Thursday, May 31, 2012
A Coasean Look at Commercial Skipping...
Readers may have seen that DISH has sued the networks for declaratory relief (and was promptly cross-sued) over some new digital video recorder (DVR) functionality. The full set of issues is complex, so I want to focus on a single issue: commercials skipping. The new DVR automatically removes commercials when playing back some recorded programs. Another company tried this many years ago, but was brow-beaten into submission by content owners. Not so for DISH. In this post, I will try to take a look at the dispute from a fresh angle.
Many think that commercial skipping implicates derivative work rights (that is, transformation of a copyrighted work). I don't think so. The content is created separately from the commercials, and different commercials are broadcast in different parts of the country. The whole package is probably a compiliation of several works, but that compilation is unlikely to be registered with the copyright office as a single work. Also, copying the work of only one author in the compilation is just copying of the subset, not creating a derivative work of the whole.
So, if it is not a derivative work, what rights are at stake? I believe that it is the right to copy in the first place in a stored DVR file. This activity is so ubiquitous that we might not think of it as copying, but it is. The Copyright Act says that the content author has the right to decide whether you store a copy on your disk drive, absent some exception.
And there is an exception - namely fair use. In the famous Sony v. Universal Studios case, the Court held that "time shifting" is a fair use by viewers, and thus sellers of the VCR were not helping users infringe. Had the Court held otherwise, the VCR would have been enjoined as an agent of infringement, just like Grokster was.
I realize that this result is hard to imagine, but Sony was 5-4, and the initial vote had been in favor of finding infringement. Folks can debate whether Sony intended to include commercial skipping or not. At the time, remote controls were rare, so skipping a recorded commercial meant getting off the couch. It wasn't much of an issue. Even now, advertisers tolerate the fact that people usually fast forward through commercials, and viewers have always left the TV to go to the bathroom or kitchen (hopefully not at the same time!).
But commercial skipping is potentially different, because there is zero chance that someone will stop to watch a catchy commercial or see the name of a movie in the black bar above the trailer as it zooms by. I don't intend to resolve that debate here. A primary reason I am skipping the debate is that fair use tends to be a circular enterprise. Whether a use is fair depends on whether it reduces the market possibilities for the owner. The problem is, the owner only has market possibilities if we say they do. For some things, we may not want them to have a market because we want to preserve free use. Thus, we allow copying via a DVR and VCR, even if content owners say they would like to charge for that right.
Knowing when we should allow the content owner to exploit the market and when we should allow users to take away a market in the name of fair use is the hard part. For this reason, I want to look at the issue through the lens of the Coase Theorem. Coase's idea, at its simplest, is that if parties can bargain (which I'll discuss below), then it does not matter with whom we vest the initial rights. The parties will eventually get to the outcome that makes each person best off given the options, and the only difference is who pays.
One example is smoking in the dorm room. Let's say that one person smokes and the other does not. Regardless of which roommate you give the right to, you will get the same amount of smoking in the room. The only difference will be who pays. If the smoker has the right to smoke, then the non-smoker will either pay the smoker to stop or will leave during smoking (or will negotiate a schedule). If you give the non-smoker the right to a smoke-free room, then the smoker will pay to smoke in the room, will smoke elswhere, or the parties will negotiate a schedule. Assuming non-strategic bargaining (hold-ups) and adequate resources, the same result will ensue because the parties will get to the level where the combination of their activities and their money make them the happiest. The key is to separate the analysis from normative views about smoking to determine who pays.
Now, let's apply this to the DVR context. If we give the right to skip commercials to the user, then several things might happen. Advertisers will advertise less or pay less for advertising slots. Indeed, I suspect that one reason why ads for the Super Bowl are so expensive, even in a down economy, is that not only are there a lot of viewers, but that those viewers are watching live and not able to skip commercials. In response, broadcasters will create less content, create cheaper content, or figure out other ways to make money (e.g. charging more for view on demand or DVDs). Refusing to broadcast unless users pay a fee is unlikely based on current laws. In short, if users want more and better content, they will have to go elsewhere to get it - paying for more channels on cable or satellite, paying for video on demand, etc. Or, they will just have less to watch.
If we give the right to stop commercial skipping to the broadcaster, then we would expect broadcasters will broadcast the mix they have in the past. Viewers will pay for the right to commercial skip. This can be done as it is now, through video on demand services like Netflix, but that's not the only model. Many broadcasters allow for downloading via the satellite or cable provider, which allows the content owner to disable fast forwarding. Fewer commercials, but you have to watch them. Or, in the future, users could pay a higher fee to the broadcaster for the right to skip commercials, and this fee would be passed on to content owners.
These two scenarios illustrate a key limit to the Coase Theorem. To get to the single efficient solution, transactions costs must be low. This means that the parties must be able to bargain cheaply, and there must be no costs or benefits that are being left out of the transaction (what we call externalities). Transactions costs are why we have to be careful about allocating pollution rights. The factory could pay a neighborhood for the right to pollute, but there are costs imposed on those not party to the transaction. Similarly, a neighborhood could pay a factory not to pollute, but difficulty coordinating many people is a transaction cost that keeps such deals from happening.
I think that transactions costs are high in one direction in the commercial skipping scenario, but not as much in the other. If the network has the right to stop skipping, there are low cost ways that content aggregators (satellite and cable) can facilitate user rights to commercial skip - through video on demand, surcharges, and whatnot. This apparatus is already largely in place, and there is at least some competition among content owners (some get DVDs out soon, some don't for example).
If, on the other hand, we vest the skipping right with users, then the ability for content owners to pay (essentially share their advertising revenues) with users is lower if they want to enter into such a transaction. Such a payment could be achieved, though, through reduced user fees for those who disable channel skipping. Even there, though, dividing among all content owners might be difficult.
Normatively, this feels a bit yucky. It seems wrong that consumers should pay more to content providers for the right to automate something they already have the right to do - skip commercials. However, we have to separate the normative from the transactional analysis - for this mind experiment, at least.
Commercials are a key part of how shows get made, and good shows really do go away if there aren't enough eyeballs on the commercials. Thus, we want there to be an efficient transaction that allows for metered advertising and content in a way that both users and networks get the benefit of whatever bargain they are willing to make.
There are a couple of other relevant factors that imply to me that the most efficient allocation of this right is with the network:
1. DISH only allows skipping after 1AM on the day the show is recorded. This no doubt militates in favor of fair use, because most people watch shows on the day they are recorded (or so I've read, I could be wrong). However, it also shows that the time at which the function kicks in can be moved, and thus negotiated and even differentiated among customers that pay different amounts. Some might want free viewing with no skipping, some might pay a large premium for immediate skipping. If we give the user the right to skip whenever, it is unlikely that broadcasters can pay users not to skip, and this means they are stuck in a world with maximum skipping - which kills negotiation to an efficient middle.
2. The skipping is only available for broadcast tv primetime recordings - not for recordings on "cable" channels, where providers must pay for content. Thus, there appears to already be a payment structure in practice - DISH is allowing for skipping on some networks and not others, which implies that the structure for efficient payments are already in place. If, for example, DISH skipped commercials on TNT, then TNT would charge DISH more to carry content. The networks may not have that option due to "must carry" rules. I suspect this is precisely why DISH skips for broadcasters - because it can without paying. In order to allow for bargaining however, given that networks can't charge more for DISH to carry content is to vest the right with networks and let the market take over.
These are my gut thoughts from an efficiency standpoint. Others may think of ways to allow for bargaining to happen by vesting rights with users. As a user, I would be happy to hear such ideas.
This is my last post for the month - time flies! Thanks to Prawfs again for having me, and I look forward to guest blogging in the future. As a reminder, I regularly blog at Madisonian.
Employees with Religious Attire and the "Back of the Bus"
As a fellow at the Pluralism Project, a Harvard-based research center that explores the state of religious liberty in the United States, I examined an employment discrimination case involving Kevin Harrington -- a native New Yorker of Irish descent who converted to Sikhism as a youth and who has worked for the New York Metropolitan Transportation Authority since the 1980's. Harrington started working for the MTA as a bus cleaner, and for the last two decades has been an MTA train operator. On 9/11, Harrington was able to reverse his Number 4 train, which was headed to the World Trade Center station, and safely discharge his passengers. For this, Harrington was honored by the MTA.
Shortly after 9/11, however, Harrington claimed that the MTA discriminated against him on the basis of his religion. Harrington specifically stated that the MTA informed him that he had two choices: that he could continue working as a train operator only if he wore a cap with MTA's logo, or that he could wear his religiously-mandated turban in the railyard, away from customers. The MTA then told Harrington that he could wear a turban as a train operator only if he attached an MTA logo to it. The MTA apparently explained that the logo was necessary to alert customers and passengers that the person at the helm of the train was indeed an MTA employee -- not, as some would say, a "runaway terrorist." Newsday ran an editorial arguing that "perhaps [the logo] will ward off any biased fears that outsiders have commandeered the system."
The MTA was eventually sued by the Department of Justice, the Center for Constitutional Rights, and the Sikh Coalition, on the theories that the employer's generally applicable uniform policy was being selectively enforced against Sikhs and Muslims, including Harrington, and that the out-of-customer-view option was impermissible under Title VII. A CCR attorney, for example, stated that the MTA engaged in "a calculated attempt" to hide certain workers "on the grounds that they 'look Muslim' and might alarm the public for that reason." Yesterday, the MTA settled the case, agreeing to permit employees to wear religious headgear without the logo and to pay $184,500 to eight current and former MTA employees.
This case also lends support to the suggestion that the Department of Justice has taken great interest in religious liberty issues. (Though, in fairness, I should note that an astute reader has expressed to me the concern that the Department may be conflicted or divided as to the extent to which it is willing to robustly enforce statutes safeguarding religous liberty, including RLUIPA. The reader points specifically to the Solicitor General's position recommending that cert in a case involving a RLUIPA circuit split be denied or granted and summarily reversed. )
The title of this post is taken from a Sikh Coalition attorney's comment that the MTA's initial choice to Harrington was a "back-of-the-bus solution."
Is Diversity for White People?
The recent cert grant in Fisher v. University of Texas has led to a great deal of speculation about the future of affirmative action. After Grutter v. University of Michigan, the diversity rationale remains the central hope of those who wish to maintain affirmative action in educational institutions. In previous posts and my recent scholarship, I have discussed the way that the diversity rationale -- and diversity thinking more generally -- leads to the commodification of non-whiteness. Driven by our intense social and legal preoccupation with diversity, society has come to view non-white racial identity as a commodity to be pursued, captured, possessed and used.
The commodification of racial identity that follows from the diversity rationale highlights the profound difference between the diversity and remedial rationales for affirmative action. At first blush, the rationale might not seem to matter a great deal in practice. Whether the Court ultimately adopted the diversity rationale sanctioned by Justice Powell's concurrence in Bakke, or whether it explicitly adopted a remedial rationale, the result on the ground would be similar: an applicant's identification as a racial minority would be taken into account as a positive factor in a holistic evaluation of the applicant. Yet when we look more closely, the rationales reveal dramatically different mindsets, with dramatically different social consequences.
By contrast, the remedial rationale for affirmative action doesn't rely on the purported benefit of diversity to white people. It suggests that affirmative action is an appropriate policy because of harms perpetrated against certain racial groups in the past -- harms whose consequences linger today. Under the remedial rationale, the point of affirmative action is to rectify past racial injustice by increasing the number of underrepresented minorities in colleges and universities. It suggests that affirmative action is sound policy regardless of whether it benefits white people or not. While the diversity rationale is ahistorical, the remedial rationale acknowledges history. It forces us to confront the empirical evidence that past wrongs continue to engender systemic disadvantage. It forces us to acknowledge the realities of longstanding and ongoing racial prejudice, both overt and subconscious. Perhaps most importantly, the vitality of the remedial rationale doesn't depend on the value of diversity to white people. If it were shown that racial diversity was of no benefit to white people -- indeed, even if it were shown that some white people had worse educational outcomes as a result -- the remedial rationale would still require affirmative action as a matter of corrective justice. Under the remedial rationale, racial minorities' access to elite institutions of higher education is mandated by fundamental fairness, not merely conditioned on its purported benefit to white people.
So the choice of rationale for affirmative action may not have much effect on actual admissions outcomes -- on whether an individual candidate is or isn't admitted to a particular school. But that choice has profound consequences for the way we think about the affirmative action and for the shape of our national conversation about racial remedies. Some -- notably the late Professor Derrick Bell -- have argued that the diversity rationale distracts us from the most compelling reasons for affirmative action. The remedial rationale embraces a way of thinking that strives to acknowledge and rectify past wrongs, while the diversity rationale embraces a way of thinking in which such wrongs are eclipsed by the recitation of advantages associated with diversity. And this embrace of diversity results in a subtle but profound shift in our discourse about race.
I continue to support affirmative action, and I do think that racial diversity makes a difference in the classroom. Having taught now at three different schools (American, William & Mary, and now Denver) it's abundantly clear to me that racial diversity improves classroom discourse. For example, I teach criminal procedure, and there's simply no comparison between the richness of a discussion of racial profiling that takes place in a racially diverse class and one that takes place an all-white class. As with everything in life, having a range of perspectives and past experiences enriches discussion, and people of color -- particularly young men -- tend, in the aggregate, to have had a different range of experiences with law enforcement officers than their white counterparts.
But I remain troubled by the idea that race-based affirmative action must be constitutionally justified on the basis of its value to white people. The diversity rationale conditions affirmative action policies on whether white people also derive benefits from those policies -- and if the Court decides that diversity really isn't all that beneficial to white people, then the rationale supplies no alternative justification for affirmative action.
Beiser's "The German Historicist Tradition"
I am slowly making my way through Frederick Beiser's magisterial The German Historicist Tradition, an immensely erudite treatment of several writers in 18th and 19th century Germany, including Chladenius, Herder, Droysen, Ranke, Dilthey, and, of course, Savigny. Historicism as a philosophical program was composed of several moving parts which included the legitimation of history as a science by "recognizing that everything in the human world -- culture, values, institutions, practices, rationality -- is made by history . . . ." (2); a focus on what Beiser calls "the individual," by which I take him to mean the particular -- "this or that determinate person, action, culture, or epoch . . . exists at a particular time and place" (4); and an emphasis on holism, the view that "society, state, culture, or epoch is not an aggregate or composite, which consists solely in its parts, each of which exists independent of the whole; rather it is an indivisible whole or unity, which determines the very identity of its parts, none of which can exist apart from it." (5) In the introduction, Beiser explains the struggles of history in the late medieval and early modern period to overcome its status as a lesser discipline -- an "appendentia artium" -- in the university hierarchy, the core disciplines being theology, law, and medicine, in that order. The coming of historicism was a late stage in history's vindication as an independently viable subject of intellectual inquiry.
I've followed some of Beiser's writing from an amateur's distance (he really is a treat to read), and it seems to me that one of the interesting moves that he makes in this book is to shift from the position that historicism is anti-naturalistic to the view that some historicists are anti-naturalistic (e.g., Dilthey, Droysen) while others are not (e.g., Humboldt). I'd be curious whether those who know more than I do think I am getting this shift right.
At any rate, one of my favorite portions of the book so far is the early chapter on Johann Martin Chladenius, whom Beiser describes as the "German Vico." Chladenius's contribution was to defend history as its own distinctive form of knowledge having its own "sui generis standards and methods" -- standards and methods which are not the same as one would apply to other disciplines. In this way, Chladenius championed the conjunction of the ideas that history could be a science and also that history was autonomous: "the autonomy of history, the independence of its rules and standards from those of the normal logic." (30) More from Beiser describing Chlaldenius's impetus for undertaking his major work, Allgemeine Geschichtswissenschaft:
Logic claimed to be universal, to be a purely formal doctrine holding for all kinds of truth and all forms of discourse; but in all strictness, it could claim to treat only one form of truth and only one kind of discourse. For in its traditional form, logic dealt with universal truths, the discourse of abstract reasoning; it did not treat the individual truths of experience, the discourse of history . . . . And so Chladenius came to the idea of a "new science," one which would lay down rules for investigating historical truth as logic set up rules for determining universal truth. (40)
At one point in the foggy past, I was very close to writing a dissertation on Giambattista Vico, and I still re-read sections of his rangy and highly enjoyable Scienza Nuova from time to time for a bit of inspiration. Beiser's wonderful chapter jogged all those memories.
Is historicism dead or has it disappeared entirely? Beiser discusses a variety of criticisms that were leveled against historicism in the early 20th century period, by Ernst Troeltsch and others. He recognizes that many of these criticisms point out real problems in the historicist tradition, but he also resists the conclusion that there was any "crisis of historicism" which caused it to disappear entirely from the intellectual scene. And, he adds: "Since when does an intellectual movement disappear simply because of intellectual or theoretical difficulties alone?" (25) What a great line.
The extent to which German historicism influenced the later development of historicism in law is an interesting subject in its own right -- some thoughts on that in a future post. But for those like me with an amateur interest in historicism, I cannot recommend the book highly enough as a pathway into an extremely interesting and to this point neglected corner of intellectual history.
Suing the NFL: Where Labor Law meets Fed Courts
A couple of weeks ago I wrote about the federal defamation action brought against NFL Commissioner Roger Goodell by New Orleans Saints linebacker Jonathan Vilma over his one-year suspension for his alleged participation in the Saints "bounty" program. Two more interesting things in the case.
First, I have heard a few people suggest that the lawsuit is preempted by the NLRA and the new CBA, which gives Goodell broad power to investigate and punish player misconduct. The argument, I guess, is that in suing over Goodell's statements reporting his findings and punishment, Vilma is functionally challenging Goodell's exercise of that power. In other words, to determine the falsity of Goodell's statements requires a court to review the evidence that the league gathered about the bounty programa and to review the accuracy of Goodell's decision. Labor law people (are you out there, Matt?): Is that right? Can a legal claim arise from arbitrable conduct that violates some other right?Second, I found it notable that Vilma sued Goodell, but did not sue the NFL on a respondeat superior theory. My suspicion has been that Vilma wanted to be in federal court and the NFL would have destroyed complete diversity. Vilma is a Florida citizen and so, it appears, is the NFL for these purposes, although it takes some digging. And it also provides a nice case for illustrating the puzzle of determining citizenship for diversity purposes when non-corporate entities are involved.
The NFL is an unincorporated association of its 32 teams, so it is a citizens of every state of which one of its teams is a citizen. One team, of course, is the Miami Dolphins, which are owned by Miami Dolphins Ltd., a Florida limited partnership. A partnership's domicile is that of every general and limited partner. The general partner is South Florida Football Associates LLC, which has its principal offices in New York; no other general or limited partners were listed on its 2012 Annual Report. An LLC's domicile is that of every member. The managing member is Stephen Ross, the man who is colloquially known as the "team owner." According to Wikipedia, Ross resides in New York' of course, residence is not domicile, so it is possible he also has a home in Florida and that is he true residence. Guess we need more discovery on this one. The key, though, is that Ross famously brought in a number of celebrities as minority owners, including Gloria and Emilio Estefan, the Williams sisters, Fergie, and Marc Anthony. I know for sure that the Estefans are Florida citizens. I am not sure if these "minority owners" are members of the LLC or limited partners in the partnership. Either way, Estefan alone means the partnership has become a Florida citizen (directly or through Estefan's effect on the LLC), which makes the NFL a Florida citizen. And thus a strategic reason for not suing the league.*
On the other hand, it may seem surprising that Vilma so wants to be in federal court. The theory underlying diversity jurisdiction is that it allows one party to avoid local bias that would exist in state court by getting to federal court. The converse is that the local would want to be in state court to take advantage of that bias. Yet Vilma, the "local," is looking for federal court. True, Vilma is not a Louisiana citizen. But he is a star player on the Saints and a leader of their championship team. He could expect to benefit from local favoritism even more than any Louisiana citizen would.
Finally, another explanation for Vilma's strategic choice may tie the two issues together. Perhaps Vilma was indeed worried about CBA preemption of his claim. Maybe the thought is that the defense argument that this issue is subject to arbitration appears stronger if the lawsuit is against the league, which is a party to the CBA, than if the lawsuit is against Goodell, who is not a party to the CBA. By not suing the NFL, Vilma could try to argue that this dispute is not subject to labor arbitration because this dispute involves people who are not parties to the CBA.
*Lawyers routinely gets this wrong. So I hope Vilma's attorney's reasoning did not go as follows: "The NFL is all 32 teams, the Dolphins are a partnership with their principal offices in Miami, so it is a Miami citizen, so the team destroys diversity." Full stop. That would be the right conclusion but the wrong analysis, and thus a not-so-good grade.
Wednesday, May 30, 2012
America's First Patents
My post today is a pointer to my guest post at the Patently-O blog called America's First Patents. Here is the first paragraph:
My forthcoming Florida Law Review article, America’s First Patents, examines every available patent issued during the first 50 years of patenting in the United States. A full draft is accessible at this SSRN page. The article reaches three conclusions:
- Our patentable subject matter jurisprudence with respect to methods can, in part, blame its current unclarity on early decisions by a few important judges to import British law into the new patent system.
- Early patenting trends suggest that Congress has never intended new subject areas be limited until Congress explicitly allowed the new subject area.
- The machine-or-transformation test, which allows a method patent only if the process involves a machine or transforms matter, has no basis in historic patenting practices.
The Shadow Crim Conference at Law and Society, Hawaii 2012
Next week is Law and Society in Hawaii. Aloha! Though I won't in the end be going, sadly, I wanted to share with readers information about the crimprof shadow conference that Carissa Hessick and I organized. There will be a happy hour for crimprofs at 5pm next Wednesday (June 6) in the Paradise Lounge at the Martini Bar. This will be a happy hour primarily for folks attending the crimprof shadow conference, but all are welcome. (A more general happy hour is in the works. Keep an eye on the blog.)
You can find below the information from the LSA program re: our little gathering on crim law and crim procedure.
LSA Criminal Justice Shadow Conference Schedule
Criminal Justice 01: The Evolution and Transformation of Criminal Justice Institutions
Time: Tue, Jun 5 - 10:15am - 12:00pm
Place: HHV, TBA20
Chair: Meghan J. Ryan (Southern Methodist University)
140 Character Assassination
*Leslie Y Garfield (Pace University)
Regulatory Equilibrium and Destabilization in Criminal Procedure
*Anthony O'Rourke (SUNY, Buffalo)
Science and the New Rehabilitation
*Meghan J. Ryan (Southern Methodist University)
The Institutionalizing Effect of Criminalization: A Case Study of American Prostitution
*Aaron Simowitz (New York University)
Discussant: Audrey Rogers (Pace University)
Criminal Justice 02: Policing, Protest, and Punishment
Time: Tue, Jun 5 - 2:30pm - 4:15pm
Place: HHV, TBA20
Chair: Wayne Logan (Florida State University)
Prisoners' Constitutional Right of Protest
*Andrea C. Armstrong (Loyola University, New Orleans)
*Wayne Logan (Florida State University)
Guilt and the Fourth Amendment
*Laurent Sacharoff (University of Arkansas)
Judicial Response or Litigant Strategy: Examining the Success of the U.S. Solicitor General
*Jeff Yates (Binghamton University)
Discussant: Susan A. Bandes (University of Miami)
Criminal Justice 03: Sex, Crime, and Punishment
Time: Wed, Jun 6 - 8:15am - 10:00am
Place: HHV, TBA20
Chair: Carissa B. Hessick (Arizona State University)
The Law and Paraphilias
*Melissa Hamilton (University of South Carolina)
Child Pornography 2.0
*Carissa B. Hessick (Arizona State University)
Institutional Interference with the Criminal Prosecution of Child Abuse
*Ruth Jones (University of the Pacific)
The Trans Panic Defense
*Cynthia K. Lee (George Washington University)
Criminal Justice 04: Topics in the Theory of Crime and Punishment
Time: Thu, Jun 7 - 8:15am - 10:00am
Place: HHV, TBA20
Chair: Kimberly Ferzan (Rutgers University, Camden)
The Meaning of Consent
*Vera Bergelson (Rutgers University)
State Labelling, the European Convention on Human Rights and the Presumption of Innocence
*Liz Campbell (U of Aberdeen/U of Maryland)
Assessing the Reach of the Presumption of Innocence
*Kimberly Ferzan (Rutgers University, Camden)
Justice and Mercy
*David Gray (University of Maryland)
Discussant: Susan D. Rozelle (Stetson University)
Criminal Justice 05: Issues in Pre-Trial Procedure
Time: Thu, Jun 7 - 10:15am - 12:00pm
Place: HHV, TBA20
Chair: Laura Appleman (Willamette University)
Justice in the Shadowlands: Bail, Jail, and Extralegal Punishment
*Laura Appleman (Willamette University)
Race and Prediction
*Shima Baradaran (Brigham Young University)
Bringing Down a Legend: How Pennsylvania’s Investigating Grand Jury Ended Joe Paterno’s Career
*Brian Gallini (University of Arkansas)
The Expressive Purpose of Corporate Criminal Liability
*Gregory Gilchrist (University of Toledo)
Criminal Justice 06: Searches, Evidence, and Privacy
Time: Thu, Jun 7 - 2:30pm - 4:15pm
Place: HHV, TBA20
Chair: Fabio Arcila (Touro Law Center)
Seven Theses in Grudging Defense of the Exclusionary Rule
*Lawrence E. Rosenthal (Chapman University)
The Role of Age and a Minor's Consent to Search under the Fourth Amendment
*Megan Annitto (West Virginia University)
GPS Tracking into Fourth Amendment Dead Ends: The Katz Conundrum
*Fabio Arcila (Touro Law Center)
Searches, Evidence, and Privacy
*Ellen Marrus (University of Houston)
Criminal Justice 07: Right to Counsel
Time: Thu, Jun 7 - 4:30pm - 6:15pm
Place: HHV, TBA20
Chair: Stewart M Young (University of Wyoming)
Padilla’s Two-Tiered Duty is Strickland-Lite for Noncitizens
*Cesar C Garcia Hernandez (Capital University)
Why the Supreme Court Will Not Take the Pre-Trial Right to Counsel Seriously
*Arnold Loewy (Texas Tech University)
Reconciling Right to Counsel Jurisprudence with the “Infinite Habeas” Dilemma
*Emily Uhrig (University of the Pacific)
Agents and Prosecutors and Judges, Oh My! Operational Controls for Proactive Criminal Investigations
*Stewart M Young (University of Wyoming)
Criminal Justice 08: Adjudication and Beyond
Time: Fri, Jun 8 - 10:15am - 12:00pm
Place: HHV, TBA20
Chair: William W Berry (University of Mississippi)
Ending the Failure of Finality by Federalism
*William W Berry (University of Mississippi)
Beyond the Civil-Criminal Binary: Contempt of Court and Judicial Governance
*Nirej Sekhon (Georgia State University)
Using "Crimmigration" as a Mechanism of Social Control against Latinos
*Yolanda Vazquez (University of Pennsylvania)
Discussant: Meghan J. Ryan (Southern Methodist University)
Criminal Justice 09: Criminal Law Stories
Time: Fri, Jun 8 - 2:30pm - 4:15pm
Place: HHV, TBA20
Chair: Donna Coker (University of Miami)
The Story of Wanrow: Reasonableness, Gender, and Self-Defense
*Donna Coker (University of Miami)
Accomplice Liability and the Murderous Judge
*Leo Katz (University of Pennsylvania)
Robinson v. California: From a Revolutionary Constitutional Doctrine to a Modest Ban on Status Crimes
*Erik Luna (Washington and Lee University)
The Story of Berry: When Hot Blood Cools
*Susan D. Rozelle (Stetson University)
Discussant: Mario L. Barnes (University of California, Irvine)
Standing on TILTs above NIMBY Politics
In my last post (based on this new paper), I argued that excessive big city zoning may be caused by the absence of party competition. Without parties that compete to present generalist party platforms, legislatures devolve into pork barrel universal log-rolling coalitions. In the case of land use, this means that legislators end up with the unilateral power to decide whether to grant zoning amendments in their districts, effectively turning a big city into a bunch of local suburban-style homeowner fiefdoms. Land use procedure cements this result by effectively requiring that amendments be considered one-by-one, rather than in a budget or package.
If a pro-growth coalition is elected, is there anything they can do to change this long slog towards a shrink-wrapped city? Yes! At least I think so. If the story is that, in the absence of party competition, procedure determines results, changing the procedure could produce a more pro-growth equilibrium, one that would outlast the life of a single official or coalition.
What types of procedural would work? My frequent co-author Rick Hills has blogged about one solution we've come up with -- "zoning budgets" -- so I want to talk about a different one: TILTs. The proposal is modeled on another area in which party competition does not structure voting and where the interest group alignment is pretty similar to land use: tariffs. Before 1934, trade policy was an Olsonian perfect storm. Import-competing firms groups had incentives to be involved in politics due to the concentrated nature of the benefit they got from increased tariffs, but import consumers did not, as increased tariffs hurt each consumer only a little (even though the net effect was surely negative). The result was heavy protectionism. When a pro-trade coalition was elected -- e.g. President Wilson and the 63rd Congress -- they would pass tariff reform, but the reductions would soon be eaten away over time due to the differential incentives to care about politics. The infamous Smoot-Hawley tariff was only the last in a series of protectionist tariffs passed between the Civil War and the Great Depression.
What broke our protectionist tariff policy was procedural reform. The Reciprocal Trade Agreements Act served to tie other country's tariffs to our own, giving exporters an incentive to fight import tariffs ("zoning budgets" is an analogue). And then a bunch of other reforms were introduced to placate trade losers. One of these is trade adjustment assistance (TAA), or job retraining for people who lose their jobs due to trade deals. At a pure policy level, TAA is difficult to justify. It is hard to see why people who lose their jobs for other reasons are not equally deserving of aid as those lose their jobs due to trade deals. But politically it makes sense. TAA is an acknowledgement that moving to free trade is Kaldor-Hicks efficient, but not Pareto efficient, and that the losers in trade deals have more incentive to be involved than the winners. Beliefs about trade are only weakly structured by party competition -- protectionism crosses party lines -- but TAA helps make deals that parties can't. TAA is effectively an automatic deal between the winners in trade (consumers) and the losers (import-competing firms and their employees), blunting the losers Olsonian incentives to stop generally-beneficial trade policy.
TILTs, or tax increment local transfers, would take this logic to land use politics. If a community board or city council person votes "yes" on a new zoning amendment that increased the space under the zoning envelope, residents inside their district would get a percentage of the "tax increment" created by the newly developable property for a number of years. The tax increment is just the new taxes generated by the increased property value -- the new value times the tax rate.
This is just a bribe to local landowners to stop protesting development so much. Notably, though, it is very different from our current system of buying land owners, which has developers signing "community benefits agreements" or paying impact fees. Those end up serving like taxes on development, increasing the cost of housing. TILTs would be payments from the general treasury to those harmed by new development, a "deal" between those who have little incentive to care about an individual project because they each get only a little benefit (that is, all city residents and particularly housing consumers) and those who care too much (local landowners.) That is, it would replicate the role competitive political parties would play if they existed in big cities.
It would also have other interesting properties. More after the jump.
- If TILT payments were tied to the date of proposal -- i.e. residents got TILT payments for 5 years from the date of the proposal -- it would give locals an incentive not only to approve projects but to allow them to go forward quickly. Much of the cost locals impose on development is in delay -- through law suits, complaints, etc. -- and this would change their incentives.
- Right now, it is really hard for citywide officials to tell the difference between projects that have really bad local effects and those that have only minor negative local effects. NIMBY groups oppose everything locally -- if you can find a project in Greenwich Village that Andrew Berman actually supported, I salute you. If locals received TILT payments and still opposed a project, citywide officials would at least know that the local negative externalities exceeded the size of the TILT payments.
- Other methods of buying off local opposition - like community benefits agreements -- create incentives to oppose new projects in hopes of getting bought off. Only squeaky wheels get grease, after all. TILTs would be automatic -- all local homeowners would get paid -- and therefore would not create incentives. And to the extent a developer wanted to layer a CBA on top of TILTs to deal with particularly squeaky wheels, there's no reason that she couldn't.
- The effect of TILTs on the city budget would be ambiguous. If it lead to more development, it would increase the budget. To the extent TILTs went to neighbors of projects that would have been approved on their own, the city budget would decrease. If this became a problem, one could imagine making TILTs only apply in situations where local opposition was likely. For instance, they could be limited to neighborhoods that were heavily residential. Or something else.
The details of the TILT proposal (and the zoning budgets idea and the others) are not particularly important, although I do think they are neat. The key is thinking about how we might reorganize local legal procedure in the absence of local partisan competition. Unless some other ideas are introduced, it is unlikely that we will see party competition in urban legislatures in the short or long term. Reform coalitions should consider using law and legal procedure to create a stand-in for a functioning local democracy. Otherwise, George Washington Plunkitt's famous admonition that reformers were "morning glories" that will not last against the "old oaks" of ordinary city politics will continue to be true.
"The First Amendment's Epistemological Problem"
I've posted a new paper, titled The First Amendment's Epistemological Problem, on SSRN. It's part of a forthcoming symposium in the Washington Law Review on Robert Post's excellent recent book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State. The article is largely descriptive, consolidating and examining a number of recent articles by leading First Amendment scholars, as well as Post's book, that each in their own way examine the relationship between the First Amendment and questions of truth, falsity, and the production of knowledge. It also uses that discussion as a launching-pad to discuss the relationship between the First Amendment, public discourse, and knowledge institutions, a subject I explore in greater detail in my forthcoming book, First Amendment Institutions. By way of self-examination and provocation of further discussion, the article concludes by asking why there has been a marked interest in institutionally oriented treatments of the First Amendment recently, in an age characterized by a fair degree of distrust of institutions in general.
The abstract follows. I should add in all humility that Dean Post will have a reply article in the Symposium addressing the various contributions, and his article has some sharp criticisms of my piece.
This Article is part of a symposium on Robert Post's valuable new book, Democracy, Expertise, and Academic Freedom: A Jurisprudence for the Modern State (2012). It uses the occasion to observe that in recent years, a number of leading First Amendment scholars have focused on the role of truth, falsity, and the production of knowledge in the First Amendment and public discourse. The same questions are also raised by several recent cases, including the Stolen Valor Act case, United States v. Alvarez. Taken together, they suggest a strong recent interest in the epistemological questions raised by First Amendment law and theory. Both the conclusions these scholars have drawn, and the very fact that they have converged on these questions, are worthy of consolidation and examination.
I argue in this Article that the First Amendment presents an ineluctable "epistemological problem:" it raises difficult questions about the status of true and false speech, who should make such determinations and how, and the relationship between the First Amendment and the institutions that produce knowledge and play an infrastructural role in public discourse. First Amendment doctrine alternates between a broad protectiveness of false as well as true speech and a relative lack of protection or concern for truth or falsity as such. First Amendment theory has largely moved away from epistemic justifications for free speech and toward other justifications, such as those based on democratic self-government, autonomy, or distrust of government; but that movement leaves underlying epistemological questions unanswered. Constitutional doctrines such as those protecting academic freedom recognize the important role played by some institutions in public discourse and knowledge production, but they are both undertheorized and in some tension with broader principles of First Amendment law.
The Article does three things. First, it collects and examines the recent treatments of scholars and judges who have examined the First Amendment's epistemological problem. Second, discusses the relationship between the First Amendment and the production of knowledge, especially by specialized institutions that play a prominent infrastructural role in public discourse, such as the university. It examines and praises Post's treatment of "democratic competence," "democratic legitimation," and knowledge institutions, but argues that we might avoid some tensions and enhance the production of knowledge within public discourse by taking a more direct institutionally oriented approach to these questions. Finally, it seeks to advance the discussion by asking why the First Amendment's epistemological problem has become a subject of recent and intense discussion, and why the institutional turn has become increasingly popular in an age of relative distrust of institutions in general.
Journals, still more
I appreciate all the responses to my earlier post on law reviews and peer review. But I confess I am still not clear what the role law reviews play in the legal academy. Judging from the responses to the peer review post, it seems to me that law reviews perform one main function: they provide credentials for students on law review, for those who publish in them, and, I guess, for law schools that publish them. Is that a fair assessment? Is there some other purpose? Do law professors read law review articles to prepare to teach new courses? To revisit the courses they teach? My recollection of the time when I practiced law (concededly quite a few years ago now), is that practitioners did not typically keep up with law reviews in general, though there were some specialized practice magazines and journals that I did follow with some regularity.
I guess what I’m trying to figure out is whether the role of law reviews is simply to provide an opportunity for publication, or if there was a consistent audience for them (other than other authors reading law reviews as part of writing their own articles).
Tuesday, May 29, 2012
Internal Executive Discussions as Due Process
On September 30, 2011, U.S. predator drone strikes in Yemen killed Anwar al-Awlaki, a U.S. citizen and Muslim cleric who was alleged to have broadly encouraged al-Qaeda attacks on the United States and worked directly with "underwear bomber" Umar Farouk Abdulmutallab on a plot to detonate a bomb on a commercial flight bound for Detroit. A memorandum prepared by the Office of Legal Counsel at the Department of Justice furnishing the legal justification for the killing of al-Awlaki has not been released. But legal affairs reporter extraordinaire Charlie Savage of the New York Times revealed, only a week after the strikes, that the OLC memo "concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him." In reaching this determination, the memo, among other things, considered -- and rejected -- objections that the killing would be inconsistent with the Fifth Amendment's due process requirement.
Following the strikes and Savage's important story, Attorney General Eric Holder shed light on the administration's legal support for the al-Awlaki killing. He said, now famously, that: "Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. 'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process."
Today, thanks again to the New York Times, in an article highlighted by Dan, we now have a greater sense as to the contents of this circumscribed concept of due process. Jo Becker and Scott Shane explain that, almost every week, government officials gather to review information and "nominate" to President Obama who should receive a drone strike. President Obama's counterterrorism adviser, John Brennan, states that the group goes through "a rigorous checklist: The infeasibility of capture, the certainty of the intelligence base, the imminence of the threat, all of these things." Becker and Shane write that President Obama has assumed final responsibility for this "process to designate terrorists for kill or capture, of which the capture part has become largely theoretical." They emphasize that "it is the president who has reserved to himself the final moral calculation." Importantly, Becker and Shane note that the OLC decided that "the Fifth Amendment’s guarantee of due process... could be satisfied by internal deliberations in the executive branch."In other words, what may be crudely described as an executive fantasy football draft with President Obama acting as general manager -- where the results of the draft are the deaths of citizens unchecked by a coordinate branch -- comports, in the OLC's estimation, with constitutional due process guarantees. I appreciate President Obama's willingness to take on the ultimate responsibility, in this process, to sign-off on who deserves to die by way of drone strike. As suggested by two former high-level government officials' lines in the article -- that "Once it’s your pop stand, you look at things a little differently" and that "You can pass a lot of laws... [but] [t]hose laws are not going to get Bin Laden dead" -- it very well may be that the President somewhat understandably is concerned more about practical efforts in the war as opposed to the niceties of the law.
For structural and separation of powers reasons, however, it seems problematic that the executive department should have exclusive say as to whether it is constitutional to kill citizens (and innocents along the way). While the courts may not be in the best position to second-guess these decisions, surely our system contemplates some judicial role in the overall process. The laws may speak with a different voice in times of war, but it's difficult for me to square our general tripartite scheme with the notion that the law is equal to a unilateral executive voice in the national security context. Hopefully the latest NYT article will help give rise to further proposals as to the exact contours of how the other branches can and should interact with the executive in this area in order for the final decisions on drone strikes to have greater legitimacy and a firmer constitutional foundation.
Class (of One) Conflict
A fascinating set of opinions has been released by the Seventh Circuit in a case dealing with the so-called "class-of-one" theory of equal protection. Del Marcelle v. Brown County. The case deals with a plaintiff's claim that the defendant county failed to respond to his claims of harassment by a motorcycle gang (if true, the gang's conduct is pretty serious). The plaintiff claimed that county law enforcement refused to help, and, indeed, that some officers were in cahoots with the gang members.
The district court dismissed the claim, reasoning, based on cases such as DeShaney v. Winnebago County and Town of Castle Rock v. Gonzalez, that there was no due process right to police protection. On appeal, the 7th Circuit panel noted that the complaint could be read to allege a claim that the county violated the plaintiff's equal protection rights under the class-of-one theory first accepted in Village of Willowbrook v. Olech. Before deciding the case, the full court heard the case en banc. The result, announced on May 17, was extremely interesting.
First, a very quick primer on the class-of-one theory. Classic equal protection doctrine deals with groups -- discrimination based on race, sex, whether you rent your truck out for other's advertising or use it for you own, etc. But in Olech the Court, in a short per curiam opinion joined in by all the justices except Justice Breyer, announced that individuals who suffered irrational discrimination could bring equal protection claims, even if they didn't claim discrimination based on a group characteristic. Justice Breyer concurred, but, expressing the same concern that had occupied the lower court (coincidentally, the 7th Circuit, in an opinion written by Judge Posner), he argued that a class-of-one plaintiff should be required to prove not just irrational discrimination, but animus. He worried, as did Judge Posner, that to rule otherwise would open the door for a limitless variety of lawsuits where unhappy citizens complained that government didn't give them something that they gave someone else (or, more likely, that the government burdened the plaintiff when not imposing similar burdens on similarly situated people). It doesn't take much thought to realize how far this could go: if you're the lucky driver getting a speeding ticket when everyone else on the highway was also speeding, and if the policeman had no particular reason for singling you out, were you the victim of an equal protection violation?
This concern over gave rise to a decade's worth of cases where lower courts have struggled with the scope of the class-of-one theory. That period was punctuated by the Court's decision in Engquist v. Ore. Dept of Agriculture, where the Court refused to apply the class-of-one theory to government employment claims, on the ground that government employment decisions, as inherently discretionary, were not suited to class-of-one challenges. But this ruling was (at least formally) limited to the employment context, leaving lower courts to puzzle out how its analysis fit with the Court's broad endorsement of such challenges in Olech.
Enter the 7th Circuit. The court split badly on the question how to approach such challenges. Four judges, led by Judge Posner (who wrote the appellate opinion in Olech that insisted on animus as part of a plaintiff's claim), insisted that class-of-one claims had to include at least "some improper personal motive for the discriminatory treatment." Maybe not animus -- although it's easy enough to slap the label "animus" on a finding that there was an "improper personal motive." It's quite a performance: in earlier post-Olech cases he had all-but re-imposed the animus requirement the Supreme Court majority did not require. Here he seems to even one step further. His opinion (which controlled the result, given the separate concurrence of Judge Easterbrook) affirmed the trial court's dismissal, without leave to re-plead.
Five judges, led by Judge Wood, attempted to harmonize the Court's and the lower courts' thinking on class-of-one claims. Judge Wood concluded that plaintiffs needed to allege "intentional and irrational" discrimination -- the key word here being "intentional." Animus, she said, was not a requirement, though it would help establish discriminatory "intent." These judges would have allowed the plaintiff to re-plead his complaint.
The opinions in this case are rich. The class-one-theory, while seemingly a minor doctrinal corner, raises foundational questions about equal protection law. What does it mean that equal protection is an individual right? What is irrationality in the equal protection context? What role does animus play? Are there areas where government is allowed to single out people in ways that might be described as "irrational"? I've written some about these issues (here and here), as have others. For those of you who are interested in equality law and haven't given this theory a lot of thought, it's worth a look, especially now that the 7th Circuit has teed up what seems like an ideal vehicle for Supreme Court to consider the issue yet again.
A few reading pointers for Tuesday morning
First, I want to point out an outstanding article I just read titled Election Law Behind a Veil of Ignorance. It's by Chad Flanders (SLU), a former co-author of mine. There's an early and differently titled draft up on SSRN. Admittedly it's outside my area of expertise, but I found its clarity and pointedness -- consisting in a gentle rebuke to/modification of Rick Hasen's celebrated revival of the Democracy Canon -- sharp and instructive. It's pretty short as law review articles go, and has lots to say about the relationship between statutory interpretation and democracy.
Next, this morning's Times was brimming with some excellent pieces. I guess they didn't want them buried over the long weekend!
First, there's a long piece on Obama's central role in approving the knock list for who gets targeted. The assessment is something along the lines of: wow, who knew Democrats could be so ruthless in the forward lean on terrorists. The most interesting piece of news (from my perspective) is the tidbit from Romney's foreign policy advisor who is critical of Obama for not revealing the legal memo that purportedly justified the targeting and killing of an American citizen abroad, Anwar al-Awlaki.
Mr. Hayden, the former C.I.A. director and now an adviser to Mr. Obama’s Republican challenger, Mr. Romney, commended the president’s aggressive counterterrorism record, which he said had a “Nixon to China” quality. But, he said, “secrecy has its costs” and Mr. Obama should open the strike strategy up to public scrutiny.
“This program rests on the personal legitimacy of the president, and that’s not sustainable,” Mr. Hayden said. “I have lived the life of someone taking action on the basis of secret O.L.C. memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. safe.”
I agree with Hayden. The prospect reality of an internal memo serving as a secret law--it's a real problem for rule of law values that both parties should vigorously support. Put simply, I'm bummed that the Administration hasn't saw fit to distribute the memo notwithstanding (or because of?) Charlie Savage's reportage on the substance of the memo. But, fwiw, if Republicans end up winning the White House (ack!), then I hope they follow Hayden's counsel, rather than rely on the "precedent" of Obama's secret laws...
Next, Erica Goode has an awesome piece discussing the promise and perils of a relatively new and somewhat unknown " gunshot detection system called ShotSpotter [that pinpoints] the location of gunfire seconds after it occurs." Some critics of the system are worried about how the acoustic surveillance intrudes upon privacy interests, but the sensitivity of the system, which can pick up some conversations, is meant to be triggered only after there's a gunshot. No doubt, this kind of sound amplification can be abused absent adequate controls. Still, the idea that this might reduce further the problems of Type II errors in relation to gun violence in cities is very seductive. Indeed, I wonder to what extent it might be used as a substitute (rather than just a supplement) for NYC's aggressive stop and frisk policies. Obviously, Shotspotter is an ex post measure whereas the stop and frisk policies are ex ante, but it might be the case that the use of Shotspotter would have a more effective ex ante preventive effect than the aggressive stop and frisk policies cops are using in NYC. My guess is that both will continue to be used -- to the extent the law allows. Relatedly, it'll be interesting to see if the lawsuit unfolding in Judge Sheindlin's court has much practical effect in curtailing the NYPD's off-the-record stop and frisk practices. Here's a link to J. Sheindlin's decision to certify the class at issue.
Finally, take a look at Adam Liptak's Sidebar column on mandatory minimums in federal sentencing and then Sandy Levinson's oped laying the predicate about our imbecilic constitution for his new book about what we can learn from state constitutions. Classic Sandy: bracing and bright.
School of Rock
I had a unique experience last Friday, teaching some copyright law basics to music students at a local high school. The instructor invited me to present to the class in part because he wanted a better understanding of his own potential liability for arranging song for performances, and in part because he suspected his students were, by and large, frequently downloading music and movies without the permission of copyright owners, and he thought they should understand the legal implications of that behavior. The students were far more interested in the inconsistencies they perceived in the current copyright system. I'll discuss a few of those after the break.
First, the Copyright Act grants the exclusive right to publicly perform a musical work, or authorize such a performance, to the author of the work, but there is no right public performance right granted to the author or owner of a sound recording. See 17 U.S.C. § 114. In other words, Rod Temperton, the author of the song "Thriller," has the right to collect money paid to secure permission to publicly perform the song, but neither Michael Jackson's estate nor Epic Records holds any such right, although it's hard to discount the creative choices of Michael Jackson, Quincy Jones and their collaborators in making much of what the public values about that recording. To those who had tried their hands at writing songs, however, the disparity made a lot of sense because "Thriller" should be Temperton's song because of his creative labors.
Second, the Copyright Act makes specific allowance for what I call "faithful" cover tunes, but not beat sampling or mashups. If a song (the musical work) has been commercially released, another artist can make a cover of the song and sell recordings of it without securing the permission of the copyright owner, so long as the cover artist provides notice, pays a compulsory license (currenty $0.091 per physical or digital recording) and doesn't change the song too much. See 17 U.S.C. § 115. If the cover artist makes a change in "the basic melody or fundamental character of the work," then the compulsory license in unavailable, and the cover artist must get permission and pay what the copyright owner asks. In addition, the compulsory license does not cover the sound recording, so there is no compulsory license for a "sampling right." Thus, Van Halen can make a cover of "Oh, Pretty Woman," without Roy Orbison's permission, but Two Live Crew cannot (unless the rap version ends up qualifying for the fair use privilege).
It was also interesting to me that at least one student in each class was of the opinion that once the owner of a copyrighted work put the work on the Internet, the owner was ceding control of the work, and should expect people to download it for free. It's an observation consistent with my own analysis about why copyright owners should have a strong, if not absolute, right to decide if and when to release a work online.
On a personal level, I confirmed a suspicion about my own teaching: if I try to teach the same subject six different times on the same day, it is guaranteed to come out six different ways, and indeed, it is likely there will be significant differences in what I cover in each class. This is in part because I have way more material at my fingertips than I can cram into any 45 minute class, and so I can be somewhat flexible about what I present, and in what order. I like that, because it allows me to teach in a manner more responsive to student questions. On the other hand, it may expose a failure to determine what are the 20-30 minutes of critical material I need to cover in an introduction to copyright law.
Monday, May 28, 2012
JOTWELL: Malveaux on Sullivan on pleading employment discrimination
The newest piece in the CourtsLaw sectionof JOTWELL comes from Suzette Malveaux (Catholic), reviewing Charles Sullivan's Plausiblty Pleading Employment Discrimination (published in William & Mary Law Review in 2011), which considers whether Twiqbal overruled Swierkiewicz v. Sorema and, if so, how plaintiffs can plead intentional employment discrimination.
Get Me Rewrite
A "dummy headline" is the headline put up on a layout before the final headline. "Dummy" is also the name, in the Internet age, for anyone who puts up a dummy headline they might not want the world to see. See, for instance, the current (as of about 8 p.m. Central) headline on the New Republic's web site for what I assume is a Jeffrey Rosen piece they're about to post ("tk" means "to come"):
"tk rosen replies to his haters"
Sgt. Pepper's Lonely Hearts Mad Men
I just found this, although the discussion has been going on for a couple of weeks. Yi! News is a relatively new group blog featuring a "blend of news coverage and original features in the fields of sports, music, politics, law, social media and whatever else is pertinent to today’s 20-something audience." It's main writers include several law students and a practicing lawyer.
Several weeks ago, a guest author, Emily Viviani, proposed a theory that the current (fifth) season of Mad Men has been thematically, lyrically, and structurally following Sgt. Pepper's Lonely Hearts Club Band. The first installment (covering Side One, for those of us who remember records having "sides") is here; the first three songs of Side Two are here, here, and here. Emily has not updated her discussion to link yesterday's episode, "The Other Woman", to "Good Morning, Good Morning," but I'm looking forward to it. Having just checked the lyrics, I think I see where she may go with it.
It's an interesting theory (confession: I've done the "Wizard of Oz"/"Dark Side of the Moon" thing), particularly given the time frame covered in the season (it started in June 1966, we are now sometime in January 1967, and Sgt. Pepper was released in June 1967). And one episode even revolved hevaily around Don not "getting" or recognizing the Beatles and ended with Don listening (without much enjoyment) to "Revolver," the 1966 album that marked the band's transition and led directly to Sgt. Pepper.
Emily's theory is that the final episode (linked to "A Day in the Life") will land on February 10, 1967, the day the 25th Amendment, a direct response to the Kennedy Assassination, was ratified. If so, it gives new meaning to the line "He blew his mind out in a car".
Could Matt Weiner really be doing this on purpose? If so, it is utterly brilliant.
Law as Plinko
My last moments in the classroom this past semester were spent engaging in what is likely a familiar exercise for most law professors -- trying to inspire students and leave them with some parting words of wisdom, encouragement, and motivation. I look forward to these moments, and hope that my last-minute ramblings help bring together the general themes of the course and, more broadly, replenish their passion for the law to the extent that specific and more immediate parts of their experience -- such as Socratic conversations, lengthy readings, and concerns about the final examination -- have them questioning why they are in law school and are incurring debt in the process. To quote Michael Scott, I might as well tell my students on the last day of classes to "get as much done as you can... because, afterward, I'm going to have you all in tears."
This semester, I discussed what I attempted to accomplish in the course and apologized to the extent that I fell short of their expectations. I revealed to them what led me to study the law, and why I am continually fulfilled and humbled by my pursuit to understand the law and the law's role in society. In my constitutional law course, I read to my students Neal Katyal's comments after Hamdan, celebrating the rule of law and how it distinguishes us from other political communities. I also asked my students whether anyone has seen The Godfather. Predictably, all hands were raised. When I asked what the first line of the movie is, no hands went up. The first line is, "I believe in America." I explained candidly why I believe in America, and it is specifically because of the structure of the Constitution that they just (hopefully) learned about and also because they will be active participants in that structure, seeking to improve the law and society.
I also, in a rather light portion of my semester-ending remarks, share my fun theory of the law -- that the law is like Plinko. Yes, Plinko. An explanation follows:
It seems to me that the law is similar -- the facts of a case are like the chips, and the pegs are established cases that the facts must work through, and the space is the result that the court eventually hands down (e.g., granting or denying a motion, reversing or affirming a decision). What, I believe, we do in law school is also related -- we attempt to ensure that students understand the pegs (the applicable precedents), how they have evolved or shifted over time, and the critical facts and context that help explain where the pegs are. In general, in a Socratic exercise and on the final examination, students entertain a modified or new fact pattern, and analyze how those facts may "fit" in the existing framework. We give students random fact patterns because it is unlikely that, in practice, they will receive a factual problem that is identical in all respects to an established case. They must have a substantive foundation -- an understanding of the precedents -- and the skills -- how to research, write, and argue -- in order to properly assess how the new facts may work their way through the relevant cases and to then be able to advocate, on behalf of their client, for how those facts should work their way through the prior cases. This is why I refer to cases as guideposts -- they literally are the pegs that set the general bounds within which certain issues will be examined and resolved.
Further, students, equipped with an understanding of the law and the tools to analyze and advocate, can argue for why the guideposts should and must change. Here is where they can become agents for broad social change -- by removing and reconstructing the guideposts that previously constrained and dictated how certain issues would be reviewed. Again, in order to do this, students need the substantive foundation in the law and the skills with which to dissect cases and propose new legal principles. The study of legal doctrine and professional skills may seem tedious, slow, and boring at times, but is critically necessary if students are to one day be effective representatives of their clients' interests and/or instruments of robust changes in the law and society.
This rather informal way of looking at the law as Plinko seems consistent with Holmes's theory of law as prediction. When a contestant puts that chip down on the board, one does not know where it will land; at best, one can develop some sense as to where it may land given certain data points. Similarly, armed with a set of facts, an attorney can offer only his or her prediction as to how a certain judge will apply certain guideposts, and what the outcome will be.
Law as Plinko also may help one appreciate the different aspects of the legal process. Whereas the top pegs may be akin to standards for the sufficiency of a complaint and jurisdictional issues, later pegs may be akin to guideposts governing whether the facts should survive a motion for summary judgment, and the final pegs akin to the standards on the merits of a legal issue. This theory also emphasizes framework and process, where students focus on result (e.g., who "won" and who "lost").
It doesn't leave them in tears, but students seem nonetheless to enjoy this admittedly nutty way of viewing the law.
Another Party Heard From on Legal Education
Via links in some comments, here's an addendum to my discussion last week of practical- or client-centered legal education (which, as you recall from that post, didn't seem to get much love from the constituents on the Campos blog last week). It's a post by Dru Stevenson at the Circuit Splits blog, which I'm afraid I wasn't aware of, titled "Should Law Schools Focus on Lawyering Skills?" Stevenson argues the answer is no. A snippet or two:
I . . . disagree with the nationwide push toward making law schools into trade schools, the attempt to make the institutions less intellectual. And I recently blogged here about the direction I would like to see schools go--echoing the vision recently outlined by the Dean of the law school at Boalt Hall (California-Berkeley). Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on "counseling patients," and "medical clinic management," or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills. I wonder if any other profession criticizes its theoretical wing like ours does.
The most troubling aspect of turning the focus of law schools completely toward "skills" is that this is the seed of our institutions' destruction. When a consensus finally emerges that the whole point of law school is training kids in the mechanical tasks of lawyering - how to write a brief, how to give an opening argument, how to look up the law on something - people will then realize that law schools are not really necessary at all for teaching "skills" - these are better learned by "doing" and by repetition. A law school with a skills curriculum is a law school that is not worth the time or tuition, as the same skills would be better learned on the job in apprenticeships. After we all switch to teaching mechanical skills, there will be a movement to abolish law schools completely. The academic study of law will get absorbed back into the political science departments from whence it came, and lawyer training will be done the same way we train & license paralegals. . . .
In terms of marketable skills, there is an inconsistency between what the firms say they want and what the firms do when they hire new graduates. The firms say they want "practice ready" associates and complain that the law schools are too theoretical; but when given the opportunity to hire graduates from the HALF of the law schools that are mostly practice-oriented and non-theoretical, they pass over them and hire associates from the top 100 law schools instead - year after year, decade after decade. I know that some in the legal academy do not believe in rational markets or market discipline, so they would dismiss this as "all the firms are being stupid," or would say that the hiring partners at big firms are fooled by the prestige or brand names of elite schools. It's really strange, though - that after decades in practice, the graduates from the "skills" schools do not seem to rise to the top of the profession enough to influence or change the hiring patterns. One might expect at least some of the firms to realize that the "skills" schools are producing superior lawyers ("practice ready") and that some would switch to interviewing on their campuses instead of the elite schools. It just doesn't happen - year after year, graduates find it easier to get jobs if their diploma is from a more elite (read: more theoretical) law school. The graduates from lower-ranked law schools are much more likely to find themselves unemployed and having to start their own solo practices. The hiring market has never backed up the claims that students are better off being taught lawyering skills instead of higher thinking about the law. Law firms overall prefer to hire students from schools that tilt toward legal theory. The shift toward skills is not a response to market pressure; it runs counter to the market.
Prof. Stevenson makes clear that he comes from a practically oriented school, so I appreciate hearing his perspective. I must respectfully disagree with him, however--and I say that as one who does write on the "intellectual" side and doesn't think there's anything wrong with that for individual professors. (Although being a theory type doesn't absolve one of one's fiduciary duty to ask what is best for legal education on the whole, and particularly what is best for one's own school and students.) There is no doubt that other professional wings of education do face the same tensions and criticisms. Boalt's model is interesting, but we should no more treasure the idea of making every school more like Boalt than we should the idea of making every school more like Yale, or indeed more like any specific school.
The second paragraph excerpted above--the one that worries that "turning the focus of law schools completely toward 'skills' is . . . the seed of our institutions' destruction"-- is interesting. But I don't see why we should think of this as a bad thing in and of itself. I might (or might not) feel differently about it if every school took this path, but if it happened in a number of places I'm not sure that Stevenson has shown why that would be so terrible.
Finally, I agree with Stevenson that there appears to be "an inconsistency between what the firms say they want and what the firms do when they hire new graduates." But: 1) his paragraph seems heavily weighted in terms of the behavior of Biglaw firms; 2) I do believe there is a "firms are being stupid" element to this--or, put differently, I think the big firms' credentialism is (or was) partly client-driven but is also a function of foolish reproductive tendencies at those firms and hurts their business in the long run; and 3) in any event, as I argued earlier, and especially given the reality that most students don't end up at these firms regardless, it still makes sense to me to ask, not what firms want, but what clients need.
In any event, I was happy to hear a different point of view. Read it for yourself. A couple of good comments there as well. And no, I do not think discussing this issue obscures the "it's the jobs/money" arguments, which remain important.
Sunday, May 27, 2012
Legal versus Medical Education and some blatant 'crowdsourcing'
In many posts on the state of legal education and the legal profession (on this blog and others) I've seen repeated references to medical education. While I imagine that there exist certain "apples and oranges" aspects to this comparison, it is intriguing. However, I am going to state something that I think might apply to a lot of people - that is, while I have a vague notion of what occurs in medical education (from TV and movies), I feel that I don't really know enough about it to make proper comparisons to legal education (something on which I have experience from both sides of the podium).
Therefore, my purpose here is to blatently 'crowdsource' this information. I have a few questions (ok, a lot of questions) posted below for folks who have experiences with medical education (preferably first-hand, but second-hand is ok too). In the best case scenario we might get some JD/MDs to weigh in on this matter.
If there is any interest, I'd be happy to share my comparative experiences as a new lawyer vs. political science PhD grad (and perhaps fellow guest prawfs blogger Bob Howard can chime in on this) - although there may not be a great market for that discussion ;-)
1) How difficult is it to get into medical school? (gpa, % test scores, etc.)
2) How much does it cost to go to medical school? (per yer tuition for private/public; how many years do you pay full tuition, etc.)
3) Um, what happens in class? 1st year, 2nd year, 3rd year, etc.? How are you tested/graded? Is it very competitive (e.g. backbiting) or is it 'everyone's a winner'?
4) What are faculty teaching loads? How are they evaluated for rank/tenure (research; teaching evaluations) ? Are rank and tenure the same as in law and/or other fields (e.g. assistant, associate, full)? How are faculty recruited? What is faculty worklife like? Do they make significantly less than non-faculty doctors?
5) How important are grades for medical students in getting jobs? Is there a significant split (as there seems to be in law) between the salaries for the top 15% of the class (or top 15 law school) and the rest? What else matters?
6) How much do doctors make after they begin private practice? Five years out? Ten years out? Is there a large gap between pay for rural vs. urban areas? (Related to question #3 please discuss salaries during the residency years - this question is about after all of that)
7) How mobile are medical degrees/licenses? How difficult is it to start a practice in another state?
8) How hard is it to get a job as a doctor as a new graduate?
Friday, May 25, 2012
Really, Professor McConnell?
I have to say, I've been enjoying Erik Spoelstra's working of the refs in the NBA playoffs far more than the similar efforts by law professors and political activists regarding the Affordable Care Act case in recent days. Like Mark Tushnet and Paul Horwitz, I tend to think the latter efforts are mostly an attempt to preemptively spin the Court's decision, because it's too late to try and influence the Court's decision. (I should note that I wrote one of the post-argument Balkinization posts to which Paul refers. I wrote it because the moderators of that blog invited me to respond to another guest post they had published, which had (in part) criticized an argument presented in an amicus brief I wrote in the case; in part because the issue was so technical and divorced from the politically salient question of the individual mandate, I had no expectation that either post would influence the Court or any subsequent political discussion.)
Unlike Paul, I'm not generally troubled by the idea that law professors like Randy Barnett or anyone else might have an agenda of moving the law in a particular direction -- nor that the agenda might be a long-term one that relies not just on persuading the Court in a particular case but also on persuading the public that a decision or set of decisions is right or wrong, legitimate or illegitimate. So I don't have a problem with the idea that professors and activists on both sides are engaging in preemptive spin here.
All that said, I do think that today's Wall Street Journal op-ed by Michael McConnell is unworthy of its author, who is rightly regarded as one of the very most influential constitutional scholars of the past few decades. I am particularly struck by this graf:
If liberal supporters of the health-care law were as confident of the merits of their position as they claim to be, they would offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans.
But of course Professor McConnell knows that liberal supporters of the health-care law (not to mention conservatives like Charles Fried and Henry Monaghan!) have been offering "actual legal arguments" -- "based on text, history, structure, and precedent," no less! -- since the beginning. The major argument offered in defense of the mandate was that health care services are themselves interstate commerce under the Supreme Court's precedents and that the mandate just regulates how those services will be paid for. I, for one, have always thought that the strongest textual argument for the individual mandate was based on the Commerce Clause and the Necessary and Proper Clause: the health insurance industry is a very significant part of interstate commerce, the guaranteed issue and community rating provisions of the ACA are clearly regulations of that commerce, and the mandate is necessary and proper to make those provisions work. Lots of liberal supporters of the ACA have made that argument. Jack Balkin and others have argued that the textual basis of the individual mandate lies in the Article I power to "lay and collect taxes." Einer Elhauge has written a series of articles for various outlets making the argument for the constitutionality of the individual mandate based on history. Neil Siegel and others have offered arguments for upholding the mandate based on constitutional structure. And absolutely everyone who has defended the mandate has done so based on precedent.
Now Professor McConnell can agree or disagree with these arguments. I take it he disagrees. Fine. That's the debate that the Court and commentators are having (in parallel, at the moment). But it's ludicrous and disappointing for Professor McConnell to suggest that "liberal supporters of the health-care law" have not made "actual legal arguments" in defense of the mandate. I don't doubt that many of the supporters of the law who have taken to general-interest blogs have failed to offer legal arguments --and why should they if they're not practicing lawyers? -- but I always thought the better practice was to respond to the strongest arguments for the other side. Professor McConnell suggests that defenders of the ACA have not mustered arguments based on text, history, structure, and precedent, but many have actually been doing so from the beginning.
Using empirical methods to analyze the effectiveness of persuasive techniques
Slate Magazine has a story detailing the Obama campaign's embracement of empirical methods to assess the relative effectiveness of political advertisements.
To those familiar with the campaign’s operations, such irregular efforts at paid communication are indicators of an experimental revolution underway at Obama’s Chicago headquarters. They reflect a commitment to using randomized trials, the result of a flowering partnership between Obama’s team and the Analyst Institute, a secret society of Democratic researchers committed to the practice, according to several people with knowledge of the arrangement. ...
The Obama campaign’s “experiment-informed programs”—known as EIP in the lefty tactical circles where they’ve become the vogue in recent years—are designed to track the impact of campaign messages as voters process them in the real world, instead of relying solely on artificial environments like focus groups and surveys. The method combines the two most exciting developments in electioneering practice over the last decade: the use of randomized, controlled experiments able to isolate cause and effect in political activity and the microtargeting statistical models that can calculate the probability a voter will hold a particular view based on hundreds of variables.
Curiously, this story comes on the heels of a New York Times op-ed questioning the utility and reliability of social science approaches to policy concerns and a movement in Congress to defund the political science studies program at NSF.
Smith, Hosanna-Tabor, and the Contraception Mandate
My friend and co-blogger Rick has written some very interesting posts at MoJ on the recent lawsuit by Notre Dame and other Catholic institutions opposing the "contraception mandate," as amended. In a post yesterday, he discussed the relationship between the lawsuit, the law, and Employment Division v. Smith, in response to a claim elsewhere that the real problem lies with Smith, not the mandate. He writes that while Smith is certainly contestable, he believes it is a"correct interpretation of a piece of positive law -- one that returned the Court's doctrine to where it had been for most of the previous century -- that, certainly, makes it possible for elected officials to harm religious liberty, but also authorizes and encourages those officials elected officials to respect and accommodate religious liberty, to the extent possible." He also writes about individual conscience claims. If I understand his view, in light of his statement about Smith, it is that while we may and even should speak in terms of rights of individual conscience, as a matter of positive law they are a matter of legislative accommodation only; and he adds that "there will, in some cases, be good, 'politics is the art of the possible' reasons to distinguish, when crafting religious-liberty accommodations, between exemptions-for-institutions and exemptions-for-individuals."
I have some respectful questions about this position, particularly in light of Rick's views on the Hosanna-Tabor decision. (I should add that the complaint in the lawsuit makes both a RFRA claim and a constitutional claim, and I'm not addressing my questions to the lawsuit in particular.) I'm not as convinced as Rick, I think, that it's possible to maintain a strong position in favor of both Smith and Hosanna-Tabor, or in favor of the institutional freedom of churches as a matter of constitutional right without supporting some constitutional right of individual religious conscience. It can be done, to be sure, but I think it runs into problems either as a matter of constitutional law or as a matter of coherence.I agree with Rick that a reasonable argument can be made in favor of Smith, although I don't share that view. And one who holds that view can at least ostensibly still believe that, for what Rick and I might call jurisdictional reasons, government still cannot interfere with the internal operations of churches, and that laws like the contraception mandate do just that by requiring churches as institutions to violate their fundamental principles. But I think this position is not easy to maintain.
Focusing on free exercise for individuals, I take Rick's position to be that government cannot target individual religious beliefs or practices. But it can regulate conduct, even where the regulation incidentally burdens religious practices. It may, but need not, accommodate those practices.
Where does that leave us when it comes to institutional exercise? Again, I can see an argument, consistent with Smith, that government cannot target institutional religious exercise; and I can see an argument that government may accommodate institutional religious exercise. But may it enact regulations that incidentally burden those institutions? Are generally applicable laws that only incidentally affect the core beliefs of religious institutions subject to a higher level of constitutional limitations?
I find that position harder to maintain, unless Rick is making a purely originalist claim. (That claim would be subject to its own questions, which I can't resolve here. But I don't take him to be making a purely originalist claim in any event. Rick's approach may build on history, but I don't understand it to end with it.) One could argue that interfering with internal religious operations inevitably ends up trenching on matters of religious truth and doctrine that are beyond the state's jurisdiction. But why is that so if the intrusion is only incidental? And why, if it is so, is that not also true of incidental intrusions on individual religious practices, which also involve matters of religious truth and doctrine?
One could argue along something like the lines of a self-regarding versus other-regarding distinction. The Hosanna-Tabor Court hinted at this when it said that "Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself." I find something to that distinction. In somewhat different terms, I've argued that some of the "harms" involved in the ministerial exception cases should be viewed substantially as harms of membership: that is, although opponents of the ministerial exception view them as harms in the world, so to speak, much of their sting comes from the employee's desire to remain as a ministerial employee within the church. Choosing to become a ministerial employee is like choosing to become a member of an ultra-Orthodox Jewish sect, or indeed of many religious or non-religious groups; the choice of membership involves the bitter as well as the sweet. But I must say that I don't think the language of Hosanna-Tabor itself is terribly convincing. And in the present context, as long as the mandate is not aimed at religion or religious institutions per se, I'm not sure that it's obvious whether the mandate should be described as involving an "internal church decision" as opposed to an "outward physical act." That's not to say the government might not choose to accommodate; but that's a matter of accommodation, not constitutional right.
Finally, one could argue that there is an institutional distinction: that government can burden individual religious practices but not institutional religious practices. Obviously, I find the second part of this statement attractive. But I also think it is problematic. I don't think the second part of the statement necessarily says anything about the first part of the statement: I don't think a belief in the soundness of institutional rights says anything one way or the other about the soundness of individual rights. One could argue that institutional exercise rights (even against incidental burdens, mind you) are possible, while individual exercise rights are not, because of the "anarchy" fears raised by Justice Scalia. But there are hundreds of faiths, and hundreds of denominations within those faiths, in the United States; there are significant practical concerns in either event. As a purely practical matter, then, I don't think such a distinction would be principled or sound. And I think the distinction between individual and institutional constitutional rights against incidental burdens falls short as a textual matter. Belief in freedom of association doesn't preclude belief in "the freedom of speech" as an individual right; I'm not sure why belief in freedom of the church precludes the belief that "the free exercise of religion" applies to individuals.
In short, I'm not sure why, if Smith is correct, it should not, in the main run of cases involving laws not targeting religious exercise, also apply to a law that only incidentially burdens institutional religious exercise. I do think that laws that end up involving the courts in questions of religious truth are problematic; but I'm not sure this adequately distinguishes institutional from individual conscience claims. I do think the Church and its bodies should have been better accommodated here, but I understand Rick to be making an argument about constitutional right, not just RFRA or legislative accommodation in general. I do think a pre-Smith rule raises difficult questions of policy and administration, but I think that on that policy level, the distinction between individual and institutional rights against generally applicable laws may simply be a matter of degree, not of kind.
My tentative view is that while Smith and Hosanna-Tabor may be capable of some degree of reconciliation, in a deeper sense Smith is undermined by many of the arguments that sustained Hosanna-Tabor. I should add that I'm sure Rick believes that religious institutions are not free to do anything in the face of generally applicable government regulation, just as those who think Smith was wrong don't think religious individuals are free to do anything either. I'm just not sure why Rick thinks one is a matter of constitutional right and the other a matter of political accommodation. I hope he'll expand on his views.
More on journals
In continuing to think about scholarly journals, I thought I’d return to a perennial topic (for example, here): peer review. I’m still not sure I understand the attitudes towards peer review at law school.
Yes, I get that most law reviews don’t do it, and those that do have some sort of pre acceptance review by faculty or specialists in a field typically rely on a process that is much less formal than the peer review systems in the social sciences and humanities that I am familiar with. I also understand that many law review articles are work shopped along the way before they are sent to law reviews, though we do that as well—more often in conferences, perhaps, than at law faculty workshops, but it’s the same idea. And yes, I realize that when law professors go up for tenure or promotion, their files (along with their publications) are sent to referees who do a post-publication review. But, of course, we do that too in the humanities and social sciences.
What I don’t quite get is why you don’t do it. Is peer reviewing simply not something you’ve done, so you don’t really want to start? Or is it something that isn’t really desirable for some other reason(s)? If there are other reasons, what are they?
Thursday, May 24, 2012
Excessive Big City Zoning Is a Party Foul
In this post, I argued that the demise of pork spending by Congress is likely the result of increasingly coherent political parties at the national level. In my next few posts, drawing on this draft article, I will argue that excessive zoning in big cities is frequently the result of the lack of coherent parties.
A bit of set-up: Scholars of all stripes in land use have generally assumed that while rich suburbs may use zoning exclude undesirable building, big cities run by "growth machines" coalitions will allow rampant building because developers are the biggest players in local politics. This once was true -- big cities did allow lots of building to match demand -- but it no longer is in many cities. Price increases in Manhattan were once followed by lots of new housing starts, but no longer are. D.C. actually saw a decrease in new housing building permits as prices increased. Because supply and demand apply equally to housing markets as they do everywhere else, restricting supply in the face of increasing demand causes huge price increases. The average cost of a Manhattan apartment is over $1.4M (and the average rent is above $3400), and in D.C., even a small 2 bedroom in the poorest area of town costs $1300 a month. In cities with fewer restrictions like Houston and Atlanta, we do see supply increases when there are demand shocks, prices are much, much lower and population flows to these areas despite lower wages. But many big urban areas, in Ryan Avent's choice term, have become "Gated Cities."
But it's not like big developers in these cities have become politically powerless. So what gives? More specifically, what is the mechanism through which big city politics sometimes can produce a restrictive atmosphere for building despite the influence of the Bruce Ratners and Donald Trumps of the world? The key, I argue, is the absence of political party competition at the local level.
One notable thing about urban politics is that it lacks competitive party politics. Often this is by design, with formally non-partisan elections; other times it is due to dominance by one party. Trying to explain why one party dominates a level of government for half a century with virtually no competition -- like say, the New York City Council -- turns out to be quite difficult, and is something I have tried to do here and here and here. But to understand how we have ended up with excessive zoning in big cities like New York and D.C., the only key is that we don't party competition in local issues.
As noted in the last post, the need to for party leaders to promote a healthy-sized caucus (in order to keep their jobs) causes them to propose policies that will maximize electoral benefits to their caucus (which explains why caucus members are willing to delegate power to them even though it means they will not always be able to propose amendments that they would prefer). They do so by structuring votes in ways that will promote the party brand generally across the electorate. In the absence of any relevant party-based competition, there is no one in the legislature that has an incentive to promote generally-beneficial legislation as opposed to district-specific goods (or to strike deals between members to forgo district-specific goods in favor of a greater good and make them stick). Further, in the absence of a party structuring the voter order, the formal rules governing procedure are likely to determine the results between Arrovian cycling preferences.
All that positive political theory sets up two likely results. First, in a world without parties, we are more likely to see distributive politics -- pork, or in land use, the ability of neighborhoods to determine land uses with little attention to broader citywide needs for housing supply. Second, in the absence of parties, procedural rules can have substantive effects. In land use, the structure of the land use amendment process leads to a situation where the interests of big developers and small developers are divided. This limits incremental increases in the housing stock. Both increase prices.
Land use procedure -- through the traditional Standard State Zoning Enabling Act and modern innovations like New York City's ULURP -- insists on peculiar procedure. (Don't worry -- this isn't going too deep.) First, cities develop "plans" laying out land uses generally and then "maps" defining land uses and heights for specific parcels. Changes from these maps are done seriatim through "amendments" or "variances." Cities sometimes do create sometimes create compeltely new maps or plans, but this is relatively rare -- NYC's last did so in 1961. The rest of the time, changes are made in specific geographic locations one at a time.
The seriatim nature of land use procedure has two central effects. The first is that it entrenches distributive politics. We see excessive pork spending when legislator preferences take a specific "prisoner's dilemma" form -- preferring say lower rather than higher taxes, but preferring spending in your own district even more -- and where a "universal log-roll" norm develops to manage those preferences. Land use fits the distributive politics model perfectly. Definitionally, NIMBYism suggests that people wouldn't mind more development as long as it was in someone else's backyard. Deciding changes geographically-specific amendment by amendment serves to entrench a norm inside legislatures that individual Council members are the key and perhaps only player in deciding land use questions in their districts. This has been described as the "Ironclad Principle of Aldermanic Privilege." If you want to get something built, you need to get the support of the local councilmember. For council members who don't want new building in their district unless it's happening elsewhere as well, the developer faces a difficult task of striking deals across projects and time, something far harder than merely influencing a majority coalition in a legislature dominated by parties. The need to have local support for a new project basically turns big cities into a bunch of exclusive suburbs, focused on local externalities and ignoring the citywide benefits of increased housing supply. This drives up the cost of housing.
The second big effect of land use procedure on land use policy is to divide the interests of big developers and small developers. When a big new project is proposed, we know what the politics looks like -- neighborhood groups fight against developers. But when cities propose "downzonings" or reductions in the size of the "zoning envelope" to current uses -- i.e. removing the ability to develop as of right -- the politics are tilted in favor of neighborhood groups. This is a function of land use rules that force amendments to be considered one-by-one (rather than collectively, the way taxes and spending are in a budget). Neighborhood groups get concentrated benefits from stopping new building; housing consumers each suffer very little harm from each new downzoning and connected developers don't care because they haven't invested yet. Even if the overall harm outweighs the benefits, downzonings go through easily due to these tilted Olsonian politics. And downzonings matter. While big developers can fight and buy their way out of the restrictions of the zoning envelope, going through the many-month-long and lawyer-heavy zoning amendment process is just too costly for small builders. The fixed cost of achieving a zoning change is just too much for incremental new granny flats or small apartment buildings. Notably, this may have a "Curley Effect," shaping the electorate in ways that make future policy more restrictive. When a building on a property hits the zoning envelope, its owners know they won't be able to build in the future (because they won't be able to pay the fixed cost of getting through the amendment process). As a result, they go from being voters with mixed motives -- both neighbors to potential development and potential builders themselves -- to merely being NIMBYist neighbors. Further, the cost of achieving zoning amendments may help big builders by inhibiting incremental development (it's competition, after all). But if the issue were presented in a different way, you might see coalitions of big developers and small developers instead of our current system. Land use procedure restricts incremental building and thereby drives up the cost of housing.
Can anything be done when cities start to shrink wrap themselves? If my analysis is right, and procedure is sometimes part of the problem, procedural changes may be part of the solution. By posing issues differently, our democratic process may produce different results. But that will have to wait until my next post, (but if you're interested, you can see some reform ideas in the paper.)
Consensus at Last!
In her guest stint at Paul Campos's blog, Deborah Jones Merritt writes today about various proposals intended to make "legal education more responsive to clients." And the responding comments are . . . resoundingly negative.
I don't mean that as a criticism of her proposals, which seem reasonable to me. Nor, exactly, do I mean it as a criticism of the commenters. They make a number of points that strike me as sound and sometimes very educational. It is still a fact worth noting in and of itself: among the various constituencies reading that blog, including current students, recent graduates, and experienced lawyers, the interest in client-centered reform of the law school is close to nil. (But not quite: a couple of comments approved or engaged with Merritt's suggestions.)
Why? For many, the reason is simple:it's a distraction from the issue of law school [jobs/debt/transparency]. "Reforming the curriculum is all well and good, but the glut of new lawyers entering the market each year is the far bigger problem," writes one. "I fear that focusing attention on models of legal education merely deflects attention to a relatively minor problem and obfuscates the human tragedy that flows from producing more than twice as many lawyers as are needed over a period of at least two and perhaps as much as four decades," writes another. From several (but not all) commenters who are or appear to be recent graduates, there is a distinct message: reduce the cost or the market competition for jobs, then you can worry about curricular reform.
A similar sentiment appears in one comment from a more experienced practitioner. Referring to Merritt's proposal to have more students shadow lawyers, the lawyer writes: "Even if I had the time (which I don't) to explain everything I'm doing to some youngster, I really would be enthusiastic about training more competitors in an already over-crowded profession." (One may assume the sarcasm in the second clause of that sentence.) One is not a large sample, to be sure, but similar "I'm not going out of my way to do anything for young lawyers in this crowded market, 'client-centered education' or not" sentiments have popped up on that blog before.
Again, I'm not judging, and I'll repeat that I think the commenters made some good points. But I find it striking just the same. It is fair to say that blog's commenters are a highly interested constituency; but there is very little interest in or discussion of clients there. And what I find equally striking is that, among the law professors who write regularly about law school "crisis" issues, law school reform, and so on, there is also remarkably little mention of clients. That's not true of all of them; some of those writers who focus specifically on the changing legal profession have had a good deal to say about clients. But many of those who write more specifically about law schools and how they ought to change regularly talk about administrators, professors, lawyers, students--but not, or not often, clients themselves. There appears to be a relative consensus among all the constituencies discussing this issue, including those that are often in some degree of opposition: in thinking about law schools, the client comes, if not last, then a distant second. That seems worth pondering.
Spring Self-Reported Entry Level Hiring Report 2012: Data Summary
The charts and summaries below are accurate as of 5/6/2011 5/13/12 5/24/12. I will continue to add to the spreadsheet, but I will not update the charts or summaries. Seriously, I will not.
Here is the full spreadsheet:
We have reports of 142 people being hired, at 96 different law schools.
One school has been reported as doing no entry level hiring this year.
Here are answers to some frequently asked questions:
Q: How many reported hires got their JD from School X?
Schools in the "other" category with two JD/LLBs who reported hires: Iowa; George Mason; Michigan; Tel Aviv; Washington; Wisconsin.
Schools in the "other" category with one JD/LLB who reported hires: Cornell; East China University; Florida; Hebrew University; Hofstra; Idaho; Indiana-Bloomington; Kentucky; LSU; Nat'l Law School of India; New Mexico; North Carolina; Northeastern; Notre Dame; Passau (Germany); Pittsburgh; Queen's University; Queensland; Sorbonne; Temple; Tennessee; UNLV; Vanderbilt; Whittier.
Q: How many reported hires had a fellowship, degree, or clerkship?
97 (about 68%) had a fellowship; 63 (about 45%) had an advanced degree; 81 (about 57%) had a clerkship.
Nonproportional Venn diagram:
Okay, but first a caveat: Although 10 people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column, for the two people out there who are actually following along on the spreadsheet.)
That said, looking only at what seemed to be the most advanced degree (apologizing in advance for mischaracterizing the relative advancement of anyone's multiple degrees), and including "expected" degrees, the 62"highest" advanced degrees broke down like this:
LL.M. (or LL.M. expected) 12; Masters (or Masters expected) 27; D.Phil. (Law), SJD, or JSD (or SJD or JSD expected) 7; D.Phil or Ph.D. (or Ph.D. expected) 16; MD 1.
Zero to Four Years (Graduated 2008-2012) 12; Five to Nine Years (Graduated 2003-2007) 86; Ten to 19 Years (Graduated 1993-2002) 36; Twenty or More Years (Graduated before 1993) 7. The year-by-year break-out is on the spreadsheet ("Years Since Hire" tab).
Women 64 (about 45%); Men 78 (about 55%). (Let's say this is right within +/-2 people.)
We definitely learned that the self-reported entry level hires this year had incredibly diverse specialities --in fact, the hires named 122 different fields of specialty! (I did this differently from the "what kind of degrees" question--here, if someone listed four fields of speciality, I included all four.) (We did not get information about the specialties of two people who were hired.)
As for which fields were most popular:
You can see the full list, sortable either by number of people who stated an interest or alphabetically by interest, here (on the tab labeled "Subject Summary").
Q: More slicing! More dicing! Different slicing! Different dicing!
Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.
Q: This is all wrong! I know for a fact that more people from School Y were hired! Plus, you account for only 98 different law schools, and there are over 200!
Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete.
If you want to know about real entry level hiring, I commend to you Brian Leiter's report and the Katz et al. article. This is just a report about self-reported entry level hires as of the spring before the school year starts.
Q: Why were there fewer reports this year?
We had only 142 reports this year, 13 fewer than last year. This might be because there were fewer entry-level hires this year, but my suspicion is that it's because we started the report too soon, before more entry-level hiring was done. Next year I'll start it later (early April) and see if that makes a difference.
Q: What does it all mean?
Not much. But it's been fun!
Updated 5/10/12, 7:43pm Pacific Time, to reflect that a person with a JD from Virginia had been miscounted.
Oracle v. Google - Round II Jury Verdict (patent infringement)
Earlier this month, I wrote about the first part of the of the trial between Oracle and Google. I predicted that the Court would eventually rule that the elements of Java that were copied were functional, and thus not infringed. There's been no ruling on that point, but the show went on, with a trial on patents that Oracle alleged Google had infringed. Once again, I thank the folks at Groklaw for the great coverage of the case.
Yesterday, the jury ruled that there was no patent infringement of the two patents asserted. I must say that this surprised me - a lot. A finding of non-infringement of a couple narrow patents is not all that surprising. What surprised me was that these were all the patents asserted. I believed that - if Google was really trying to mimic the functionality of Java - surely there was an infringed claim of at least one patent in the portfolio.
I guess not.
How did the parties get here? I would say that it was a combination of a great aggressive strategy by Google and some strategic decisions by Oracle. First, many of the patents were re-examined at the Patent and Trademark Office. Re-exam is a method whereby the PTO gets another try to determine whether a patent is invalid, usually with more historical data (prior art) than was available the first time around. Note also that the PTO and courts have become more hostile to software patents over the years. Just this week, the Supreme Court granted cert, vacated, and remanded a software patent case back to the Federal Circuit.
The PTO had issued "final" rulings on most of the patents invalidating all the relevant claims, though Oracle could have kept fighting or appealed the rulings. Instead Oracle made the strategic decision to proceed on fewer patents (only two). It must have been pretty confident, but it lost the jury at some point, and these two patents were not infringed. I was also surprised at how short the trial was, but I guess a lot of background came out in the copyright portion.
I think we can generalize a few things from this outcome, some of which (surprise) support the conclusion in my article "Patent Troll Myths." First, it's not all about trolls; we should look at the patents rather than the person asserting them to decide whether there is merit to the case. Second, no matter how big your portfolio is, you are at risk of losing your key patents. It makes sense, then, to time actions after reexamination, and to attempt to bulletproof the patent before filing suit. Maybe Oracle couldn't wait here. Third, this was a victory for the system without knocking out software patents wholesale. There were some valid claims, and they were not infringed, and others were found invalid. I believe this is a better outcome than removing the patent incentive altogether. Sure, this was an expensive trial, but it only lasted a few days in front of the jury. My former firm tried cases of this number of patents for a lot less than this one cost. Thus, the final point is that perhaps more cases should be tried by smaller firms for les money- something I doubt big companies are willing to do.
Religion, Bankruptcy, Power, and Duty: Sturges v. Crowninshield
Here's another one from the vault -- Sturges v. Crowninshield (1819), authored by Chief Justice Marshall. The case dealt in part with New York's power to create a "bankrupt" law (a bankruptcy law) or instead "whether the power is exclusively vested in the congress of the United States" pursuant to Article I section 8 which gives Congress authority to enact "uniform Laws on the subject of Bankruptcies throughout the United States." It's not my area, and so I am likely missing lots of important details (please fill them in), but I'm apprised by some bankruptcy folks that the old rule was that states could have bankruptcy rules so long as Congress did not pass a federal one, which meant that for much of the period before 1898, states did have, and could have, their own bankruptcy laws.
Crowninshield is a long and extremely complicated case, involving the Contracts Clause as well. But I thought to highlight one interesting piece of dicta in a later portion of the decision involving the relationship of bankruptcy and the religious ideas of the discharging of debt, expiation, and the alleviation of public misery and poverty. Note also the natural law language used by Marshall in discussing the states' "inherent" power to achieve these aims, as well as the way in which the Court wrestles with the problems of prison, debt, and freedom in the cultivation of good citizenship.
The states, then, in exercising the natural, inherent and indispensable power of discharging poverty, distress, and absolute indigence and inability from payment, have not only conducted themselves lawfully and constitutionally, but the omission to have done it, would have been impiously absurd; and it is an unjust imputation upon the constitution of the United States, to suppose a prohibition against the exercise of such a power somewhere in society. As to insolvencies, congress connot exercise it; as to bankruptcies, they refuse; the states, therefore, must exercise this power. The obligations of natural law, and the injunctions of our religion, which religion is a part of our common law, impose it as a duty, that the wants of the poor should be relieved. Strange, indeed, is it, that the laws should, at the same moment, press upon society two duties, so inconsistent and contradictory, as that of exacting for the payment of his debts, what the impoverished and imprisoned debtor has not; and obliging those who have something, to give him a share of what they have, to save him from suffering or death. Although it has been strenuously insisted, that the abstraction of the remedy is a violation of the contract, yet it has also been intimated, that if erroneous in this particular, the substance of the argument on the other side would still remain correct, inasmuch as not only the person of the debtor, but the debt itself, was discharged. It may, perhaps, be doubted, whether, though the person be discharged from the debt, the debt itself be extinguished. At the utmost, the tendency of the doctrine contended for, would be, but to give the creditor a right to the miserable chance of the future acquisitions of the insolvent, by a future action; and that chance, rendered the more desperate by the consideration, that arrest, that is, imprisonment, is almost the only mode of instituting actions in the United States. Grant that the remedy may be given, or withheld or modified, by the legislatures of the states, and the difference between us, in practical result, is not worth contending for. This could not be what the convention had in view. According to the doctrine on the other side, you discharge the debtor from prison, to condemn him to work in the mines, and that too, with his chains upon him. You remit the lesser, to inflict the greater punishment. You take him from a life of listless indolence, where you are obliged to maintain him, and doom him to a life of labor, without hope. Nay, worse, you so place him as to have every step watched by a lynx-eye avarice; every morsel he puts into his mouth counted and weighed; every personal indulgence censured; every family sympathy scanned and reprimanded. Well was it said by a learned judge, that such freedom would be a mockery: nay, worse, it would be aggravated slavery and complicated misery! It is admitted, that the state has a right to the service of its citizens. It may open its prison-doors even to criminals; what services can ever be rendered by him who is pressed down to the earth by a poverty that must be hopeless and interminable? The state wants the services of its citizens, to fight its battles on the land and ocean, to cultivate its fields, to enlarge its industry, to promote its prosperity, to signalize its fame. It does not want a heartless, purposeless, mindless being-but half a man-a worse than slave; it wants a citizen, with all his worth and all his energies of body, mind and soul.
There's lots more in Crowninshield -- a difficult and rich decision involving many fascinating issues of constitutional power and duty.
Wednesday, May 23, 2012
My Facebook friends (well, a third of them; another third have been posting links to right-leaning articles, while another third have been posting cute photographs of their children, and delightful pictures of kittens with amusing captions) have been linking with approval to this piece by quondam law professor Patricia Williams. Williams argues that "[t]here has been an unfortunate uptick in academic book bannings and firings, made worse by a nationwide disparagement of teachers, teachers' unions and scholarship itself," and links this purported trend to a general trend of anti-intellectualism in the United States. The headline: "Anti-intellectualism is taking over the US."
Now, I yield to no one--except, obviously, all Europeans--in my willingness to accuse the United States of being an anti-intellectual wasteland, what with its John Wayne, its McDonalds, its Ronald Reagan, its cowboy movies, and so on. But I hardly think Williams proves her case, justifies her language, or shows that this is some kind of rising trend.
In journalism, as we know, three of anything is a trend. Williams goes one better and points to four, or maybe three-and-a-half, examples. The first is the effort in Arizona to kill off ethnic studies curricula in the public schools. She describes it as "bann[ing], in effect," a range of books "from the schools" and "remov[ing]" books from the school system. It does not. I oppose the law (and take no position on the curriculum itself). But it is not a book-banning, even in effect, as far as I know, unless it demands the removal of those books from the schools' libraries. If a teacher decides to replace one textbook with another she is not "banning" the first text; if a school system, rightly or wrongly, decides to replace one course of study with another it is not engaging in "book-banning," unless it prohibits the books from being present on school grounds.
Williams's second example is that of a teacher at a charter school who was "was summarily fired after asking permission to let her students conduct a fundraiser for Trayvon Martin's family." Whatever else that decision is, it hardly strikes me as good evidence of book-banning or anti-intellectualism, or indeed as especially good evidence of an uptick in teacher firings or of disregard for teachers or their unions. The third example involves a 2010 Sixth Circuit applying Garcetti to the dismissal of a public school for teaching about censored books; the controversy arose in 2001 and she was dismissed in 2002. Whatever one thinks of Garcetti, that's not terribly strong evidence either -- and certainly not evidence of a recent rash or trend.
Her final example--I think; I'm not quite clear on how she fits it in--is the fuss over Naomi Schaefer Riley's dumb online column for the Chronicle of Higher Education in which she excoriated black studies programs based on the title of various dissertations she hadn't read. Since Riley was fired following reader demands , I suppose she could use this as evidence of the trend in "bannings" and "firings" she denounces. As it turns out, she actually uses it as evidence of Riley's "arrogance" and "cocooned 'white ghetto' narrow-mindedness," which she treats as part and parcel of the anti-intellectual trend. Williams should rest easier upon learning that other coccooned white-ghetto bearers of narrow minds have been allowed to keep their not-especially-good-either columns at the CHE (which, I hasten too add, is not the same thing as defending Riley). In any event, it's not much evidence of anything.
I understand that there is an American streak of anti-intellectualism, and that there generally has been. I am also aware that without generalizations, the commentary industry would cease to exist. This just doesn't seem like a terribly effective set of generalizations to me. I'm surprised, sort of, that the column got such nice play.
More Mundane Matters: What Currency Do You Pay Your RA's in?
Question for you folks teaching at law schools:
Does your law school give credit to research assistants in lieu of pecuniary compensation?
Do they give an option or only one or the other? If they do pay, what do they pay (roughly)?
As far as you know, have there been any problems in administering the "credit" option, perhaps as a matter of quality control? Is the credit given as a grade or a SAT/UNSAT?
Thanks. (FWIW, at FSU, my understanding is that we only pay RA's and I think they get 11 or 12 bucks an hour.)
Inertia More Than Ignorance
Deborah Jones Merritt, along with her son, is guest-posting this week at Paul Campos's blog. Her post today attempts to answer a question raised by a commenter: "whether faculty are discussing the issues raised in this blog and, if so, what any of us see as the endgame." On the former question, she writes: "I do know quite a number of faculty--at my school and elsewhere--who are discussing these issues. Their views and awareness differ, but the comments arise far more frequently in conversation. There's still a tendency everywhere to think that 'our school is different,' but there is steadily growing concern."
Absent survey evidence, I guess the only way to contribute an answer is by way of what one has witnessed, recognizing that those of us who have talked actively about these matters are likely to have a biased selection. But I have seen a lot of interest in this question among students and graduates, and a lot of assumptions, so perhaps it's worth sharing my conclusions based on my own experience. The short answer, as far as I can tell from my own colleagues at Alabama and my friends at law schools across the country, is yes. There is a good deal of awareness about, and concern over, most of the issues that have been discussed on scamblogs and elsewhere, including issues about transparency and disclosure, financial aid and debt, how and what law schools teach, jobs, and so on.
I don't think it is evenly distributed. That is, I think some issues--and not necessarily the ones that the most vocal members of the student/graduate audience would want--are more salient to many professors than others. How and what we teach is up there, and so is the question of jobs. "Juking the stats" in the US News world is well-known, and thus some of the transparency and disclosure issues have become more salient, but less so, I think. The size of tuition and debt are becoming more subjects of conversation, although not all of the structural factors that have led to them. On the whole, I suspect there is more awareness and concern about pedagogical issues and job outcomes than about some of the broader structural issues.
I suspect, but cannot say, that there is still a fair amount of relative ignorance or complacency on the part of many faculty members, based less on how highly placed their schools are (although that could be a factor) than on how entrenched particular faculty members are in their jobs and how rooted or unrooted they are to the local legal economy and what happens to their students after graduation. I was struck, when I attended the AALS conference this year, by the impression that although some (not enough) panels were devoted to these issues, many professors were there simply to meet old friends and get their tote-bag for the year, and didn't really encounter or engage in these broader discussions. But I could be wrong! I didn't look into their hearts, and if they attended Judge Cabranes's lunch talk they were at least exposed to some of these issues.
And it is certainly true that even where there is awareness and concern, there is still sometimes inertia. Not necessarily inertia stemming from a complacent confidence that everything will end up working out all right; just plain inertia. Some of this, I think, has to do with faculty governance. Many faculty are not necessarily closely involved in or even aware of the work of admissions committees or career services offices, and administrators rather than faculty are generally involved in setting tuition and dealing with disclosure issues and may not do much by way of informing faculty of how the sausage is being made. I say all this by way of explanation rather than excuse. Faculty --at least those faculty who like to engage in talk about academic freedom -- have a positive obligation to inform themselves on these issues and get involved in asking questions and setting policy. They do not always meet those obligations.
It also must be said that on some of these issues, a great deal is going on, albeit at a local rather than a systemic level. From what I can tell of surveying schools on these matters, there is a good deal of curricular reform going on at many schools, from the introduction of law-office-management classes to a broader concern with skills-based courses. There is more talk about whether schools ought to be trying to emulate the highest-ranked schools or trying instead to be more responsive to the needs of local students, lawyers, and the local or regional legal economy. Again, these aren't the big structural issues, and so these may not be the issues that students and graduates are most concerned with. I just don't want to leave the impression that because everything is not being done, that means nothing is being done. That doesn't strike me as true. But certainly much more could and should be done, especially on the bigger issues. Whether it will be accomplished fast enough to satisfy is another issue; faculty governance, where it exists, is as fast as molasses.
So, in short: a great deal of inertia, yes, but more concern and less ignorance than is sometimes supposed. There have certainly been some stand-pat voices out there, but I encounter intertia more often than indifference or false optimism. Of course, your mileage may vary, and I welcome others' perspectives.
Are Middle-of-the-Pack Public Law Scholars the Most Impartial?
My last post moves me to pose this question, which I have been thinking about on and off for some time. I should emphasize up-front that I am not convinced the answer is yes, and that this post is intended to provoke reflection and discussion rather than because I am making a strong truth-claim. But I think there is an element of truth in the thesis. (And, obviously, I would be more than happy to disclaim the entire thesis for the right offer.)
To generalize, I think we are all reasonably familiar with public law scholars (I focus on them because 1) they deal with a host of hot-topic issues and 2) it's my field) who are both highly partisan and not "highly placed" in their field. (I take the idea of being highly or non-highly placed at particular law schools as a given here, without endorsing that state of affairs altogether.) I stress that this by no means characterizes the entire stock of public law scholars at lower-ranked. I don't think that's true at all, and I'm not trying to be rude or dismissive. But I think it does happen and is observable.
It is also true, I think, that there are many highly placed public law scholars at elite law schools who are also highly partisan -- some of them subtly so, some of them quite openly. Both in public and behind the scenes, they are highly active in a host of activities including party activities, advising presidential campaigns or administrations, writing op-eds and other public statements that help massage public messages, fighting for or against judicial nominations, and so on. This is not true of every elite public law scholar; far from it. But again, it's a noticeable phenomenon. This is not a comment on the quality of their work, which is often brilliant. But it is a comment on the nature and aims of their work and on their public personae.
Is it possible that neither affliction is as common or observable in public law scholars who occupy what we might call the middle ranks? They have risen as high as they have because they've demonstrated a sufficient proficiency in doctrinal or theoretical analysis, they've published reasonably well and often in their field, they do creditable work. They have a fairly conventional view of their scholarly role. But neither have they risen so high, on the whole, that they are 1) asked to participate all that often in more openly political work or 2) likely to get much notice if they do. Nor, importantly, are they exposed to some of the grittier realities of national politics. What they get by way of information, they get from the newspapers. They are not party to the inner dealings of party and/or movement affairs, to backroom talk about judges, to lobbying, and so on. They do not demonstrate the particular profile of some of those who have attained the highest positions in their field: namely, a combination of both brilliance and a political orientation, with a strong dollop of connections to power centers. They must perforce think of themselves as academics -- just academics, but, if they are lucky, compleat academics. I can think of many public law scholars in roughly my position in the academy who seem to exemplify these traits, and fewer exceptions.
Obviously, there are all kinds of counter-examples and counter-arguments. As I said, I'm inviting reaction rather than making a strong truth-claim. I should also say that I don't offer this as praise, let alone self-congratulation. Although I think there are a number of highly political elite public law scholars, I also think those scholars do brilliant work (albeit work that must be read with an appropriate degree of caution) and deserve to be where they are.
Moreover, it seems to me from the perspective of both role identity and incentives that if these middle-ranked scholars are more likely to be non-political in their work, it's because that's where their best incentives and most ingrained habits lie. And there's no point congratulating these people for avoiding the seductions of politics if, by virtue of their relative positions, no one is inviting them to be seduced.
Finally, I am also aware of the "Betas are so much better than Alphas or Gamms" element of this position, similar to the phenomenon of self-perceived members of the middle-class always convincing themselves they're better off being neither rich nor poor. Still, I think that for a variety of structural and other reasons, there is some argument for my thesis.
To Whom are the ACA "Positioners" Speaking?
Mark Tushnet raises, much better than I could, a question that has certainly been nagging at me these past few weeks if not months now. (He does so here as well.) What is the point of the countless online posts and articles from Jeffrey Rosen, Randy Barnett, Ilya Somin, several Balkinization posters, and so on that came after both the oral argument and the vote in the ACA litigation?
We might divide those posts into two categories.The first consists of more or less substantive arguments about what the Court might or could say in an opinion. Some of them have been quite interesting. I'm frankly not sure what the point of any of them was. The tone of many of these posts, at least in my view, was neither highly partisan nor especially disinterested. They read at least a little as if the writers were trying to influence the Court's opinion(s), but that prospect seems unlikely, especially given the timing, although perhaps the writers hope to influence the course of a paragraph or two here and there. Really, though, they gave me a sense of bewildermant about audience. Of course one can write for oneself and perhaps that's what they're doing, and then one can write for the best reason of all -- money, or substitute goods -- and perhaps that's all that was going on; a writer's gotta write. But usually a conversation presupposes a recipient of the communication, and that seemed oddly ambiguous or lacking here.
The other set of posts have been thick on the ground lately: posts and articles about how a decision in this case will affect the legitimacy of the Court or the reputation of the justices, or how public opinion on the ACA will intersect with such a decision, and so on. Mark writes that "[t]he comments or predictions about the Court's reputation and the like are just that -- comments and predictions." That's true as far as it goes, but as he acknowledges, there's something more going on here: "Maybe it's softening the battlefield (by both sides) in anticipation of the Court's decisions, laying out the themes that both sides expect to use after the decisions come down. 'The Court's a captive of partisan Republicans"/"It's obnoxious [again, one of Parker's words] to criticize the Court for partisanship.'" There is, indeed, a sense that these comments are aimed at influencing something or someone, which after all is a primary purpose of communication in general. But at what or whom? And is there anything unsavory about doing so, or is it perfectly "legitimate?"
The least cynical answer, I think, is that the discussants are talking to themselves and each other, for no other particular reason other than that that's what writers do. Blogs need to be filled; magazine articles and columns need to be filed; so why not write about what interests the writer or the audience. That's fine, I suppose, or at least commonplace (and one excellent reason not to get too invested in such discussions; there is nothing new under the sun and a new conversation will take its place tomorrow). But if that's all that's going on, the tone of those posts strikes me as odd. Questions of this sort are largely empirical and can be addressed without trying to influence the result or the course of the debate; but everyone writing writes as if they have a dog in the fight.
Another possibility is that the commenters are trying to influence the justices or the clerks. This, I suppose, is what has given rise to all the talk of "intimidation" and so on. It has not escaped notice that if this is "intimidation," then many of the counter-posts also constitute intimidation. (Viz., Randy writing, in a post criticizing the "left" for threatening to "delegitimate" the Court, that "[t]here is no escaping the fact that the entire Affordable Care Act is deeply unpopular and any decision to uphold it will not be well received by the public.") I can't speak to the likelihood that such efforts would succeed. I hope they don't, on the whole. I don't think such efforts are wrong per se. If that's what's going on here, though, I would say that the reader who is neither a justice nor a law clerk is better off discounting strongly such posts given the evident partiality of the writers, and just ignoring the whole conversation, which has not been terribly useful or informative.
That leaves the possibility that Mark raises, which is that the writers are speaking primarily to opinion-makers and secondarily to the public: that all this is a matter of trying to set the terms of the discussion going forward, and particularly the political script for each side to follow. In such a scenario, the arguments made on either side may (and probably must) be plausible or even true, but their plausibility or truth is almost beside the point. The point is to determine in advance how the political conversation will run.
I'm not a total naif about this, but it still strikes me as troubling. For some of the individuals involved, there's a clear stake involved in this, either because they're political partisans or because any and every divisive issue is an opportunity for fund-raising, seeking solidarity goods, and so on. ("Armageddon is nigh; click here to give us money to fight against it.") For others, especially scholars engaged in such arguments, the best one can say, I think, is that they're taking a vacation from being scholars to write such posts, and that we're more than welcome to discount all their subsequent scholarship and blog posts as much as we see fit. (How you characterize Rosen is up to you, although it seems to me that by having more than one hat he ends up raising questions about all of them.)
I suppose I can understand the desire to influence public opinion on political matters--although it seems to demonstrate a decidedly non-scholarly lack of a long timeline not to write with a sense that these scripts were all pre-written anyways and will be succeeded in time by equally predetermined scripts. As a scholar, though, I think our job is to witness and analyze such efforts in as disinterested a fashion as possible rather than to engage in them. I don't think politics is absent from law, nor that it should be. But I do think it's a constrained form of politics, and that engaging in a broader form of politics aimed at law is not a job for legal scholars. Perhaps I am a naif at that.
Are the Politics of Medical Marijuana Shifting?
For a while now, the legalization of the use of marijuana for medical purposes has seemed to be an issue position that people generally support (whether in opinion polls -- 77 percent of respondents in this CBS poll -- or at the actual polls in 16 states) but that politicians generally do not. Indeed, most politicians seem to be quite dismissive of the issue when it is brought up. I have assumed that this is largely because of electoral incentives. Although most people support the legalization of medical marijuana, it's pretty low on the list of issues they care about. And they certainly wouldn't vote against someone with whom they otherwise agree because of that candidate opposes the legalization of medical marijuana. So long as that is true, politicians don't have much incentive to support medical marijuana, despite the overwhelming majority of public support. (All the more so if the opponents of medical marijuana, as is plausible, will vote against candidates who disagree with them on the issue.) I think these sorts of electoral dynamics explain why the Obama Administration's Justice Department, after initially suggesting that it would exercise its enforcement discretion not to pursue "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana," has in the last year or so retreated to a more hard-line enforcement stance.
But two events in recent weeks have me wondering whether we're seeing a shift in the politics of this issue. One is the vote in the House a couple of weeks ago on an appropriations rider that would have barred the Department of Justice from using funds "to prevent such States [that have legalized the medical use of marijuana] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana." The rider failed by a 163-262 vote, but what is interesting to me is that 29 Republicans, along with 134 Democrats, supported it. Now perhaps, as a libertarian friend suggested to me, some or all of the Republicans were just voting that way to attack President Obama. But 134 Democrats is a clear majority of the House Democratic Caucus, and their votes suggest that, for a lot of Democrats at least, support for the majority position on medical marijuana can override the fear of being tagged as soft on crime.
The other event is the Democratic primary for Attorney General in Oregon. Former Acting US Attorney Dwight Holton (who is, by the way, a really outstanding public servant, an absolutely terrific guy, and exactly the kind of person we should all want to see in government) lost by a surprisingly wide margin (64-36 percent) to retired state judge Ellen Rosenblum (whom I don't know personally, but who I'm sure is great, too!). Holton had strong polls and a fundraising advantage, and he had the endorsements of a broad swath of the state's law enforcement community, making his overwhelming loss particularly shocking. Many observers attribute his loss to his stance on Oregon's medical marijuana law. He had called that law a "trainwreck" and, as Acting US Attorney, he had led efforts to crack down on medical marijuana collectives. In the last days of the campaign, according to the Oregonian, advocates of medical marijuana contributed $200,000 to Rosenblum. And, according to the AP, a local organization seeking to legalize marijuana "spent another $40,000 to boost Rosenblum, much of it on radio ads attacking Holton over marijuana."
The Democratic primary electorate in Oregon no doubt skews in a more hippie-ish direction than the Democratic primary electorates -- much less the general electorates -- in other states. But I do wonder whether the electoral politics around this issue are changing such that more politicians will feel an incentive to pursue the position with which most people express agreement.
On being assigned a role in other people's ideological dramas
Why is it that people obsessed with some ideological dispute feel the need to assign everyone else a role in their personal drama -- either as heroic and scrappy rebels or as minions of the Evil Empire? Why does it not occur to such fanatics that others might simply be indifferent to the fanatic's particular obsession -- that others are bored bystanders who are not going to buy a ticket to the fanatic's peculiar summer epic?
Take that guy Scott Greenfield over at Simple Justice. He writes this about me:
Rick Hill is old guard, the establishment. While others from Paul Campos who has been branded a turncoat and marginalized despite his becoming beloved by the miserable children, and Brian Tamanaha and Bill Henderson, who are leading the charge for change, Hill is firmly planted in inertia. He was so far from the edge that he couldn't see it with a telescope. And yet, with this post, he admits to his epiphany.
Good grief, this guy can't even spell my name, but he feels comfortable casting me in the role of the law school's Czar Nicholas, the Reactionary Academic Defending the Status Quo!
The truth is that I have not played any role whatsoever in the Great Law School Wars. I am obsessed with a lot of stuff -- for instance, federalism, anti-intellectualism, ending exclusionary zoning and increasing residential densities, expressing impatience for Randy Barnett's theory of federalism, etc. But on the current fight between law school reformers and "the old guard" (whomever they are), I've been just a bystander. I have no pedagogical theories to speak of, I do not blog on pedagogy, and I have never taken a position on Paul Campos' views.
To the minor extent that I have expressed any view whatsoever on the relations between bar and academia, I have just urged the kids to play nice together and even suggested that roughly a third of every law faculty should be composed of "pure" lawyers with decades of practice experience -- guys like Mike Gerrard (Columbia) or Ross Sandler (New York Law School). That sounds sort of Greenfield-esque, no?
But Scott needs a poster child for Bad Law School Reactionary who has contempt for practice, and "Rick Hill" will do in a pinch. As I say, good grief. I am not asking that Scott read anything I write. I am just asking that, if he is going to act as Central Casting for his blockbuster about virtuous reformers versus nasty reactionaries, then he ought to ask me to audition first before casting me as the one of the latter.
Tuesday, May 22, 2012
"Neutrality and the Good of Religious Freedom: An Appreciative Response to Prof. Koppelman"
A little while ago, Bob Cochran and the crew at Pepperdine hosted a great conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?” (Here, here, and here are some earlier posts, from the "Mirror of Justice" blog, on the conference.) I was honored to be asked to respond to Prof. Koppelman's invited lecture (which is based on his forthcoming book, Defending American Religious Neutrality), but the festering miasma of evil that is contemporary air travel delayed my arrival so that I was too late to share my response with the conference. So, thanks to SSRN, several months later, here it is:
This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.
Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.
More News From the World of Chevron
The Supreme Court decided a couple of cases yesterday relying on NRDC v. Chevron to uphold agency interpretations of the statutes they administer. One of them, Astrue v. Capato, included a tidbit that might interest administrative law folk.
The issue in Capato was whether children conceived after the father's death (the father's sperm having been pre-frozen) were entitled to social security survivor benefits. The agency declined the claim, because under the relevant state's intestacy law, the children were not entitled to inherent -- that being the relevant statutory criterion for eligibility for survivor benefits.
The Court, speaking through Justice Ginsburg, unanimously upheld the agency's denial of benefits. The Court pretty clearly thought that the agency had the better reading of the statute, but it also observed that, even if the result was not mandated by the statute, the agency's reading was permissible under Chevron step 2. The Court's step 2 analysis was pretty straightforward, except for a little twist at the end.In concluding the step 2 analysis, the Court concluded that the challenged regulations were "neither 'arbitrary or capricious in substance, [n]or manifestly contrary to the statute.'" That's language that ultimately traces to the Court's seminal decision in U.S. v. Mead Corporation, which sets the modern rule for when an interpretation gets Chevron deference.
So what's the twist? The language in Mead sets forth all the basic ways in which an agency regulation can be challenged: "as procedurally defective, arbitrary capricious in substance, or manifestly contrary to the statute." 533 U.S. at 227. So the statement is basically a compendium of the basic ways in which a court can reject agency action. By omitting the "procedurally defective" language, and then combining the "arbitrary capricious . . . or . . . contrary to statute" language as a description of what a court does under Chevron, the Court seems to have taken another step in its gradual acceptance of the idea that "arbitrary and capricious" review is the same as Chevron review.
This is not the first time the Court has suggested as much. The Court took the same step in MayoFoundation v U.S., last year. Even more so, again last year, in Judulang v. Holder the Court relied on Mayo for the proposition that Chevron step 2 review equates to arbitrary and capricious review. That statement provoked some interest among admin law observers; the Court's statement yesterday, while less dramatic, marks the Court's continuing move in that same direction.
Privileged cluelessness on the internet and in the classroom: How context destroys empathy
I’ve been in the teaching business now for close to two decades (since 1994). Teaching has been, for me, an extraordinary privilege for which I am extraordinarily grateful to my students who pay both attention to, and hefty tuition for, my words. I hope that I re-pay the debt for this privilege by being a good teacher. But I confess that, over the last 18 years of teaching, I have made more remarks than I care to remember as a result of what I call “privileged cluelessness,” a term that I borrow from a post by Paul Campos properly lambasting me for an item that I posted and later deleted, and for which I apologized, here at Prawfsblawg last week.
My post that Paul attacked, the ensuing reaction – in particular, the reactions of anonymous commenters, here and elsewhere – moves me reflect on how my own and others’ privileged cluelessness, both professorial and non-academic, can result in disastrous words. As I shall suggest after the jump, both the privilege of being a tenured academic and the privilege of being anonymous commenter on the internet present a similar risk – the danger of loss of empathy (become “clueless”), because the ordinary social consequences of one’s words are removed by one’s social context. Oddly, one form of privileged cluelessness can be an antidote to the other. (I invite other suggestions for overcoming the cognitive limits imposed by privilege at the post’s end).
1. What do I mean by “privileged cluelessness”? “Privileged cluelessness” is the state of being oblivious about how one’s words or acts might affect others because of some privilege that one enjoys even as one forgets that one enjoys it. At its core, it is one’s loss of social empathy as a result of some advantage enjoyed over one’s audience.
2. How are legal academics afflicted by clueless privilege? It is no big surprise that professors are often guilty of privileged cluelessness. We hold the proverbial conch shell for so long in the classroom that we can easily forget that our position of perceived authority and actual power deprives us of useful feedback about the effects of our words and actions. Our “provocative” comments come off as pompous or arrogant; our lectures, riveting in our own minds, are, in reality, an opportunity for our students’ e-mailing checking or web browsing. Students are understandably cowed at providing feedback to such an authority figure, and professors can easily overlook how students’ sense of self-worth can be disrupted by the professors’ questions intended as provocative but coming across as humiliating. That ivory tower clueless privilege can become oppressive arrogance is so familiar a trope that it has spawned a literary genre of which Mamet’s “Oleanna” and Ionesco’s “The Lesson” are two of my favorite examples. Closer to law school home, Brian Tamanaha’s new book, Failing Law Schools, is a tough and coldly clinical examination of how law schools have become insulated from their students’ economic and professional reality.
Speaking just for myself, I can recall right now at least one instance in which, playing the caricatured role in the classroom of an advocate for one side of a legal position (as I recall, I was defending the right of public employees to strike against state laws forbidding such actions), I questioned a student in a way that made him feel I was making fun of his views. In that situation, I had the good fortune to have an unusually resilient student who, during office hours, told me how my words sounded from his end – as insulting mockery. Although I explained that my flamboyantly rhetorical attack on the anti-union position he espoused was pure show, meant to provoke more discussion (I was actually more sympathetic to his position than the one I defended), that intent did not come across, and my tone undermined my purpose: It squelched rather than provoked conversation. So disparate were my intentions from what I actually communicated that some of my student evaluations later complained that I was too biased in a Left-leaning direction – me, a conservative Republican! I was being simply clueless that baiting banter appropriate for the faculty lounge had to be tempered in the classroom.
In short, being a professor, especially a tenured professor, sometimes wraps one in such an amniotic bubble of cluelessness that, for reality to penetrate, one must take special precautions. What can one do to escape the bubble?
Here are some elementary precautions that I take in the classroom. I announce and follow a strict policy of basing all grades purely on blind-graded exams – class participation does not count at all – and of never asking follow-up questions of anyone who volunteers a question. I audio-record all of my classes and office hours and post the recordings on the course website, not only to help my students with note-taking but also to check myself for over-bearing or confusing remarks and deter them through the prospect of their being invoked later against me. I use “cold calls” frequently -- not as tests of my students’ ability or knowledge (hence, the ban on taking class participation into account in grading) but as informal polling to see if what I am saying or what I asked them to read is coherent. (I am planning on using a “clicker” for that purpose in the future). I make fun of my academic cluelessness frequently – no great challenge there! – and try to invite them to think of themselves as critical consumers of what I have to say.
And I use anonymous internet comments as well: My course website allows anonymous posts on the bulletin board to get them to open up without fear of retaliation or ridicule. Many students take advantage of the opportunity to ask me good questions that, I am sure, they would forego were their identity revealed. In short, sometimes one needs the privilege of anonymity to counteract the privilege of academia (more on that point below).
But my own privileged cluelessness nevertheless surfaces occasionally -- and never so egregiously as last week when I quoted an anonymous student’s e-mailed apology and asked whether the words suggested that “kids nowadays” “callow and immature” or whether I was a “hypersensitive curmudgeon.” In a ham-handed way, I was trying to suggest that either alternative was plausible (“kids nowadays” being a phrase that only a superannuated and grumpy codger would use). The anonymity of the quote was supposed to insure that no feelings were hurt or reputations, damaged.
But all of this was, in hindsight, truly colossal privileged cluelessness of an academic at its worst, as several fellow profs and lawyers pointed out (Thanks especially to Deborah Merritt and “twizzler,” a commenter on the post). Even assuming anonymity was absolutely secure, any student would likely read my treatment of their actual words a personal attack and could potentially feel devastated by the perception that a former professor held them in low regard. That I am largely immune to such feelings when other professors lay into me – as they do frequently – is obviously irrelevant: Students are more vulnerable than an ox-skinned prof who has been inured by two decades of academic streetfights into shrugging off most insults as either harmless or welcoming them as likely accurate feedback (and getting more accurate each year as I deteriorate in mind and body).
And, worst of all, as I ought to have realized, the student’s anonymity might not be secure (although thankfully it seems to have been maintained). It is one thing to engage in brusque raillery with another tenured prof or a lawyer: It is another thing altogether to make flippant remarks at a student’s expense in a forum where the remark might find its way into student gossip.
I have since personally apologized to the student in question for being such an ass; I deleted the offending post; and I posted an apology in its place. But the experience has left me with a nasty reminder that, even after 18 years in this business, I can still make some egregiously insensitive, indeed “immature and callow,” remarks by forgetting my role and social context. And that leaves me to ask two more questions about privileged cluelessness and its cures.
2. How does internet anonymity foster privileged cluelessness? Being anonymous on the internet is a little like being a tenured prof: Both circumstances can lead one into lack of empathy. The pathologies of “flaming” anonymous blog comments are pretty familiar: For a thoughtful description of the process, see this post by Jason Calcanis. One can don the avatar of an invisible commenter and spew venom as a cathartic release for one’s pent-up anger from long-nursed grievances, free from the usual shame and guilt that normally restrains such anti-social antics. The loss of empathy erodes the author’s self-critical power: The anonymous commenter believes that he or she is speaking truth to power but, to their audience, the comment simply sounds vile or deranged.
The self-defeatingly venomous reaction of some commentators – not on Prawfsblawg but on Paul Campos’ blog -- took my breath away. Paul (whom I knew long ago when I was a young lawyer in Boulder, CO) wrote a tough but, to my mind, spot-on attack on my post. I actually agree with 100% of the substance of his remarks, having only a few caveats about his personal characterizations of myself and my family that, after 20 years, cannot be expected to be very accurate. (For the record, my Dad’s name is “Roderick,” not “William.” My mom was never a politician and has never run for office: She has instead served as an appointed civil servant -- head of DOJ’s civil division, Secretary of HUD, and United States Trade Representative. Paul remembers me as “charming,” “bright” and “ambitious,” but I think that all three adjectives are just time playing tricks on Paul’s memory. Paul claims that C.U. Boulder tried to hire me as a prof: Actually, they turned me down flat, and I went with my family to University of Michigan, much to my regret as my wife had a tenure-track job as a historian at CU Boulder, and I was having fun with iconoclasts Steve Smith, Pierre Schlag, Bob Nagel, and others).
Paul’s worst mistake is to assume, for reasons unknown, that I somehow revel in being the son of famous parents -- “born on third base but thinks he hit a triple,” in his words. Actually, I am well aware that I was born on third base, but, if baseball analogies are apropos, I think that I was tagged out when trying to steal home plate on a pop-up fly.
Despite these minor inaccuracies, Paul is spot-on in how my post illustrated how the economic and psychological security of the professoriate can lead them into complete cluelessness about the economic and psychological travails of their students, and he was right to call me out on that point. (Paul’s wind-up about the tumbrils rolling towards the law school Bastille was a bit over the top, but, being a confirmed addict of gaudy rhetoric, I appreciated the touch).
But the anonymous comments that followed Paul’s post were parodies of the usual blog venom: They were such an echo chamber of rhetorical ineffectiveness that I suspected that they were secretly written by an anonymous friend of mine to discredit Paul’s otherwise darn good post. They were, in short, clueless and devoid of empathy – not just for me but, weirdly, for my students the rights of whom they claimed to be vindicating.
One commenter darkly warned of another Virginia Tech massacre induced by such blog posts as mine. Another – written by someone who purported to be a lawyer – insulted an anonymous commenter who described himself or herself as one of my former students and who came to my defense. The self-described student generously stated that, “Yeah, I thought he could barely see the ground from his ivory tower, but it didn't stop him from being a fantastic teacher and generally outstanding guy.” The commenter responded, presumably to drive home his point about the wrongfulness of being abusive to students, by…well, being abusive to an alleged student: “I suppose we all need heroes, dear,” the alleged lawyer sneered, mixing a weirdly sexist allusion (what’s the “dear” about, anyway?) with the absurdity of purporting to judge my teaching against the testimony of someone who claims to have sat through a term in my classroom.
If that commenter were any sort of advocate, then this would be a great opportunity to respond by saying something like, “well, you know more about how this guy teaches than I do, and I’m glad you think that you benefited from his course, but that does not mean that he has license to be a jerk with other students.” The little concession up front would make the following slap all the more painful by showing the generosity and impartiality of the responder. Instead, the commenter made himself into a clinical case study of the clueless flamer, attacking anyone who contradicted him, even when the attacks caused him to instantiate the very evil that he purported to attack. I suspect – I hope – that the alleged lawyer is a better advocate in front of a jury that he is as a commenter on Paul’s blog.
In short, like myself, those anonymous commenters were all perpetrators and (dare I say) victims of privileged cluelessness. Just as the amniotic bubble of being a professor insulates one from valuable feedback about how one comes across, so too, the bubble of anonymity shields these people from the self-correcting feedback provided by the decencies of civil conversation.
Which brings me to my final question…
3. Should I allow anonymous comments to this post? On one hand, such comments can be prone to the sort of privileged cluelessness I describe above. On the other, it can be an antidote to the sort of privileges that I enjoy, privileges that deter the sort of feedback that I need to be an effective teacher.
After reflecting for a bit, it seems that the benefits outweigh the costs, so I’ve decided to open the comments to anonymous posts. If anyone wants to decry my own teaching in particular, I’m happy to read what they have to say. But, given that I can read my own students’ anonymous course questionnaire responses here on NYU’s website, I am more interested in hearing how others counteract their own privileged cluelessness, have suffered from the privileged cluelessness of their profs, or have benefited from classroom devices designed to encourage feedback and unintimidated classroom discussion without fear of embarrassment or reprisal. If anonymity is what it takes to get you to speak up, then by all means post anonymously. And if you still want to let me have it for my last post, by all means wallop away: I find that I generally benefit from any words that knock me out of my comfortable academic shell, and sticks and stones, etc. (I suspect, however, that that last topic has been mined). But consider seriously foregoing the comforting privileges of anonymity -- as I do -- and instead write under your real name. You do not, after all, want to sound as clueless as the prof that you pillory.
And, please -- try to avoid the “Virginia Tech” references.
Monday, May 21, 2012
Modelling Professionalism, Part II (Get Your Spitballs Ready)
In the wake of the commentalooza over Rick Hills' question about students bagging on RA jobs, I thought I'd throw up another issue to get some crowd-sourced wisdom about teaching professional conduct in a slightly different context.
I speak here of students blowing meetings.
So, let's say a student contacts you, wanting to meet with you, his prof. You set the meeting up -- Wednesday at 11:00, say. (By the way, these are not actual facts, Wednesday at 11:00 was not an actual meeting time, nor does this question have anything to do with anything that's happened to me recently. So there.) The student doesn't show. The student then contacts you later, apologizing and giving, let's say, what I would consider a bad reason or no reason at all. The student asks for a new meeting date, soon (say, the next day).
Frankly, part of me doesn't want to oblige. It's not that I'm busy -- though I certainly am. Let's stipulate that I used the original meeting time very productively on other work. So giving the student a meeting time on Thursday doesn't subtract from the total amount of time I'd have for other work endeavors that week. (And let's further assume I was planning on coming into the office on Thursday, anyway.)So why don't I want to oblige? Well, because I'm annoyed. But I'm also concerned that I'm letting the student get away with something if I simply reschedule. The obvious response -- reschedule, but make it clear it's not professional to miss appointments -- strikes me as close to futile, a finger-wagging talking-to that, because it doesn't come with obvious material consequences, may not have much effect. Or maybe it does -- I'd love to know if students, or former students, have recollections of such dressing downs making a real impact.
So, I don't think there are consequences from a simple dressing down, and I want to establish some real consequences. The obvious one is simply not to reschedule, or at least not to reschedule promptly (I know myself, and I could never hold onto a line that says, "I simply will not meet with you any more, period.") But not rescheduling for a decent interval (say, a week) seems petulant (assuming I do in fact have the time). I basically have to lie ("No, actually, I can't meet with you until next week, because ... well, I'm busy."). That's really a non-starter, unless I want to say that I'm not rescheduling promptly as a punishment. But even that strikes me as punishment that doesn't really fit the crime.
So is there anything else I could do, other than giving them a talking-to? Tell them it will affect my willingness to write a recommendation letter? That seems really harsh, and again, not completely credible: if I have enough interactions with a student to justify writing a letter, one blown meeting probably won't make the list of top 10 things I can say about the student. Tell them that all these little things add up to create someone's impression of the student? That takes us back to the talking-to, right? Turn down any substantive request they make because of one procedural default? Again that's pretty harsh -- I'm not the Rehnquist Court, after all.
Gentle readers, do any of you have a better response to this type of situation? Am I missing something obvious? If you're wondering, I normally stew a little bit, think about avoiding the student's request for a while, then reschedule and wag my finger when we meet. It's not satisfying. Is that the best I can do?
Reading Assignments as a Condition of Bail? Really?
Well, as Judge Vaughn Walker says, it might have something to do with the seat.
That's because when Judge Walker's successor, Judge Yvonne Rogers, became a federal district court judge in San Fran, she seems to have inherited his penchant for creative sanctioning. You might recall Walker garnered fame not only for his role in striking down Prop 8's restriction on same-sex marriage, but also for the shaming sanction he imposed on Shawn Gementera, who had to stand outside a post office with a sign that said "I stole mail. This is my punishment." (The Gementera sanction was affirmed by a divided panel on the Ninth Circuit and the opinion is now part of many crim law casebooks. Disclosure: I had a small role in the appellate proceedings.)
Now, Judge Rogers has triggered some curiosity across the country for a recent bail provision imposed on Otis Mobley. Specifically, while Mobley is released in advance of his upcoming trial, he is required, as a condition of bail, to read certain books for an hour a day and to write a report for a half hour a day.
The reading list hasn't yet been circulated, but still, one has to wonder about the suitability of such a condition with respect to bail. It wasn't included in the list of conditions recommended by the magistrate judge--not surprisingly. Regardless of how one feels about such creativity in the context of punishment,* one has to wonder about its usage when it comes to bail conditions.
After all, bail is pre-trial, and thus pre-adjudication. Moreover, we do have this business associated with the presumption of innocence. SO, while it's one thing to say that the moral weight of such a presumption can be overcome when it comes to substantial and reasonable fears having to do with flight risk or danger to the community (or danger to the judicial process itself in cases of witness tampering), those issues are hard to imagine as related to the conditions associated with reading and writing reports. Rather, it seems as if reading and writing reports are tethered to the blaming and communicative functions of punishment for wrongdoing. To my mind, such conditions should not be imposed because they blur the lines of what we're trying to achieve, as a society, before and after adjudication. To be clear, I'm not saying that Mobley should not be released (although he has some, um, icky issues to work out) and I'm not saying he should be detained pre-trial. But the judge's order is curious because it is likely to be conceptually confused about the nature of pre-trial release and detention. It would be nice if we could find out, soon, what the judge is assigning, and why.
*Putting aside some rule of law reservations that nag at me about "creative" sanctions and punishment generally, I'm largely in favor of guilting punishments (which are designed to facilitate moral education without the public degradation associated with shaming punishments). As a general matter, it's fair to say that assigned reading and writing can facilitate those valuable guilting goals, perhaps even quite well. (Still, I'm not sure I'd go so far as ordering a defendant to write a book, as this WSJ story details about a defendant in a pharma-related crime.). By contrast, I have a strong aversion to shaming punishments, which I think are largely illiberal and anti-retributive in spirit, as laid out here, among other places. For those interested in alternative sanctions more generally, I've linked to a few here (under media appearances) for some news stories over the years about the phenomenon.
Hyper-partisanship and the irony of the Tea Party
While hyper-partisanship did not originate with the Tea Party, that group has pushed the concept further and more explicitly than just about anyone else. Anyone who compromises or attempts to work across the aisle--as by not opposing every judicial nomination by an opposing-party President--is a political heretic to be targeted for defeat. This is most recently exemplified by the primary defeat of six-term Sen. Richard Lugar for not being "conservative enough," as well as by Indiana treasurer Richard Mourdock, who defeated Lugar in the primary and defined bipartisanship as "consist[ing] of Democrats coming to the Republican point of view." At the same time, Tea Party advocates insist they adhere to the purest form of constitutional originalism and what the framers designed, especially as to congressional and state power.
It is widely agreed that the framers designed a system that 1) would be above political parties and partisanship and 2) cannot function without compromise and parties meeting midway in some sense of republican statesmanship. Given that, is there an ironic incoherence to the Tea Party position?
Sunday, May 20, 2012
On the Alleged Cultural Insensitivity of the Fojol Bros.
The Fojol Bros. is one of the most popular food trucks in Washington, DC and is partly responsible for the popularity of food trucks in the nation's capital more generally. It is also at the heart of a recent and growing controversy about race and culture. The Fojol Bros. -- a self-described "traveling culinary carnival" that offers Indian, Ethiopian, and Thai food -- has come under fire for the manner in which they sell their food. In particular, the food truck purveyors, who are all said to be white, wear turbans and fake novelty mustaches, and play Indian music in the background (see this Travel Channel spotlight of the food truck).
This led DC local Drew Franklin to issue an "Open Letter to the 'Fojol' Bro-dawgs" on Facebook, in which he charged that those behind the food truck are "brazenly insulting of others' cultures," "over-the-top racist," "worthy ambassadors of poor taste," "faux-mustachioed goons," and "well-meaning (if woefully misguided) white boys with a contemptible sense of humor." Franklin determines that the Fojol Bros. approach is "not cool," "decidedly uncool," "unacceptable," and "an embarrassment to my city." An online petition subsequently emerged, declaring that the purveyors' presentation amounts to a "stereotype and mockery," and imploring visitors to make clear that they "are not OK with their Orientalist and racist appropriation of South Asian and East African cultures." As of today, the petition has been signed by over 1,000 people -- a not insignificant number. A writer with the Washington City Paper -- which I read regularly when I lived in DC -- agrees with the critics, calling the ethnic aesthetic of the Fojol Bros. "unsettling and offensive and lazy all at once."
As a Sikh of Indian descent whose members of my immediate and extended family wear turbans and have beards, as someone whose civil rights work and entry into academia was triggered by post-9/11 discrimination against Muslims, Sikhs and South Asians, and as someone who has written about the post-9/11 experiences of Sikhs in book, journal, and essay formats, I believe I am within the zone of those who are implicated by and can speak to the Fojol Bros. tactics. My preliminary verdict: as with Johnny Carson's Carnac and ESPN's Tony Kornheiser (who both predated the "hipster" fad), I find the Fojol Bros.' schtick tacky, but not offensive or racist.
First, there is the argument, as a Columbia sociology professor told The Washington Post, that the Fojol Bros. "'harken[s] back to a colonial period when it was okay to exoticize' other cultures." Put more directly, angry asian man, a popular blog that provides sharp commentary on racial issues involving Asian-Americans, opines that the Fojol Bros. are "totally colorblind -- and I mean that in the worst way -- of the privilege that makes [them] think this is okay." It seems to me that intent is a relevant, if not important, consideration in weighing the propriety of this food truck's schtick. Whereas colonialists and some whites may have appropriated certain cultural elements in the course of subjugating other people, or based such appropriation on feelings of entitlement or superiority, I do not see any evidence that this is taking place here. Justin Vitarello, one of the food truck's owners, for example, says of turbans: "They're beautiful. They're comfortable. They're colorful." The Fojol Bros. appear to be engaged in an attempt to be whimsical and light, rather than one to belittle or marginalize.
For the same reason, the highly-charged criticism that the Fojol Bros. is participating in a "minstrel act" fails to persuade. Minstrel shows generally portrayed African-Americans in a negative light as slow, lazy, dumb, and incompetent, etc. As far as I can tell, there are no such characterizations by the Fojol Bros. -- there is no "brown-face," "[t]here's no accents" as Vitarello notes, and there are no negative behavioral or mental traits that are stereotyped or caricatured. (These qualities make the food truck distinct from Ashton Kutcher's "brown-face" depiction of "Raj," a generic Bollywood producer). It seems, rather, that the Fojol Bros. act and speak as they normally do, though they happen to wear turbans and fake mustaches, while listening to Indian music.
To be sure, in some instances the wearing of some cultural or ethnic elements may, by itself, give rise to reasonable charges of racism -- even if the wearer does not intend any harm, even if there is no accent, and even if there is no skin alteration or manipulation of facial features. That does not mean, though, that any wearing of certain items automatically supports a charge of racism. In other words, even eschewing an inquiry into the purveyors' subjective intent, it has not been clearly demonstrated that the wearing of the colorful turbans and fake mustaches is objectively racist or improper.
As far as turbans are concerned, I acknowledge that turbans, for some, are sacred pieces of attire that are effectively extensions of one's self. But turbans are not categorically sacred or significant. The religious do not have a monopoly on the use of turbans or their meaning. In fact, turbans are worn by different people (e.g., the religious and non-religious, Sikhs, Muslims, Afghans, Indians, Iranians, Persians, and North Africans) for different reasons (e.g., "to signify their class, caste, profession or religious affiliation," or "to demonstrate their wealth and power"). Indeed, I have attended a number of weddings where white men, who are usually part of the groom's party, wear turbans of the same exact sort worn by the Fojol Bros. Not once did I hear or witness an objection to these individuals' wearing of a turban as part of the wedding events. These individuals, it seems to me, wore the turbans to be festive, and the Fojol Bros. appear to be doing so as well. The only difference, then, is that the individuals at weddings effectively had "our" permission and approval, whereas the Fojol Bros. don't. That difference does not, in my view, justify the view that one is offensive and racist, while the other not. (It is true that the Fojol Bros. are engaged in a commercial enterprise rather than a wedding -- but the underlying festive motivation may be comparable if not identical. Others, such as artists Andre 3000 and Snoop Dogg, have worn turbans as part of their commercial persona, the latter of which was largely celebrated by Indians and Sikhs. The commercial nature of wearing turbans, therefore, does not transform the wearing into something "wrong.")
Thus, it is difficult to contend that the Fojol Bros. are extending colonialist attitudes or ambitions, or are taking advantage of some dominant or exceptionalist mindset that enables them to poke fun at the other with impunity. Moreover, their schtick seems to be qualitatively different than minstrel shows. Nor does the wearing of turbans, on its own, objectively signify disrespect.
Let me be so bold as to suggest that Fojol Bros. may be doing a favor to targeted communities. After 9/11, turbans became equated with terrorism, due to the fact that Osama bin Laden and his cronies wore turbans and their images were broadcast regularly on television. Some Sikh civil rights activists and I used to remark that we have been unable to offer the American public an alternative to the turban-means-terrorism reflex. Perhaps the Fojol Bros. can help diminish the turban's terrorist connotation, if not normalize the turban, such that people will see it as something other than a marker or cue for hatred, anger, and violence.
At bottom, it seems to me that the fuss over the Fojol Bros. amounts to purely subjective instincts or judgments as to what is "offensive," "wrong," or "not cool." As the Supreme Court has said, “[c]onduct that annoys some people does not annoy others.” Coates v. Cincinnati, 402 U.S. 611, 614 (1971), and relatedly “what is contemptuous to one man may be a work of art to another,” Smith v. Goguen, 415 U.S. 566, 573 (1974). Such subjective viewpoints hardly constitute a sound reason to compel the Fojol Bros. to change their ways.
A final note: while I conferred with multiple turbaned Sikhs in writing this post, I do not claim to speak for other Sikhs, Indians, or South Asians on the subject. Of course, individuals within and outside of these groups are free to weigh in on the controversy as they see fit. And whether the Fojol Bros. schtick is a wise business move is beyond the scope of this post. This is to only note that, for my purposes, I do not find the schtick offensive or racist. I honestly commend the critics for expressing themselves in word and in action by refusing to do business with this food truck. The Fojol Bros. may very well go on without the turbans and mustaches -- but I suspect it will be due to the prospect of lost profits, not the force of any critics' advanced principles.
Saturday, May 19, 2012
Last week, I did my first-ever "what my parents do" presentation for my daughter's kindergarten class. I decided to demonstrate the "word puzzles" we do in law classes, using Hillel Levin's The Food Stays in the Kitchen: Everything I Needed to Know About Statutory Interpretation I Learned By the Time I was Nine, which worked very well for that age group. We used the rule "No eating in the classroom," then my daughter and I showed them a cookie, a bottle of water, a smoothie, and a baggie of grapes. They got purposivism pretty quickly, although usually at the expense of the text--which just means they're ready to be law students or judges.
Pithy graduation exhortation
This morning, at the graduation-day prayer service organized by the Notre Dame Law School Class of 2012, one of the readings was from Micah: "[D]o justice and  love goodness, and to walk humbly with your God."
Best wishes and congratulations to all the new law-school graduates!
Friday, May 18, 2012
Best Practices for Coauthoring Legal Scholarship
I am coauthoring two of my current works in progress, which has caused me to do some thinking about the process of coauthoring. Obviously every project is different, but I am interested to know whether others think that there are universal best practices for successfully coauthoring legal scholarship. I'm also interested in insights about coauthoring in other fields, although legal scholarship has certain unique conventions of structure and citation that might differentiate it from other areas.
Others have written on this topic on PrawfsBlawg before. I'll add a few tentative thoughts of my own:
I think it's important to identify a project that will work well as a coauthored endeavor. I tend to think that the most successful coauthored projects are those that none of the authors could have written (or written as well) on her own. I'm currently collaborating with Professor Charlotte Garden (Seattle) on a project about the ways in which the interests of labor unions and racial minorities converge, and how leaders in both movements might harness that coalition of interests to facilitate social change. It's obvious that the collaboration makes sense: it builds on both Professor Garden's previous scholarship regarding labor unions and the political process (here and here) and my previous work regarding racial equality (here and here). More importantly, though, this isn't a paper I could write nearly as well alone, because I don't have the breadth and depth of knowledge regarding labor law and unions to make the most of the parallels to racial equality interests.
Finally, I'd argue that the paper should read as a unified, organic work of scholarship. One issue I've observed in certain coauthored pieces is that it's relatively easy to tell which author wrote which sections. While there's nothing intrinsically wrong with this, I think true coauthorship should involve exchanging and editing one another's work so that the piece presents a unified vision and speaks with a unified voice. Ideally the piece should simultaneously sound like both of you. I think this is much more easily said than done, but it's certainly something to aspire to.
I also have a few thoughts about coauthoring specifically with students (see here for additional thoughts on the issue). I think that this sort of coauthoring relationship can be uniquely valuable. It often presents an opportunity to work on a project that for some reason isn't feasible to do singlehandedly. For example, I recently published an article called The Persistent Gender Disparity in Student Note Publication with my former student Jennifer Mullins (American), who now teaches legal writing. The paper involved accumulation and analysis of a database of nearly six thousand student notes published at fifty schools over the course of a decade, as well as qualitative surveys of law review editors and student note authors. It would have been very difficult for me to gather and organize the data alone, and my coauthor was incredibly helpful in managing and making sense of a huge amount of information. Also, given our topic, I felt it was particularly helpful to work with someone who had been a member of a student-run journal more recently than I had. And while I don't want to speak for my coauthor, I hope that the publication of the article was of some professional value to her as well as of some value in terms of learning about the writing and submissions process.
I'm currently continuing the endeavor of coauthoring with students, having begun work with my wonderful student Kira Suyeishi on an article regarding the use of written consent forms for Fourth Amendment searches. Kira has already made a unique contribution to the project by undertaking a fifty-state empirical survey of the use of consent forms.
In general, I highly recommend collaborating with students. It provides an opportunity for mentorship; it allows you to undertake a project you otherwise might not; it earns the student a credential that may be useful in their future endeavors; it allows you to share your knowledge about the process of creating and publishing scholarship, and even more importantly, your enthusiasm about that process; and it's also rewarding and fun.
Finally, a few logistical thoughts. With students in particular (but with other coauthors as well) I think it's often useful to map out a schedule with rough deadlines for completing and swapping sections. This helps both parties balance the collaboration with their other commitments. For instance, I have a shared google calendar with each of my current coauthors in which we've plotted tentative deadlines for various aspects of the project. And in terms of document control, I highly recommend Dropbox, which allows easy file sharing and editing.
I welcome others' thoughts and advice about coauthoring.
Why the ire over Citizens United?
I agree with Sam's post about the Toobin story on Citizens United--it does seem like much ado about nothing. My own theory about the internal dynamics at work considers the history of individual justices, namely Justice Kennedy. Austin v. Michigan Chamber of Commerce, the case Citizens United overturned, was decided in 1990, during Justice Kennedy's first full term on the Court, and Kennedy wrote the principal dissent (joined by O'Connor and Scalia). He likely had been itching to overturn that case since 1990 and the change of personnel and passage of time gave him the votes (save the Chief, at the outset) to finally do it.
Now, a different issue: In a comment to Sam's post, Orin Kerr says:
I suspect Toobin's article is getting a lot of favorable attention because a lot of his audience starts off with the belief that Citizens United is an evil ruling that the conservatives foisted on the American people on behalf of big corporations. The decision is so evil, the thinking runs, that how it came about is not unlikely to involve a devious machination.
Why is so much ire aimed directly and uniquely at Citizens United, out of the entire body of campaign finance law? Why is this case perceived as the alpha and omega of bad law on the subject? Yes, Citizens United overturned Austin. But Austin was 20 years at this point, so it was hardly Justice Brandeis in Erie overturning Swift. And Austin itself was arguably the First Amendment anomaly--the one and (at that point) only time the Court had accepted the equality rationale for regulating campaign spending (although it was equality in the guise of corruption). Austin could not be reconciled with Bellotti v. Bank of Boston in 1980, which invalidated a ban on corporate expenditures in an issue election, or, more fundamentally, with Buckley v. Valeo in 1976. So why pick on Citizens rather than these earlier precedents, especially Buckley, which is the case that introduced the fundamental idea that expending money for expression is First-Amendment protected?Some of it is that the Court had to overturn precedent, but again, this was not a particularly venerable precedent and it was only one in a broader body of case law. Some of it is the process--relisting, ordering new briefing, etc. And Toobin's narrative supports this explanation. But, as Sam points out with respect to McLean Credit, this is not so unusual. Some--and I suspect a lot--of it is recency bias--the most recent case is the most important case and the one to praise or criticize, depending on your viewpoint. That Citizens United is grounded in prior case law ceases to be the issue; it is all about the newest case.
I actually noticed something similar in discussions of Garcetti v. Ceballos, which held that a public employee enjoys no First Amendment protection for expression that is part of his job function. There were immediate fears for the effect of Garcetti on academic scholarship; since academics were speaking or writing as part of their jobs, their speach was unprotected. But it's not as if pre-Garcetti doctrine--which accorded no protection to employee speech that was not on a matter of public concern and spoken as a citzen--was particularly protective of employee expression;an English professor fired for an article on Jane Austen likely would not have been protected even without Garcetti.
Thank God I'm Canadian, Part XLVI
Todd Zywicki is seemingly obsessed with Elizabeth Warren and Brian Leiter and not, quite reasonably, me. Having written somewhat intemperately about his last Elizabeth Warren post, however, I would like to weigh in very briefly to comment on two or three points made in his newest one.
Todd writes: "Let me say again what I expressed at the outset–I have known from highly-credible sources for a decade that in the past Warren identified herself as a Native American in order to put herself in a position to benefit from hiring preferences (I am certain that Brian knows this now too)." (This is perhaps related to his statement later in the post that "there is plenty of bad blood between Elizabeth and myself.")
I'm in no position to evaluate the truth or falsity of that statement.Others are similarly in no position to evaluate the truth or falsity of the information I pick up in law professor gossip circles. That's why I don't blog about it. (And for an additional reason as well: if history has taught me anything, it's that even highly credible sources can be wrong.) If Todd wants to enlighten the rest of us, he's welcome to do so. But I thought that the usual rules of civilized behavior applied on the Internet too, and perhaps even especially on the Internet: don't repeat information from "highly-credible sources" -- ie., gossip -- to third parties, especially in print, without meaningful evidence. If I'm wrong about what constitutes basic civilized behavior, I hope someone will let me know.
Second, Todd writes: "For those who still claim to be uncertain about this note one final point–that the only competing explanation that she has offered is that she identified herself as minority only in order to find similar people with whom to have lunch. There is no option C–either she did it only to find people with whom to have lunch (which she acknowledges never actually happened) or she did it at least in part to put herself in a position to benefit from hiring preferences. Moreover, note that the arguments are not symmetrical–she and her defenders must be claiming that she had zero intent to put herself in position to gain a hiring preference by identifying as a minority. My impression is that there are some people who really want to believe that there is some other explanation–but there isn’t."
Speaking only for myself, what irritated me about Todd's previous post was this statement: "[I]t is obvious to everyone else why Elizabeth Warren self-identified as Native American all those years–which was to get an edge in hiring. Even less plausible, of course, is her own explanation–that she was looking for people to have lunch with (once she got to Harvard was it that she no longer was interested in having lunch with other Native Americans or that the strategy was so successful that she had just had too many lunches through the years?). . . . So assume the only reasonable explanation–that contrary to Leiter’s statement she did this to get a leg up in hiring and contrary to her own statement she didn’t do it to find lunch partners."
As I wrote in response, and as many of his commenters did as well, there were all kinds of reasons why someone might list, whether accurately or out of a mistaken belief in one's status, list oneself as having minority status on an AALS directory form. I didn't defend Warren tout court or argue that she had no additional job-seeing motives. Indeed, I wrote: "None of these reasons are exclusive of a desire to get a job; I don't doubt that many people who do things for a variety of reasons are also not unaware of any potential professional or economic advantages those actions might also provide." But I see I was mistaken in understanding Todd to have meant what he said the last time around. He wrote initially that the "only reasonable explanation" for her actions was "to get a leg up in hiring." He now suggests that, in fact, it is her defenders who must believe that she had one motive, and one motive only. Well, there's a difference between defending Warren and criticizing Zywicki. Given everything we understand, outside of campaign season, about human behavior, it was silly to claim that a person could check off a box for only one possible reason. It still is, and I don't see anything reliable in Zywicki's post that suggests otherwise.
Finally, Todd writes: "Of course, the only reason that this issue is interesting and relevant today is because Warren is running for the U.S. Senate and is the most prominent law professor in America at this moment." Two points on this. First, it's still not that interesting. Not that there's anything wrong with law bloggers writing about uninteresting things; we do it all the time. But I maintain the position that while there is no such thing as a "forbidden" topic in politics, there are certainly better and more informative ways to engage in politics and make useful political choices than to argue or joke about law directories, girlfriends or boyfriends, what Mormonism means and where someone chooses to put his dog for a roadtrip, who posed for what magazine, and on and on. And if we're going to talk about those things, which on the whole I wish we mostly wouldn't, it would be nice if we applied the same standards we would apply in explaining our own lives to others: namely, that they're complex, involve a mix of virtues and vices, require a lot of nuance and at least a little mercy and charity to judge, and in the final analysis only say so much about how we would inhabit particular professional roles. (It would be nice if politicians, including Warren, could say something similar when describing their own past actions, but I'm past hoping.) Which is why, on the whole, we're better off talking about policy. But, as I like to say, that's just me; I'm Canadian. Not a contentious bone in my body.
Second, Elizabeth Warren is not the most prominent law professor in America at this moment. That would be Randy Barnett.
Scratching My Head Over the Inside Story of Citizens United
I am generally a fan of Jeff Toobin's journalism. I really enjoyed The Nine and thought it was quite insightful about the dynamics of the current Supreme Court, and I always benefit from Toobin's pieces in the New Yorker. And I am not generally a fan of the Supreme Court's Citizens United decision. I find the First Amendment issues relating to campaign finance actually quite difficult, in the sense that there seem to me to be quite strong considerations on both sides of the ledger, and Citizens United came down rather too strongly on one side of the issue for my satsifaction. Justice Stevens's dissent always seemed to me to have far the better side of the argument than Justice Kennedy's majority opinion in that case.
That said, I am quite puzzled by all the play that Toobin's piece on the inside story of Citizens United has gotten on the internet. The rapportage is great, but the conclusion that Toobin suggests and that many in the blogosphere are running with -- that the Court's decision in that case resulted from the Machiavellian machinations of a diabolical Chief Justice -- seems to me to go well beyond the evidence that Toobin musters.
The basic story Toobin tells is that, at the conference after the argument in Citizens United, the justices voted 5-4 to reverse the decision below and rule in favor of Citizens United. Chief Justice Roberts assigned the opinion to himself and circulated a draft that ruled on narrow grounds -- grounds that, crucially, would not require the Court to overrule earlier decisions such as Austin v. Michigan Chamber of Commerce. But Justice Kennedy circulated a concurrence arguing that the case should have been decided on broader First Amendment grounds, other conservative justices decided they preferred that approach to the narrower approach reflected in the Chief's draft, and so Chief Justice Roberts reassigned the majority opinion to Kennedy. Justice Souter later circulated a draft dissent that called out the majority for overruling precedent in a case in which no party had asked for precedent to be overruled. But that dissent never saw the light of day because the majority responded by putting the case over for reargument on the question whether Austin should be overruled. After reargument, the Court answered that question in the affirmative and ruled for Citizens United, 5-4, in a broad opinion written by Justice Kennedy over a blistering dissent by Justice Stevens. (Justice Sotomayor had taken both Justice Souter's seat on the Court and his place among the dissenters.)
Where's the devious machination here?It seems to me that the most charitable reading of Chief Justice Roberts's actions was that, though he agreed on the merits with the broader argument made by Justice Kennedy, he really preferred to decide the case on narrow grounds. But when he found that he couldn't get five for a narrow opinion he decided to defer to the other justices in the majority (as to how broadly to frame the opinion) and go along with Justice Kennedy's position. And he reassigned the opinion to Justice Kennedy because that was the surest way to get five votes on a single opinion. And when Justice Souter objected to overruling precedent in a case in which the matter hadn't been briefed, the Chief Justice said, in effect, "good point," and led the majority to order the parties to brief the issue.
The least charitable reading of Chief Justice Roberts's actions actually isn't that different. That reading is that the Chief Justice always wanted to decide the case in a maximalist opinion but that he misread the conference and mistakenly thought such an opinion wouldn't hold five votes. But the reaction of his conservative colleagues to Justice Kennedy's concurrence made it clear he was wrong, so he asked Justice Kennedy to turn his concurrence, which reflected what Chief Justice Roberts really wanted to do all along, into an opinion for the Court. And when Justice Souter objected to the process, Chief Justice Roberts led the majority to order reargument to remove any process objection, fully assuming that the reargument wouldn't change anyone's minds.
Even assuming the least charitable reading, was this really so devious? Even if Chief Justice Roberts was confident that the outcome wouldn't change after reargument, he had to know he was taking at least some risk. When the Court orders reargument to consider whether a case should be overruled, it does not always decide to overrule the case in the end. Consider Patterson v. McLean Credit Union, where the Court ordered reargument on the question whether Runyon v. McCrary should be overruled but then, after reargument, reaffirmed Runyon and ruled against the plaintiff on narrower grounds. And more fundamentally, if a majority of justices believe that a case that is before them requires reliance on a precedent that they believe satisfies the criteria for overruling, why shouldn't they order briefing on whether it should be overruled?
Runyon also shows that the order granting reargument did not magically "disappear" Justice Souter's dissent. Justice Souter was perfectly free to publish a dissent from the order compelling reargument -- just as Justices Blackmun and Stevens (each joined by the other and by Justices Brennan and Marshall) did in Patterson. Why Justice Souter chose not to do this says a lot about his sense of Yankee rectitude, I would guess, and maybe Chief Justice Roberts was taking advantage of that. But I still don't see any dastardly deeds here.
Sports and personal jurisdiction
Yesterday, Jonathan Vilma, a linebacker for the New Orleans Saints and the player-leader in the teams alleged "bounty program" (paying out cash for injuring opposing players), filed a defamation action against NFL commissioenr Roger Goodell in the Eastern District of Louisiana. Having read the complaint, one of my first thoughts is that there is an interesting potential personal jurisdiction issue here. If Goodell does challenge personal jurisdiction, the precdent that Vilma must overcome comes, ironically, from Roger Clemens' defamation action against Brian McNamee (not to be confused with the government's seemingly abortive prosecution of Clemens for perjury).
Vilma sued in Louisiana, where he works but does not live, over comments that Goodell made in several press releases written and issued in New York about the bounty program, which largely took place or came out of Louisiana. Goodell allegedly intended and expected his statements to be disseminated publicly and, presumably, nationally. In Clemens, Clemens sued McNamee in Texas over statements McNamee made to the Mitchell Commission and to a Sports Illustrated reporter in New York about conduct occurring in New York and Toronto. The Fifth Circuit (which also includes Louisiana) held there was no personal jurisdiction over McNamee because he did not target his statements at Texas. He was speaking in New York about non-Texas events and had no control over where the statements ultimately were ultimately disseminated. The majority never really considered whether McNamee knew or intended his statements would be published in Texas or anyplace other than New York. The key in Clemens is that the Fifth Circuit refused to impute the obvious Texas contacts of SI or even the reporter (Clemens did not sue either one, but obviously SI published in Texas and the reporter would have known that) to the source of the statements, who only knew he was talking to someone in New York and had no knowledge or control over what happened next.
A few distinctions do leap out, so Vilma may be able to establish jurisdiction even in the face of Fifth Circuit's narrow approach. First, Goodell's statements, although made in New York, concern conduct occurring in Louisiana, so his particular statements were "directed" at Louisiana. Second, it could be argued that Goodell was more in control of the ultimate dissemination of his statements (since he knows national media, including media in Louisiana, will report his every word) than McNamee was in talking to a reporter from Sports Illustrated. Third, the lawsuit targets not only Goodell's press releases that were reported on, but also defamatory statements in reports he sent to all 32 teams about the investigation and findings; one of the teams to receive that report, of course, is the Saints, in Louisiana. Goodell had more affirmative control over the publication of his comments, including intentionally sending some written materials into the state. Fourth, it is telling that Vilma did not sue in Florida, where he lives, recognizing that merely feeling the effects of defamation at home would not be sufficient under the effects test, where the conduct falsely described took place elsewhere.