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Tuesday, July 31, 2012

Encroachment on Presumption of Innocence? DNA evidence from arrestees

Adam Liptak's got a short piece in today's paper reporting on relief the Chief Justice is granting (qua circuit justice) to Maryland so that it can continue to collect DNA evidence from arrestees (of certain crimes). I love clearing cases and reduction of Type II errors probably more than the next guy but I have a sense this is yet another abuse of the presumption of innocence. In the piece, Liptak quotes the Maryland judge who thinks this intrusion can be justified b/c it's less intrusive than the searches recently upheld in Florence.

I'll have to think some more about it, but collecting DNA from arrestees seems quite different than the strip searches purportedly justified in Florence, that recent SCT case about strip searches prior to entry to jail. The latter can be understood (if not fully justified) as a preventive measure for contraband and dangerous weapons prior to immersion in a detention facility. The former is purely for solving cases. As a result, the former is likely not consistent with the kinds of purposes vouchsafed by the Court in Salerno as appropriate bases to limit pre-trial liberties. The latter is arguably tied to the reduction of criminality or risk to public safety of one sort or another.  CJ Roberts thinks there's a good chance that the Maryland high court's decision (in favor of the defendant challenger) will be overturned. I'm a good bit less certain and thus somewhat surprised by the relief Roberts gave to the enforcement officials here. This will be interesting to follow.

Posted by Dan Markel on July 31, 2012 at 02:55 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (13) | TrackBack

A Proposal for Reform of the Law Review Note: The Reactive Model

Ok, it's not really a proposal -- just some thoughts that I had in connection with my previous post and the comments thereto.  But here's what I have in mind.

Often enough, students tasked with composing a note will have a few general ideas about what interests them.  "I want to write about capital punishment," or "I want to write about abortion," or "I want to write about religious liberty."  And so as an advisor, I feel that my job is to increase the level of magnification.  "What specifically do you want to write about?"  "What will be the particular point that you want to make?"  And in some ways most importantly, "Whom are you reacting against?"  The trouble is that it can happen that students don't know the answers to these questions.  Sometimes they haven't yet taken a course in the specific subject of their interest (or they've covered it quickly) so they aren't yet in a position to answer. 

The job of the advisor would be to enable students to get to the position where they could answer these questions.  For example, suppose someone says, "I want to write about religious liberty."  After some questioning, it turns out that the student is (a) interested in the Establishment Clause; (b) interested in the issue of legislative prayer; and (c) takes a generally skeptical view of the practice.  As an advisor, one is now in a position to recommend, say, five articles or books related to that specific issue.  Not more than five at this stage -- exactly five, and five which represent a nice spectrum of opinion on the issue from established voices (e.g., Laycock, McConnell, Koppelman, etc.) and important new voices (e.g., Chris Lund's terrific piece). 

One would send the student away with the following instructions: read these 5 pieces, look up some of the recent cases that Lund cites and read those, and find a point of reaction which can be developed into a short piece.  Just one reaction on a narrow issue.  Please don't try to outdo Lund or Laycock or whomever -- just pick a single point of disagreement.  And now think about structuring an article around that point of disagreement.  You don't need to advance a new theory of the Establishment Clause, or even of legislative prayer.  The point of your piece will be to contest some specific idea within the limited confines of the debate as it is being engaged by scholars and courts.

After the jump, some thoughts about the advantages of this model, as opposed to the more traditional model of the law review note.

  1. The problem of having an idea of what to write about would be mitigated, and in such a way that the student would still be writing about something that very much interests him or her.
  2. The problem of narrowing the idea down to a manageable size would be mitigated.  As I say in one of the comments to the previous post, I have found this to be one of the most difficult challenges for students.  Providing greater structure to students in this process would be helpful.
  3. The selection of topic would occur through engagement with other scholars and writers, rather than through the process searching out a topic that nobody has written about (let alone hoping very much that nobody has ever written about it). 
  4. The literature on a topic would be enriched in a useful and sensible way -- a student may not be capable of offering a grand theory of the Establishment Clause (and we have plenty of those anyway), but after a certain amount of reading, he or she will be more than capable of offering an intelligent discrete reactive analysis on a specific point.
  5. One would avoid a glut of student papers on the same circuit split issues.  As James Grimmelman points out in the previous thread, students seem to be writing about the same things.  One possible reason is that there just aren't that many interesting circuit splits in any given law review note topic selection cycle.  But once freed from that bond, there are an infinite number of interesting issues to write about.
  6. Students would be introduced to the world of legal scholarship in a way which makes clear to them the value and usefulness of much that legal scholars do for the world of practice. 
  7. Following from 6, eventually more and more skeptics will become aware of the richness and diversity of legal scholarship out there.

There are probably downsides to this approach.  It requires more work on the part of the advisor up front.  It presumes that the student is doing something more than describing the lay of the land (see Bruce Boyden's comment).  And perhaps some law reviews do something like this already.

But I think the reactive model would be an improvement -- for the students' own writing experience most especially.

Posted by Marc DeGirolami on July 31, 2012 at 01:29 PM | Permalink | Comments (4) | TrackBack

Requiem for a Task Force? and a Farewell

The Residential Mortgage Backed Securities (RMBS) Working Group was announced in January as part of the Financial Fraud Enforcement Task Force (FFETF).  Although only a little more than six months old, much of the media about it since its formation has focused on its obstacles and shortcomings:  lack of Congresional funding, lack of staffing, an inability or unwillingness to tackle statute of limitations problems, and its use as a political football by both parties, among other things.

In a recent post at The Collection Gap, I noted that the story sounds similar to that of the failed attempt to create a centralized body, or at least create a successful federal inter-agency task force, to deal with the issue of federal criminal fine reporting and collection.  Are such inter-agency task forces doomed to fail?  Is there something inherent in the incentives or politics embedded in such groups?  Are there prominent examples of inter-agency tasks forces that have been successes?

On another note, my time as a guest blogger here is, sadly, coming to a conclusion.  It has been a great experience, and has opened my eyes to the benefits and challenges of putting yourself out there in the cloud on a consistent basis.  Thanks to Dan for giving me this opportunity.  I hope to continue to be part of the conversation here as well as at my own fledgling site, and hope to see many of you there as well.  Take care!

Posted by Martin Pritikin on July 31, 2012 at 09:47 AM | Permalink | Comments (0) | TrackBack

The Law Review Note: The Author as Heli-Skier

It is law review note topic selection season, and students across the nation are scurrying about looking for topics and performing what I gather is called "preemption check."  From the perspective of an outsider, I am utterly baffled by this process. 

The general model seems to be that of the heli-skier.  The object is to hunt down a patch of land untouched by any other academic writer, so that one can make fresh tracks in the undriven snow.  The legal terrain has to have a certain sort of look: appellate court splits are the beau ideal.  In much the same way, the particular arrangement of land and snow must look just so to the prospective heli-skier.  Either the failure of the terrain to conform to that premeditated look or the appearance of another skier's tracks is enough to send the helicopter scooting away for something higher up and even more distant from the work of human hands.

The model is perverse.  It seems designed intentionally to isolate the student from the legal academic world.  The purpose of the "preemption check" is not to acquaint the student with other writing on his or her chosen topic, deepening the student's knowledge.  It is instead to drive the student away from that topic without so much as fully reading, let alone fully digesting, the article.  The notion seems to be: if someone has written about the issue before, there can be nothing worthwhile left to say about it.  The topic has been exhausted.  And it has been spoiled: pre-masticated and therefore unconsumable.  

Thus begins a spiral toward increasingly arcane subjects -- a new Inferno where the unifying theme isn't wickedness but banality.  The basic flaw in the model is the assumption that what is interesting or worth thinking about consists exactly in what nobody has thought about before.  The  note writer, like the cheese, stands alone.  That assumption squeezes the relational joy out of writing.  Probably there is some recondite purpose in doing things this way which became largely obsolete 30 years ago; but it comes at the cost of having students try, often for the first time, their hand at legal scholarship. 

Posted by Marc DeGirolami on July 31, 2012 at 09:03 AM | Permalink | Comments (12) | TrackBack

Monday, July 30, 2012

Wow.

Scalia's proving to be a bigger diva than I ever expected.

“He’s a court of appeals judge, isn’t he?” Scalia, 76, said of Posner. “He doesn’t sit in judgment of my opinions as far as I’m concerned.”

 

Posted by Dan Markel on July 30, 2012 at 11:27 PM in Article Spotlight, Constitutional thoughts | Permalink | Comments (6) | TrackBack

Scholarship for the Courts: A Different Kind of Cert Pool

Via Dave Hoffman's post having to do with the questionable utility of non-elite journal experience for law students, I came across our own Matt Bodie's spirited defense of student participation in the legal scholarship world. And by looking up Matt's article I stumbled upon Ross Davie's new piece for the Journal of Law, entitled "In Search of Helpful Legal Scholarship, Part I."  It is written with Ross' characteristically light and perceptive touch and the gist of his "opening remarks" is that there should be some vehicle by which the courts (particularly the SCT) are made aware of the relevant scholarship on an issue, e.g.,  when the Court grants cert on a particular case. Here's a taste:

Professors should organize a cert pool of a sort for law review articles. They have the knowledge: they know 
scholarship, good and bad. They have the know-how: they know peer review, pure and corrupt. 
(Peer review of a sort is at the heart of this project.) And they are in position: they have the tenure 
that frees them to speak truth not only to power, but also to each other. But rather than 
giving the Justices stacks of  memos evaluating every single law review article (as the clerks in the cert pool 
do with petitions in every single case), the professors should take a different kind of case-by-case approach.
Every time the Court grants a cert. petition or otherwise agrees to hear a case, they should give the Justices 
a simple, readably short list of those articles most likely to be helpful in deciding that case. Then the 
Justices or their minions can read the helpful scholarship themselves. Each  list should be in the form of 
(and filed as) an amicus brief – a truly brief “brief of scholarship” rather than a conventional “scholars’ brief.”

I like this suggestion a lot. Ross suggests that the AALS or JOTWELL could do something like this in terms of organizing a cert pool of scholars. What do y'all think? I would guess that the list would be of interest not only to the courts/justices but also the litigants to some extent, especially when the litigants are not as savvy as the usual elite sct bar practitioners.

Btw, if you've not been keeping up with Green Bag or the Journal of Law,  some links for the latest issue of Green Bag are after the jump.

Green Bag

Volume 15, Number 3 (Spring 2012)

EX ANTE

Mistakes • Bobble Berring

TO THE BAG

James J. Duane • George A. Heitczman • George W. Liebmann

ARTICLES

Curtis E.A. Karnow, Similarity in Legal Analysis & the Post-Literate Blitz

Pierre N. Leval, Remarks on Henry Friendly on the Award of the Henry Friendly Medal to Justice Sandra Day O’Connor

James Oldham, Only Eleven Shillings: Abusing Public Justice in England in the Late Eighteenth Century (Part 2 of 2)

David Roe, Little Labs Lost: An Invisible Success Story

Laurence H. Silberman, The Development of “Final Offer Selection”

FROM THE BAG

Ross E. Davies, The Pastiche Prosecutor: A Speculative Introduction to Mr. District Attorney

Unknown, Smashing the Taxicab Racket

REVIEW

Cedric Merlin Powell, Identity, Liberal Individualism, and the Neutral Allure of Post-Blackness

EX POST

John L. Kane, Jr., The Inmate

Alice B. Richards, Studying for an Evidence Final on a Cold Winter’s Night

 

 

Posted by Dan Markel on July 30, 2012 at 10:50 PM in Article Spotlight, Blogging, Law Review Review, Life of Law Schools | Permalink | Comments (0) | TrackBack

Douthat on Religious Freedom: Too Much and Not Enough

It is, of course, generally a mistake to expect much from the columnists of the New York Times, whatever their individual politics. Neither the format nor the office seem especially conducive to great work. I can understand why some of my friends like the work of Ross Douthat, or Charles Blow on the other end of the political spectrum, though both strike me as too callow for their own good. I could understand why some of those friends admired Douthat's latest column, whose title, "Defining Religious Liberty Down," borrows a standard conservative trope. But I have problems with it. 

To begin with, Douthat argues at the outset that the reference to "the free exercise" of religion "suggests a recognition that religious faith cannot be reduced to a purely private or individual affair." I agree with the sentiment, but not with the idea that it's immanent in the text. Certainly the founding era believed religion was a public virtue. But the privatization-of-religion bargain was hardly a post-constitutional innovation; it was already firmly present in public thought, if not fully developed, at the time of the Enlightenment, if not the Reformation itself, and certainly by the time the Bill of Rights was ratified.

Nor do I think Douthat's examples of recent actions affecting freedom of religion are all that a propos, especially of his argument that "there seems to be a great deal of confusion about this point in the Western leadership class today." As he notes, there will always be conflicts about the limits of permissible religious practice in a society, and by no means will all the arguments for restriction of religious freedom come from non-religious individuals. Of his particular examples, one--the government's contraception mandate and the particular form of compromise it strikes--is a policy I disagree with. But as he notes, that compromise does extend considerable leeway to religious organizations. Douthat argues that it doesn't go far enough, and I think he's right; but neither does he tell us where he thinks the limits should lie, and why an exemption shouldn't apply, for instance, to any and every employer with religious objections. Another example, the recent German court decision on circumcision, was roundly opposed by many German legislators, who are themselves members of the "Western leadership class." Finally, naturlich, he raises the Chik-Fil-A controversy. I was bothered by the fact that a couple of Facebook friends reprinted the threat letter from Mayor Menino of Boston with seeming approval last week. But that controversy is better viewed as a speech issue than a religious issue tout court, and in any event the pandering of those politicians was widely opposed, and not just by conservatives.

Douthat makes two more points. First, he writes: "It may seem strange that anyone could look around the pornography-saturated, fertility-challenged, family-breakdown-plagued West and see a society menaced by a repressive puritanism. But it’s clear that this perspective is widely and sincerely held." I sympathize with this, to some degree. I don't think our society is genuinly "menaced by a repressive puritanism." But one might read Douthat as suggesting that there is no repressive puritanism out there, and/or that all the pathologies he mentions come from the irreligious sector of society. Neither is true. Of course there is a puritan streak in Western society. The fact that it's also matched by a licentious and individualist streak presents a seeming tension (only seeming, because the puritan and individualistic streaks often come from the same groups), but that doesn't mean both aren't true. Yes, it's selectively applied: In my own town of Tuscaloosa, the recent showing of a fairly innocuous art film that involved a teenaged girl in Norway who experiments with masturbation prompted protests and an effort to prevent the publicly funded local art theater from showing the film (the showing of which was itself privately funded), although much of the decidedly religious local population also can't buy enough copies of Fifty Shades of Grey or get enough of the sexualization of young girls in beauty pageants and game-day outfits. And many of the pathologies Douthat mentions are fully present among religious regions of the United States as well. 

Finally, he writes: "It would be refreshing, though, if it were expressed honestly, without the 'of course we respect religious freedom' facade. If you want to fine Catholic hospitals for following Catholic teaching, or prevent Jewish parents from circumcising their sons, or ban Chick-fil-A in Boston, then don’t tell religious people that you respect our freedoms. Say what you really think: that the exercise of our religion threatens all that’s good and decent, and that you’re going to use the levers of power to bend us to your will." That's too strong a statement in a society in which, as he has already acknowledged, there are genuine contests over the scope of religious freedom and some limits are inevitable. There are, of course, people out there who fit the bill of indictment that Douthat is presenting. But that doesn't make the extreme position Douthat is describing one that is held by all those who would disagree with him over the limits of religious freedom.

I agree with his call for candor, and part of that candor involves acknowledging that there are real contests over power here, and that some are happy to call the state in to assist in that power play. But once we see things in terms of power, then Douthat might exercise a corresponding candor about those who fall on the extremes on the other side, some of whom believe that private choices that contradict their own view of what is religiously and personally virtuous in society are threats to all that is good and decent and are happy to enlist the state in using the levers of power to enforce their views. Or he might decline to rush so readily to characterize just one side of the debate according to its extremes while painting the most forgiving possible picture of the other side. He is still right that in the end, battles over the scope of religious freedom and permissible personal conduct ultimately involve battles over the use of power. The people in the middle can't avoid that contest either. But he might have done a better job of recognizing that there are many such people just the same. To hope for an absence of caricatures in a New York Times column is unrealistic. It would be nice if the caricatures weren't so one-sided, though. 

Posted by Paul Horwitz on July 30, 2012 at 06:56 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Saturday, July 28, 2012

Tough Bargaining by States: Why Not Just Federalize Spending for the Poor?

Joey Fishkin has an excellent post over at Balkinization on the actual dynamics of federal-state bargaining over Medicaid (or, for that matter, virtually any federal grant that benefits low-income households). As Joey notes, the state recipients of federal grants for the poor hold the beneficiaries of the federal grant hostage: If the federal government pulls the grant to enforce some condition on that grant, then the beneficiaries of the federal program -- the very people whom the federal agency wants to help by enforcing the federal law -- suffer.

I have two friendly amendments to Joey's first-rate post, followed by a question (tentatively answered after the jump).

First, the dynamic Joey describes is not limited to Medicaid: Contrary to popular belief, states turn down federal money all the time, especially when the conditions tied to the grant benefit indigent households. During the 1990s, for instance, states turned down or never applied for various waivers of work conditions available under the TANF block grant program. The notion that federal grants provide an offer that states can't refuse because they are "free money" is purest myth. (As Harry Hopkins complained during the First New Deal about states' misuse of federal relief money, "who gets licked? The unemployed: they always get licked").

Second, as I noted earlier, the SCOTUS's decision in Independent Living Center v. Douglas has extraordinary importance in strengthening states' hands by depriving private beneficiaries of any private cause of action to enforce federal conditions. Federal agencies worry about states' walking away from federal grants; Self-interested private beneficiaries do not face that worry, so long as they will get the payment to which they were individually entitled in the short term. Private causes of action, therefore, are a way for Congress to sidestep federal agencies' worries that states will "walk," by delegating enforcement of conditions to an agent that does not care about the program as a whole.

Third, a question: Why do states implement redistributive federal programs at all?


The normative theory of fiscal federalism maintains that the feds ought to use federal dough to encourage spending on programs with interstate benefits -- say, spending to aid mobile and indigent households. If that encouragement is defeated by tough bargaining in a situation of bilateral monopoly, then federalism is defeated: Justified federal spending can be converted by governors into purest pork. The obvious solution is simply to federalize redistributive spending entirely, administering it through federal agencies. Yet such federalization is surpassing rare: Medicaid, TANF, Unemployment Insurance, CDBGs, etc are all programs of "cooperative federalism" -- funded by feds but implemented by subnational officials.

Why this functional mismatch? One answer suggests a tragedy of federalism -- that the level with the capacity lacks the will, and the level with the will lacks the capacity. The feds have the organizational unity necessary to overcome the collective problems created by beneficial spillover effects (e.g., the beneficial effect of generously funding aid to low-income households that can let neighboring states off the hook by exporting their indigent citizens to their more generous neighbors). But Congress is so politically heterogeneous, divided dramatically by Red and Blue politics, that they cannot take up the task of aiding the indigent with unequivocal zeal. Instead, as Suzanne Mettler has argued, they historically delegate the task of implementation to the states, in part to assuage more conservative regions (aka the South). But the states -- even Blue ones, as Paul Peterson argued -- have incentives to convert redistributive spending into developmental spending. So they bargain tough with the feds, undermining the program.

Is there any way out of the dilemma? I see the design of a system that overcomes the twin problems of political heterogeneity at the federal level and collective action problems at the state level as the real challenge for lawyers interested in the topic. (Typically, I find that lawyers rather than political scientists or economists are most familiar with the detailed nuts and bolts of these statutes).

But here is another functional mismatch in academia to fit the mismatch in federalism. Constitutional lawyers are the ones who set the agenda for arguing about ground rules of federalism, but nowadays they seem to be the least interested in the reality of federalism, instead focusing on the Sixth Virginia Resolution or whether "commerce" includes private inaction. Meanwhile, the heavy lifting about how federalism actually works is done by tax guys like Brian Galle, administrative law profs like Ricky Revesz, and health-and-employment law scholars like Joey. But their work i s marginalized in the debates about how the courts shape the federal system through statutory and constitutional interpretation.

Is there some way that the two groups can be merged? As Plato said (paraphrasing Republic V:473-c): "until fiscal federalists make con law, or con law scholars study fiscal federalism, ... cities will never have rest from their evils."

Posted by Rick Hills on July 28, 2012 at 09:41 AM | Permalink | Comments (8) | TrackBack

Call for Participation

A quick note on a call for participation: The Mid-Atlantic Law and Society Association will have its inaugural conference at Drexel law school on October 19-20. Participants from all regions are welcome, and grad students and junior scholars are especially encouraged. The topic is "Law, Society and the Social Good." For more information contact cshdaimah@ssw.umaryland.edu. 

Posted by Paul Horwitz on July 28, 2012 at 09:04 AM | Permalink | Comments (0) | TrackBack

Reproductive Rights Discussion Group at SEALS

For those of you planning to attend some or all of the SEALS meeting, please consider dropping by our Reproductive Rights Discussion Group. It's on Monday, July 30, from 3:15 p.m to 5:15 p.m. The topic is "The Meaning of Reproductive Rights Today." I will be moderating, and the discussants are Susan Frelich Appleton, Gaia Bernstein, Pamela Bridgewater, Naomi Cahn, Glenn Cohen, Melanie Jacobs, Lynn Kohm, Kathy Lorio, Jody Madeira, Seema Mohapatra, Jeffrey Parness, Thaddeus Pope, and Rachel Rebouche.

It is a diverse group, put together by Naomi Cahn and myself, and it promises to be a rich discussion. Hope to see you there!

Posted by Jessie Hill on July 28, 2012 at 08:47 AM | Permalink | Comments (3) | TrackBack

Friday, July 27, 2012

Consumer Claim Against Law Schools Survives Motion to Dismiss

A state court in California has rejected demurrers by Golden Gate University and the University of San Francisco's law schools to consumer fraud actions filed against each of those schools, allowing the cases to move forward to the discovery phase. This is the first set of recent cases against the law schools that I'm aware of in which such claims were not dismissed prior to further factual development. Here is the order in the Golden Gate case; both orders are available at Paul Campos's blog, and I must also thank the folks at Law School Transparency for posting the orders. I'm afraid I've been occupied with other things and haven't had a chance to take a proper look at them, but I wanted to post about this before too much time passed. 

UPDATE: I stand corrected. From a reader email: "The Thomas Jefferson case is in discovery now, though these two suits against GG and USF are the first ones from the class action consortium to make it this far." Thanks for the correction.

Posted by Paul Horwitz on July 27, 2012 at 01:21 PM in Paul Horwitz | Permalink | Comments (5) | TrackBack

Baseline Hell and Campaign Disclosure Laws: Why Opposition to Disclosure of Campaign Contributions is Not a "War Against Facts"

Dahlia Lithwick and Raymond Vasvari have an interesting article decrying the Republicans' unwillingness to disclose facts relevant to politics. Their chief exhibit is Republican opposition to the DISCLOSE Act's requirements that the identity of campaign contributors be disclosed to the public. The gist of their argument is that norms of free debate require the disclosure of factually accurate information like the source of campaign donations. But Lithwick and Vasvari do not merely disagree with the idea that disclosures of one's campaign contributions might chill the contributors' willingness to donate: They deride the theory as an "argument that truth must be hidden because some people may be mean someday."

I find myself completely perplexed by Lithwick's and Vasvari's article on every level. First, I am perplexed by the underlying issue of privacy: As I have elsewhere noted, I do not think that we have any intellectually respectable theory about when and why people ought to be entitled to withhold truthful information. Second, I am perplexed by Lithwick's and Vasvari's jeering confidence that the Republicans' arguments against disclosure constitute a "war against facts" and a battle against truth-seeking. It is not that I disagree with them about the merits of disclosure: In a vague and visceral way, I am intuitively skittish about legal entitlements to withhold information. I just do not know how Lithwick and Vasvari distinguish between meritorious arguments for non-disclosure and frivolous ones. Would they deploy an equal amount of ridicule against arguments for the secret ballot? For an evidentiary privilege for journalists? On one hand, their uncompromising stance against non-disclosure of campaign contributions suggests a simple answer to every privacy issue: Require (or at least, allow) the disclosure of all accurate information, and let the marketplace of ideas determine the consequences. On the other hand, such a position seems so crude as to be an absurdum to which their "disclosure absolutism" leads by way of an obvious reductio. I am sure that they would use some exit ramp before they arrived at such an unpleasant destination: I just do not see which ramp they have in mind.

The problem, I suspect, is less in their article than in our much more general malaise regarding privacy: As I have noted elsewhere, we simply have no real consensus about when and why people should be entitled to withhold information about themselves. This lack of a theory for privacy "property rights" leads to what I have elsewhere called "baseline hell": Every assertion of privacy can equally be defended or attacked as either protection of an individual entitlement or invasion of a collective right (a "war on facts"!). After the jump, I'll suggest two antidotes to this impasse -- Less passionate rhetoric about rights and more passionate defenses of federalism.


1. First, consider a conventional efficiency-based reason for we might protect privacy. On one account, entitlements to privacy are justified by the same efficiency concerns about deadweight loss that can be invoked in favor of any other property right. By protecting the individual's power to exclude others from trespassing on his or her resources, one creates incentives for the individual to create more of the protected resource.

Lithwick's and Vasvari's article seems to proceed from the assumption that forced disclosure of information always increases the total amount of information available to the public. But, as any journalist who has ever tried to protect a confidential source will agree, this assumption is patently false: The prospect of forced disclosure can chill the selective revelation of information, actually reducing the total store of available information. This intuition is the justification for executive officials' common-law "deliberative process" privilege: If officials' deliberations are made public, then executive officials will not receive candid advice for their inner circle, leading to less informed decision-making. General forced disclosure deters selective voluntary disclosure resulting in less information, overall.

Could one make such a "deadweight cost" argument against forcing the disclosure of campaign contributions? Sure: There is not the slightest doubt that disclosure presents the non-frivolous risk that at least some contributors, at the margin, will be deterred by having their identities disclosed. (I know from experience in raising money for friends running for state office: Friends have told me that they do not want their identities disclosed for fear that a donation would hurt their chances getting an appointment in the Romney Administration). Lithwick and Vasvari might respond that campaign contributions discouraged by the prospect of disclosure have little value, because publicity discourages only those contributors who make donations so large or for such pernicious motives as to undermine rather than advance democracy.

If this is the response, however, then I'd like it to be spelled out in more detail. Is the theory that only big donors (e.g., those covered by the DISCLOSE Act) should have to disclose their identities but not the small fry, because the former make contributions that corrupt rather than advance democratic debate? Then how big is "too big"? Presumably, on this ground, they'd oppose disclosure of small donations (>$100) required by California law. Or is their theory the old Brandeisian saw that, "[i]f the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects"? On this ground, no harm can come from more information, because only scoundrels with bad motives are deterred by disclosure. But then Lithwick and Vasvari need to go much further and denounce the secret ballot: After all, would not voters benefit from being so "purified" by some beneficial "sunlight"? One might distinguish voters from donors on the theory that the former are more vulnerable to retaliation from bosses and other Bigs than the latter. But this response implicitly concedes that publicity can have costs as well as benefits, such that one needs a theory about when the marginal deterrent effect of publicity outweighs the immediate information-disclosing effect. Sometimes, in short, "the broad light of day" leads to sunburn rather than purification. I see not the slightest allusion to this problem in Lithwick's and Vasvari's eloquently single-minded stance favoring disclosure.

2. Second, consider how "waiver" can be deployed to sidestep -- dishonestly -- all of the tough questions about the scope of the privacy entitlement raised above. When one is in Baseline Hell, "waiver" is the preferred solution: Concede that individuals might have rights of non-disclosure (of grades, medical records, tax returns, political affiliations, etc), but then argue that waiver of the entitlement can be made a condition of some other activity to which one is not absolutely entitled. On this theory, for instance, Romney has the moral right to withhold his tax returns, but voters have an equal moral right to punish him at the polls if he does so, because he has waived his right to privacy by entering the political arena. If one cannot take the heat, stay out of the kitchen.

But such "waiver" argument lands one even deeper in Baseline Hell, because the argument requires one to define the entitlement to the underlying action being conditioned by the waiver as well as the entitlement to the right of non-disclosure being waived. If one owns the kitchen, then presumably one can insist on the lowering the temperature whenever one cannot stand the heat. Likewise, if one has an entitlement to cast a ballot for whatever reason one pleases, then one cannot be required to waive one's right not to disclose one's partisan affiliation as a condition for being allowed to vote.

So do contributors have a right to make campaign donations that cannot be made subject to conditions? Search me. The law here is rightly contested. Because the entitlement to the conditioned action (contributing money to campaigns) is so hotly disputed, it is hard to make headway arguing that one forfeits one's right to keep one's political loyalties a secret whenever one gives money to a campaign: Both the condition and the conditioned action are subject to such entirely uncertain entitlements that any argument for waiver will be an annoying mix of rhetorical hand-waving and a potpourri of contradictory citations to conflicting precedents. This is not to say that a First Amendment lawyer as able as Ray Vasvari could not cobble together a plausible brief for the proposition that campaign contributions can be conditioned on disclosure. I mean only to suggest that the existing so-called "doctrine" of unconstitutional conditions, when applied to First Amendment rights, is a godawful mess: From Rust v. Sullivan to Regan v. Taxation With Representation, the law is so notoriously incoherent and contested and malleable that any argument rooted in such doctrine will not persuade anyone who is not already persuaded for other reasons.

3. So what should one do when one lands in such a Baseline Hell?

First, stop shouting. The most infernal aspect of Baseline Hell is the interminable din. Admit that the underlying social norms defining the relevant entitlements are so uncertain that strong-minded rhetoric is out of place. The Republican Party is not conducting a "war against facts" when it attacks mandated disclosure of campaign contributions any more than Justice Douglas was conducting a "war against facts" when he dissented in favor of an absolute journalists' privilege in Branzburg v. Hayes. In Baseline Hell, there is a plausible account of an entitlement on either side of the dispute, so resolving that dispute will be more akin to threading a needle than scoring a goal: Less force, more finesse.

Second, federalism, federalism, and more federalism. As I have elsewhere argued, when the underlying entitlements are deeply uncertain, it is time to rely on political decentralization rather than centralized adjudication to work them out. A federal system can make room for both sides of a reasonable disagreement, showing equal concern and respect for each by letting each have their enclave. This is the best justification for Grutter on affirmative action in public universities, Locke v. Davey on public funding for religious speech, and a host of other decisions effectively delegating hotly debated constitutional issues to the states. I would do the same with the question of disclosure rules for political contributions, avoiding both judicial and congressional centralization.

Posted by Rick Hills on July 27, 2012 at 12:40 PM | Permalink | Comments (3) | TrackBack

Thursday, July 26, 2012

I need a shot of ExpressO.

Am I the only one who missed this announcement from the California Law Review that it is forsaking ExpressO and only accepting submissions through email and Scholastica? Am I the only one who missed the fact that Scholastica exists? This is particularly embarrassing, given that my own law review apparently accepts submissions through the site.

So, what do you make of this? Is it going to replace ExpressO? (The $5/submission price tag seems a bit high.) Or is it just another way (along with special submission procedures through their own sites)  for top law reviews to make it a little less easy to submit?

Posted by Jessie Hill on July 26, 2012 at 07:50 PM | Permalink | Comments (7) | TrackBack

The Collection Gap

Along with Ezra Ross (now of UCI), I have started a new blog, The Collection Gap, which deals with regulatory enforcement failure.  The blog was inspired by our article, The Collection Gap: Underenforcement of Corporate and White Collar Fines and Penalties, 29 Yale L. & Pol'y Rev. 453 (2011), which found that agencies are leaving billions of dollars in criminal, civil and administrative fines and penalties uncollected, even where offenders have the ability to pay.

One of the things that drove us to pursue this topic was the fact that, while there was much debate about whether or how much to fine corporations, there was little if any discussion about whether the fines that were imposed were ever actually collected--which obviously impacts deterrence and institutional legitimacy, among other things.  Agencies like the EPA get the benefit of announcing big headlines ("Biggest fine ever against polluter X..."), but are not held accountable for failing to follow through.  Part of the problem is simply resources, but we believe that to a large extent it has to do with insufficient incentives at the institutional and individual levels.

I would welcome thoughts or suggestions about other situations in which problems with policy implementation threaten to undermine the policies themselves.  It's the type of thing that often doesn't get much attention, but could have a lot of practical impact regarding how government actually operates and affects people's lives.

Posted by Martin Pritikin on July 26, 2012 at 09:33 AM in Article Spotlight, Blogging, Corporate, Law and Politics | Permalink | Comments (3) | TrackBack

Tuesday, July 24, 2012

The Malleability of the Formalist Accusation

The formalist accusation -- the one which generations of law professors have affixed on large swaths of American thought in the late nineteenth and early twentieth century -- continues to work its rhetorical trompe l'oeil.  The latest example appears in the Seventh Circuit's Establishment Clause decision yesterday, Doe v. Elmbrook School District.  The case involved the constitutionality of a Wisconsin school district's decision to hold a public school graduation inside a church.  The en banc court held that under the specific facts of the case, the ceremony violated the Establishment Clause.

For purposes of this post, though, I want to focus on an exchange between Judge Flaum's majority opinion and Judge Posner's dissent.  Each accuses the other side of excessive (is there ever any other kind?) formalism -- the majority opinion explicitly, the dissent implicitly but no less directly.  The majority says:

In sum, if constitutional doctrine teaches that a school cannot create a pervasively religious environment in the classroom . . . or at events it hosts . . .  it appears overly formalistic to allow a school to engage in identical practices when it acts through a short-term lessee.  See Lee [v. Weisman], 505, U.S. at 595 ("Law reaches past formalism").  The same risk that children in particular will perceive the state as endorsing a set of religious beliefs is present both when exposure to a pervasively religious environment occurs in the classroom and when government summons students to an offsite location for important events. 

I guess that does sound pretty formalistic.  And yet Judge Posner -- who is not especially well known for formalistic opinion writing (and even less commonly for "overly formalistic" decisions) -- is on the other side of this disagreement.  Here's what he says:

The difference between a public school's using a church two or three hours a year and its using it a thousand-odd hours a year is one of degree rather than of kind, but differences of degree are inescapable grounds of legal distinctions.  "I am the last man in the world to quarrel with a distinction simply because it is one of degree.  Most distinctions, in my opinion, are of that sort, and are none the worse for it."  Haddock v. Haddock, 201 U.S. 562, 631 (1906) (Holmes, J., dissenting).  "Here, indeed, as so often in other branches of the law, the decisive distinctions are those of degree and not of kind."  Welch v. Helvering, 290 U.S. 111, 114 (1933) (Cardozo, J.).

It will not do to equate school activity at a church to church activities at a public school.  The religion-in-school cases . . . held that the establishment clause had been violated because the government was trying to induce kids to engage in religious activity, and that isn't alleged in our case.

That doesn't sound too formalist either (and certainly not "overly formalistic").  Judge Posner doesn't seem to be relying on self-avowed or otherwise accused formalists in reaching his view of the case.  I don't think Holmes or Cardozo are in the canon of formalist arch-villains, are they?  How about it, readers: ferret out the formalist! (and when you do, remember to heap scorn accordingly)

Posted by Marc DeGirolami on July 24, 2012 at 01:55 PM | Permalink | Comments (0) | TrackBack

The death penalty for Holmes, and "consultation" with victims

It's in the news (and not surprising, I suppose) that the Arapahoe County District Attorney is considering seeking the death penalty for the accused, James Holmes, in the Aurora movie-theater killings.  It has also been reported widely (here's one clip) that the D.A. plans to come do a decision in "consultation with the victims' families."

I oppose capital punishment, so I guess my views about such consultation, or about the related matter of "victim impact evidence" at sentencing, can fairly be discounted.  And, I am also sensitive to the fact that I have not been teaching or writing about these questions for several years.  That said, my strong sense continues to be that we -- that is, the political community that punishes -- need to be very careful about this consultation, and about what its purposes should (and should not) be.  

For example, it seems to me that the important question whether the death penalty is "deserved" (and no punishment should be imposed that is not deserved) is not one that should depend much on what the victims' families' preferences are regarding punishment, and it should not depend at all on whether the consultation/investigation uncovers facts that suggest that these particular victims were especially "valuable to society" or high-achieving or praiseworthy, or that their families were, for one reason or another, harmed more than usual by the loss.  (I am inclined to think, though, that a prosecutor could appropriately take into account facts uncovered during consultation with the victims' families having to do with the ease, or difficulty, of securing a (just) conviction efficiently.)

Again, I'm not an expert and others here at Prawfs know a lot more about punishment theory than I do!  Thoughts?

Posted by Rick Garnett on July 24, 2012 at 12:17 PM in Criminal Law, Rick Garnett | Permalink | Comments (11) | TrackBack

Resource Assistance?

I am looking for help with resources for a particular research project, and a colleague suggested that I "crowdsource" my question here. I want to locate a particular word or phrase in a wide range of non-legal sources, such as movies, music, media, and books and other literature. Google's functioning pretty well for searching general media. I also recently discovered Google's NGram function, which permits word and phrase searches within a large database of books.

Any suggestions for other good search resources, particularly something for searching words or phrases within movies and music?

Thanks for any help!

Posted by Brooks Holland on July 24, 2012 at 11:22 AM | Permalink | Comments (5) | TrackBack

Why More Elite Schools, and Judging Adjuncts

First, a quick note to say thank you to the many, many commentators (by Prawfs standards) on my last two posts. I'm especially grateful for the comments on the paper and welcome further comments by email. If there was any kind of culture clash in the comments between the usual tweediness of the Prawfs commenter and some of the folks who sailed in from the so-called scamblogs, I expected and welcomed it: one of my goals in putting this paper out there early was definitely to expose it to constituencies that might not otherwise read it and get their feedback, positive and negative. Same with my solicitation of advice for my upcoming talk to aspiring law professors: I'm sure I won't possibly be able to cover everything, and in fact some of the commentary convinced me that I will have to give more straight advice than I'd planned on. But I did and do want to make the "crisis" a part of that talk, not so much in terms of warning aspiring profs about mass closures but more in terms of emphasizing the duty of faculty governance among even new professors, and that this duty includes worrying about precisely these issues. In all, although the discussion got heated, I was thrilled by how productive and relatively civil it was, and very grateful for the many questions and thoughts.

Now, on to new stuff.

Courtesy of Paul Caron, I see that Erwin Chemerinsky has a new op-ed discussing Brian Tamanaha's law school reform proposals, and particularly some of Tamanaha's criticisms of UC-Irvine. (Note that the somewhat unfortunate title of the piece--"You get what you pay for in legal education"--may have been an editor's choice rather than the author's.) I want to focus on two of the points he makes in his piece.

The first is this statement:

Tamanaha says that UCI Law School "squandered" its opportunity, and that where we "went wrong was in setting out to create an elite law school." My goal, and that of my university, has been to create a top 20 law school from the outset. Recently, a study of faculty scholarly impact ranked UCI Law's faculty seventh in the country (behind Yale, Harvard, Chicago, Stanford, New York University and Columbia). Our students are of the caliber of top 20 law schools by traditional measures of LSAT and grade-point averages. Our applications were up 105 percent this year. Of the 58 students who graduated in May, 16 have judicial clerkships across the country, which puts us behind only Yale and Stanford among top 20 schools in the percentage of students who will be clerking. 

If we had followed Tamanaha's advice, we would not have faculty remotely of this quality and then never could have attracted students of this caliber. We surely would have been a fourth-tier law school. It is ironic that he would be advocating that because so much of his book is about demonstrating the serious problems such schools face. 

What's missing from this response, I think, is why it made sense to set out to create a "top 20 law school from the outset." The thing about that is that there were, of course, already 20 such schools in existence. (Or, by law school math, about 25 or 30.) Chemerinsky may or may not be right about the kind of causal mechanism he describes in the second paragraph. But to my mind, he neither explains why the goal of creating a top 20 school made sense, nor why he couldn't have instead rejected the kind of "tier" notions he uses altogether, or used the law school's startup cash to think about what a first-rate "second" or "third" tier school could be. I am guessing Southern California and its legal market and would-be client base are probably much more in need of the latter.

The second thing is something I'd like to ask readers about. Chemerinsky writes:

Cutting a law faculty in half would require relying far more on relatively low-cost adjunct faculty. Tamanaha's assumption is that relying on practitioners rather than professors to teach more classes won't compromise the quality of the education students receive. Here I think he is just wrong. There are certainly some spectacular adjunct professors at every law school, and they play a vital role. But as I see each year when I read the student evaluations at my school, overall the evaluations for the full-time faculty are substantially better than they are for the adjuncts. It is easy to understand why. Teaching is a skill, and most people get better the more they do it. Moreover, full-time faculty generally have more time to prepare than adjunct professors who usually have busy practices. 

Adjunct faculty are available far less for students than full-time faculty. Tamanaha gives no weight to the substantial learning that occurs outside of the classroom. I think he tremendously underestimates the amount that most faculty are around the school and available to students. 

I also support the more vigorous use of adjuncts. More to the point, I think we already do it at many or most law schools but haven't fully acknowledged it, and the more we do the more likely we are to fully integrate adjuncts into our community and erect quality controls. But I would like to know the sense of readers, whether professors or students, out there. Is Chemerinsky right that full-time faculty are better teachers than adjuncts, or that adjuncts are far less available to students than full-time faculty? What are your own impressions of adjunct versus full-time faculty, both the positives and the negatives? And how, apart from evaluations, can we get the most and highest use out of adjuncts? 

Posted by Paul Horwitz on July 24, 2012 at 08:55 AM in Paul Horwitz | Permalink | Comments (21) | TrackBack

Monday, July 23, 2012

Just the FACs: Fan Action Committees and Fan Support

Dan and I have an op-ed that just posted at The Atlantic, introducing the concept of "Fan Action Committees." The sports counterpart to PACs, these are vehicles for fans to pool money to give to star players (or donate to the player's favored charitable causes) to induce them to join or remain with a favored team. We take a particular focus on last week's Jeremy Lin/New York Knicks saga.

This presents the germ of an idea that we hope (along with sports law guru Mike McCann of Vermont) to expand into a longer essay. Comments welcome and encouraged. Thanks to Mike, Gregg Polsky (UNC), and Brian Galle (BC) for their comments.

Posted by Howard Wasserman on July 23, 2012 at 05:04 PM in Article Spotlight, Dan Markel, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Rights consequentionalism

Sandy Levinson argues that the ostentatiously meaningless (or meaninglessly ostentatious) demonstrations of grief by public officials and political candidates to the Aurora shootings illustrate our current inability to seriously address gun violence or any other public issues. In particular, no one is willing to discuss events like this as the price we pay for broad Second Amendment rights (much as no one is willing to discuss drunk-driving deaths as the price we pay for easy access to alcohol).

I had an exchange recently with Erica Goldberg over the felt burden of First Amendment advocates and courts to repeatedly declare that they support the principle of free expression and do not endorse or even like the often racist, sexist, homophobic, or dangerous speech they seek to protect. They regularly explain that distasteful speech is the sunk cost of a commitment to speech, because we cannot draw lines and cannot trust government to do it without risking attacks on unpopular ideas and groups. And while Sandy insists that we do not have an honest discussion of that balance, it at least is part of the rhetoric of the First Amendment.

Is it part of the Second Amendment rhetoric and do advocates share the same rhetorical burden? Must the NRA disavow James Holmes or Jared Lee Loughner? Must they explain that some gun violence is a cost of millions of law-abiding people responsibility exercising their rights? When the court strikes down a ban on automatic wepaons, must it explain (paraphrasing what Chief Justice Roberts said in Snyder), “a 100-round magazine is certainly hurtful and its contribution to self-defense or hunting may be negligible. But . . . “?

I am not sure it is part of rhetoric.The question, then, is why not?

Posted by Howard Wasserman on July 23, 2012 at 09:31 AM | Permalink | Comments (13) | TrackBack

A Clearinghouse for Questions, 2012-2013

The 2012-2013 law school hiring market is soon beginning. 

In this post, you can ask questions about the law teaching market (anonymously if you wish, assuming the questions are not especially offensive or otherwise improper), and prawfs or others can weigh in, also anonymously if they choose, but within the bounds of decency. I will keep an eye on things and delete misinformation and ban the IP addresses of those acting out of bounds. If you're a reader and you see something suspicious, please feel free to let me know via email.

We will have a distinct but related post in which candidates or prawfs can report on callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.

So...questions? But before you ask your questions, take a look at the 500 questions and comments that came up on last year's thread.

Update: Here is a link to the last page of comments.

Posted by Dan Markel on July 23, 2012 at 08:44 AM in Blogging, Getting a Job on the Law Teaching Market | Permalink | Comments (1057) | TrackBack

The Colorado Shooting and Gun Laws

 I almost cannot bring myself to discuss last week’s massacre, but at the same time cannot help but address it. 

When I turned on the news Friday morning and heard about the movie theater shooting, commentators invariably turned to the question of whether gun control would become an issue in the Presidential campaign.  And the answer was, invariably: no.  Neither candidate would likely find it in their interest to emphasize the issue.

I don’t purport to be a Second Amendment expert, and have never focused intensely on the issue.  But the shooting not only sickened me, it made me wonder what the available data is regarding whether, as an empirical matter, the right to bear arms yields a net benefit or not in terms of public safety.

My initial searches revealed, not surprisingly, that the answer depends on the source of the data. …

I tried to disregard obviously biased sources, but still found the data somewhat equivocal.  One posting from the University of Utah Medical School included the following:

In the U.S. for 2010, there were 31,513 deaths from firearms, distributed as follows by mode of death: Suicide 19,308; Homicide 11,015; Accident 600. This makes firearms injuries one of the top ten causes of death in the U.S….The number of non-fatal injuries is considerable--over 200,000 per year in the U.S….The cumulative lifetime cost in 1985 for gunshot wounds was estimated to be $911 million, with $13.4 billion in lost productivity. (Mock et al, 1994)

The number of firearms injuries remains high in the United States, compared with most of the rest of the world. Firearm suicide rates are strongly impacted by the rate of gun ownership. (Kaplan and Geling, 1998) There is a positive correlation between homicide rates and availability of guns in developed nations. (Hemenway and Miller, 2000)….

The issue of "home defense" or protection against intruders or assailants may well be misrepresented. A study of 626 shootings in or around a residence in three U.S. cities revealed that, for every time a gun in the home was used in a self-defense or legally justifiable shooting, there were four unintentional shootings, seven criminal assaults or homicides, and 11 attempted or completed suicides (Kellermann et al, 1998)….In another study, regardless of storage practice, type of gun, or number of firearms in the home, having a gun in the home was associated with an increased risk of firearm homicide and suicide in the home (Dahlberg, Ikeda and Kresnow, 2004). Persons who own a gun and who engage in abuse of intimate partners such as a spouse are more likely to use a gun to threaten their intimate partner. (Rothman et al, 2005). Individuals in possession of a gun at the time of an assault are 4.46 times more likely to be shot in the assault than persons not in possession (Branas et al, 2009).

At the same time, another site which clearly has a conservative slant cited a variety of studies which claims that guns are used to dissuade or repel violent crimes hundreds of thousands of times per year:

*A 1993 nationwide survey…found that…at least 0.5% of households had members who had used a gun for defense during a situation in which they thought someone "almost certainly would have been killed" if they "had not used a gun for protection." Applied to the U.S. population, this amounts to 162,000 such incidents per year…..

  * Based on survey data from a 2000 study published in the Journal of Quantitative Criminology, U.S. civilians use guns to defend themselves and others from crime at least 989,883 times per year.

    * A 1994 survey conducted by the U.S. Centers for Disease Control and Prevention found that Americans use guns to frighten away intruders who are breaking into their homes about 498,000 times per year.

This same site also questioned the reliability of the study that found that the homicide of a household member is three times higher in a household with a gun.  (Admittedly, I did not check any of the sources cited on either of these sites, or others that I looked at.)

I realize that to a large extent, people’s views on this issue are not going to be entirely data driven.  For example, even if one could prove that gun ownership harmed more innocent civilians than it helped, many would view the cost as worth it because they see a primary value of gun ownership is to prevent the government from having a monopoly on weaponry.  Many on the other side are likely similarly entrenched for various reasons.

I have heard the view expressed that no gun laws, no matter how strict, can prevent the occasional madman from wreaking havoc, and that gun policy should not be based on such aberrations.  But, for better or worse, we exist in a realm where catastrophes, natural or man-made, wake us up from our stupor and shine the light on certain issues, be it an airplane crash, a hurricane, an oil spill, or a shooting spree.

I have also heard it said that more stringent reporting or registration laws wouldn’t have prevented this particular tragedy.  That may be.  And yet a recent story about the nature of the weapons used persuaded me that it is folly to argue that nothing can or should be done:

The semi-automatic rifle used in the Colorado theater killings jammed during the rampage, apparently because of a problem with the 100-shot magazine feeding it, a law enforcement source with direct knowledge of the investigation said Sunday.

The military-style AR-15 had a separately purchased drum magazine, which can have trouble feeding bullets into the firing chamber if the gun is fired rapidly, the source told CNN.

"These after-market extended magazines have a tendency to jam," the source said.

One of the survivors of the early Friday assault, Josh Nowlan, said Saturday that he would not have been alive if the suspect's gun had not jammed.

Investigators say the rifle was one of three guns used by Colorado massacre suspect James Holmes in the early Friday killings, along with a shotgun and a .40-caliber pistol. The handgun also had an extended magazine that held 40 rounds, the source said.

It seems to me there are two legitimate purposes for gun ownership:  self-defense, and hunting.  Even if brandishing a weapon can scare off an attacker or home intruder, and even if that happens hundreds of thousands of times per year, in how many of those instances did the fact that the gun had a 40- or 100-round magazine make the difference in scaring off the attacker?  And how many hunters need dozens or hundreds of rounds to shoot a deer?

Admittedly, I am a city dweller who has never handled a gun, so I may be speaking from ignorance.  But there should be a baseline of assumptions about gun control—such as it should not be possible to purchase a 100-round magazine for a semi-automatic assault rifle—that most reasonable people should agree on, and that no politician should find it dangerous to endorse.  That is the naively optimistic part of me.  The realist knows it is not so.  But if we resign ourselves to the idea that these massacres are simply part of the “cost of doing business” associated with the right to bear arms, that is a tragedy unto itself.

 

 

 



Posted by Martin Pritikin on July 23, 2012 at 02:46 AM | Permalink | Comments (10) | TrackBack

Sunday, July 22, 2012

Another jurisdictionality victory

This time it's the Sixth Circuit, holding that mandatory arbitration of minor disputes under the Railway Labor Act is not jurisdictional, applying Arbaugh's plain statement rule. (H/T: Reader and occasional commenter Asher Steinberg). Interestingly, this was a panel overturning circuit precedent, not the en banc court, a departure from circuit rules; the court explained that the departure was compelled by a specific Supreme Court decision, Arbaugh. This is a different approach than the Seventh Circuit recently took, where the shift was done by the full court, not in light of a single case, but in light of the general trend of Supreme Court precedent over the past few years.

Posted by Howard Wasserman on July 22, 2012 at 07:35 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (3) | TrackBack

Friday, July 20, 2012

Wonderful news!

Please join me in welcoming a new member to the Prawfs family: John Joseph Garnett! He was born, um, recently. More details (and pics!) to follow I hope but in the meantime, lots of love and blessings to Rick and Nicole. 

Posted by Dan Markel on July 20, 2012 at 03:17 PM | Permalink | Comments (3) | TrackBack

What Would You Tell Aspiring Law Professors?

Dan was kind enough to note below that I'll be speaking at the upcoming Aspiring Law Professors conference at Arizona State; the details are here. I have heard from several past attendees that they found the conference very useful. I should note in fairness the obvious point that attending is no guarantee of a successful application; I assume the value of the trip will be greatest for those who have a viable shot but would like some serious advice and an opportunity for practice and refinement. 

While I have some thoughts on what I want to say, I would be very happy to solicit any advice about what you would tell aspiring law professors if given the chance. In doing so, I should note two related matters. First, I appreciate the juxtaposition between this post and my recent post about "failing law schools." While hoping to forestall unduly obvious "advice" along the lines of "don't apply at all," "burn down the schools," "withdraw until you have practiced at least 20 years," and so on, I do think the juxtaposition is relevant and, indeed, it's the main reason I was so glad to agree to come. I do intend to bring some of these issues into my talk. I do think people entering a teaching profession, in this or any other time, have an obligation to think about what that position requires of them, including, say, getting to know one's local legal market and becoming actively involved in faculty governance. Second, for better or worse, for purposes of this talk I am taking law schools' hiring preferences as a given. If I ever give a talk to aspiring hiring committee members, my text might differ on this point. In any event, I welcome advice on what advice to give! -- either about how to get a teaching job or about what duties that job entails. I posted the same request on Facebook and got some very useful advice (thank you, "friends"), so I thought I'd ask here as well.   

Posted by Paul Horwitz on July 20, 2012 at 08:37 AM in Paul Horwitz | Permalink | Comments (72) | TrackBack

Two Good Posts on Whether to Attend Law School

Deborah Jones Merritt has two very interesting posts -- here and here -- about factors that may influence an incoming or current student's decision whether to attend (or continue attending) law school. 

Posted by Paul Horwitz on July 20, 2012 at 08:14 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Thursday, July 19, 2012

In Praise of Praising Legal Aid Lawyers

A brief essay on Forbes.com has made the rounds this week, In Praise of Legal Aid lawyers. The piece focuses on criminal defense legal aid lawyers, and why society should appreciate their work. The essay doesn't add anything too unfamiliar to this discussion. But it effectively and efficiently makes the case to both lawyers and non-lawyers for valuing public defenders--as evidence by all my current and former public defender friends on Facebook who posted and re-posted this link.

Some jurisdictions, such as Florida, still sadly seem not to get the need for a fully viable indigent defense system. I suppose funding will always be a challenge. But a lot of good indigent defense policies nevertheless have gained traction to help the criminal justice system better realize the unfulfilled promise of Gideon. For instance, the Washington State Supreme Court recently adopted indigent defense standards, including guidelines on caseload limits and attorney qualifications and a certification requirement. Seattle University law prof Robert Boruchowitz, with whom I served on the WSBA Council on Public Defense, details the Court's order here. Other jurisdictions, such as New York, have pursued similar ideas with some success.

As this patchwork of reform hopefully becomes more widespread, the question will become more pressing of what the promise of Gideon functionally should look like in individual and institutional practice. In the food for thought column, I wanted recommend a recent article, Padilla v. Kentucky: Sound and Fury, or Transformative Impact, by CUNY law prof, and former Legal Aid colleague and fantasy baseball competitor, Steve Zeidman. This article considers what Padilla should mean for the constitutional standards of criminal defense work. The bottom line I took from Steve's article: Padilla should mean getting to know your client and his or her case much better, pleading fewer cases out, especially early in the process, and trying more stinkin' cases. The trend, of course, seems quite the opposite: more guilty pleas, fewer trials.

While reading and enjoying the Forbes.com essay praising Legal Aid lawyers, I thought of the Legal Aid lawyers and offices modeled in Steve's article.

Posted by Brooks Holland on July 19, 2012 at 03:45 PM in Article Spotlight, Criminal Law | Permalink | Comments (2) | TrackBack

"What Ails the Law Schools?": A Discussion Draft

There are "risks" in putting up an early draft of a paper on SSRN, but sometimes one generally wants to invite discussion and feedback. This is one of those occasions. I hope those who are interested in legal education, which I assume includes most of the readers of this blog, will take a look at this draft paper titled "What Ails the Law Schools?" and feel free to send me any comments. The paper, which focuses on Brian Tamanaha's Failing Law Schools and Walter Olson's recent book Schools for Misrule, is a long way from its publication date, and although the editing process will be over quite some time before that, I still have ample time to incorporate any feedback. I'm glad there has been increased public discussion of these issues in our community over the last year or two and this paper is intended more to present those issues clearly than anything else, although of course I offer some views of my own. Comments are welcome. Here's the abstract:

Everyone engaged in legal education and not utterly asleep agrees that there is a "law school crisis." Building on recent works by Brian Tamanaha and Walter Olson, this paper discusses its causes and potential solutions, using a typical dichotomy in recent populist movements--the "one percent" versus "99 percent" meme--as a lens. It examines arguments that the problem is economic and that it is primarily cultural; although I conclude the problem is economic and structural far more than cultural, I also argue that one of Tamanaha's primary recommendations for reform--that law schools ought to display more experimentation and institutional pluralism, and that ABA accreditation requirements ought to make this more possible--goes some way toward addressing both diagnoses. The paper is more descriptive than prescriptive, although I offer some thoughts on solutions. I emphasize three things: 1) law schools would be better off focusing on regional than national markets, although the US News rankings make regionally oriented approaches more difficult; 2) a serious increase in meaningful faculty governance and involvement is needed; and 3) the role and needs of the client have been surprisingly marginal in recent discussions of law school reform. The client needs to be a prominent part of reform discussions, which suggests, contrary to some extant views, that curricular reform ought to continue to be part of the discussion along with economic and structural reform. 

This is an early and imperfect draft intended for discussion and feedback, given both the importance of the issue and the need for increased public discussion. Comments are welcome.

 

Posted by Paul Horwitz on July 19, 2012 at 09:46 AM in Paul Horwitz | Permalink | Comments (39) | TrackBack

Aspiring Law Profs Conference at ASU

I was thrilled to see the discerning judgment of our friends at ASU, who have selected our own Paul Horwitz to be the keynote speaker at the Aspiring Law Professors Conference this fall. The day long gathering takes place in Phoenix in September, so it will also be the Perspiring Law Professors Conference (rimshot!).  There's a gaggle of other prawfs who will be speakers. Well worth your time if you're heading on the market. In any event, here's the relevant information.

Designed for Visiting Assistant Professors, Fellows and others who plan to go on the academic teaching market, but valuable to anyone considering a career as a law professor.

  • Learn to succeed in the entry-level law teaching market
  • Obtain an insiders perspective on the appointments process from faculty with extensive hiring experience
  • Participate in a mock interview or mock job talk and gain feedback from law professors

FEATURING:

Paul HorwitzPaul Horwitz,
Professor Horwitz teaches law and religion, constitutional law, and legal profession. He received his B.A. in English Literature from McGill Universtiy in Montreal in 1990, M.S., with honors, in Journalism from Columbia University in 1991, LL.B. from the University of Toronto in 1995 where he was co-editor-in-chief of the University of Toronto Faculty of Law Review, and LL.M. from Columbia Law School in 1997. Professor Horwitz clerked for the Honorable Ed Carnes of the United Court of Appeals for the Eleventh Circuit. Before joining the University of Alabama, Professor Horwitz was an associate professor at the Southwestern University School of Law in Los Angeles. He has also been a visiting professor at the University of Iowa College of Law, the University of San Diego School of Law, and Notre Dame Law School. In addition to having written and spoken widely on issues of constitutional law, Professor Horwitz is a member of the popular legal blog Prawfsblawg

 

Posted by Dan Markel on July 19, 2012 at 09:36 AM in Blogging, Getting a Job on the Law Teaching Market | Permalink | Comments (0) | TrackBack

Arms Control Law Blog

My Alabama colleague, Dan Joyner, has started a new group blog devoted to arms control law. Unlike existing blogs in the field, which are generally more devoted to policy than law, this one will focus closely on the legal issues associated with arms control. It's not my field, but the posts and the contributors look extremely impressive. Arms control/international law types, bookmark away! 

Posted by Paul Horwitz on July 19, 2012 at 09:05 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Wednesday, July 18, 2012

Two Perspectives on "You Didn't Build That"

From Christine Hurt and Tom Smith.

Posted by Matt Bodie on July 18, 2012 at 06:54 PM in Current Affairs | Permalink | Comments (1) | TrackBack

Legal Education in the Digital Age

Legal Education in the Digital Age

With the latest news of U-Va. joining a consortium of schools  promoting online education, it seems only a matter of time before law schools will have to confront the possibility of much larger chunks of the educational experience moving into the virtual world.  Along with Law 2.0 by David I.C. Thomson, there is now Legal Education in the Digital Age, edited by Ed Rubin at Vanderbilt.  The book is primarily about the development of digital course materials for law school classes, with chapters by Ed Rubin, John Palfrey, Peggy Cooper Davis, and Larry Cunningham, among others.  The book comes out of a conference hosted by Ron Collins and David Skover at Seattle U.  My contribution follows up on my thoughts about the open source production of course materials, which I have previously written about here and here.  You can get the book from Cambridge UP here, or at Amazon in hardcover or on Kindle.

One question from the conference was: innovation is coming, but where will it come from?  Some possibilities:

  • Law professors
  • Law schools and universities
  • Legal publishers
  • Outside publishers
  • Tech companies such as Amazon or Apple
  • SSRN and BePress
  • Some combination(s) of these

I think we all agree that significant change is coming down the pike.  But what it ultimately will look like is still very much up in the air.  What role will law professors play?

Posted by Matt Bodie on July 18, 2012 at 05:24 PM in Books, Information and Technology, Life of Law Schools, Web/Tech | Permalink | Comments (8) | TrackBack

Quintessentially American: Suing the Lethal Presidency

I've been a bit frothy over at FB and here lately about the secret source or explanation of law that ostensibly authorizes Obama to kill citizens abroad without any familiar signals of due process. Charlie Savage has some news about new lawsuits that pick up on the related themes advanced in the important reportage/polemic by Tom Junod in Esquire. And along the same vein, via SSRN today, I came across a new student note from Vandy LR about the due process issues facing the killing of citizens without notice or hearing. I haven't read it yet, but you'll dimly recall, perhaps, that I raised similar concerns the other day, to the effect that the knock list ought, in most cases not involving dire imminence or immediacy, not be operationalized until an American citizen on foreign ground's been given adequate notice and a chance to surrender and have a hearing of some sort with counsel. If the person turns down the opportunity, then the strike might be permissible under various conditions establishing some form of treason or calamitous danger.

In any event, the Junod piece and his Esquire blog posts, which are just outstanding, raise great questions for our fellow law profs. It might be unfair to ask David Barron and Marty Lederman by name what they think about this, since they purportedly had a hand in this policy's development and justification (I think I read that somewhere but if I'm wrong, let me know and I'll fix it). But anyone, please: what's the justification for keeping secret the memos detailing the President's authority to execute a knock list that provides no notice or hearing for citizens? And if Al-Awlaki's son was really just collateral damage, then what's the danger to saying so afterward, as Junod recommends? At the very least: let us have the chance to be persuaded to this aggressive point of view.  At this point, I can't see how one can (on legal grounds) disagree with the ACLU's Jameel Jaffer (also a friend from law school), who explained to Junod why the ACLU is representing the American family of Al-Awlaki in the damages suit against Obama's officials:

"The main reason we're bringing the case," Jaffer continued, "is to get some kind of accountability, in     the most basic sense of the word. The government has killed three of its citizens and we think the     government has to account for its actions, first to acknowledge, then to explain. We believe that if you     accept that the government has the authority to kill its own citizens without acknowledging its actions,     you have set up an authority that will one day be abused. Once you create this power, this power will     sit around available to every single future president.

That's the long game I'm most worried about. It's somewhat easy to think Obama won't grossly abuse this power from my perspective. (It's hard to think the power wasn't misused vis-a-vis the 16 year old, however.) But what if Sarah Palin were freakin' President? Also, in case you missed it, Junod reported on an interesting conversation he had recently with an unnamed official intimate with the counter-terrorism procedures. According to that conversation, the justification for silence had to do with preserving diplomatic and security cooperation with other nations--the requirement of non-acknowledgment. If that's the operating rationale, we need to know more about it so it can be scrutinized. Ok, daily froth is over, for now.

 

 

Posted by Dan Markel on July 18, 2012 at 02:21 PM in Article Spotlight, Constitutional thoughts, Current Affairs, Dan Markel | Permalink | Comments (7) | TrackBack

The German Circumcision Decision

As those of us who lurk on constitutional law listservs well know, certain corners of the blogosphere were recently abuzz after a German court handed down a decision rejecting the appeal of a doctor who was charged with (basically) causing bodily harm to another person, as a result of circumcising a 4-year-old child at the request of the child's parents. An edited English translation can be found here.

This case--and perhaps more importantly, the more general legal issues surrounding it--raise a number of fascinating and difficult questions. Mike Dorf has an interesting post at Dorf on Law about the troubling symbolic meanings that a circumcision ban in Germany would have, given its anti-semitic and anti-Muslim overtones in that particular national context. (The particular case at issue here involved a Muslim family.)

Translated to the American context, many would view this case as raising questions about parental rights--that is, rights to religious free exercise and/or to make medical and other important decisions for their minor children. Putting religious issues to one side (since, in this country, the vast majority of circumcisions are not performed for religious reasons), I tend to view this case in the context of minors' rights to bodily integrity, because I have been working on and thinking about that particular issue a lot lately (see previous blog posts here and here). In thinking about minors' rights to bodily integrity, I think it's possible to connect the circumcision debate to the more general question of how much control parents legally possess over their children's bodies. This issue arises with respect both to therapeutic and other non-therapeutic interventions, including cosmetic surgeries, piercings (also sometimes performed for religious reasons), and tattooing.

More recently, it has occured to me that this debate also relates to the practice of vaccination. I take it that the evidence of the medical benefits of circumcision is disputed. However, my understanding is that the available evidence indicates that the primary benefit of the procedure is that it may ultimately protect somewhat against HIV and possibly HPV, which can lead to certain rare cancers in men and more common cancers in women. This makes the practice similar to the function of the HPV vaccine, which evoked a huge controversy when some states tried to make it mandatory (and perhaps also the Hepatitis B vaccine, which protects against a virus that is usually sexually transmitted).

Generally, legal issues arise around whether parents may refuse to vaccinate their child, when legally mandated to do so.  With respect to circumcision, there is no legal mandate, but does a child have bodily integrity rights that should concern us here, since parents possess the legal authority to decide either way? What if an 11-year-old girl wished to resist immunization with the HPV vaccine? What if it were an 11-year-old boy, whose vaccination would be primarily for the benefit of any female sexual partners he may have in the future, and not for himself? In either case, are the public health concerns (regarding sexually transmitted diseases) powerful enough to justify the intrusion - of a needle, in one case, or of surgical removal of tissue in the other? Of course, the parental consent may make all the difference -- the simple answer may be that it is up to the parents to weight the public-health benefits against the harm to the child. But does it matter at all that the procedure is not immediately beneficial to the child in the way other medical interventions may be, and that the diseases at issue are themselves largely avoidable by practicing safe sex? To what extent should public-health interventions on children have to be justified, whether imposed by the state or the parent?

 

Posted by Jessie Hill on July 18, 2012 at 01:20 PM | Permalink | Comments (18) | TrackBack

Brazilian Inmate Eco-Hamster Wheel Experiment

With a title like that, how can you not read on? 

I recently heard a story on NPR about a Brazilian prison that started a program in which prisoners can apply to ride exercise bicycles hooked up to generators, which generate electricty for the city, and at the same time can reduce the prisoners' sentences. 

As of now, they have four bicycles installed, which light up ten street lamps in the city's central promenade.  They hope to increase it to ten bicycles, which should light up all 34 lamp posts in the city center.  Granted, not a panacea for global warming, but it's something.  And with 2 million people behind bars in America, that's a lot of lampposts.

As someone who writes about the ills of incarceration in America, I find a  number of things fascinating about this seemingly quirky story.  First, there is an obvious potential for exploitation, or at least, the perception of exploitation.  Yet the story reports that...

prisoners were eager to sign up for the program, since they get to take shifts riding the bikes outdoors rather than being cooped up inside.  One prisoner was also reported as expressing that his ability to provide something beneficial to the public, even a bit of electricty, made him feel useful and connected to society, whereas he had felt forgotten.  Of course, given the well-known racial disparities in American prison populations and the history of the Southern prison system, the prospect of such a program in America may have a different, more pernicious social meaning.

Second is the issue of equivalence.  Under the Brazilian program, for every three, eight-hour days the prisoners participate in the program, their sentences are reduced by one day.  Implicit in this arrangement, presumably, is the notion that every moment of work done warrants an equivalent reduction in the sentence.  I have no information as to whether the prison considered a different relationship with regard to this program, although there is a fair amount of scholarship out there on equivalence generaly.

Third is the "market" for prison labor.  As Stephen Garvey and others have discussed, one reason why prison labor is not more prevalent is because of the opposition of labor unions.  But presumably, there would be less opposition to such a program because there is no existing market for manual electricity generation.

I am curious if anyone knows of any programs where anything remotely like this has been tried in the U.S., or if there is any academic research on the topic.

Posted by Martin Pritikin on July 18, 2012 at 09:49 AM | Permalink | Comments (4) | TrackBack

Bearly Legal

This Slate article is three months old now, but I had been meaning to link to it for awhile. It discusses the "bear justice system" in Yellowstone National Park for grizzlies who kill or injure people. As the author explains the basic rules: "If a grizzly hurts someone while acting in a naturally aggressive way, then the bear goes free. If a grizzly acts unnaturally aggressive, though, and injures a person, it must be euthanized. It all comes down to the animal’s state of mind." The process involves a fascinating mix of CSI, psychology, and the rules of evidence, as well as the typical institutional fears of making the wrong decision (and the threat of lawsuits in the human justice system).

Posted by Howard Wasserman on July 18, 2012 at 09:31 AM in Howard Wasserman | Permalink | Comments (1) | TrackBack

Tuesday, July 17, 2012

More job talk advice

It's a bit early for this, since job talk season is a couple months away. Last year, my colleague Joelle Moreno offered Ten tips for giving a job talk that doesn't suck that started a pretty good conversation (I was going to rerun this later in the fall anyway). Now, Dan Shapiro, a humanities professor in the Penn State College of Medicine offers five more tips. I like a lot of what he says, particularly about the talk also being a demonstration of teaching ability. Note the one on learning norms of campus culture; I agree about not reading the paper, but should slides/no-slides (or PowerPoint/No PowerPoint) really depend on school to school?

Posted by Howard Wasserman on July 17, 2012 at 07:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6) | TrackBack

A Blow Dealt to Federalism by a State Court: Justice Goodwin Liu's Disappointingly Pro-Preemption (and Pro-Bank) Decision on Convenience Checks

In all of the kerfuffle over the constitutionality of ACA's mandate/tax/whatever, I did not have time to post any item on recent preemption decisions. Among the most important -- and, for federalism fans, disappointing -- was Justice Goodwin Liu's decision in Park v MBNA, handed down this June, holding that the National Bank Act preempts California's law requiring that certain disclosures accompany preprinted checks -- so-called "convenience checks" -- that a credit card issuer provides to its cardholders for use as credit. .

The decision was a disastrous rout for federalism, ironically delivered at the hands of a state court and -- et tu Brute! -- a former law prof. It is also worth noting that the opinion has not generated a lot of comment from the professoriate, suggesting that the Academic Left is not very appreciative of the importance of federalism to their regulatory goals. (As I have noted earlier, the curious bias of liberal law profs in favor of federal power leads them to overlook the fact that, especially when it comes to banks, the feds are and always have been their enemy and the states, their pals).

Predictably, the credit card issuers and banks are crowing over what amounts to a colossal defeat for state power. Naturally, I am bitterly disappointed by this gratuitously centralizing decision, but I have to agree with the banks and their lawyers: They've won a really, really big one. Park defends an exceptionally sweeping theory of preemption of state banking regulations at a sensitive time, when the preemptive effect of the Dodd-Frank Act is still up for grabs and actively being litigated in state and federal courts.

As I'll explain after the jump, however, I will try to provide some aid and comfort to you friends of federalism out there. All is not lost, because Park leaves untouched common-law fraud claims against nationally chartered banks. That logically inexplicable concession to subnational power might be the loose thread that can cause this egregious structure of preemption to unravel.


1. First, why is Park's preemption of state disclosure requirements by the National Bank Act ("NBA") so potentially devastating to state power? The problem with Park is that, beyond an unexplained distinction between states' "background legal principle[s]" (not preempted) and every other state law (preempted), Park contains no intelligible limit on preemption. But Park provides no intelligible reasoning to justify this distinction, thereby making it extremely hard to fix the limit and contain preemption.

Park reasoned that any state law imposing disclosure or other requirements on national ban's extending unsecured credit impermissibly interferes with nationally chartered banks' incidental powers bestowed by the NBA. The NBA, after all, does not contain any such disclosure requirements: Therefore, the state law bars a transaction that the NBA allows -- QED.

This syllogism is a bit weird, given that, since 1870, the SCOTUS has repeatedly stated that nationally chartered banks are "governed in their daily course of business far more by the laws of the State than of the nation” and that “[i]t is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional.” National Bank v. Commonwealth, 76 U.S. 353 (1869). Is Park suggesting that a nationally chartered bank's loan contract can be enforced even if it is declared to be a forgery, a fraud, unconscionable, etc., under state contract law? After all, there is no general federal common-law of fraud applicable to national banks.. So why is not a defense of forgery or fraud or duress (for instance) all preempted as the state's imposing conditions on a national bank's exercise of its powers to make loans?

Park distinguishes all such state common-law rules on the ground that such state laws "were laws of general applicability." But wait -- the disclosure requirements of California law did not single out nationally chartered banks! They, too, were "generally applicable" to that extent. Park concedes as much but contends that "state laws that restrict federally authorized banking powers may be preempted even if they are nondiscriminatory."

Okay: then, if general applicability is not the limiting principle, what does distinguish a common-law fraud defense from a statutory disclosure requirement? Park offers this cryptic distinction:

[California's disclosure requirement] does not state a background legal principle against fraudulent, deceptive, or unconscionable practices. It prescribes specific and affirmative conduct that credit card issuers must undertake if they wish to lend money through convenience checks. Unlike the state law considered in Perdue, the disclosure requirements of [California's disclosure requirement] cannot be understood as part of the general legal backdrop to Congress‟s enactment of federal banking legislation.

Nowhere does Park offer any account for why a generally applicable disclosure requirement is less a part of the state's legal "background" than, say, a fraud claim. Yet states' regulation of national banks' dealings hangs on this distinction. One might ask for a bit more in the way of reason-giving, especially from a justice who was once a professor specializing in giving explanations.

2. Why is this sort of vague and potentially sweeping preemption doctrine so dangerous to sound federalism? The problem is that Park does not rest preemption of state law on some federal agency's specific regulation of some particular banking activity. Regulation Z, in fact, does federally mandate some disclosures for so-called "supplemental credit access" (which include convenience checks). In 2010, the Federal Reserve Board has issued a new rule clarifying and supplementing these disclosures. Had Park simply said that such federal rules were intended to be a ceiling as well as a floor on further state regulation, then such a decision would have been nothing worse than conventional "frustration-of-purpose" conflict preemption, the damage of which would be limited to the particular purposes associated with the particular provision of Regulation Z invoked to push aside the state law.

By rooting preemption in the statute itself, Park implies that the NBA authorizes nationally chartered banks to do what they want until a federal agency gets around to passing a federal rule forbidding such a banking activity. But this makes nationally chartered banks into a law unto themselves while the federal rule-making process grinds on at a glacial pace.

Federalism is best understood as a device to prevent federal law from placing the burden of regulatory inertia on banking consumers rather than national banks. From its inception, advocates of federalism focused on the danger of using national law to insulate national banks from state law, because financial elites would have an advantage in controlling the federal regulatory process. This was the warning of Anti-Federalists like Matthew Findley of Pennsylvania (who led the opposition to Pennsylvania's chartering of the Bank of North America in 1786). It was the basis for the Democratic Republicans' opposition to the federal chartering of the First Bank of the United States and the Jacksonian's opposition to the federal chartering of the second BUS.

What possible sense does it make to force banking consumers to go to Washington, D.C. to seek out a specific federal rule on convenience checks? Why not place the burden on the banks to seek out a specific rule preempting state law? Surely, the latter has an advantage over the former, given that the leaders of the relevant federal agencies -- the OCC, the Federal Reserve, the FDIC, etc -- work regularly with the banks and are frequently drawn from the banking industry.

If Park decided to take the side of the banks against federalism, the least it could have done was supply an intelligible explanation for how and why California's statutory disclosure requirement was not part of the "legal background." Alas, there were no such reasons -- just assertions using vague terms ("legal background") that were hardly self-explanatory, let alone self-justified.

3. Is there any good news emerging from this preemption train wreck? Just this: Park's implication is that common-law claims are part of the "legal background." If so, then state juries and judges still can apply the prod of common-law claims -- fraud and unconscionability, for instance -- to induce the banks to plead with federal agencies for specific federal rules on banking activities that give rise to such state claims. The state common-law prod, in other words, reduces substantially the benefits to banks of their sitting on their hands, secure in the libertarian shield provided by an 1864 federal statute: They will have to put specific rules on the federal agencies' agendas -- and that creates an opportunity for groups like the National Consumer Law Center to make a case for federal safeguards to replace states' common law.

The irony of Park is that it leaves unpreempted the crudest and vaguest state blunderbuss -- common-law claims for damages enforced by juries and generalist state judges -- while barring more precise state regulations issued in advance by the states' regulatory experts in state agencies. If the point of preemption is to make the national economy run according to predictable rules implemented by experts familiar with industry, Park's stripping state banking regulators of power and turning such power over to state juries, judges, and private attorneys seeking contingency fees is a pretty odd place to end up.

Posted by Rick Hills on July 17, 2012 at 06:55 PM | Permalink | Comments (1) | TrackBack

Is the Availability of the Insanity Defense Constitutionally Required?

Yes, or at least that's what an amicus brief I signed  argues in connection with whether cert in the Delling case should be granted. (And yes, my signature signals that the brief meets my Fallon-inspired standards for amicus participation.)

The brief argues to the Supreme Court that the very few (four) states without an insanity defense are in violation of the Constitution and that the problem is not cured by merely allowing challenges to the mens rea elements that are predicated on mental illness. The amicus brief warrants two short observations.

First, it's a very diverse (and present company excluded) distinguished group of legal academics who have signed on to it: from Slobogin the leading schmancy anti-retributivist (as well as a leading scholar on the issue of mental health and criminal law) to, well, a bunch of schmancy retributivists...

So, in addition to the brief's arguments, I hope the fact of who has agreed to sign this brief helps the cert petition generate the sustained attention from the Court that the issue warrants.

Second, the brief advances the claim under the due process clause, but I am told by Stephen Morse, the principal academic author of the brief, that the Eighth Amendment argument is also being advanced by Jeffrey Fisher and his team from Stanford's appellate clinic. I was glad to hear this since I think the Eighth Amendment is an equally clean doctrinal device to ensure that punishments are not visited upon those who were insane at the time of their crimes. For those two of you interested, I've given some reflection to the issue of the Eighth Amendment and the punishment of the presently incompetent. To my mind, much of what I wrote there -- in the Panetti v. Quarterman context -- that retribution cannot properly be inflicted on the presently incompetent -- applies squarely to situations in which someone was incompetent at the time of the crime's commission.

Posted by Dan Markel on July 17, 2012 at 04:53 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs | Permalink | Comments (1) | TrackBack

The Sisk Study is Up -- and a call for inclusion

Over at Brian's blog, you can see some observations on the nature and genesis of the new Sisk et al Study on per capita scholarly impact, which I've appended here for your viewing pleasure. Feel free to go to SSRN and throw them a bone for their hard work.  Brian has no discussion board to chat about the Sisk study, so I thought we could have a fruitful discussion here. As with most rankings, I think they need to be kept in context and not overweighted but also not underweighted simply because they don't measure what you most think is important. Sisk et al are right to emphasize how reputation studies for USNews tend to be a bit of an echo chamber and that studies like this one, which, you know, actually measure something, are a useful supplement to folks interested in trying to figure out the quality and impact a faculty is making in terms of scholarship. Again, it's not everything one should look at, but it's something.

My biggest gripe: while I understand the desire (particularly for Sisk and his institution) to limit the study to the top 70 or so, it seems a shame that there aren't resources available to get the info from and vet *all* the law schools. I have the same frustration with that other wonderful (but admittedly limited) study, the Yelnosky productivity one. For reasons that are either self-serving or that escape me, the Yelnosky study excludes the top 50 schools from study, except for those that happen to be in the New England area. Hmm.  I don't like to be snarky about this, but let's face it, inasmuch as the rankings are useful, they are sort of like a public good that is under-produced. (Yes, I'm getting ready for econ camp next week!) St. Thomas and Roger Williams are only investing in the creation of the rankings to the point they find useful (the private good), even though more information about more schools would benefit a larger group of schools or individuals (whether faculty or students. I suppose -- given that St Thomas did so well (coming at #30) -- we should be grateful that they didn't limit the number of schools to the top 40, but in fact studied almost 100 schools. Good on them.

Anyway, share your thoughts or data in the comments.  From what I can tell, the data and the methodology is transparent, so if there are associate deans or other interested faculty and law librarians out there reading this blog, feel free to do your self-study and share the info in the comments to this thread. Perhaps in future years, we can persuade St. Thomas and Roger Williams to expand the number of schools under consideration.

 

 

 

Posted by Dan Markel on July 17, 2012 at 04:19 PM in Blogging, Dan Markel, Life of Law Schools | Permalink | Comments (4) | TrackBack

Can Law and Literature Be Practical?

Last year I was asked to teach a session in my school’s honors law and literature seminar, in which the students read a different play or novel each week.  I was assigned to teach Arthur Miller’s “The Crucible,” which I hadn’t read (or watched) in at least 15 years.  What struck me as I read through the text was how much it reminded me of a transcript of deposition or trial testimony.  Although the play is not a “courtroom” drama per se—most of the action takes place outside the courthouse, or in the “anteroom” just outside the courtroom proper—most of the dialogue is in the form of interrogation.  And given that the central issue driving the plot is whether the testimony regarding witchcraft is genuine or fabricated, there are numerous evidentiary issues raised, including those relating to relevance and undue prejudice, hearsay, character evidence and impeachment, and expert opinion testimony.

As an evidence professor, I am always looking for ways for my students to learn evidence not in a doctrinal vacuum, but in the context of adversarial litigation.  I often have them role-play as lawyers, addressing hypothetical trial scenarios.  I realized that “The Crucible” presented a myriad of such hypotheticals, with a much richer factual and strategic context than most law school problems provide.

Not only did I teach the honors seminar class that way, I ended up writing an article about how the play could be used as a teaching tool.  In doing so, I challenge the notion that “law and literature” and skills-based learning are unrelated, at opposite ends of a spectrum, or even antithetical to each other.  I am curious if others have thought of ways in which law and literature and skills training are or could be symbiotic, either generally or with regard to specific texts. 

Posted by Martin Pritikin on July 17, 2012 at 09:34 AM | Permalink | Comments (5) | TrackBack

Monday, July 16, 2012

The Scalia Dissent

Nice NPR piece today from Nina Totenberg on notable dissents by Justice Scalia, including his fiery dissent this Term in the Arizona immigration case. I wonder, has anyone ever proposed a law school seminar, "The Scalia Dissent?" A Scalia-dissent seminar would be an engaging and, I suspect, lively course of study for students. Did Nina Totenberg overlook any particular Scalia dissent highlights that should have made her list?

Posted by Brooks Holland on July 16, 2012 at 05:51 PM in Constitutional thoughts, Teaching Law | Permalink | Comments (20) | TrackBack

Gonzaga "Pursuit of Justice" Conference

I'm very happy to announce a call for participants and papers for the Gonzaga University Pursuit of Justice Conference, scheduled for April 18-20, 2013, in Spokane, Washington. This conference will combine the 2nd annual Gonzaga University School of Law Race & Criminal Justice Conference with the 3rd annual Gonzaga University Institute on Hate Studies International Conference. 

Supported by the combined social justice leadership of Gonzaga University, Gonzaga Law School, and the Washington Task Force on Race and the Criminal Justice System, the Pursuit of Justice Conference will offer an interdisciplinary academic forum for examining hate and directly-related social problems. Of special interest is the matter of racial inequality in the criminal justice system, understood through the lenses of research, education, practice, and advocacy. Academics, practitioners, government officials, and policy advocates accordingly all are invited to participate.

A written call for papers, submission instructions, and other preliminary conference information is available here. We hope many of you will join us next April at the "Pursuit of Justice!"

Posted by Brooks Holland on July 16, 2012 at 01:59 PM | Permalink | Comments (0) | TrackBack

Two Resources on Corporate Law

Elgar book
In advertising, repetition is often critical to success.*  That's why I'll repeat what Stephen Bainbridge and Gordon Smith have already told you -- check out the new Research Handbook on the Law and Economics of Corporate Law, edited by Claire Hill and Brett McDonnell.  You can find an introduction from the editors here.  Interestingly, the Amazon price is $10 more than the publisher's price, so this is one instance where buying directly from the publisher pays off.

If you're looking for some nice free downloads, consider Seattle University Law Review's symposium issue for the Berle III conference.  (The image above is from the first Berle conference, which can be found here; Berle II is here.  Berle IV was held in London last month.)  Chuck O'Kelley has organized the ongoing set of Berle conferences, and Berle III centered around the theory of the firm in the corporate law context.  There are sixteen papers to choose from, and I very much enjoyed hearing from the terrific group of folks that Chuck had on hand.

* Note: apparently, repetition is useful in the "wearin" phase, but actually becomes harmful to the message when the "wearout" phase is reached.  See Campbell & Keller (2003), Brand Familiarity and Advertising Repetition Effects.  I'm hopeful that we're still in the "wearin" phase.

Posted by Matt Bodie on July 16, 2012 at 11:18 AM in Books, Corporate | Permalink | Comments (0) | TrackBack

Public memorials and Penn State

Legal historian Al Brophy of UNC and the Faculty Lounge writes some interesting stuff on public memorials and monuments, particularly in the South. This has become the new locus of discussion at Penn State, as the trustees and others try to figure out what to do with the Paterno iconography that dots Penn State and State College. These include a statue, the family name on the university library, and a famous mural in town (the mural artist recently removed the halo from over Paterno's head).

The current sentiment on the Board of Trustees is to leave the statue, at least for now and pending a broader public discussion. I was struck by the comment of one trustee, who insisted "The statue represents the good that Joe did. It doesn't represent the bad that he did." Can they have it both ways like that? Can a monument to someone with a divided legacy (as Paterno now has) simply remain in place, pretending there was no bad? Do the trustees at least have to acknowledge in the public conversation that they are determining that the good Paterno did outweighs the bad and thus warrants keeping the statute (a reasonable position)? I actually don't particularly care what they do with the statue; I'm more interested in how the conversation about the statue honestly addresses that Paterno genuinely did something wrong and the statute represents that part of him as much as it represents everything else.

I am far more disturbed by the announcement that they are going to renovate the locker rooms and shower areas where some of Sandusky's assaults took place. While this has been described as an attempt to "erase the legacy of Sandusky's crimes," it also strikes me as an actual and symbolic attempt to erase the past in a way that covers the university's role in those crimes. I am not suggesting they have to turn the shower into a shrine or a museum. But their first response is to whitewash the crime scene and, in some sense, the evidence of their collective misdeeds. And to also get a shiny new athletics facility out of it, when the special treatment of athletics is a major element of this entire mess, is especially offensive.

[Update, July 18: Brophy, who happens to be in Pennsylvania, comments]

Posted by Howard Wasserman on July 16, 2012 at 10:08 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Boards of Trustees Irony

Penn State's Board of Trustees took a minor beating in the Freeh Report last week, criticized for failing to exercise oversight and to have in place procedures for gathering information from university officials, especially the President and General Counsel. This was tempered somewhat by the much sharper criticism of former President Graham Spanier for failing to keep the Board informed; Spanier is the real bad guy, so the Board's misdeeds are somewhat mitigated. The point is that Board is the potential white knight--had the Board known, it would have done s0mething at least in 2001 and perhaps in 1998 and many of these problems (and perhaps the further assaults of children) would have been avoided. In other words, the narrative  is we needed more active involvement by the Board of Trustees, which should have done more to check the President and to run the university.

Wait. Wasn't the narrative  of the University of Virginia mess (less than a month ago) that the Board of Visitors was meddling and interfering with the school's academic mission and that they should leave  Teresa Sullivan alone to run the school and not impose their anti-intellectual vision on the university?

Posted by Howard Wasserman on July 16, 2012 at 01:25 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (3) | TrackBack

Sunday, July 15, 2012

Kandinsky: Legal Academic Turned Anti-Materialist Artist

If you happen to be in the New York City area and have the chance to stop in at the Guggenheim, there is a very small but charming exhibit on the work of Wassily Kandinsky from the 1911-13 period.  Kandinsky was a successful lawyer and law professor -- he had even been offered a chair in Roman Law at the Universität Dorpat -- when he suddenly abandoned the law and applied to art school in Munich.  Maybe legal academia is the second best job in the world.

Among the items in the exhibit are some really neat first editions of his work, Concerning the Spiritual in Art -- and Painting in Particular, published in 1911.  When I got home yesterday afternoon, I found a translation here.  Kandinsky had ambitious ideas about the power of art to achieve spiritual illumination -- and in some ways to replace traditional religion for future generations.  He had some very critical things to say about "materialism" in art, as well as the idea that art was to be enjoyed for its own sake.  Here is a selection which gives (I think) something characteristic of the flavor of the writing:

With cold eyes and indifferent mind the spectators regard the work.  Connoisseurs admire the 'skill' (as one admires a tightrope walker), enjoy the 'quality of the painting' (as one enjoys a pasty).  But hungry souls go hungry away . . . .

This neglect of inner meanings, which is the life of colors, this vain squandering of artistic power is called 'art for art's sake.' . . . . The spiritual life, to which art belongs and of which she is one of the mightiest elements, is a complicated but easily definable movement forwards and upwards.  This movement is the movement of experience.  It may take different forms, but it holds at bottom to the same inner thought and purpose.  Veiled in obscurity are the causes of this need to move ever upwards and forwards, by sweat of the brow, through sufferings and fears.  When one stage has been accomplished, and many evil stones cleared from the road, some unseen and wicked hand scatters new obstacles in the way, so that the path often seems blocked and totally obliterated.  But there never fails to come to the rescue some human being, like ourselves in everything except that he has in him a secret power of vision.  The power to do this he would sometimes fain lay aside, for it is a bitter cross to bear. But he cannot do so. Scorned and hated, he drags after him over the stones the heavy chariot of a divided humanity, ever forwards and upwards.  Often, many years after his body has vanished from the earth, men try by every means to recreate this body in marble, iron, bronze, or stone, on an enormous scale. As if there were any intrinsic value in the bodily existence of such divine martyrs and servants of humanity, who despised the flesh and lived only for the spirit! But at least such setting up of marble is a proof that a great number of men have reached the point where once the being they would now honour, stood alone . . . .

When religion, science and morality are shaken . . . and when the outer supports threaten to fall, man turns his gaze from externals in on to himself.  Literature, music and art are the first and most sensitive spheres in which this spiritual revolution makes itself felt. They reflect the dark picture of the present time and show the importance of what at first was only a little point of light noticed by few and for the great majority non-existent.  Perhaps they even grow dark in their turn, but on the other hand they turn away from the soulless life of the present towards those substances and ideas which give free scope to the non-material strivings of the soul. 

Posted by Marc DeGirolami on July 15, 2012 at 03:02 PM | Permalink | Comments (1) | TrackBack

Follow up on Pretrial Release Conditions

I've rec'd some interesting emails in response to the oped/post from yesterday on abusive pretrial release conditions.

Bryan Dearinger wrote to let me know of a paper he wrote about how Congress, in the context of sex offenders, has stripped away the judicial discretion to fashion appropriate release conditions. The paper notes that "a particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing." The paper is forthcoming. I haven't read it yet and in truth I didn't know about these provisions until Bryan mentioned them to me.  I have to say, I'm intrigued by but not persuaded yet by Congress' approach here. As a general matter, I like judges to be given guideposts and constraints, but I wouldn't say that a mandatory imposition of legislatively concocted conditions is the smartest approach unless there were various procedural safeguards in place along with some kind of check in place to ensure that the government's intrusions were minimally reasonable. Anyway, I look forward to reading Bryan's paper.

I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can't speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren't saying such restrictions on alcohol or curfew or drug treatmen were never reasonably imposed. Rather we were concerned that they sometimes aren't related to the crimes or the offenders but were still imposed.

To use one example that is in the news: George Zimmerman. His claim of self-defense in the killing of Travyon Martin may be wrong or correct. But his shooting of Martin had little to do with alcohol abuse and there's no reason to think that Zimmerman is specifically more likely to commit more crimes if he has access to any alcohol or if he's able to eat dinner at a restaurant or shop for groceries after 6pm.  The imposition of a curfew or alcohol restriction on him is entirely unnecessary in terms of how it facilitates substantial reduction in flight risk or crime prevention. Indeed Judge Lester's court order specifically states that he doesn't think Zimmerman's a risk to public safety. So that leaves flight risk, and there's no connection to flight risks from curfews or a glass of hooch. (I suppose if the thinking is that lots of alcohol might lead GZ to think it's a good idea to flea, but then Judge Lester should simply prohibit more than 2 drinks within X hours in the day.)

Obviously, if a defendant has a history of drug- or alcohol-fueled or related crimes, then restricting his access to such substances is more easily explained in terms of crime prevention or risk to public safety. I wouldn't have a problem with ensuring some kind of response to drugs or alcohol (treatment, testing, etc) in those contexts because of the putatively tight causal connection between the substance abuse and the various resulting crimes. But in Zimmerman's case, there was no established tie b/w alcohol abuse or a penchant for mayhem at night that would have required such restrictions.  As mentioned above, the judge stipulated that Zimmerman wasn't a risk to public safety. 

By the way, Zimmerman's counsel has now asked to have Judge Lester be disqualified from the case. The brief is here, and to my mind, has substantial weight. Curious for others' reactions on this. I doubt O'Mara, GZ's lawyer, would have asked to disqualify Lester unless he thought there was strong grounds to do so, since it's a pretty high-risk tactic otherwise.

Posted by Dan Markel on July 15, 2012 at 02:20 PM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (4) | TrackBack

My cavil with Cooter-Siegel on federalism: Why Article I cannot (only) be about collective action problems between the states

Neil Siegel has an interesting post at Balkinization against reading Congress' powers more narrowly when Congress invades so-called "areas of traditional state concern." According to Neil, focusing on whether the states have traditionally regulated some area is both unworkable and undesirable. The approach is unworkable, because state and federal power so overlap nowadays that figuring out whether state power has predominated in some policy area will simply be impossible -- sort of like figuring out where a snake's body ends and tail begins. The approach is undesirable because "the question of customary allocation is unrelated to a principal reason why Congress possesses the power to regulate interstate commerce: solving collective action problems involving multiple states."

I have a lot of sympathy with Neil's gloss on Article I in terms of states' collective action problems (as I have elsewhere noted in the context of healthcare). Despite objections from textualist die-hards like Kurt Lash, I am convinced that failing something like the Cooter-Siegel "do-the-states-face-a-collective-action-problem?" test ought to be a necessary condition for judicial invalidation of a federal statute. But is failing this criterion a sufficient condition for judicial intervention? As I remarked to Bob Cooter three years ago when he was up at Michigan work-shopping the Cooter-Siegel paper, I do not think that the need to "solv[e] collective action problems" with a national decision-maker can explain why the Constitution enumerates Congress' powers or why the courts ought to enforce the limits implied by that enumeration.

Sure, we would want a national decision-maker to step in when states are incapable of acting. But why not just give Congress plenary power to determine when states face a collective action problem? Why painstakingly list Congress' powers and expressly state that Congress should not regulate in ways not included on the list? In short, why entrench a constitutional limit on Congress' judgment about when federal legislation is necessary? If our only problem is that states sometimes are not competent to address an issue individually, then we should just let Congress regulate unhampered by pesky constitutional limits, confident in Congress' electoral incentives not to nose in where federal law is unnecessary. (Why, after all, would members of Congress want to regulate issues that states can control and invite constituent complaints about overweening federal bureaucrats and inefficiently uniform federal rules?)

To explain the constitutional entrenchment of limits on Congress, therefore, one must not only explain how states face a collective action problem: One must also specify how members of Congress face a collective action problem: Why does Congress needs constitutional restraints on legislating, despite their apparent electoral incentives not to over-extend federal law and to regulate only where state law cannot address some collective action problem?

After the jump, I will suggest why the answer to this critical question helps explain why courts quite properly focus on "traditional" state concerns.


Consider two reasons why Congress might not be able to show self-restraint in legislating, even when federal legislation is unnecessary because states face no collective action problem in addressing some issue without federal help.

1. The Problem of Fostering Credible Commitments Across Time Between Rival Political Parties: Members of the current majority in Congress may be reluctant not to impose their policy preferences on the entire nation for fear, that, when their rivals later capture Congress, those rivals will not show similar self-restraint.

Imagine, for instance, that your party controls Congress and is passionately committed to protecting each citizens' right to bear arms. You understand, however, that the nation is deeply divided about the scope of the right: If you impose your preferred libertarian pro-gun regime on the entire nation, you will please your partisan backers in states where your rivals control the state government, but you will also invite your opponents to retaliate by enacting their preferred and maximally restrictive anti-gun regime when they take over Congress (as they inevitably will, in a competitive two-party system). Ideally, you might want to call a truce with the rival political party such that both parties abstain from pressing for their preferred law nationally, saving precious agenda time in Congress for issues that the states cannot handle while letting the states go their different ways on gun control.

But how can you enforce this truce? Once you take over Congress, your diehard base will be pressing you to enact the party's agenda regardless of the regulatory capacities of state governments. If you respond to your "base" that you are holding back to maintain a truce on a contentious issue at the national level, your base may properly respond that you have no assurance that the rival party will be so self-restrained when they take over. How can one be assured that one's self-restraint now will be rewarded by the other party's self-restraint later? Absent such assurance, each party rationally says, "carpe diem" and enforces their ideal regime as a national law -- gun-free zones, licensing laws, tort liability for negligent manufacture of guns, narrow definitions of self-defense, and so forth, if they are anti-gun folks, and robust Second Amendment rights if they are pro-gun.

To resist these blandishments, one needs a theory of federalism compliance with which is easy to verify. The problem with the Cooter-Siegel line, however, is that it is almost impossible to police politically or judicially: It is legally unmanageable. One can make a plausible case, for instance, that even intrastate use and sale of firearms eventually leaks over to other states. If one's rival enacts a national gun licensing regime on the theory that, after all, even local possession of guns can affect other states in ways that cause some sort of collective action problem, who is to say that they are wrong? Not the courts, and not the electorate: The informational demands of the Cooter-Siegel theory are simply too high.

What's an alternative? Look for activities that states have played the dominant role in regulating for a very long time as stable focal points for an inter-party bargain. Sure, such activities might generate some spillover effects that, in a perfect world, would be handled by a national decision-maker. But if states have actively regulated an activity for a century or so, this very fact might be a crude indication that the spillover effects are modest. By contrast, the salience of the category -- its being a "traditional state concern," if you will -- makes the line ideal as a focal point for a bargain, because compliance with crude and categorical rules is easier to measure than compliance with vague and wavering abstractions like the Cooter-Siegel "collective action problem" theory.

2. The Problem of Fostering Credible Commitments Across Space Between Rival Congressional Districts:

There is a second conventional justification for constitutionally restricting Congress from enacting federal laws dealing with intrastate matters: Individual congressional districts compete with each other for federal money. Giving Congress broad authority to deal with interstate external effects, therefore, does not solve a collective action problem so much as re-locate it: As Congress appropriates funds to expend on national public goods (say, interstate highways, critical scientific research in which the feds enjoy scale economies, military colleges, etc.), each district is tempted to demand money for goods that have dubious or entirely bogus claims to the status of being "national." In theory, Congress would save money by separating the wheat from the chaff, funding only truly national goods that the states, because of collective action problems, cannot adequately fund. In practice, however, Congress is a "they," not an "it": One member's vote against another member's favored localistic item invites retaliation. Moreover, at least according to Barry Weingast's famous 1979 theory, because low-visibility budgeting for infrastructure does not tend to be a partisan issue, members tend to band together into a "universal" coalition on budgetary matters to approve everyone's preferred pork for fear of being carved out of the coalition if one is high-minded about what is national and what, "local."

To hold the line on spending, therefore, Congress needs an easy-to-verify line that divides national from local spending. But the Cooter-Siegel test is an utter failure as a mechanism for rooting out federal funding for Lawrence Welk museums and bridges to nowhere, because it is simply too squishy to be monitored. (Lawrence Welk -- with likely sincerity -- defended his museum as a national public good). Again, bright-line categories work better as a focal point for creating a stable coalition for curtailing spending.

And what categories are truly stable bases for some sort of congressional bargain fixing budgetary self-restraint? "Traditional" ones: Forts and arsenals, navigable rivers, interstate highways, etc. (To be sure, these limits, while necessary, are not sufficient, as Congress' need for a military base-closing commission attests).

In sum, Cooter-Siegel's theory -- like any theory of enumerated powers -- must explain not only how states fail but also how Congress fails. Both states and Congress face collective action problems: Relocating some policy to the national level, therefore, does not eliminate such collective action problems but merely relocates them. Once one specifies this second congressional collective action problem that makes constitutional limits necessary, one must specify a constitutional limit that actually addresses the congressional problem -- that is, a limit that can be monitored by either courts or Congress or the voters themselves. I do not think that the Cooter-Siegel line constitutes such a verifiable limit.

Posted by Rick Hills on July 15, 2012 at 02:09 PM | Permalink | Comments (0) | TrackBack

Saturday, July 14, 2012

Not yet tried, and sentenced to Red Lobster

Eric Miller (SLU) and I have an oped in today's NYT on the quiet scandal of abusive pretrial release conditions. I've reprinted it after the jump. This is a piece that grew out of a some discussion here on Prawfs, and the next thing you know, well, acorns and oak trees and all that. My special thanks to Eric for being such an excellent co-author. (And while I have SLU on the mind, note that Anders Walker, Eric's colleague, has started a new blog on faculty productivity. It's called Faculty Flow.)

Btw, we tried to insert hyperlinks to your scholarship (really, all of you!), but the Times has a rule about capping hyperlinks. Odd. (And my sense is that this rule is actually, um, inconsistently applied. In any event, sorry about that.)

IN May, a federal judge ordered the pretrial release of an alleged robber on the condition that he read and write book reports for 90 minutes daily. Earlier this year, a trial judge directed a domestic violence defendant, again as a condition of pretrial release, to buy his wife flowers and take her out for bowling and supper at Red Lobster. And just last week, in Florida, a county judge’s new bail order forbade George Zimmerman, who claims self-defense in the death of Trayvon Martin, to drink alcohol or go out after 6 p.m.

Of course, these orders are not themselves grave injustices, but they all raise similar and serious legal questions. They spotlight a pervasive phenomenon hiding in plain sight: the abuse of bail and other pretrial release powers for punitive and rehabilitative purposes.

Before anyone is proven guilty in a court of law, the Constitution extends the presumption of innocence. That presumption is at odds with the kinds of pretrial conditions described above.

To be sure, the presumption of innocence is not a guarantee against pretrial detention or other restrictions on liberty. As the Supreme Court has acknowledged, a defendant’s pretrial freedom can, upon a hearing, be limited in various ways when it comes to addressing substantial and reasonable fears having to do with flight risk or danger posed to the community (or danger to the judicial process itself, like in cases of witness tampering). So we don’t dispute that defendants can be, say, monitored by tracking devices while they are released.

But flight risk and crime prevention don’t justify bail conditions requiring book reports or bowling, which have far more to do with punishments or moral education techniques. While such sanctions could be permitted after conviction, they are flat-out unjustified before adjudication.

The more peculiar the conditions, the more likely they are to garner media attention and public scrutiny. Indeed, an appellate court overturned the book reports decision last month (though on the grounds that the defendant should not have been released at all). Unfortunately, the vast majority of these improper release orders fly under the radar. Indeed, the use of bail conditions as a means of engaging in low-level punishment and rehabilitation is more widespread than is generally understood. Drug testing, desisting from alcohol, as well as attendance at rehabilitation programs and mandatory job training programs have become all-too-familiar requirements of pretrial release, even for cases, like Mr. Zimmerman’s, that are unrelated to substance abuse.

This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges. But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of “pesky” lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.

It’s understandable for judges to want to attack the social problems they see in the criminal justice system. The problem — besides the obvious issue of assigning punishments to people who might not even be convicted of crimes — is that they are thinking up untested responses on a case-by-case basis. This leads to disparities and fragmentation of penal policy even within jurisdictions; increased scrutiny of suspects at a stage when they should be free to build their defense against the government; and an imposition of the values of the temperance movement on the criminally accused (since even lawful and moderate consumption of alcohol is frequently prohibited). Perhaps most disconcerting is how easy it becomes for regular people to violate these unreasonable bail conditions, which leads to unnecessary arrests and even more overcrowded prisons.

Pretrial release raises complicated legal and policy issues in every case. Still, our core concern is that many judicial release orders exhibit confusion about or disregard for the distinction between pretrial release and post-conviction punishment. Judges determining pretrial release are not authorized to act as social workers or agents of public retribution. They need to stop pretending otherwise.

Dan Markel is a law professor at Florida State University. Eric J. Miller is a law professor at St. Louis University.

 

Posted by Dan Markel on July 14, 2012 at 02:57 PM in Blogging, Criminal Law, Current Affairs, Dan Markel | Permalink | TrackBack