movement took one of its core tenets to be that the music should come first, the interpreter second (or not at all). This was one of its complaints about the traditional mode -- its pride and its ego. And yet as the Movement aged and became more profitable, it, too, became self-indulgent after a fashion, as artists congratulated themselves on "rescuing" obscure music which in many cases had been rightly consigned to oblivion (lookin' at you Cecilia Bartoli).
At any event, the neat thing about the Balkin & Levinson exercise in bricolage is that it reflects on these developments in classical music in light of the debates then (and still!) raging in constitutional interpretation. B&L observe that a musical score, like a text, is a series of directions for interpretation, and what one hears in a piece of music is these commands "brought to life" (note the suggestion of living constitutionalism) by the performers following the directions. Like music, law-in-action requires performers in order to be realized.
The aspiration to perform music, as one orchestra conductor put it, "in a form which the composer would recognise" is not really what the Early Music Movement was after; as B&L say, it was, instead, to "produce the sonic effects experienced by [the composer's] non-hearing impaired contemporaries." Yet the result, achieved only with huge effort, often produced an unpleasant sound. The vibrato was done away with in favor of "a string tone that has variously been described as sour, astringent, or vinegary." Woodwinds were intentionally made to sound out of tune. And the tempo was sped up uncomfortably with a corresponding loss of richness and texture.
The primary criticism of this interpretive mode is that the past is lost to us, and that we cannot recreate it with these technical strategems. Whatever was heard in the past was heard as part of a larger cultural context which we cannot replicate today. "Bach composed his masses and his religious cantatas to be performed in church as part of the devotional exercises of committed Lutherans," not for availability at will, to be played over and over, skipping over the boring parts, as one drives alone down the highway. Whatever Bach's audience heard is not what we hear, and a "living tradition" (emphasis by the authors) as compared with a tradition housed in a museum, demands -- indeed, it assumes -- the conviction and passion of later interpreters. Otherwise, what is claimed to be authentic is really a precious authenticism.
Another issue pursued by B&L deals with why the idea of authenticity has become so important for interpreters today. After all, authenticity would not have been important at all to previous eras of composers -- to the very composers whom the Early Music Movement wished to treat with reverential respect. B&L quote from a musicologist: "If you were an Italian singer in 1888, you did not think of singing Rossini-style for Rossini and Mozart-style for Mozart. You just sang. The way you sang . . . would have been in the style of the cultural situation of 1888." The reason for the rise of authenticism is our own separation from the tradition of classical music, which gives rise to the impetus in some to cling to it, to reclaim it as it was -- when it was truly a living tradition. And yet the search for authenticity is itself the imposition of an aesthetic -- "the aesthetic of modernism on the music of the past." The result is that the quest for authenticity ultimately does not give us music as it was originally, but music as we like it now. "We have adapted Mozart to our age just as the romantics adapted him to theirs, only we have done it under the banner of 'authenticity.'"
One of the great things about -- maybe my favorite feature of -- the article is that it says practically nothing about constitutional interpretation explicitly. Most of the work is done suggestively and elliptically, and that oblique approach is much more effective than would have been a direct, conk-you-over-the-head argument. Here's a bit from the conclusion:
Felix Frankfurter described as “the single most important utterance in the literature of constitutional law” John Marshall's admonition that “it is a constitution we are expounding.” Equally important is Marshall's insistence that the Constitution be interpreted so as to “endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” It has always been feared, though, that too much “adaptation” would mean not the endurance, but rather the death of the Constitution. Yet how is one to tell the difference? Only half in jest do we announce that the subtext of this review is the question whether the performance of constitutional interpretation is better analogized to the Hanover Band's version of the Pastoral Symphony or to a jazz improvisation on Thelonious Monk's Round Midnight. We do not mean to suggest that the choice must be exclusively between these two alternatives. Many other musical analogies might be suggested as well. We do mean to suggest that asking such questions—and wrestling over the answers—helps to illuminate the enterprise of constitutional analysis, including the particular problems posed by this enterprise for those who must confront the profound impact modernity has had on our political and legal culture.
Other candidates for the best law and music article of all time are welcome!
Altering the Factual Content of Memories
Over the last decade, researchers have had some success identifying drugs to dampen the emotional intensity of traumatic memories. Ongoing studies are looking at whether these drugs, like propranolol (already approved by the FDA to treat high blood pressure), may help treat or prevent PTSD. In an article I wrote a few years ago, I discussed the legal and ethical issues not only of drugs that alter the emotional content of memories but also more hypothetical drugs that alter the factual content of memories.
Faster than one likely would have predicted, drugs that alter the factual content of memories are becoming less hypothetical, so to speak, at least in rats. Using a drug called ZIP that started making big headlines within the last couple of years, the memories of rats can be entirely erased. If, for example, rats are taught to avoid a certain food, researchers can inject ZIP into their brains to make them forget the aversion. Until recently at least, ZIP hasn't been used to erase a particular memory or class of memories. If you taught rats to avoid two kinds of food, you couldn't erase the aversion to just one of them. A new study in which ZIP was injected directly into a rat's spinal cord at least reinforces the possibility of more targeted interventions.
While we still have a very long way to go, we may someday identify methods of erasing particular memories in humans. Such drugs may help treat people suffering from posttraumatic stress. They may also help treat drug addiction (interestingly, one study used ZIP to make cocaine-addicated rodents forget the location where they were regularly given cocaine). These drugs may also help treat chronic pain, since chronic pain may result in part from certain associations between a person's current condition and prior states of acute pain.
I recently wrote a two-page comment in the journal Nature discussing some of the issues raised by memory-dampening drugs. While such drugs may someday require thoughtful regulation, I argue that research into memory-dampening drugs should proceed despite what I consider excessive handwringing by some bioethicists. The comment is now available here on SSRN.
Wednesday, April 04, 2012
Thoughts on the "Strip Search" Case and Crime Severity Distinctions in Criminal Procedure
Some reaction to Monday's decision in Florence v. Bd. of Chosen Freeholders has been somewhat overblown, given the fairly narrow issue resolved by the case. Florence had conceded that "strip searches" (for lack of a better term) were constitutonally permissible for those detained for serious offenses, even absent any individualized supsicion. His sole claim was that, as someone detained on a minor offense, jail officials could not strip search him absent reasonable suspicion that he had weapons or other contraband. The Court rejected the claim.
Florence is another in a line of cases in which the Supreme Court has refused to calibrate constitutional criminal procedure rules to the severity of the crime at issue. In Atwater v. City of Lago Vista, for example, the Court held that police could arrest for any offense for which they had probable cause, even one that was a "fine-only" offense, i.e., did not have any possible jail time attached. In part, the Court refused to adopt Atwater's proposed distinction between serious and minor offenses because of the hardship it would place on the police in some cases in determining which had occurred: whether drug quantity, or the value of a stolen item, was just over or just under the threshold amount for a "serious" offense, or whether it was the suspect's first or fifth offense. Likewise, in Berkemer v. McCarty, the Court rejected the State's contention that statements made in the absence of Miranda warnings were admissible where the police arrest for a traffic violation.
The one outlier is Welsh v. Wisconsin. There, the Court held that, while police could generally enter a home without a warrant to obtain evidence that would otherwise be destroyed, the same was not so for minor offenses. The police had entered Welsh's home without a warrant to arrest him and get his blood tested after they had probable cause to think he had just driven while intoxicated. Had they waited to get a warrant, the alcohol in his blood might have dropped below the critical level necessary to show he was intoxicated when he drove. Nevertheless, the Court held that, because "Wisconsin has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible," police could not enter the house without a warrant even though there were exigent circumstances. How the officers there were supposed to know that this was Welsh's "first offense" is unexplained.
One thing that caught my eye when I read Florence is that it cites Welsh. Well, it cites Justice White's dissent in Welsh, for the proposition that police should not be called upon to make on-the-spot determinations of crime severity. Just further proof that Welsh remains exceptional and, perhaps, vulnerable. If I were a prosecutor, and the right case came up, I would not hesitate to argue that Welsh has been undermined by later cases and ought to be overruled.
The (Very) Unusual Case of Jason Pleau
Today, the en banc First Circuit heard oral argument in U.S. v. Jason Pleau, a potential federal death penalty case out of Rhode Island -- with a strange twist.
Pleau and his accomplices are accused of robbing and murdering David Main as he was about to make a bank deposit of the proceeds from a gas station where Main worked in Woonsocket, Rhode Island. As you may know, Rhode Island does not authorize capital punishment. Pleau was indicted by the U.S. for robbery, in violation of the federal Hobbs Act, which criminalizes a robbery that "affects commerce," and murder, in violation of 18 U.S.C. 924(c)(1)(A)(iii) and (j)(1). The latter charge carries a possible death sentence, although the federal government has not yet decided whether it will seek death. Following his indictment, the federal government sought to obtain custody of Pleau, who was then in the custody of the State, by filing a detainer under the Interstate Agreement on Detainers (IAD). Rhode Island Governor Lincoln Chafee said: "No."
You read that last part right.For what appears to be the first time in the 40-odd year history of the IAD, a state governor refused to turn over a state prisoner to federal authorities under that agreement. Chafee, justifiably believing that the only reason the federal government was involved in the case was to seek Pleau's death -- Pleau had already agreed to plead guilty in state court in exchange for a sentence of life imprisonment without parole -- cited Rhode Island's longstanding opposition to capital punishment.
No fear, thought the federal government. They sought a writ of habeas corpus ad prosequendum, a common-law writ under the All Writs Act. The District Court granted the writ, ordering Gov. Chafee to turn Pleau over to the federal government. A panel of the First Circuit disagreed, accepting Chafee's and Pleau's argument that, once the federal government sought, and failed to obtain, custody under the IAD, it was prevented from doing so under the All Writs Act. The First Circuit then granted rehearing en banc.
I won't comment upon the merits of the issue currently before the en banc First Circuit, which involves the interesting intersection of the IAD and the All Writs Act, in part because I consulted with some of the amici in the case on their brief. But this little-known case implicates some very big issues.
First, there is the ever-present botched reporting by the media. Every news account I have read about this case claims that Pleau allegedly violated federal law because the killing took place outside, or near, or on the threshold of, a federally insured bank. Poppycock. There is no federal statute criminalizing robberies that take place outside, or near, or on the threshold of, a federally insured bank. To be sure, there is a federal bank robbery act, but of course Pleau didn't rob a bank. No, as I mentioned he allegedly committed a Hobbs Act robbery -- a robbery that "affects commerce" -- which has nothing to do with the fact that it was near a bank.
But that brings me to my second point which is that I doubt many people realize how broad the federal Hobbs Act is. Apparently, anyone who robs any commercial establishment violates the Act. Moreover, even if one forcibly steals the proceeds of a commercial establishment, one has likely violated the Act. There are cases upholding convictions under the Act where the defendant robbed a home, where among the stolen items were the proceeds from a commercial enterprise. Repeating a refrain from an earlier post of mine: there is lots of outrage these days over the federal government forcing people to buy health insurance; why is there so little over the fact that the federal government can put me in prison if I steal a Snickers Bar at gunpoint from the local gas station?
My larger point is about Gov. Chafee. It seems to me that his actions are exactly what the Anti-Federalist proponents of our Bill of Rights had in mind: use of state power to intercede between a citizen and the awesome power of the federal government. They contemplated that the States would act as barriers between the federal government and the people, to further the cause of human liberty. I have argued that the Cruel and Unusual Punishments Clause can be read to interpose state judgments about permissible punishments between the federal government and the people, so that the federal power to punish is limited in the same way that the States limit their own power to punish. Here, the interposition is more direct and more literal, but it serves the same end.
Of course, some such intercessions might take on a darker cast and work to defeat human liberty, such as where a racist governor protects a white supremacist from federal prosecution for violating the federal civil rights of racial minorities, where state authorities are unwilling to prosecute. But in such a case, the State is itself arguably violating a later-enacted provision of the Constitution by denying racial minorities within its jurisdiction "the equal protection of the laws." This is not such a case. Nor is this a case where a State is protecting one of its own in order that he may escape punishment for a crime altogether or, indeed, that he be treated more leniently than others similarly situated in the State. Pleau has already agreed to accept the harshest punishment possible under Rhode Island law. So long as a State is willing to forego capital punishment across the board, its determination about the acceptable bounds of punishment for crimes that occur within the State calls for deference from the federal government. If the federal government is unwilling to afford such deference, Gov. Chafee is within his rights in refusing to turn over Pleau.
Church Autonomy vs. Religious Arbitration: Take 3
In my last couple of posts (see here and here), I've tried to highlight some of the unique issues that arise when courts try to review arbitration awards issued by religious tribunals. Art Hinshaw over at the ADR Prof Blog has been kind enough time chime in a bit on these issues, and I thought I might highlight one last point from my Litigating Religion article before signing off. At its core, my contention is that courts should avoid encroaching on the rights of religious institutions, but that courts should not worry about resolving disputes that turn on religious questions.
Consider a case where a church terminates its minister for cause (sometimes a congregation just doesn't like the sermons). Now imagine the minister brings a claim for breach of contract before a religious tribunal which finds in favor of the church. Any attempt by the minister to bring a breach of contract claim in court will presumably be dismissed on church autonomy grounds; the court will leave decision regarding church discipline and governance to the relevant "church judicatories."
Moreover, the claim will likely be dismissed even if the minister alleges that the decision of the tribunal was procured by fraud or collusion. This is because evaluating such a claim would typically require judicial investigation into matters of church doctrine and practice - and we ordinarily think of such an investigation as running afoul of the Establishment Clause.
In my article, I argue that we shouldn't be worried about courts investigating religious questions. My contention is that courts are competent enough to answer such questions and that the endorsement concerns implicit in a court choosing one view of religious doctrine over another are not quite as substantial as one might otherwise think.
If I'm right about this (many people think I'm not), then we might consider allowing courts to adjudicate, for example, breach of contract claims where the minister alleges fraud or collusion on the part of the religious tribunal. Like the standard of review for arbitration awards, we might think that the decision-making of religious institutions and tribunals should be insulated from any judicial review on the merits and therefore courts should dismiss a minister's breach of contract claim against a church on church autonomy grounds.
But we might also think that where fraud or collusion is at play, those protections should fall by the wayside; indeed, we might think that's not church autonomy we're protecting in those cases (if the allegations are true, it's just fraud). And, if we aren't worred about a court becoming impermissibly entangled in religious questions - only about a court encroaching on the rights of religious institutions - then we might re-interpret the First Amendment to allow courts to consider claims of fraud and collusion in the constitutional context just as we do in the arbitration context.
Post-JD "Residency" Programs, and One Place to Start
We are all familiar with the claim that law schools don't prepare their students adequately for the practice of law. This criticism is somewhat overblown, in my view; law is hardly unique as a profession in requiring a period of post-graduate, on-the-job training and experience before a person is deemed by her peers to be a solid, competent professional. As many people have pointed out, medicine obviously does too-- it's just that in medicine, that period is formalized and funded by the government, and the trainees spend their training years providing needed services to vulnerable populations. I don't think it's completely crazy to imagine a similar system for law students, especially given that the "oversupply" of lawyers we're currently hearing so much about is a function of effective demand (that is, ability to pay), not actual need for services. My exciting proposal, below the fold.
There's a huge need for legal services among people who can't afford to pay out of pocket, just as there is a huge need for medical services among people who can't afford to pay out of pocket. If all medical procedures were funded out of pocket there'd be a huge "oversupply" of doctors too, coupled with a huge unmet need for medical services. (Indeed we're already seeing this somewhat in medicine, with primary care and general practice underrepresented, and lucrative specialities arguably overrepresented.) To take maybe the most glaring example, we deport upwards of 300,000 people a year out of an estimated population on the order of ten million people who could potentially face deportation. Our immigration laws are very complex, with numerous potential avenues for relief, and removals hearings are conducted like trials. But while the government gets a lawyer, the alien, in 99 out of 100 cases, does not. So we have a potential personal catastrophe--deportation-- which for many people is up there close to death on their list of fears; the statistics show that having a lawyer matters enormously to the outcome; almost all aliens in these proceedings have no lawyer; and yet we have no provision whatsoever for publicly-funded attorneys for aliens in deportation proceedings. The substance of our immigration is fairly contested politically at the margins, but there's a core that's neither seriously contested nor constitutionally contestable. That is, neither party is advocating eliminating all immigration; and due process requires that so long as there is substantive immigration law, there be a adjudicative system in place. It's sort of like public teaching hospitals: you *could* just decide to let poor people die on the streets, but no one is seriously advocating that. True, Ron Paul said it at a debate, and Justice Scalia posed it as a question in the ACA arguments, but I think (I hope!) I'm safe in claiming that there's no chance that that will become official policy. Likewise, I think I'm safe in claiming that the immigration-litigation machine is here to stay. Thing is, unlike with teaching hospitals, we don't take advantage of that machine to train young professionals. So why not? As far as I'm aware, no one seriously defends, on its merits, a system of adversarial trials in which only the government gets a lawyer. The Court has said that the Constitution doesn't require provision of publicly-funded lawyers in deportation proceedings, but as a policy question, I've certainly never seen any argument that that's a good thing-- rather, it'd be too expensive to provide them, etc. etc. So why not turn the immigration courts into a pilot "residency" program, thereby providing training for new lawyers, representation for aliens, and relief for the private sector from some of the training burden that they now shoulder almost entirely. I've had on the back burner for a while an attempt to set out as best I can an estimate of the actual dollar costs and benefits of such a program (the benefits, by the way, are potentially quite significant given that a lot of work in criminal cases now involves hypothetical relitigation of the underlying removal proceedings), but I thought I'd get the idea out there in case anyone else has been thinking along similar lines. And of course there are other areas where there are really important interests at stake, publicly-funded lawyers are not currently provided, and young lawyers could get useful training-- one thinks of, e.g., landlord-tenant, or family law. I'd love to hear more ideas.
Who Are You Wearing? Part 1: The Stakes
It's a pleasure to be making my first appearance on PrawfsBlawg, where I have long turned for thoughtful commentary on weighty issues such as the ACA, religious liberty, workplace discrimination, the politics of judicial review, and the crisis in legal education. I hope to do my own part to uphold this tradition by talking about luxury handbags.
My own scholarship focuses on intellectual property, and mainly trademark law. These days, most of the highest-profile trademark disputes involve luxury goods: the red-soled Louboutin, the Louis Vuitton monogram, or Tiffany's blue box. We might dismiss the legal wrangling over such baubles as frivolous, but there are, quite literally, billions of dollars at stake: the premier luxury conglomerate LVMH reported revenues of over 23 billion euros last year, 22% of which came from the United States. And that's just for sales of genuine products; Congress has found that trademark counterfeiting saps our national economy of $200 billion annually, losing us "millions of dollars in tax revenue and tens of thousands of jobs" (though there are many who cast doubt on this claim, notably including the GAO). So perhaps it's not surprising that so many lawyers (and their clients) are ready to make a federal case out of a fake purse.
The question I've been investigating recently is whether we ought to allow such a federal case to be made. I think we can all intuitively appreciate the desire to police the stream of commerce for knock-off pharmaceuticals, baby formula, or brake pads--there's a public safety issue at stake. But what is the public interest in knock-off watches and open-toe pumps? This turns out to be a complicated question, and I'll be fleshing out my own view in the coming days. But before I give my take, I'm curious what the Prawfs readership thinks. Feel free to give your views in the comments.
Fifth Circuit Jumps on the Marbury-gate Bandwagon
The fallout continues from President Obama's unfortunate comment that it would be "unprecedented" for the Supreme Court to overturn a law "passed by a strong majority of a democratically elected Congress." Like Howard, I believe that the ACA is constitutional, but that the Supreme Court has the power to strike down unconstitutional laws.
He has been skewered in the media for presenting a mistaken view of the role of judicial review, and right-leaning commentators in particular have not missed a single opportunity to remind the public that Obama once taught Constitutional Law. Never mind that politicians across the political spectrum have complained about this sort of "judicial activism" for years when a court strikes down a democratically elected law that the politician at hand favors. Regardless of this fact, since Obama did indeed misstate the law, he was right to issue a clarification and retraction.
Now enter the Fifth Circuit, which is hearing oral arguments on a separate ACA challenge brought by physician owned hospitals. Yesterday, Judge Jerry Smith engaged in the following exchange with the DOJ lawyer:
Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?
Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Judge Smith then referred to Obama's comments, remarking "So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases."
After Kaervsang cited Marbury v. Madison, Judge Smith demanded further briefing on the topic, asking for a three-page single-spaced letter stating "the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review."
I must say that as troubled (and annoyed) as I was by Obama's comments on Monday, I was shocked by this exchange. It raises several difficult issues of judicial behavior and appellate litigation.
First, Obama's remarks were not part of the record before the court. Judge Smith's request dips into the murky area of what sources of authority judges may consult when reviewing the facts of a case or deciding on the law. While it is not impossible (or, should I say, unprecedented) for judges to take judicial notice of facts outside of a formal record, this power is usually exercised in a very narrow and tailored fashion. I am particularly worried about statements made by lawmakers commenting on legislation. Politicians, who engage in a good deal of high rhetoric and puffery, should not have to be concerned that every last statement they make will be come part of the record of litigation and subject to extra briefing and defense. The President is perfectly capable of directing the DOJ to change the government's positions on various statutes (see DOMA). This sort of judicial behavior chills a politician's ability to engage in a public discussion of various policy decisions without fearing that every statement now becomes official administration policy for purposes of litigation.
Second, the exchange calls into question Judge Smith's impartiality in this matter. Because while President Obama--a member of a political branch of government--has the right and perhaps sometimes the obligation to take partisan stances on issues, Judge Smith is a member of the judiciary who should theoretically be above the fray.
Most commentators who were not motivated by political leanings understood the Obama gaffe to be either: (a) a very poor misstatement in which he meant to defend the constitutionality of the ACA, but made the unfortunate mistake of questioning judicial review; or (b) campaign-year puffery. Either way, Obama has since assured us that judicial review is not actually under attack. No serious commentator took Obama's statement to signal a change in the adminstration's view of judicial review, any more than numerous other comments by other presidents and politicians over the years have been taken as a serious statement of operational policy.
What then, motivated Judge Smith to demand extra briefing on a point with which the DOJ lawyer agreed? In my opinion, it was motivated by a desire to humiliate and punish Obama and the administration. While the actual request is not a technical breach of judicial ethics, it toes the line and reveals a willingness to engage politically with a litigant (and another branch of government, no less) instead of limiting review to the merits of the law and the content of the record.
Therefore, I don't think it's a stretch to question Judge Smith's impartiality in this case, even if it does not rise to the level of recusal. His specific animus toward a litigant is troubling, and I hope that this issue receives the attention it deserves.
amenities & higher ed
Since Dan foolishly failed to deny me continuing access to the blog, I thought I'd highlight this really interesting story on Inside Higher Ed about how midwestern liberal arts colleges are attempting to fight off extinction by adding Division III lacrosse teams in order to attract the middle and upper-middle class white kids who can still pay full freight. Suburban Chicago high schoolers are taking up the sport in increasing numbers and have been fleeing to the east coast for college in order to keep playing. As the article notes, intercollegiate lacrosse adds to the university's costs (coaches, travel, equipment, insurance, etc.) and can lead to the financial and institutional downgrading of actual education at these schools. I've grown increasingly worried about the pernicious effects of big-time intercollegiate sports on campus (go gators, and all that), and it's interesting to think about the effects of the small-time as well.
Law schools engage in analogous activities -- intermural trial, moot court, ADR, transactional, etc., teams, most obviously, but other non- or extra-curricular student offerings as well -- and as ever it will be interesting to watch whether and how lower applicant pools and downward pressures on tuition affect such things. They seem quite a bit closer to law schools' mission than lacrosse teams, but like the latter they also serve as loss leaders (look at our nationally ranked trial team and the several moot court teams we field!) whose rationale schools need to review on a regular basis. This is another area where institutional diversity makes sense, and where expensive private schools may be able to offer such opportunities and services while low-tuition publics do not. Like DIII sports, they also reveal a fundamental conflict at the heart of the student-as-consumer model: on the one hand universities are condemned for the never-ending march of tuition to the stratosphere, while on the other students demand and shop for costly services and brick-and-mortar investments that may not be essential to the educational mission -- and, with respect to some intercollegiate sports, antithetical to it.
The Clarification Round
Sometimes the most important question you can ask at a faculty workshop is just "What is your thesis?" You rarely hear that question asked, however, at least straightforwardly. As I emphasized in a post last year, "How to Ask Questions at Conferences and Colloquia," we must understand a speaker's claims before we can meaningfully address them. Ideally, speakers will clearly present their claims and listeners will clearly apprehend them. But too often, neither occurs. Legal scholars need to better heed Steven Covey's advice: "Seek first to understand, then to be understood."
Here's something to try at a workshop: After a speaker presents, allow a 10 minute "clarification round" where questions must take the form of clarifications. Since they are just clarifications, you will probably need a rule that those who ask questions during this round will not be prejudiced in the queue for substantive questions and objections. In an ideal world, 10 minutes of clarification would make the rest of the talk more fruitful. (If you keep a running queue during talks, a raised hand in the shape of a "c" might convey appropriate queue placement.)
While I'm curious if such an approach would help, I'm not optimistic. The clarification round needs a strong moderator who will prevent clarifications that are just thinly disguised objections. And there are some speakers who are sufficiently clear that the round isn't necessary. But it may be worth experimenting with a brief clarification round. (I am optimistic, however, that a similar "clarification round" really would be effective in the classroom. We should make sure students understand the basics before answering difficult objections or complicated hypotheticals.)
I'm not "Kumbaya" about academic presentations. I think papers should be vetted against thoughtful, penetrating questions. Let's fix up the papers before they're published. To do that better, we should give authors incentives to write clearer papers and audience members incentives to tie their questions more closely to those papers.
Tuesday, April 03, 2012
Your ox or mine?
First, I strongly disagree with President Obama's suggestion yesterday that it would be inappropriate for SCOTUS to strike down ACA. Other than being (in my opinion) wrong as a matter of substantive Commerce Clause doctrine, it is an entirely proper exercise of judicial review.
But we're getting into Through the Looking Glass stuff now. Congressional Republicans have accused the President of trying to intimidate the Court (Lamar Smith); insisting that a decision invalidating the law would "not be an activist court -- that will be a court following the Constitution" (Mit Romney); and insisting that "[j]udicial activism or restraint is not measured by which side wins but by whether the Court correctly applied the law." (Orrin Hatch). And, of course, we know the difference--striking down ACA is correctly applying the law, while, say, invalidating bans on sodomy is activism. There could not be a better illustration than Hatch's comment that judicial activism is an utterly empty and meaningless epithet. It really depends on whose ox is being gored--if you agree with a decision (or in this case, what many people expect to be the decision, it's correctly following and applying the Constitution, if you disagree, it's activism.
[Update: I missed this, but apparently Sen. Kyl actually insisted that a decision upholding ACA would be activist. I am sure no one in the press asked him to explain that one or what he possibly could have said.]
Congressional Republicans have spent fifty years decrying as activist Supreme Court decisions that just happened (shocked! shocked!) to come out contrary to Republican policy preferences. They have spent thirty years threatening to strip federal courts of jurisdiction to prevent them from making decisions (that Republicans presumably will not like) on certain issues. They have talked, at least informally, about impeaching judges or at the very least statutorily reminding judges of the threat of impeachment. And it was a Republican presidential candidate who, just a few months ago, was running on a platform of ignoring judicial interpretations and decrees and calling federal judges before Congress to explain and justify their decisions.
Again, Obama was flat wrong (and probably politically unwise and somewhat tone-deaf) in what he did. But the President preemptively challenging an expected result--without calling for anyone to disregard the judgment or calling for anyone's impeachment--is intimidation? Given the history of political debates over the Court since the Warren Era, this is just bizarre.
Freakonomics and cheering speech
Interesting Freakonomics Podcast (beginning at 28:00) from a few weeks ago, discussing booing at sporting events, art, and politics. It had some interesting tidbits that I can use when I return to writing on the subject.
One is that the Colonies brought over from England the concept of "audience sovereignty," which vested in the audience the right to boo and jeer political speakers--precisely what Alexander Meiklejohn eliminated from his theory of the freedom of speech. The second is the story of Johnnie LeMaster, a light-hitting shortstop for the San Francisco Giants. In 1979, LeMaster made some comments opposed to gay rights, causing fans to boo him continuouslys. After several weeks LeMaster had a jersey made up with "Boo" on the back and wore it for a game, which immediately won fans over. And third is an interview with former Pennsylvania Governor and Philadelphia Mayor Ed Rendell, who talked about booing, especially when politics intervenes in sports.
Underneath the Law Review Submission Process
This month, I plan on doing a series of posts to try to uncover some of the mysteries of the law review submission process. Many people who submitted articles this winter are probably finished and have selected a journal, with or without regrets as to their final choice (hopefully mostly with relief and excitement to have a home for the article).
I don’t know about any of you, but every time I submit an article I go through some serious questioning and doubt not only about the article I have written but about how to conduct myself during the process. When should I submit my article? How many journals should I submit to? When do I expedite review to other journals? Do I expedite from the bottom to the top every time? The doubt and insecurity that comes after submission of an article may not be able to be resolved once and for all. And article submission may always be an anxiety-ridden process, but I feel that the more I know about the process and the more up to date I am about it, the better.
So, I will blog in the next few weeks about a series of interviews I’ve conducted with some articles editors at various law reviews about the factors that are important to them in their selections and some of the nitty-gritty on Law Reviews. I will also blog about some tips from professors from non-top-tier schools about the placement process. I found the series of posts last year on Prawfs by Dave Fagundes, and Matt Bodie, and on Opinio Juris by James Tierney extremely helpful, so I plan not to replicate those posts too much. I hope instead to add some further insight on the unanswered questions and some additional perspectives to the recurring questions that we may face.
If you have any questions you would like to know the answers to, feel free to comment or email me off-line and I can try to get the answers in my remaining interviews.
Chief Justice Strangelove or: How I Learned to Stop Worrying and Love HHS v. Florida
According to a Gallup poll taken in February -- before Justice Kennedy had a chance to terrify Jeffrey Toobin -- 72% of Americans thought the individual mandate was unconstitutional, including a majority of Democrats (56%). Despite this, only 47% wanted the law to be repealed; 44% opposed repeal. Why such a bizarre split?
My conjecture is that most folks believe we need some form of health care reform. Most folks do not want to be left in a world where they can't get insurance at an affordable rate if they lose their job and have a preexisting condition. But the individual mandate seems like a significant infringement on one's liberty. Should the government have the right to force you to buy something from a private seller, even if you don't want to? (As Mickey Kaus puts it: "It sounds creepy for the government to be able to make you buy things.") Not only that, it uses government power to support individual market players -- it's forced capitalism. I actually think the broccoli example is too benign -- who fears the all-powerful broccoli industry? A better example would be, say, security: what if the government forced you to buy private home protection for your house from one of a set of individual security companies? That's more ominous than broccoli. And it'd be justifiable -- the costs of providing police and fire protection would drop (perhaps significantly) if everyone had ADT.Of course, to constitutional law scholars, this is a confused argument, because the law is being challenged on Commerce Clause grounds, not liberty interests. States have the right to force you to buy car insurance; why shouldn't the federal government have a similar power? The whole "limiting principle" -- or lack thereof -- is irrelevant to the states' economic power. So if states wanted to make you buy health care, or broccoli, or private security, that'd be fine even if the ACA is unconstitutional. I'm not sure that gibes with what the average American would think on this -- they likely would object to the forced purchase, no matter what governmental body was doing it.
Nevertheless, the principle that the (federal) government cannot force people to buy products from private companies is not necessarily a conservative one. It may, in fact, protect us against instances of crony capitalism and special interest abuse. There was at one time a progressive critique of the current bill for failing to provide a public option for market participants to fall back on. A bill that offered the choice between buying your own insurance or being enrolled in the government's health insurance plan would clearly be constitutional (probably even to Randy Barnett).
My colleagues Tim Greaney and John Ammann provide a strong case for the mandate, based on the need to account for the costs of those who would otherwise fail to insure themselves. And I agree that, considering where we are at this particular moment, the individual mandate -- when paired with the other reforms, particularly for preexisting conditions -- is better than the status quo ante. As the president said yesterday, "this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions." Moreover, I also agree that the law should be constitutional -- Mickey Kaus, among others, has offered an array of plausible possibilities for upholding the law. But there is something to the populist notion that forcing a private purchase is incompatible with liberty. If that is in fact the ruling, there may be some very progressive applications for it down the road.
Leslie Griffin on Hosanna-Tabor
I'm pleased to recommend a new paper by Leslie Griffin (Houston), titled The Sins of Hosanna-Tabor. As the title suggests, she is not thoroughly enamored with the Supreme Court's recent decision in that case. Given what I wrote yesterday, I would feel guilty reposting the abstract, but you can read it at the link. Shorter version: Hosanna-Tabor offers a "profound misinterpretation of the First Amendment." It "mistakenly protected religious institutions' religious freedom at the expense of their religious employees," and in so doing reversed the natural order of things, which focuses on the rights of individuals and not institutions. The "special solicitude" for religious organizations that the Court refers to in Hosanna-Tabor is in fact "lawlessness; the Court held that religious organizations enjoy special freedom to disobey the law." The Court's history lesson in Hosanna-Tabor is itself questionable. The Court was equally wrong to say that Employment Division v. Smith did not compel defeat for the ministerial exception. The Court should return to a "neutral interpretation of the First Amendment over the Court's favoritism toward religion."
I disagree with vast stretches of Griffin's paper, as I think my writing on this subject has made clear. To the extent that she is right that current law often emphasizes individual over institutional freedom--and I think the Court has offered enough ammunition to go a different way, although I also think her views represent a prevalent view (albeit an inconsistent one; but perhaps I am mistaken, and we will see a number of amicus briefs from critics of Hosanna-Tabor urging the Court to overrule Grutter next Term when the Court hears the Fisher case) view on and off the Court--I think that view is overly simplistic. I think her statement that "Hosanna-Tabor promises to be a decision that is limited to its facts" is overly optimistic, or perhaps an effort to "frame the narrative." And I think the rhetoric of "above the law," being free to "disobey the law," and so on is deeply question-begging.
But I also am delighted that someone is pushing back so hard against the opinion. This is a good, angry, and good and angry article. It very nicely and enjoyably puts the question of individual vs. institutional rights front and center, whether I agree with its conclusions on this point. Similarly, while I think the history offered by the Court in Hosanna-Tabor offers important and accurate claims about what I have called the basic "church-state settlement," I think that history is big enough for the both of us, and I enjoyed Griffin's alternate take on the relevant stories that may be told about church-state relations. Well worth reading.
R.I.P. Judge Robert Beezer
Robert Beezer, a senior judge on the 9th Circuit, passed away late last week. I was saddened to hear the news, as Judge Beezer was very kind to me when I was a law clerk out in Seattle. I remember a lunch where, with great understatement and gentle reserve, he clued me in to some of the many particular ways of the circuit. A story with some details about Judge Beezer's life is here.
Greg Smith’s op-ed explaining why he left Goldman Sachs has become an instant classic (though I'm not sure how to characterize the genre). Within hours, it had begun spawning parodies, including this one by Darth Vader explaining why he was resigning from the Galactic Empire. It also brought back memories of my sole interaction with the vampire squid, which I thought I would share as a cautionary tale (for whatever it’s worth) as my sign-off post.
When I was in law school, at the height of the dot-com bubble, the investment banks were having a hard time filling their ranks with business school graduates. Too many of them were heading off to strike it rich with Internet startups. As a consequence, the banks began recruiting at law schools. One day, all the 2Ls at Yale received postcards from Goldman Sachs, inviting us to attend an information session. The tagline on the cards was “Minds Wide Open.” Since I considered myself an open-minded person (and in a somewhat misguided effort to impress my Indian, IBD-reading father-in-law), I decided to sign up for an interview.
The information session came first, and it should have really clued me in that this was not likely to end well.I don’t remember a lot of the details of the talk, except that I left impressed by how the bankers had managed to make working at a law firm seem public spirited. I remember one of the bankers saying that if we did not read (and enjoy) the Wall Street Journal on a daily basis, we should probably not be applying for this job. Undeterred, I went forward with the interview, though I made a mental note that, when asked if I had any questions, I should not inquire about the pro bono program.
When I showed up for the interview, I was too ignorant to really be nervous. I had only a vague idea of what an investment banker does, though I understood that Goldman bankers were supposedly better at it than others. I shook the interviewer’s hand and sat down. That was probably the high point. He proceeded to open the interview by babbling something in a language that I did not recognize. It sounded something like: “Malkovich, Malkovich, Malkovich. Hey.” I assumed it was an actual language, but I was at something of a loss as to how to respond. I stared at him blankly for a few moments, and then he chastised me: “You really shouldn’t put things on your resume if they are not true.” I had no idea what he was talking about. My confusion must have shown, because he pointed to the last line on my resume, which says I am “conversational" in Hindi.
I had taken a year and a half of Hindi at Oxford. I can carry on very basic conversations in the language. (Hello. How are you? Where is the cauliflower? Your daughter and I are getting married.), and I can keep my Hindi-speaking in-laws off balance enough that they don’t complain about me in Hindi (in my presence). My Hindi is not great. It is certainly not fluent. If I had known about it before writing this post, I would have used the ILR scale and called myself "Level 1 - Elementary Proficient." In any event, I am fully capable of recognizing the Hindi language when spoken. This guy had not spoken to me in Hindi. After accusing me of dishonesty, he went on to explain that he once had an officemate who was Indian and he had picked up a few phrases. So when he saw Hindi on my resume, he wanted to test me out to see whether I was padding my credentials.
The interview actually went (further) downhill from there, or at least, as far downhill as an interview can go in roughly three minutes, which is about how long the rest of it lasted before the interviewer pulled the plug on what he clearly (and, in retrospect, probably reasonably) concluded was a lost cause. I am not bitter about the experience. I really had no business interviewing with Goldman Sachs. I was not interested in being an investment banker. Looking back, I continue to think the interviewer’s strange confidence in his “Hindi” skills and his eagerness to accuse me of lying may offer some kind of profound insight into the world of investment banking, though I’m not totally sure what. Smith’s column fascinated me in part because he started at Goldman around the same time of my interaction with the firm. He identifies that period as a kind of golden age there. I shudder to think what my interview would be like today.
Last Thoughts on Coleman
Last year when I blogged about the Court’s decision in Wal-Mart v. Dukes, I noted an undercurrent on the divergent views on the role of employment discrimination and the acknowledgment of unconscious bias. Justice Ginsberg explicitly referenced unconscious stigma as providing the glue to allow widespread discrimination to open the door for company-wide bias (“The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware"). In contrast, Justice Scalia seemed unwilling to move beyond anything less than a formal policy of discrimination on a group-wide basis, suggesting that managers will generally follow policies and not discriminate ("Surely most managers in a corporation that forbids sex discrimination would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.").
In reading Coleman v. Court of Appeals in Maryland, these same themes were again apparent. Justice Kennedy, writing for the Court, made the empirical statement that “[t]here is nothing in particular about self-care leave, as opposed to leave for any personal reason, that connects it to gender discrimination.” In contrast, Justice Ginsberg viewed the self-care provision as indeed being connected to gender discrimination, giving her view (as reflected by Congressional findings) that “the self care provision – which men no doubt would use – would counter employer’s impressions that the FMLA would otherwise install female leave,” and noting that “[s]elf care leave … is a key part of Congress’s endeavor to make it feasible for women to work and have families.” Although this divergence in views manifests itself in different ways in Coleman than in Wal-Mart (in Coleman, it influenced how deferential the plurality and dissenting views would give to Congress), there is still a fundamental difference in how these two sides view the world on the issue of how much harder-to-see behavior can be regulated under employment law. I expect this split to continue to manifest itself in employment cases and elsewhere.
Monday, April 02, 2012
Law Deans in Jail! or Law Deans in Jail?
Over the last few days, I had the pleasure of perusing a new draft, Law Deans in Jail, (co-authored by Morgan Cloud and George Shepherd, both of Emory). The paper is forthcoming, and I confess I'm curious what the indemnity clauses will look like in the author-publisher agreement...
My comments are really more requests than criticisms as such. Upon reading it earlier this weekend, my first reaction was a plea for punctuation. Given that the brief/paper makes the serious and plodding case for the criminal liability of some deans and institutions (as well as USNews) under various federal criminal statutes, I was puzzled why the title didn't have a ? mark in its title. The merely declarative title makes it seem as if the case is open and shut. In the introduction, the paper notes that the sources for making the federal case against various persons and entities are news stories, not sworn depositions, etc, and thus the claims about liability are contingent or tentative. By the end of the paper, however, it's hard to see much for the case for contingency. My sense at least is that Cloud and Shepherd think there's a basis for a federal case here and that it should be made.
I mention this in part because it reminds me of Paul's earlier post today referencing Fallon and amicus briefs, and the duties of scholars (a topic I find myself perennially interested in). I think Cloud and Shepherd have made a very interesting argument in their paper. It's not entirely one-sided. After all, in a few places, they consider why deans might respond to the USNews questions in "gaming" ways that are perhaps morally defensible. But the paper's not exactly balanced with much effort to discern what might be the other side's defenses, legal or moral. Of course, not every paper needs to be aggressively even-handed, and there is still a good case for some scholarship to be useful enough to lay the groundwork for actual litigation. (*Disclosure: Maybe I'm just saying that tendentiously because I have a project that's I hope will eventually serve that function too.)
So, in addition to the plea for the question mark and, with it, the unreasonable request for more discussion in an already 70-page paper of the shortcomings of the evidence adduced against the legal education institutions and USNews (or the possibility of countervailing defenses), I also have a second question.
That is: among our readers who have read the paper and served as a prosecutor (preferably a federal one), or otherwise know a decent enough amount about criminal law, how many would actually exercise the discretion to bring the case, or at least investigate its claims further, etc.? (This goes to the usefulness of scholarship per Paul's discussion in his other shrewd post of the morning.) If you wouldn't bother from the outset, why not? If you would make at least preliminary investigations, what kind of specific factors would convince you that this is a federal case worth bringing as a criminal case as opposed to some other form of legal response (or perhaps no legal response, just social pressure/media, etc.). (Please don't just refer to the Petite or other USAM factors. Apply them!). Or, if you're a populist, like some friends of mine, would you want an equitable grand jury to decide whether to go forward apart from the legal accuracy question?)
I was definitely more persuaded after reading the paper than I was beforehand that a case could be made. I understand lots of people might like to see the criminal law used to this effect because of valid concerns they have about the misleading data that was circulated and left uncorrected about job prospects or LSAT scores by USNews. But I have some qualms, none of which are vital to resolving the "federal case" issue but need to be kept in mind still. First, if law school deans now respond to the threat of criminal liability (or other legal recourse) by having to independently seek verification by Jones Day or other expensive law or accounting firms about the numbers produced by their employment and admissions offices, then that cost will be passed on to students and faculty because of a breakdown in the trust between Deans and those offices or because some Deans acted very poorly. Maybe that's a cost worth bearing but how much are people willing to pay for that? Second, maybe Deans should simply ignore the social demands on them created by the rankings and then not worry about these issues. Here, though, I think there's a colorable fiduciary claim that deans would violate duties to their stakeholders if they utterly ignored rankings; my view is they should pay them attention but not to the exclusion of acting ethically. I say this in part because I value the information-forcing benefits that rankings provide to the public.
Finally, maybe USNews and law faculties around the country need better "warning labels." I.e., Law schools could say, for the public interest we have made reasonable efforts to gin up information that conforms to the requests made by USNews or others in allowing informed decision-making, but there is always the possibility of human error or malevolence that we couldn't control, and so, caveat emptor should apply to the consumption of these data...
So: a federal case? Is this an instance of academic overcriminalization/prosecutorial over-reach? Or a much needed instance of social and legal responses to hold accountable through federal courts those who would train our legal overclass?
(Signed, verifiable, civil and substantive comments invited. Others will be removed and possibly banned.)
Die Advokaten; or, Music About Law
In blogging, as in writing generally, there is no demand for thematic unity. Yet perhaps one of the characteristics which Larry Solum looks for in selecting his satires is distinctiveness of voice. Particular leitmotivs in one's scholarship do appear over time, whether intended or not. And one which has been on my mind is law and music.
Recently I had a chance to listen through all of Franz Schubert's work, and I happened to hear an obscure, insubstantial, and very enjoyable vocal trio called "Die Advokaten" ("The Lawyers"). The participants are two lawyers and a client, and they are complaining that the client, a Mr. Sempronius, has not paid them (their fee takes the form of some delicious food and even a Tokay wine). And they are quite clear that there is a difference between their "honorarium" and the "expensarium" which the client must pay as part of court costs. Here's the conclusion:
O Justitia praestantissima, kling, kling, kling, kling. Welche schöne harmonie. Al gemein, bezaubert sie. Von ihrem reiz bleibt niemand frei, Motiva sind bei der Kanzlei, kling, kling, kling, kling; kling, kling, kling, kling.
My rough translation: Oh most excellent Justice, clink, clink, clink, clink [the sound of coins falling]. What a beautiful harmony. All are enchanted by it. From those charms no one is free. In chancery these are the motives, clink, clink, clink, clink.
I don't think I have ever heard a piece of music which references the lives of lawyers (to the point of raising a court of chancery!), the tension between justice and self-interest, and so on, all in such a pleasingly malicious way. What are some other musical works about law or lawyers?
Is Strategic Blogging by Legal Academics Exculpatory?
Dave Hoffman has an interesting post at CoOp titled "Motivated Cognition and the Mandate," about the nature of legal blog posts about the ACA argument last week. It also occasioned some quite fair disagreement on underlying facts. Setting those aside, I want to focus on one part of the addendum to Dave's post. He writes, in response to the argument by Ilya Somin that some liberal legal bloggers last week erred in claiming that the case was an easy one for the government: "There are, of course, many, many examples of liberal commentators predicting this was a slam dunk case on the merits. . . . But there are at least two exculpatory possibilities that Ilya might want to address: (1) like Barnett pre-Raich, such commentators were trying to shape the narrative by displaying more confidence than they felt. . . ."
To be clear, I assume Dave means exculpatory of the specific charge, not generally exculpatory. And it should be added that he is hardly the only person to suggest that a number of bloggers last week were "trying to shape the narrative." My sense, though, which may be wrong, is that a number of people who made this observation did have the general view that such conduct was generally exculpatory of the most critical claims made against these writers, or at least not inculpatory. Is that right? Should strategery be a defense to somewhat extravagant blogging by legal scholars on a contested issue?
This reminds me of the debate over scholars and amicus briefs that occurred a while back in response to a recent paper by Richard Fallon. Quite a few people took a more forgiving view of these matters than Fallon did, although I side with Fallon on this. One might well think that if the standards for impartiality in scholarship apply differently to amicus briefs, then they sure as hell are lighter or inapplicable for blog posts. I'm not quite sure this is right. In either case, I think the focus on the medium is incorrect. The relevant question is one of message, not medium. A scholar who writes an amicus brief that is plainly intended as an act of advocacy can be understood to be doing just that, and his or her claims can be evaluated and/or discounted accordingly. One who writes an amicus brief that, for reasons of persuasion, adopts a false air of impartiality or relies heavily on the scholar's (or signatory's) reputation and expertise as a scholar while saying (or omitting) things that a scholar wouldn't say (or omit) in his or her scholarly work is not just engaging in open advocacy; that person is also using his or her reputation as a scholar to work covertly and for non-scholarly ends. I continue to insist that there is something wrong with this.
I think something like the same conclusion ought to apply to blogging. Of course everyone already discounts for the medium. But there is still something wrong about yoking one's reputation as a scholar and expert to the non-scholarly end of "shaping the narrative." I'm not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.
Does that mean no scholar is permitted to try to "shape the narrative" through blogging and other commentary, or that there's something wrong with having a normative legal or political view about such cases and sharing them? Of course not. But it does say something about how one ought to do so consistently with one's obligations as a scholar. The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; "shaping the narrative" is no defense to asserting with confidence a view that one doesn't really believe, or doesn't believe with that degree of confidence. But one can always make clear, implicitly or explicitly, "This is my view of what the law should be, not what it clearly is under current law," that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.
I can think of a number of posts about the ACA from legal scholars last week that were clearly and openly offered as advocacy and did a fine job of it. And I can think of others that were clearly not offered as advocacy at all, and said useful and interesting things about the oral arguments. (I would put Mark Tushnet's posts in this category.) But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons. I see those reasons as more inculpatory than exculpatory. I don't see the minimal requirements for scholarly integrity that I offered as changing because of the medium, or because of the importance and currency of the case.
Again, that doesn't mean legal scholars can't act as advocates. But if they can't do so openly--if they think it would somehow undermine the effectiveness of what they're writing if they preface their claim with, "Of course I'm writing this as an advocate and not a scholar; if I were writing this with my expertise or authority as a scholar one the line, I would say something different"--then I would suggest that they are, in fact, doing something wrong.
The Determinants of Legal Theory Blog April's Fool Parodies
Now that it's April 2nd, can we talk seriously about April 1st?
Aside from the days he posts abstracts of my own pieces, April 1st is my favorite day to read Larry Solum's Legal Theory Blog, because it's the day he posts parody descriptions of articles by famous (always famous) legal scholars. This year's entries, with parodies of articles by Andy Koppelman, Robert Cooter and Neil Seigel, Dan Kahan, and others, were just as strong as Larry's parodies have been in the past--as David Kopel can ruefully admit. (Here's a link to last year's entries.) What do these parodies mean, about the scholars Larry parodies or about legal scholarship itself? I should say that I enjoy the jokes for their own sake. I'm not trying to kill these jokes by analyzing them to death. But they do offer food for thought just the same.
The comments on the parodies at the VC were especially interesting by way of some of the reactions, even (or especially) from those who realized eventually that a parody was involved. (It's clear, by the way, that Randy Barnett knew it from the start.) Many commenters there, focusing on the Andy Koppelman parody, treated the parody as evidence that Andy's scholarship is bad; after all, if the parody works so well, it must reveal the emperor's clothes! Others, not surprisingly, took it as evidence that liberal-leaning legal scholarship is bad. Surely some out there must have drawn a further conclusion:that the parodies work because legal scholarship in general is so easily ridiculed.
One way to sort through these options is to ask what legal scholars say legal scholarship itself should be. An oft-cited set of criteria can be found in Stephen Carter's article Academic Tenure and "White Male" Standards: Some Lessons From the Patent Law, 100 Yale L.J. 2065 (1991). There, Carter opines that the "proper standard for academic tenure in the law schools" with respect to scholarship can take some guidance from patentability standards. In Eugene Volokh's later description, which is indebted to Carter, legal scholarship should "make (1) a claim that is (2) novel, (3) nonobvious, and (4) useful. It should also (5) be seen by the reader to be novel,nonobvious, and useful."
Those are reasonable standards--although, as I note below, they are all too easily perverted in the legal academic field. I can say readily that Larry's targets almost always meet and exceed that standard. For just that reason, though, they can't say enough about why Larry chooses the targets he does. So what else determines Larry's choices? Since I don't want to ask Larry--do we bother to ask cows how some of them manage to produce chocolate milk?--I will draw some conclusions from his choices themselves.
Obviously, based on his picks, the target must be famous, at least in legal academic circles. That standard, I'm sure, relates more to humor than anything else. Decent humor cuts close to the bone, on the one hand. On the other, there's no point parodying someone if no one will get the joke, and no sport in parodying someone whose work is so bad that it is its own parody.
But we can say more than that. One way to get or stay famous in legal scholarship is to embody the patent-derived standards offered above. But it's generally insufficient, even if it is necessary. (Would that it were clearly, and only, both necessary and sufficient!) We can derive three more rules. First, with respect to fame as a legal scholar, not all the standards offered above have equal standing. The most important criteria, easily stripping soundness or usefulness, are novelty and nonobviousness. Second, as Volokh's fifth criterion suggests, the scholarship must be highly visibly novel and nonobvious. Subtlety generally won't do here. Third, to get famous, the scholar must offer consistently highly visible novel and nonobvious work. The scholar must mine the same vein in the same way more than occasionally; changeups in subjects or methods will hurt. If you meet all these criteria, you stand a much better chance of being rewarded by a Legal Theory Blog entry on April 1st.
As I wrote above, at least the basic starting points of novelty, nonobviousness, and usefulness are quite reasonable standards for legal scholarship. On that basis, I think we can easily acquit Andy of the first charge from some commenters above: that his scholarship was capable of easy parody because it is bad. I must say personally that I think that claim is obviously false based on Andy's substantial and superb body of work, from which I've learned a great deal. I say that with full recognition of why some have been bothered by his writing on blogs and Salon about the ACA litigation. Whether those criticisms are on the mark or not, it is obvious that he wasn't selected for parody for his arguments on this occasion alone; he was selected because he is a famous legal scholar, if that term is not oxymoronic, and he is famous because his work easily meets the standards of novelty and nonobviousness. Nor is the second charge--that "liberal" legal scholarship is more easily parodied--true. God knows that some famous "conservative" legal scholars meet the same criteria and are just as easily parodied! If nothing else, some of Larry's choices over the years bear this out too.
The third charge ought to be more troubling to all legal scholars. Even if Larry goes after the high-hanging fruit, are they easily parodied because all legal scholarship is easily parodied! Academics still remember the Sokal hoax. In my local social circles, a good deal of scholarship from a School of Education comes in for nasty humor. Is the law school, or its scholarship, just the Ed School with higher salaries, as I suspect many legal scholars fear or know in their hearts?
I won't answer that question, for obvious reasons. But asking it brings me closer to the point I want to make about the problems with the standards discussed above, and especially the gloss I put on them with respect to not just good legal scholarship, but famous legal scholarship. Parodies, like humor in general, work best when they cut close to the bone--when they're not just silly or fantastic, but achieve their laughs by remaining as true as possible while going one painful step further. Larry's parodies work so well because they are so consistent with the standards for famous legal scholarship, while taking those standards to their breaking point. They work because they focus on just the things that make legal scholarship famous--novelty and nonobviousness, of a highly visible kind, from a scholar who consistently exhibits those standards--and then take them to an absurd place. Moreover, they get their absurdity not by saying things those scholars would never say, but by saying things we kind of suspect they might say, but saying them all too clearly. The more consistent a famous legal scholar is in his or her message and method, the easier it is to imagine them taking a step further: to a reductio ad absurdam of their method (Posner might write about what deities would maximize!) or their message (famous liberal/conservative scholars really are this close to dressing up all of their own political preferences in fancy words!).
Therein, for me at least, lies the underlying concern raised by Larry's parodies. In my view, much famous legal scholarship really is novel, nonobvious, and often (if incidentally) useful. But the thirst for novelty and nonobviousness can curdle, or plunge over the edge, quickly and with terrible results. And the desire to be highly visibly novel and nonobvious accentuates this danger. That's especially true when 1) law review publication decisions are made by law students and 2) legal scholarship itself rests on such uncertain footing about its own standards and knowledge base. Carter's original article emphasized that novelty and nonobviousness are not enough without fundamental soundness and depth of knowledge about the field. But when the selection criteria--for publication, for recognition by other legal scholars, and in short for fame itself--emphasize novelty and nonobviousness so strongly, and often over soundness and depth of knowledge, much legal scholarship can quickly not just reach, but actively strive to reach, the point at which what was admirable becomes only dimly distinguishable from the parody itself.
My point, I hasten to add, is not fundamentally about the work of Andy or any of the other subjects parodied by Larry. And it's not to suggest that all legal scholarship is self-parody. I simply don't think either is true. But I do think it's worth worrying, plenty, about the ways in which legal scholarship, and the determinants for both publication and fame, have so emphasized visible novelty and nonobviousness that there is a terrible risk of convergence between the most famous and the most easily parodied work. The risk is not so much to people like the folks Larry parodies, whose work is generally sound and knowledgeable; it's that lesser scholars (i.e., most of us), as well as the law students and faculty members whose attention they're seeking, will concentrate on the sizzle to the exclusion of the steak.
That leads to my final point. If Larry's parodies are parodies, it's also noteworthy that what they parody in particular--the SSRN abstracts of new articles, which are themselves often shorter versions of the introductions of those papers or the cover letters that accompany their submission to law reviews--are themselves a sort of parody of the articles they purport to summarize. All of us by now have read--or, if truth be told, written--SSRN abstracts that take more or less reasonable claims of novelty and nonobviousness, remove any caveats or traces of modesty, and then subject them to a blast of Hulk-inducing gamma rays. We have seen some of these abstracts go up to and past the point of parody--and we have seen some of them end up with publication in the most prestigious student-edited law reviews. The arms race to fill abstracts with claims that an argument is "novel," "counterintuitive," "surprising," fills an "astonishing gap in the legal literature," and so on, has long since gone past nuclear to the point of cartoonishness. It's precisely what people--both law review editors and faculty members themselves--think might make them famous that is also making them ripe subjects of parody, whether Larry mentions them on April 1st or not.
I begin to wonder, not whether all legal scholarship is rotten (I still think that's too lazy a conclusion), or whether law review publication methods should change (that subject's already been covered, the methods are changing, and the real problem may be the knowledge base of the legal academy in general), but whether we don't all need to take a break from writing or reading abstracts, introductions, and cover letters. The price of fame is beginning to look way too great.
Sunday, April 01, 2012
Federal Agency Humor?
Thanks to Dan asking me back to Prawfsblawg.
I'm an Intellectual Property prawf, with a focus on patents. This recent post at the Hollywood Reporter caught my eye this morning, noting that a U.S. PTO Examiner recently rejected a 2008 patent application for a male support garment. In support of the rejection, the Examiner cited the 2006 film Borat, in which Sacha Baron Cohen wore a similar garment. This is apparently not an April Fool's joke, as I was able to find the Examiner's rejection on the US PTO's website.
Well, really, what else can be said about this? I guess it's nice to see more examples of the agency opening up its examination of patents to well-known information. The days of limited searches (prior art patents and a few well-known articles) seems to be over.
The last time I remember the agency citing a film was the Board of Patent Appeals and Interferences' citation to a line from the Pirates the Carribean "the code is more what you call guidelines than actual rules" when discussing its authority to interpret the law in a very early proceeding in In re Bilski. As IP prawfs will note, Bilski later made its way all the way to the Supreme Court, which stayed well clear of the Pirates genre in its citation to authority.
Looking forward to a great month here at Prawfsblawg.
Well, it's a new month, and so we have some rotations to announce. First, many thanks to all our March contributors who will be signing off in the coming days.
And welcome and bienvenue to our April friends joining the ranks in time to celebrate our 7th Birthday (or is it an anniversary?). Joining us for the first time is Jeremy Sheff from St. John's Law. In addition, I'm excited to welcome back veteran guests Amy Landers (McGeorge), Lior Strahilivetz (UChicago), Robin Effron (BLS), Shima Baradaran (BYU), Ryan Scoville (Marquette) and Marc DeGirolami (St. John's).
Thrilled to have you all here (and back). Happy Edible Book Day, and warm wishes on your birthday, Milan Kundera and Phil Niekro!
And yes, Prawfs is turning 7 later this week. Feel free to visit the archives and find your favorite posts...
Sidd Finch at 25
Unlike Robin, I have no good April Fool's Day jokes. The only thing this April Fool's Day is doing is reminding me that I'm 2-3 days behind last year's pace in Civ Pro. Last year, my Civ Pro students marked AFD by "teaching" the clas--and we already were two days into Personal Jurisdiction, while this year I'm just finishing subject matter.
But I can point out that today marks the 25th anniversary of one of the great April Fools jokes in publishing: Sports Illustrated's publication of The Curious Case of Sidd Finch. This long-form essay by George Plimpton told the story of a mysterious pitcher in the Mets training camp. Finch had spent much of his adult life living a spiritual life in the mountains of Tibet, practiced yoga, and briefly attended Harvard; he also could throw a 160-mph fastball. It turns out the first letter of each word in the sub-head ("He's a pitcher, part yogi and part recluse. Impressively liberated from our opulent life-style, Sidd's deciding about yoga--and his future in baseball") spells out "Happy April Fools Day." The piece triggered a tidal wave of letters and canceled subscriptions (one of my favorites simply read "Ha, ha. Cancel my subscription."), especially from tortured Mets fans. And it's even kind of law-related, since it mentions Lenny Dykstra, then a minor leaguer, ultimately a Mets star, and more recently a convicted felon and con man.
The Most Important Legal Scholarship Debate Resolved
It's a pleasure being back at Prawfsblawg. Thanks to Danny and the team for the visit this month. I've actually been really excited about this for a while.
Well, I'm pleased to report that I have the answer to this question. With a little help from some students at the BYU Law Review and my assistant, we were able to analyze submissions in a one month peak submission period (February 2012) to determine how many article titles had a colon in them and how many did not. The results of course are statistically significant and representative of all other law reviews in the country this year.* We found that . . . colons are still in vogue though just barely winning out over non-coloned titles (348 v. 331). Check out the stats: