« August 2012 | Main | October 2012 »

Tuesday, September 11, 2012

Captain Jack Harkness, Brendan Ayanbadejo, and Pop Culture's Effects on the Law

By now, the Prawfs community is familiar with Brendan Ayanbadejo, who, as Howard posted a few days ago, is a player on the Baltimore Ravens who supports the freedom to marry for all and was the subject of a baffling open letter from a hate-filled Maryland House of Delegates member who didn't think football players should be weighing on matters of public concern. There have been some interesting comments about this mini-controversy -- the letter's distasteful subtext that athletes are supposed to be mindless, the NFL's progress in the normalization of homosexuality, the curious hateful past of the Delegate -- but I am reminded of two studies about the relationship between popular culture and social progress in politics and law.

What is the relationship between minority representation in popular culture and social mores of toleration for or inclusion of that given minority in society?

The issue is hard to quantify with any rigor. Any cross-national study of gay characters in European television versus American television cannot always account for the background context (the smaller role of religion in Western European life, the power of social democracy in Europe, the entrenchment of conservatism in America, local politics in the American federal system, and so on) and the isn't enough data to adequately assess the effect of gay characters on American audiences over time. In the United States, "gayness" was too often portrayed as either evil (Claude Rains, who played Prince John opposite Errol Flynn's Robin Hood in 1938 was told to act "feminine, swishy, and feckless," an odious allusion to the perceived evil of effeminate men) or as a caricature (gay characters were often depressed, lacked self esteem, victims, and "others" in every sense of the word). Reactions to those characters would skew the results.

So, one sociologist did a study about Captain Jack Harkness, the poly-amorous swashbuckling character played by the openly gay John Barrowman on Britain's long running (and AWESOME!) television show, Doctor Who. He and his team of graduate students asked thousands of television watchers of all ages, races, and educational backgrounds to react to the injection of a similar character in their favorite TV show (cartoons for children were excluded). There were generational differences -- older audiences skewed negative -- and educational differences -- audiences with lower levels of education also skewed negative. These results made sense. But, then they picked specific characters in beloved television shows -- from Alan Alda in M*A*S*H* to Bobby Ewing in Dallas to Jerry Seinfeld in Seinfeld -- and asked how viewers would react if, over time, these characters came out. Each demographic that skewed negative in the original question was significant less negative. Sure, they thought it might be weird if Bobby Ewing came out as gay, but viewers' reactions would have been decidedly less negative: few would stop watching the show and, assuming the coming out process was well-written (which has to be true of any television story line to retain viewers), it would not make those beloved characters any less beloved.

That was the key finding. Audiences will love the good guys no matter what. We just need more good gay guys (and gals) on television.

The second study asked: Is there a connection between visible progay allies announcing their positions on a given gay rights issues or openly gay individuals in popular culture coming out and popular opinion on that given issue? In other words, does Brendan Ayanbadejo's vocal support for marriage equality or Anderson Cooper's public (though late) coming out correspond with a bump in public support for the freedom to marry.

This, too, is hard to quantify, especially since one coming out begets another and one endorsement begets another until a tipping point is reached. Looking at this question out of context also ignores the prescience or lateness of the public "coming out" and other social forces that are pushing the underlying debate. Here, narrative, or qualitative, sociology helps. When asked to explain the reasons for a given respondant's changed position on the freedom to marry, many cite President Obama's support or their personal friendships or interactions with gay people. But, invariably, names like Anderson Cooper and Ellen Degeneres get mentioned. Qualitatively, these coming out events -- whether they be allies or members of the community -- are part of the story of shifting opinions on marriage freedom for gay Americans. Quantitatively, each incident does not correlate with an immediate bump in public opinion (in fact, sometimes, it correlates with a negative reaction, as in the case of Ellen's coming out). But, studies do suggest that each coming out incident is a building block that aggregates into a contributing event. Think of the Fibonacci sequence: 1, 1, 2, 3, 5, 8, 13, 21, 34... One incident builds on another, which builds on another, which contributes to five more, which makes it easier for ten other people to come out in support, and so on.

More study needs to be done in this area, but currently, the evidence suggests that the Maryland delegate is right to worry about Brendan Ayanbadejo. Soon, hate-filled  reactionaries will be extinct and Brendan's vocal support for marriage equality will be a significant role in that progress.

Posted by Ari Ezra Waldman on September 11, 2012 at 02:11 PM | Permalink | Comments (2) | TrackBack

Hermann Kantorowicz

You are probably thinking, "Hermann who?"  So was I, until Russell Miller introduced me to this scholar, who was both a forefather and a critic of American legal realism.  As was explored in a day-long roundtable yesterday (which included such luminaries as Professors James Q. Whitman and Vivian Curran), Kantorowicz was a prime instigator of the "free law" movement in Germany, which was consulted by America's legal realists.  In looking back to the debates of the early 1900s between formalism and free law, it is striking how a century later we are still having the same debates over what the role of a judge is in a judicial system, and, indeed, in a political system.  For anyone interested in legal history and jurisprudence, have a look at this article recently published by the German Law Journal.

It would be interesting to see any comments highlighting forgotten scholars (U.S. or otherwise) who, like Kantorowicz, should be revisited.

Posted by Trey Childress on September 11, 2012 at 09:50 AM | Permalink | Comments (0) | TrackBack

Monday, September 10, 2012


If you haven't seen this one, click here to see a terrific satire following the 1B verdict in the Apple/Samsung trial.

watch it quick, before it, too, blows up.

Posted by Orly Lobel on September 10, 2012 at 07:01 PM | Permalink | Comments (1) | TrackBack

Gee, that's big of you

Maryland Delegate Emmitt C. Burns, Jr., after a few days as a national punchline, has had some time for "reflect[ion]":

"Upon reflection, he has his First Amendment rights," Del. Emmett C. Burns Jr., a Baltimore County Democrat, said in a telephone interview. "And I have my First Amendment rights. … Each of us has the right to speak our opinions. The football player and I have a right to speak our minds."

Glad we got that straight. Still, it is frightening that it took "reflection" for a public official to realize that "the football player" has First Amendment rights and the same right as him to speak his opinion. This does show that Hadar was onto something in her comment to the first post--Burns does regard football players as objects and not fully informed members of society.

Posted by Howard Wasserman on September 10, 2012 at 12:05 PM in Current Affairs, First Amendment, Howard Wasserman | Permalink | Comments (0) | TrackBack

Law and Religion Scholars: Attend This Program!

One more note on the AALS program this year. I ought to post this closer to the meeting, and perhaps I will repost it. But I was so excited I couldn't wait. This year the Law and Religion section will be holding a program titled "Freedom of the Church," in which a number of law and religion scholars will ask questions about the foundations, nature, and limits of "freedom of the church," or church autonomy, from both supportive and critical perspectives. I encourage everyone to attend. But there's another panel I hope you attend as well...

This year the Section on Sexual Orientation and Gender Identity Issues will host a program titled "Straight Supremacy in the Name of God: Examining Religious Liberty from the Standpoint of its Victims." Here's the program description:

Much has been done to reduce animus against sexual minorities. However, lesbian, gay, bisexual, and transgender persons and other sexual minorities can still face de jure and de facto discrimination. In particular, these offenses often thrive under the rubric of constitutionally-protected religious freedom. Because of their uniquely privileged status, animus claims based on faith can perpetuate and extend invidious forms of discrimination that would be unacceptable if predicated on any other ground. To provide a critical counterpoint, panelists will explore the tensions between religious liberty and the interests of sexual minorities and identify ways of engaging with and contesting religiously-framed bigotry.

The panelists, including one I have written about here before, include a number of fine scholars on subjects including law and sexuality, critical theory, and (in some cases) religion. I strongly encourage law and religion scholars, and others interested in the relationship between religion and law, policy, and politics, to attend this session! I'm sure you will be welcome and that the resulting dialogue between panelists and audience will be productive. 


Posted by Paul Horwitz on September 10, 2012 at 09:22 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Crisis? What Crisis?

Last year, I noted my disappointment that the AALS had approved no "hot topic" proposals for discussions of the so-called "law school crisis" at its annual meeting, but also commended it for devoting several formal panels to the topic. In the event, I still thought it had done too little to discuss questions relating to legal education and the legal economy or to target them better in the panels it did have, but something is surely better than nothing.

This year, the approach seems to be closer to nothing than to something. As far as I can tell from reading the 2013 program, there are only one or two such programs this year, and I think that's a generous count. (By all means correct me if you think I've read the program wrong!) One of those sessions involves Bill Henderson, so that's a distinct plus. Still, I'm dismayed that there isn't much more. As I did last year in the face of some cruder criticisms, I will certainly defend the idea of the professional meeting itself, and of panels discussing a wide range of doctrinal and theoretical issues primarily of interest to scholars. But I'm definitely disappointed that the AALS didn't do more to discuss what continue to be genuine questions about the welfare of students, the levels of tuition and debt, the future of graduates, failures of transparency by schools, and the soundness of what we do pedagogically. Perhaps the AALS will make up for its failure through the hot-topic process this time; I certainly hope so, and I certainly hope law professors out there will get busy planning and proposing such discussions.  

Posted by Paul Horwitz on September 10, 2012 at 09:01 AM in Paul Horwitz | Permalink | Comments (11) | TrackBack

What Does it Mean for Religion to be "Out of Bounds?"

I appreciate Jay's post below asking why "religious questions" are "out of bounds" in elections. (And here is a link to his new book.) I have written about this issue once or twice before. I happen to agree that religious questions should not be out of bounds in politics, although I don't think that proposition alone says all that much. Despite that, I'm ultimately not sure I agree with the apparent premises of Jay's post, however.

To begin with, what does it mean for religion to be out of bounds in politics? Jay writes that "judgment calls when it comes to religion are somehow insulated from judgment calls in every other area of life," and that it's generally considered forbidden to criticize tenets of a faith because, among other things, "questioning someone's religious beliefs is supposed to be off-limits in American political discourse." The first thing I'd say in response is that, in fact, these kinds of questions seem to me to get asked all the time. Often they get asked as second-order questions, ie. articles asking how Romney's Mormonism would affect his chances in the GOP primaries. Sometimes they get asked as first-order questions: the Times runs profiles of all the major candidates, including Romney but also Santorum and Bachmann, and it certainly wrote about their religious beliefs (and, four years ago, Obama's relationship to faith and to Jeremiah Wright). And did the mainstream media really not "make much" of George W. Bush's Christian beliefs? Not from where I sit! Depending on the circles you travel in, moreover, plenty of these conversations took place elsewhere in the public dialogue than in the mainstream media. I see few FB posts on Romney's religion (aside from the occasional rude joke about sacred undergarments) but saw plenty about Bachmann and Santorum's views on faith. There is some kind of public norm that discourages asking too many such questions, or asking them too directly, but it is a distinctly permeable line. Certainly politicians themselves invoke the "out of bounds" rhetoric when it suits them, as Romney has from time to time (see my second article above), but I'm not sure that makes it a rule so much as a political strategy (and sometimes a detente between candidates), and in any event it is not scrupulously observed. 

Second, while I don't favor an "out of bounds" rule at all, I think it's worth considering the downsides of making this a widely discussed topic. Jay writes that "[r]eligious beliefs are as germane to being president as ideological ones." I agree with that in broad scope. But in application, things get very complicated very quickly. Ideological beliefs are germane to presidential elections, but they're not always great indicators, and anyone who thinks a candidate's ideology tells you everything you need to know about how he would govern will miss a good deal of the complexity and nuances that go into actual human life, including political life. That's all the more true with religion, at least at present in American political life. It is certainly relevant and can sometimes be highly relevant. But most large American religions are low-tension religions in practice--that is, they don't present strong conflicts between one's religious beliefs and obligations and one's actions in most aspects of civic life. Even when they might, people and churches have a way of reducing cognitive dissonance, either through individuals ignoring or reinterpreting faith tenets or churches changing their doctrines.

To me, some of these potential problems are evident in Jay's treatment of Romney and his LDS beliefs. He writes that Romney's status as a bishop shows that he has "really bought into these beliefs." But does it? And which beliefs? Perhaps what moves him most about this office is the spirit of "mutual assistance" that can end up with Senator Orrin Hatch "waist deep in a septic tank" helping a neighbor with manual work. He also writes that it is "dishonest" for Romney to "glide over" differences betwen Mormon and mainstream Christian faith perspectives, such as whether whether "Romney expects to be physically reincarnated on his own planet." But the more specific one gets with these doctrinal questions, often enough--as in this case--the less relevant it is to the candidate's actual performance in office. 

Again, I don't think these questions should be utterly out of bounds by any means. But I also don't think they really are out of bounds in practice. We hear them all the time, albeit they are usually badly asked and rarely asked. And saying they aren't out of bounds in principle doesn't free the people asking those questions from doing so with an appreciation for the nuances involved in an individual's relationship to his faith and in the relationship between his faith and his actions. And if we focus simply on those articles of faith, those truth-claims, that we find to be "completely untenable," then we really risk oversimplifying. A far tighter link between beliefs and policy is needed, and even then we may be misled. Jay's example of a candidate who believes we will be taken up by UFOs by 2013 is certainly relevant to how that candidate would carry out long-term policy; so would the views of a Jewish candidate who believes strongly, say, that justice is important because a divinely guided prophet told us so. But most faiths involve truth-claims that most other people find untenable, and as a practical matter few of those claims are going to be directly relevant to questions of policy, or will have other justifications, or will be only complexly related to how the candidate would carry out policy plans.

I think we are usually going to get more guidance and mileage out of asking questions about policy more directly, while treating questions about religious beliefs as potentially relevant but not as directly relevant as we might think. It would seem natural enough that if Romney raises the issue of weak public acknowledgment of God, ie. on coins, we could ask him, "Which God, exactly?" But we already know the answer to that question--"none, exactly, except insofar as it appeals to relevant voters." Would asking him the details of the LDS faith really add much to the conversation?    

In short, I think religious questions can be in bounds, and are certainly generally treated that way, but the fact that we rarely target religious questions highly specifically and vocally has some merits of its own, if only the merit of humility on questions of religious truth and their complex relation to both individual belief and individual action. The rhetorical device used by politicians of calling such questions "out of bounds" is a mistake, in my view, and one that politicians are often hypocritical about. But if we agreed that such questions are potentially in bounds but declared more or less forcefully that they ought to be approached carefully and with humility and not used as broadsides, we would have a fairly apt description of a fairly reasonable "rule" of discourse.     


Posted by Paul Horwitz on September 10, 2012 at 08:46 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Sunday, September 09, 2012

Springsteen Rocks Wrigley

I just saw Bruce Springsteen last night in the second of two sold-out Chicago shows at Wrigley Field. Midway through the show it started to pour. Did that stop Springsteen and the E Street Band? Not at all. In fact, Springsteen continued out onto the catwalks into the audience in the rain, with his guitar, at one point lying down on the stage and spinning around. Already soaked in sweat, he mixed in Chicago's unpredicted precipitation. An incredible performance - no, not a performance - an interactive religious experience where he annouced that we were all "in the house," along with his large, incredible band. No divas here, no one phoning it in. Everyone giving their all for us and for each other. Call it what you will - top notch entertainment, a religious experience, a political convention. Maybe even a great class.


Some of us talk here about music and how it moves and influences our lives, our work, our teaching. Some of us use music as collolaries, for analogies - music reaches us and we can reach our students though music. From Springsteen we can all take away dedication to craft and communication with an interactive audience community. Good people skills equate with good lawyering skills.

Posted by DBorman on September 9, 2012 at 04:17 PM | Permalink | Comments (5) | TrackBack

Should Inmates' First Amendment Speech Allow for Media Interviews?

An interesting bill lies on Governor Brown's desk, awaiting his signature: AB 1270 would allow, and set procedures for, media interviews with prisoners. The bill, sponsored by Assemblymember Tom Ammiano, would dramatically change the parameters of free speech in prison.

 Under the new bill, CDCR would be required to allow interviews with inmates on a pre-arranged and on a random basis, unless the warden determines that the interview "poses an immediate threat to public safety or the security of the institution." The interview request should be presented within a reasonable time, and the interview itself requires the inmate's consent, as well as a notification to the victim or his/her family ahead of time. The inmate is not to receive any form of remuneration for participating in the interview, and CDCR is not to change an inmate's status or punish him or her for giving an interview.


Currently, media interviews in CDCR prisons with specific inmates are not allowed (visiting prison and speaking to inmates at random is allowed under certain conditions.). The Supreme Court's decision in Pell v. Procunier (1974) upheld this regime, arguing that the existing provisions for media contact meant that there was no First Amendment violation.


Let's think about a few potential applications of this. One of the concern folks might have is about sensational interviews providing wanton publicity for perpetrators of heinous crimes. Notifying the victim's family is not, of course, procuring the victim's family's consent. And yes, it would mean more air time for tasteless, heinous and sensationalist media coverage. But how would that be different from the tasteless, heinous, sensational television we already watch?


Think about how much good it could do an innocent inmate if reporters would pick up the cause and pursue it, and how helpful it would be if, in addition to other footage, they could speak to the inmate him/herself. It's enough to be reminded of the stunning impact that Paradise LostParadise Lost 2: Revelations, and Paradise Lost 3: Purgatory have had on the West Memphis Three case (here's a great interview with the filmmakers).


And think of how much more attention the Pelican Bay hunger strike would have received if the public got its news not just from CDCR officials, and some crumbs from what families got through letters. But under the new proposition, it's likely that CDCR would still have the prerogative to decline the interviews based on institutional safety reasons.


If you support the bill, you can let the Governor know your position.



Cross-posted at California Correctional Crisis.


Posted by Hadar Aviram on September 9, 2012 at 11:08 AM in Criminal Law | Permalink | Comments (0) | TrackBack

Saturday, September 08, 2012

Why are religious questions out of bounds?

Hello Prawfsblawg participants!  It's great to be back -- during my last stint as a prof, a VAP at BU a few years back, I was an occasional contributor to this fine site.  And now, as I'm going on the AALS job market for real this fall, it's a pleasure to be back in the PB saddle, as it were.  

My two main areas of interest are law & religion, and law & sexuality -- or, best, a combination of the two.  I've just finished my Ph.D. in religious studies at Hebrew University, and in my non-prawf time, have been an activist for LGBT people in religious communities.  To avoid the taint of self-promotion, I'll omit the title of my book here...

I thought I'd start my new Prawfs career with a question that some people find obvious, but which I find to be a conundrum: why, in elections, are religious questions out of bounds?

As a scholar of religion, I'm used to inquiring into why people hold religious beliefs -- even ones which strike non-believers as absurd -- and of course as a legal academic, I'm accustomed to the social-constitutional norm of separating religious and political questions.  But, particularly on the religious studies side, there's no clear reason why judgment calls when it comes to religion are somehow insulated from judgment calls in every other area of life.

Consider an extreme example.  If a presidential candidate were a member of a UFO cult, and believed that aliens were going to scoop up all believers in 2013, we might reasonably ask whether such beliefs are incompatible with the long-term vision and planning required of a president -- right?  

Obviously, my question here is really about Mormonism, a newish religion which has some tenets most Americans will find very strange.  Why is it unfair, as a matter of evaluating Mitt Romney's judgment, to ask whether he believes that God is a corporeal human being?  Or whether Romney expects to be physically reincarnated on his own planet?  Or whether he believed, prior to 1978, that African-Americans were cursed to be dark-skinned (2 Nephi 5:21), or that dead people could be posthumously baptized?  Or how about the cardinal principle of the faith, namely that Joseph Smith discovered golden plates engraved in a foreign language on September 22, 1823, in Manchester, NY -- plates he later returned to an angel?

It's considered doubly verboten to criticize any of these tenets of the faith: first, because Mormonism was, for almost a century, the object of bitter persecution, and second, because questioning someone's religious beliefs is supposed to be off-limits in American political discourse.  After all, no one would question a candidate's belief that an omnipresent and incorporeal deity impregnated a 1st-century Palestinian woman, or parted the Red Sea.  And the only thing that distinguishes these preposterous beliefs from Mormon ones would seem to be that the former are older and more widespread.

But there are some distinctions.

First, Romney is not just a rank-and-file Mormon.  He was a bishop -- not as big a deal as it sounds, since Mormon bishops are locally-appointed and limited in power, but still a big deal.  This is someone who has really bought into these beliefs.  Doesn't it matter if the beliefs are, well, absurd?

Second, these beliefs may strike millions of people as deeply troubling, and Romney has not been forthright about them.  To take but one example, Christians don't believe that God is a corporeal being who has had sexwith women.  For Romney, like other Mormons, to glide over the differences between Mormonism and Christianity is dishonest.

Third, religious beliefs, like other beliefs, tell us about the character of the believer and what we may reasonably expect her/him to do.  By way of parallel, I think it mattered a lot that George W. Bush was a Biblical literalist and born-again Christian, and I think it was irresponsible that mainstream media never made much of this.  I think we can trace many of his demonstrably harmful policy decisions to his religious beliefs: the war in Iraq, his destiny as a world leader, the clash of civilizations, and so on.  It's not as if all our "secular" decisionmaking takes place in one part of the brain, and religious decisionmaking takes place in the other.  Religious beliefs are as germane to being president as ideological ones.

Now, it may not be a negative for Romney that he believes some of this stuff.  America is a heavily religious country, and Romney's faith may be an asset.   It's also unclear what the effect of a more honest discourse about religion and politicians would have on Romney's opponent, a longtime Christian who many Americans still believe is a Muslim. Surely Obama would be loathe for anyone to remember his former pastor, Jeremiah Wright, or for anyone to question the secondary role religion has played in his life.  No doubt the Obama people are happy to let sleeping dogs lie when it comes to religion.

But I'm not interested in the partisan net gain here.  I think it's crazy that our country is considering electing someone who holds beliefs that I find to be so completely untenable -- and I say this not just as a religion scholar but as a somewhat practicing (if not exactly believing) Jew who has written two books on Jewish spirituality.  I'm perfectly willing for my religious beliefs to be scrutinized, and I think the way in which I hold them is absolutely relevant to my overall personality.  If I were willing to believe what Mitt Romney is apparently willing to believe, I wouldn't trust myself.

Thoughts?  Disagreements?  I'm working on a larger article on these subjects, so I'm especially eager to hear what you have to say.

Posted by Jay Michaelson on September 8, 2012 at 11:49 PM in Law and Politics, Religion | Permalink | Comments (21) | TrackBack

Activist athletes, tone-deaf politicians

Now here's a fun free-speech controversy.

On Thursday, the story got out that Emmett C. Burns, Jr., a member of the Maryland House of Delegates, had sent a letter to the principal owner of the Baltimore Ravens, expressing horror that a member of the Ravens, Brendan Ayanbadejo, had spoken in support of a pending ballot initiative that would establish marriage equality in Maryland. Burns asked the team to "take the necessary action . . . to inhibit such expressions from your employee and that he be ordered to cease and desist such injurious actions." Ayanbadejo responded on Twitter by saying "Football is just my job it's not who I am. I am an American before anything. And just like every American I have the right to speak!!!" (wow, maybe you can make good points in 140 characters). Vikings punter Chris Kluwe defended Ayanbadejo on Deadspin and has been getting some attention for his response, which mostly hits (in an inimitable style) the key points.

Burns obviously should not be taken seriously or given too much credit for having put any real thought or principle into the letter.  What I find disturbing is the stated belief that, as a football player, Ayanbadejo has less of a right to speak out on public issues--that it is wrong for him to "try to sway public opinion one way or another" simply because he is a professional athlete. I haven't heard of Burns sending letters to other employers in the state (such as Johns Hopkins University, the largest employer in Maryland) asking them to tell their employees to concentrate on their jobs. Modern athletes are frequently criticized for not being political and not taking a stand on public issues (recall Michael Jordan's infamous comment that "Republicans buy shoes, too"). Now, when an athlete is willing to take a stand, a public official insists that he is engaging in "injurious behavior" and should be silenced.

We have not heard any response from Burns since the story became public and my guess is we won't. As an unknown and not influential state legislator, he no doubt is basking in the attention, even if it all makes him look like a complete fool.

Update: The New York Times has a short piece on the controversy, mentioning a number of current and former players who have come out in support of marriage equality and arguing that it reflects a shift in the NFL's political culture.

Posted by Howard Wasserman on September 8, 2012 at 08:21 AM in Current Affairs, First Amendment, Howard Wasserman, Sports | Permalink | Comments (4) | TrackBack

Friday, September 07, 2012

Bill of Health--Welcome!

One of our regular guests, and a dear friend of Prawfs, is Glenn Cohen (HLS). Glenn writes that he and a stellar group of colleagues either based at the Petrie-Flom Center at HLS or otherwise engaged in scholarship  at the crossroads of law and public health policy have launched a new blog: Bill of Health

The goal of the blog is to provide a one-stop shop for readers interested in news, commentary, and scholarship in the fields of health law policy, biotechnology, and bioethics.  You can expect to find regularly updated posts reacting to current events, testing out new scholarly ideas, reviewing the latest books, and announcing conferences, events, and job openings. Please take a moment to stop by and check out Bill of Health.


Posted by Administrators on September 7, 2012 at 04:08 PM in Blogging | Permalink | Comments (0) | TrackBack

Time-Release Political Rhetoric

Our nominating conventions have come to a close. Discussion abounds on the interwebs about form and content of speeches, use (and over use) of traditional rhetorical devices. Focusing on the aspect of persuasion, I originally inquired as to the actual persuasiveness of speeches made to a carefully cultivated audience of true believers and was reminded that the intended audience is quite a bit larger than the actual, physically present audience.

My colleague Jason DeSanto (https://www.law.northwestern.edu/faculty/profiles/JasonDeSanto/) articulated the composition of the expanded, intended audience in his regular spot as a political analyst on Chicago Tonight. Jason explained that the intended audience of this week’s convention speeches varied (in part) depending on the scheduled time and timing of the speech.  For example, the first half hour of Bill Clinton’s almost one-hour speech was directed specifically at an audience comprised as “the base,” of the Democratic party, which he described as “women, Hispanics, and youth.” The second half of Clinton’s speech, beginning at the approximate time of the evening news hour, contained political rhetoric geared toward persuading independent voters, swing voters and blue collar voters. Crafting a message at once to  appeal to a wide audience while in the same speech honing in on a select audience on a time-release basis is certainly a commendable persuasive technique.  

Posted by DBorman on September 7, 2012 at 03:26 PM | Permalink | Comments (1) | TrackBack

Judge Henderson Orders Continuation of Prison Medical System Receivership

A lengthy battle has been fought between the California Department of Corrections and Rehabilitation (CDCR) and the federal Receiver, Clark Kelso. Long before Brown v. Plata, Judge Thelton Henderson placed the entire prison medical system in the hands of a federal receivership. There has been some noticeable improvement (some investigating reporting revealed mixed results), but the court, deciding that overcrowding in prison impeded more improvement, kept the receivership in place while ordering the State to decrowd prisons. The State has been repeatedly asking the court to end the receivership and criticizing the Receiver's spending; the Receiver has consistently asked to sever health care from CDCR. And, as of yesterday, this is officially NOT OVER. The Los Angeles Times reports:

 In an order issued Wednesday, U.S. District Judge Thelton Henderson said he would require tougher reviews than the state wanted before agreeing to dissolve the receivership that has run inmate medical care for six years. 

"Evidence of progress made under the direction and control of the receiver does not constitute evidence of [the state's] own will, capacity, and leadership to maintain a constitutionally adequate system of inmate medical care," Henderson wrote. California officials have "not always cooperated with, and have sometimes actively sought to block, the receiver's efforts."

 Would Judge Henderson be more willing to bring the Receivership to an end if the state seemed more ready and willing to comply with the population reduction order, which it now seeks to change? For the court, quality of services is inexorably tied to prison population. But if services improve as population dwindles, is that evidence of the state's ability to provide quality health care, or a testament to the Receiver's efforts?

 But there's more here. This is interesting to me because the debate over the quality of prison health care has drawn attention to a special population of inmates: The old and the infirm.

 In their 1992 article The New Penology, Malcolm Feeley and Jonathan Simon speak of a change from a correctional regime that aspired to deter or reform inmates to a managerial, actuarial, risk-management regime that merely aspires to efficiently warehouse inmates. This regime is characterized, in part, by "selective incapacitation" - creating a continuum of institutions to house people according to the risk they pose.

 I submit that we still classify and categorize inmates, but these days our attention focuses on a slightly different criterion for incapacitation: Cost. Where our legislative energy has focused on groups we deemed, justly on unjustly, to be dangerous (like sex offenders and habitual offenders), we now consider the expense involved in incarcerating groups of people. This has been evident in the dynamic of incarcerating juveniles vs. adults, and it has also been evident in our approach toward Three Strikers. The latter are, in fact, a fairly small percentage of the prison population (about 8,000 inmates in total), but they have spent a long time in prison, and are old and sick. This is important because a stunning percentage of California's correctional budget is spent on health care. Several states have considered, and enacted, provisions for geriatric parole (CA has done so most recently in jails as well.) The use of GPS tracking devices for ill inmates has become more prevalent. And, while members of the notorious Manson family still hold symbolic, horrified fascination that would impede their release even if they are very old and sick, we are more open to considering such solutions.

 The intense battle between CDCR and the federal Receivership is an indication of the immense difficulties of administering passable health care to a large population, and as no end is in sight, legislature might need to think more seriously about handling its old and infirm prison population.


cross-posted to California Correctional Crisis.

Posted by Hadar Aviram on September 7, 2012 at 10:15 AM | Permalink | Comments (2) | TrackBack

The Political Conventions Made a Sociologist Think...

Greetings PrawfsBlog community! Special thanks to Dan for inviting me back for my fourth go. I have always found this group of scholars and commentators particular stimulating, so I am honored and excited to be back.

A short introduction: My name is Ari Waldman. After two years teaching law in California, I am now a PhD candidate in Columbia University's Department of Sociology. My work is inherently interdisciplinary, as will many of my posts this month. My dissertation research falls under the broad topic of online social networks and how our digital selves actually behave online and create and respond to social norms when it comes to privacy, speech, and property on the Internet. I am also the Legal Editor at Towleroad, where I write a weekly LGBT Law column. But, more on all that later... 

Even though I dork out on electoral statistics and socio-political trends, priding myself on being an informed policy wonk, I didn't watch much of the conventions. But one comment from outgoing Congressman Barney Frank (D-Mass.) struck me as particularly pointed. While criticizing the Log Cabin Republicans, an organization of openly gay Republicans, Mr. Frank said: "For 20 years now I’ve heard how the Log Cabins are going to make Republicans better, but they’ve only gotten worse. I now understand why they call themselves Log Cabin: their role model is Uncle Tom.”

My rhetoric isn't as fiery as Mr. Franks. That's why he does what he does, and I do what I do. But, his comments, a concurrently ran piece on Mormon Democrats, and my theoretical interests in the concept of identity got me thinking: How can we explain the phenomenon of the gay Republican and other similarly hard-to-wrap-your-head-around concepts? Let's consider some evidence AFTER THE JUMP.

Averaging a series of surveys on political identity, I have concluded that about 29 percent of LGBT voters identify as Republican. Only 14 percent of Mormon voters identify as Democrats. There is quite a range for LGBT Republicans (14 to 38), so I took a weighted average; the range is much smaller for Mormon Democrats (9 to 18), so it's not surprising that the weighted average came out close to the standard mean.

One political scientist took similar data and equated percent identification with "hospitability," that is, Republicans must be more hospitable to gays than Democrats are to Mormons. He assessed policies ranging from gay rights to health care and foreign policy and concluded that there has to be something else going on, like a desire to change the party or the greater importance of the trend of toleration rather than a one-time snippet. Even if the Republican Party is becoming more tolerant, an objective assessment of policy positions and votes suggest that it cannot be a party where a gay person feels comfortable. The Democratic Party may not be perfect for Mormons, but it should be a far more welcoming place.

This study was riddled with problems -- from strange data to dubious assumptions --  as I am sure you can already see. I reference it only as a starting point; I don't want to dive into a critique for obvious reasons of space and interest. I would like to talk about one point in particular: Is it enough to identify (somehow) that a particular position on a given issue a "gay" position or the "Mormon" position? Do those identifications automatically translate into a "hospitability" calculation?

The answer to this question, which the above study did not address, is bound up with the concept of identity. There may be something called "gay values" that can be compared to a political party's votes to determine hospitability, but the effect of that measure has on a given voter depends on how central that gay identity is to his or her political identity.

If you are gay, but it means little to you as a political matter, you are much more inclined to align yourself with a party that mirrors your other values by, say, promising to slash the debt or create private sector jobs; if being gay is central to who you are, you are likely to value the obvious gay rights issues -- marriage, adoption, DOMA, Don't Ask, Don't Tell, and so on -- higher than, say, the economy or foreign policy.

A thick concept of identity is the discounting factor that many, but certainly not all, studies of minority political identifications miss. Many gay liberals tend to deride gay Republicans as closet cases, at best, or self-haters, at worst. That was Congressman Frank's point. But although it is well documented that the discrimination faced by gay persons contributes to significant low self esteem and although the Log Cabiners' rhetoric often has the sharp twang of self-hate, I think the phenomenon of the gay Republican cannot be explained by psychological damage alone.

Their political identity is not overtly gay. 

If you know any gay Republicans or read their public comments, the phrase "being gay is only a small part of who I am" comes up often. In one sense, it's true for all of us. I am gay, but I also have a chronic medical condition that requires me to have good health care. I'm also Jewish, white, middle class, a cyclist, and a crier at movies. It is coceivable that some of those personal needs and community ties could outweigh my political identity as a gay man. In my case, they don't. But, explaining phenomena like gay Republicans requires us to do more than match up "gay" issues (however defined, which, of course, is another issue with these studies) with votes. It requires us to develop a thick concept of identity that explains why some votes are more important than others.

Posted by Ari Ezra Waldman on September 7, 2012 at 09:44 AM | Permalink | Comments (1) | TrackBack

In Search of Helpful Legal Scholarship -- Where to Invest Your 2 Cents

Thanks to Dan for this chance to offer a suggestion -- an invitation, really -- to scholars who are interested in bringing scholarship to the attention of more audiences who can make good use of it. The Green Bag has set up a website to gather and present scholars’ recommended reading lists for each case pending before the Supreme Court. The idea had been percolating for a while, and last year’s comments about the uselessness of legal scholarship by Chief Justice John Roberts (and the academy’s interesting responses) provided the impetus to get at least part of it done. Basically, the site -- called “The Helpful Scholarship Project” -- is going to be home to several dozen rolling polls of scholarly opinion about the most useful scholarship relating to the Court’s cases, with new polls starting as review is granted in new cases and old polls ending when cases are decided. It is probably an imperfect idea imperfectly executed, but if it works (with some tinkering) it might do some good for the Court, and the academy. (And if it works really well, we might expand it.) What we need now are participants -- scholarly test drivers -- to (1) give the site useful content in the form of recommended reading for the Court and (2) give the Green Bag feedback on how to make the site more useful and user-friendly. If there is a case before the Court that deals with one of your areas of subject-matter expertise, please consider telling the Justices what legal scholarship they ought to be reading before deciding. Just go to the Helpful Scholarship website and fill out the “Law Professors, Make Your Recommendations” form. For more thoughts on this project, try here and here.

Posted by Ross Davies on September 7, 2012 at 12:12 AM | Permalink | Comments (6) | TrackBack

Thursday, September 06, 2012

Judge Wolf's Brave Decision

On Tuesday, the Chief Judge of the United States District Court of the District of Massachusetts ordered the state's Department of Correction (DOC) to provide gender reassignment surgery to transgender prisoner Michelle Kosilek.  Convicted of murder in 1992, Kosilek is serving a sentence of life in prison for the killing of her wife, whom Kosilek had married while living as a man.  While incarcerated in men's prisons, Kosilek has transitioned to living as a woman.  Judge Wolf's decision, which you can access here, was immediately derided by most news outlets under headlines like  "Massachusetts must pay for murderer's sex-change surgery."  and "Killer Wins Sex-Change Surgery on State's Dime." However, Judge Wolf's 128-page opinion defies these predictable put-down's.  

The decision describes Kosilek's gender identity disorder, which has lead Kosilek to attempt self-castration and suicide, and recounts the conclusion of medical experts, including the DOC's own health-care personnel, that surgery is the appropriate response to this serious medical need.  (Kosilek is already receiving hormones and other forms of treatment).  Most interesting, Judge Wolf pulls no punches in identifying what he believes to be the real source of the DOC's reluctance to provide surgery, writing that: "[t]he Commissioner's purported security concerns are a pretext to mask the real reason for the decision to deny [Kosilek] sex reassignment surgery--a fear of controversy, criticism, ridicule, and scorn." 

The opinion forthrightly charges former DOC Commissioner Kathleen Dennehy with engaging in "a long period of pretense and prevarication" during which she "falsely claimed" that she did not understand that DOC's doctors were recommending sex reassignment surgery for Kosilek.  Instead, it charges, Dennehy was "motivated by her understanding that providing such treatment could provoke public and political controversy, criticism, scorn, and ridicule."  In fact, the opinion recounts, "Dennehy was determined not to be the first prison official to provide an inmate sex reassignment surgery," and "she testified that she would retire rather than obey an order from the Supreme Court to do so."  This fear, Judge Wolf writes, is not an adequate basis on which to deny a prisoner treatment for a serious medical need. 

The court acknowledges that "[i]t may seem strange" to provide this treatment to an inmate when "in the United States citizens do not generally have a constitutional right to adequate medical care." Nonetheless, Judge Wolf writes, "the Eighth Amendment promises prisoners such care,"  citing the Supreme Court's 2011 decision in the California over-crowding case, Brown v. Plata.

As the court points out, other important Eighth Amendment cases, including Farmer v. Brennan, which established the deliberate indifference standard, involved transgender prisoners.  Similar to other areas of the law, cases involving the most marginalized can determine the rights of all: in this case approximately 2.3 million incarcerated persons in the U.S. who may develop a serious medical need at some point.  Indeed, transgender prisoners' cases have been at the leading edge of Eighth Amendment doctrine regarding medical care and failure to protect.

In issuing its decision, the court has opened itself up to some of the scorn that the DOC apparently feared.  The prosecutor who pursued Kosilek's murder conviction expressed mixed emotions about the decision in the Boston Herald saying, "[i]t seems absurd.  A guy who's doing life for murdering his wife wants to get a sex-change operation so he can feel good . . . . [But on the other hand] a person who is held has a right to be treated for illness."  

The court's brave opinion in Kosilek demonstrates determination to uphold the rule of law in the face of public anger.  Some will commend Judge Wolf for doing the right thing despite the fact that the plaintiff is a convicted murderer.  But I admire the Kosilek opinion for recognizing the need to enforce the Eighth Amendment because so many view the plaintiff as an unlikable felon.  It's worth a read.

Posted by GiovannaShay on September 6, 2012 at 05:51 PM | Permalink | Comments (7) | TrackBack

Has Aaron Sorkin always been unwatchable?

I have always been an Aaron Sorkin fan. Like every law professor, I can recite A Few Good Men from memory; like every Democrat of a certain age, I loved The West Wing; and like not many people (since no one watched the show), I enjoyed Sports Night.

But we stopped watching The Newsroom after about three episodes. And it was not about his political leanings, which I largely share. And I like the idea of a press that actually does ask the tough questions in a sort of prosecutorial manner.

The problem is the stories and characters. The women were all written as totally incompetent personally or professionally or, usually, both (Sorkin has taken a lot of criticism for this). Just about every character seems thoroughly unlikeable as a human being, particularly the men who draw out the incompetence of the women. And the Sorkinesque speechifying, meant to be soaring, often comes across as bullying or humiliating. Sorkin paints a world in which it would be great if we all had the ability to call  someone out and cut them to the quick in an articulate way; but often, that just looks obnoxious. Plus, his characters are basically the same; you can link a character on The Newsroom to one on WW to one on SN.

The thing is, I'm not sure it is only this show. I recently went back to Season 1 of Sports Night and found it just as unwatchable for many of the same reasons. The characters were slightly better and more enjoyable, but the blatant sexism and retrograde sexual politics remained, as did the speechifying that just came across as obnoxious or unbelievable.

Am I wrong? Am I being too harsh? Trust me, I can handle the truth.

Posted by Howard Wasserman on September 6, 2012 at 03:17 PM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (11) | TrackBack

Religiously Affiliated Law Schools reception at the AALS hiring conference

For all those going to the hiring conference next month:

Touro Law Center will be hosting the annual reception of Religiously Affiliated Law Schools at the AALS Faculty Recruitment Conference in Washington, DC.  This year’s reception will be held on Thursday, October 11, 2012, from 7:30 to 9:00, in the Hoover Room of the Washington Marriott Wardman Park Hotel.  All faculty candidates are invited to attend.


Thanks to Sam Levine (Touro) for the reminder!


Posted by Rick Garnett on September 6, 2012 at 02:20 PM in Rick Garnett | Permalink | Comments (3) | TrackBack

Transnational Law

In the spring, I will be teaching a required Transnational Law class to first year law students.  (As far as I know, Washington & Lee is one of only a handful of schools that have this class in the first year.)  As part of a casebook project that Mike Ramsey, Chris Whytock, and I have been working on that is tentatively entitled "Transnational Law and Practice," I have been thinking a good amount about what the proper coverage for such a class should be.  I imagine most schools have an international law or transnational law class that focuses primarily on public international law, and augment that offering with smaller seminars on international human rights or international civil litigation classes.

I am leaning towards taking an approach to the course that is more practice oriented.  As such, it will likely include more transnational law in United States courts--a mix of civil procedure, federal courts, international arbitration, and international law--than straight public international law.  The idea being to conduct the class from the perspective of what today's law students entering the profession are likely to encounter as the legal profession continues the process of globalization.

So, here is my question:  What should the canon for such a course look like?  How much public international law should there be?  How much comparative law?  I would be particulary interested to hear from folks at schools that have a required or optional first year international law course or a required upper division course.

Posted by Trey Childress on September 6, 2012 at 11:36 AM | Permalink | Comments (1) | TrackBack

How About That Bill Clinton?

Boy, that guy is sure eloquent.   Watching his speech last night reminded me of the time he so beautifully talked that small girl out of wanting to be President when she grew up.  Remember that?  No?  Well, then maybe you should watch this video I made.


Posted by Jay Wexler on September 6, 2012 at 10:56 AM | Permalink | Comments (0) | TrackBack

Should Pro-Federalism-Oriented Abortion Opponents Vote for the Democrats?

With some trepidation, I thought I'd link to this post from my friends at Mirror of Justice on the Democratic and Republican platform positions on abortion. My interest is not in the abortion issue or in the question of whom to vote for, but in the fact that the Republican platform plank purports to reject the "federalism" argument on abortion: that the natural and appropriate thing is to return the abortion issue to the individual states. As I read it, it not only rejects that view in favor of a single national rule outlawing abortion, but also argues that this position is what the Fourteenth Amendment currently requires. As it turns out, I think platforms are highly imperfect ways to gauge much other than some combination of what parties purport to believe and what they are willing to trade away to particular wings of the party in exchange for not paying much attention to them later, other than to hand over a cabinet department or two. And notwithstanding the title of this post, I doubt the pro-federalism position is one taken by many Democrats. But since the title of the post at MoJ suggested that the platform language speaks for itself, I thought I would go ahead and listen.    

Posted by Paul Horwitz on September 6, 2012 at 09:17 AM in Paul Horwitz | Permalink | Comments (7) | TrackBack

What is the Appropriate "God Number?"

This story, the entire front page of this admittedly crap newspaper, and other such stories, including those about the Democrats' last-minute amendments, make me wonder: what is the appropriate number of times to mention God in a party platform. What mention is high enough to pay respect to our religious heritage and the supremacy of the Almighty, but not so high that it risks violating the injunction in Matthew 6:5-8? Are zero or one too low? Is twelve too high?

As the last story suggests, we have a handy metric available, and it would be my pick: roughly as many times as "God" appears in the Constitution or the Declaration of Independence, but not many multiples more than that. But I welcome other numerical suggestions.

Posted by Paul Horwitz on September 6, 2012 at 08:50 AM in Paul Horwitz | Permalink | Comments (4) | TrackBack

Felon Disenfranchisement and the California Realignment

In 1974,  California voters passed a constitutional amendment extending voting rights to all Californians with criminal records, save for those "imprisoned or on parole for the conviction of a felony." Prior to the amendment, disenfranchisement was permanent in CA once you were convicted of a crime. The impetus for the amendment was, hard as it may be to believe in the days of public safety rhetoric and redball crime panic, the wish to help people regain their full citizenship after they complete their parole. In a landmark 2006 case, the CA Supreme Court interpreted this provision as follows: Folks in state prison, and under state parole, can't vote. Folks in jail or under probation (or in jail for a probation violation) aren't considered "imprisoned" and therefore can, and do, vote.

A new piece I'm working on (coauthored with Jessica Willis) for the upcoming Loyola Constitutional Law Colloquium examines the application of this provision, and this interpretation, to a new population of offenders created by the Criminal Justice Realignment in California.

Let me present the legal dilemma. In the aftermath of Brown v. Plata, and in order to resolve the serious financial crisis faced by the state (corrections eat up about 7% of CA's entire budget), the California Penal Code has been amended to sentence non-serious, non-violent, non-sexual offenders to do time in county jail rather than in state prison. Are these people "imprisoned" for the purpose of the constitutional provision?

Constitutional provisions that give people fundamental rights should be interpreted broadly, right? Whenever there's ambiguity, we should support people's right ot vote, right? Wrong. The CA Secretary of State instructs felons that, if they are among the realigned group, they cannot vote. 

Several civil rights organizations, and several folks doing time in jails or on community supervision, petitioned the CA Court of Appeals for an original writ allowing them to vote (full disclosure - yours truly and coauthor Jessica Willis wrote an amicus brief on behalf of thirty criminal justice scholars in support of the petitioners). The Director of Elections for the City of San Francisco - one of the respondents - actually agreed with petitioners that they should be allowed to vote, and merely asked the Court for instructions what to do. The court threw the case in petitioners' faces with no reasoning. Petitioners took to the CA Supreme Court, and received pretty much the same response.

In the Article I go in depth into what the Court should have weighed and considered if it took these Californian citizens' rights seriously. But in a nutshell, here's what I think is going on: There are two visions of Realignment. You can see it as a technical way to resolve a budgetary problem and warehouse people on someone else's dime. Or, you can see it as  a real opportunity to bring people back to their communities, through a correctional method that actually might make sense for people who will eventually come out of prison and reintegrate into society. And by throwing the case out, the Court has opted, regrettably and apparently without much thought, for the former vision. A huge opportunity has been missed. People who could, and should, have been reintegrated into society; who could've channeled their experiences into civic engagement; and who could've started to care about their communities and neighborhoods will remain isolated and alienated.

In the movie Recount, a fascinating flick about the Bush v. Gore election, a person mistaken for a felon is sitting at home, watching Bush's acceptance speech. His face is difficult to read. Is he angry? Sad? Disillusioned? Robbed of the promise of a voice or full citizenship? When you vote in November, think about the immense number of U.S. citizens behind bars, or under supervision, from whom this right has been denied.


cross-posted on California Correctional Crisis.

Posted by Hadar Aviram on September 6, 2012 at 12:28 AM | Permalink | Comments (0) | TrackBack

Wednesday, September 05, 2012

Crime, Chicago, and Catholic Schools

This op-ed has a nice shout-out for recent and ongoing work, in the Journal of Empirical Legal Studies and the U. of Chicago L. Rev., by Nicole Stelle Garnett and her co-author, Margaret Brinig, on the social-capital and neighborhood-health effects of Catholic schools (and Catholic-school closings).  A bit from the op-ed:

A series of research articles by University of Notre Dame Professors Margaret Brinig and Nicole Garnet have laid out the case.  In a paper summarizing their findings, "Catholic Schools, Urban Neighborhoods, and Education Reform" Brinig and Garnet used three decades of data from the Project on Human Development in Chicago Neighborhoods to evaluate the effect of a Catholic school closure on its neighborhood.   They found -- even after controlling for other demographic variables that might predict decline --  that neighborhood social cohesion decreases and disorder increases in neighborhoods that have had a Catholic elementary  school close.  Last month an article about Brinig and Garnet's research, "Catholic Schools and Broken Windows," was published in the Journal of Empirical Legal Studies.  This research demonstrated that during a time of overall decline in crime, Catholic school closures slowed the rate of decline of crime as compared to beats without a Catholic school closure. 

There remain many questions not answered by this research as to why inner-city Catholic schools might have this effect.  However, the authors conclude that "...Catholic school closures are strongly linked with increased disorder, reduced neighborhood social cohesion, and eventually, serious crime." . . .

Posted by Rick Garnett on September 5, 2012 at 03:01 PM in Rick Garnett | Permalink | Comments (1) | TrackBack

Review of Judge Wilkinson's Book

I have a review of Judge J. Harvie Wilkinson III's book, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, over at The New Republic.  I have the rough sense that my take is generally more positive than what I've seen from other legal academics and commentators (and I was grateful for the skepticism I received about this essay when it was in draft).

Posted by Marc DeGirolami on September 5, 2012 at 01:12 AM | Permalink | Comments (3) | TrackBack

Tuesday, September 04, 2012

One-shot cases

Gerard Magliocca at CoOp poses a good question: What SCOTUS cases have been one-way (or one-day) tickets, in which the result and judgment is important but the reasoning has little doctrinal impact going forward. Gerard believes ACA is such a case, as is Bush v. Gore. In the comments, I suggested the obscenity cases from the 1960s, where the Court could not get a majority around any standard for obscenity but reversed conviction after conviction.

Are there other examples? Leave comments here or over at CoOp.

Posted by Howard Wasserman on September 4, 2012 at 11:07 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1) | TrackBack

"Executive Overreach"

I have a short piece in the new issue of Commonweal, called "Executive Overreach."  It was solicited as part of a "what's important to think about, as the election approaches" series that the magazine -- a liberal-Catholic-(or Catholic-liberal)-leaning journal of opinion -- is running.  Here's a bit:

. . . Constitutionalism is about more than our particular charter’s text, the Supreme Court’s various decisions, or pieties about shared values and fundamental rights. It is an attachment to the enterprise of protecting human freedom and promoting the common good by structuring, separating, and limiting power in entrenched and enforceable ways.  It is a mechanism for conferring power and authorizing action, a vehicle for governing and getting things done, but it’s also an embrace of constraints, processes, and forms, and a willingness to accept delays, inefficiencies, and frustrations as unavoidable costs, perhaps even benefits. In constitutional
government, how and by whom things are done is at least as important as what is
done and when, or how quickly. And this is why it is troubling, rather than
inspiring, to hear the president keep saying, “We can’t wait.”

This is not a partisan concern. Both parties have been guilty of overreach . . . .

This is not a Tea Party point, even if the Tea Party sometimes makes it. It is certainly not an endorsement of the constitutional provisions that once entrenched slavery or a denial that some others are anachronistic. Nor is it a defense of the various congressionally created, non-constitutional rules that sometimes make a mockery of the idea of structured deliberation by setting up a maze of holdouts, vetoes, and hostage taking.

Electoral majorities will sometimes reward those whose proclaimed or perceived energy and vision are too big for the rules and who promise to ignore or abolish procedures that—especially during times of deep political divisions—seem to deliver only delay and dead ends. And yet, as Chief Justice Warren Burger observed almost thirty years ago, “With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”  Those who designed the Constitution understood that political liberties are best served through competition and cooperation among plural authorities and jurisdictions, and through mechanisms that check, diffuse, and divide power. . . .

Posted by Rick Garnett on September 4, 2012 at 02:18 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0) | TrackBack

How Do We Get Read?

Thanks to Dan for inviting me back for another stint!  I wanted to start off with a topic that
should be near and dear to the hearts of PrawfsBlawg’s readers:  How do we get our research read outside of our subject-matter networks?  This question comes from a conversation I was having last week with my colleague Ben Spencer at Washington & Lee, where I am visiting for the academic year and teaching civil procedure and transnational law.  We were both noticing how sure we are that our scholarship gets picked up by our subject-matter networks—say civil procedure folks or international law folks—but we were not quite so sure how to get a wider readership—say federal courts folks, judges, or scholars outside of the United States.  Of course, blogs like this one play a role in getting legal scholarship out there to a wider audience.  Having a blog like Larry Solum’s Legal Theory Blog highlight an article leads to immediate SSRN readership, even international readership, as does a more practice-oriented blog like SCOTUSBlog.  Some of my colleagues at Pepperdine, which is my home institution (where it is always 70 and sunny!), have had success with sending out hard-copy reprints beyond their immediate subject-matter network.  And, I notice that some folks also send out email e-prints to readers far and wide.

So, here is my question:  How do folks find a way to get their scholarship out to a broader audience in light of all the various avenues that exist today for publicizing legal scholarship?  I would be particularly interested in hearing thoughts about getting our work out to the practicing bar—which would at least in part answer some of Chief Justice Roberts’ recent criticisms (even if the piece is entitled, “A Kantian View of Transnational Civil Procedure”).

Posted by Trey Childress on September 4, 2012 at 12:16 PM | Permalink | Comments (9) | TrackBack

"Smart on Crime": Retreating from Punitive Discourse Citing Financial Prudence

In the decades prior to the financial crisis, as Jonathan Simon writes in Governing Through Crime, no politician, regardless of party affiliation, could afford to sound "soft on crime." Propositions running counter to the received wisdom that more punitive is better had to be marketed as smarter, more efficient, or safer law enforcement - and, of course, these drowned in a sea of punitive propositions. But one of the key features of humonetarian discourse - the correctional discourse in the wake of the financial crisis - has been a partial liberation for politicians from the tough/soft on crime dichotomy. The usual tricks for dressing nonpunitive propositions as, well, not nonpunitive, still apply, but now there's justification to do so: Punitiveness is not financially sustainable. 

Our friends at Sentencing Law and Policy posted a link to an "astute recent Washington Post piece" reviewing the GOP's platform on crime after the RNC convention. The piece compares GOP criminal justice policies and ideals to those of yesteryear. The bottom line: Republicans are softer on crime. Here are a few snippets:

Policy experts agree that the omission [of the War on Drugs from the GOP platform] is significant. “This is less a ‘tough on crime’ document than you would have expected. And leaving out the War on Drugs [is] quite astounding,” says Mark Kleiman, a crime policy expert and professor at UCLA. “It’s a bit more of a libertarian attitude,” says Marc Levin, who runs a conservative criminal justice reform project called “Right on Crime” that’s attracted the support of Newt Gingrich and Grover Norquist.

What’s more, the 2012 platform includes new provisions that emphasize the importance of rehabilitation and re-entry programs to help ex-prisoners integrate back into society—using language that Kleiman describes as “a lot less ‘lock ‘em up and throw away the key.’” “While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community,” the platform says. “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.” The document also criticizes the “overcriminalization of behavior,” though it doesn’t elaborate on the point much further.

Both Kleiman and Levin believe it’s partly the outgrowth of a prison-reform push on the part of GOP governors whose state budgets have been saddled with high incarceration expenses. In recent months, Pennsylvania Gov. Tom Corbett, Ohio Gov. John Kasich, and Gov. Chris Christie have embraced crime reform legislation to support the kind of rehabilitation programs that the GOP platform now advocates, with some also reducing jail time for non-violent offenders. Conservative reformers like Levin are heartened by the changes. “We’ve gone a long way in four years,” he says, crediting the growing interest in more cost-effective ways to tackle crime.

This is not a coincidence. A coalition of conservative politicians, including recent signatory Jeb Bush, identifies as "right on crime". The emphasis is on being fiscally prudent, which this post, again analyzing the RNC and the resulting platform, calls "reapplying basic conservative principles" to criminal justice. Yes, there are some punitive ideals advocated by the GOP - most notably with reference to gang conspiracies - but being comfortable 

Who else feels comfortable being less belligerent on drugs? Well, Pat Robertson, for one. But if you want to get more serious, that the father of classic market economics (and inspiration of the Reagan Administration) Milton Friedman would find marijuana prosecutions a waste of resources is perhaps not surprising, but the timing of this review, and the focus on revenue, means that these times call for new approaches among conservative politicians.

I've focused on conservative politicians so far, but the same analysis applies to progressive ones. In 2007, when Simon wrote Governing Through Crime, progressive politicians could not afford to be "soft on crime." That hasn't changed. What has changed is that progressive politicians, like conservative ones, apply to financial prudence as reasoning. One interesting example is the marketing of Prop 19 ("regulate, control and tax marijuana"), which failed at the ballot, as a revenue-enhancing proposition. I spoke to folks at Tom Ammiano's office; going into the election, support for the proposition significantly rose when they marketed the proposal as revenue enhancing. There is some indication that the proposition's failure was due to its vague tenets (leaving the mechanisms of sales up to the individual counties) rather than due to the basic idea.

To sum up: I don't thin politicians have become ideologically soft on crime. But the crisis is giving them a license to be cheap on crime, in a way that appears more genuine and does not damage their credibility.


Cross-posted to California Correctional Crisis.

Posted by Hadar Aviram on September 4, 2012 at 11:09 AM | Permalink | Comments (2) | TrackBack

Monday, September 03, 2012

Parenting: Work, Leisure, or "It's Complicated"?

Thanks to Dan and all at prawfs for inviting me back!   I've been reading Jody Madeira's and Cynthia Godsoe's thoughtful posts on work and family issues with great interest, and thought I'd mark Labor Day and back-to-school by contributing something along this theme.  The NYT Sunday Business section this week featured an article by Hannah Seligson entitled When the Scales of Work and Life Weigh Unequally.  It explored the tensions that can build when workplaces implement flex-time policies, specifically non-parents' resentment when parents skip out for kid-related obligations.  The Seligson piece focused on several law firms and interviewed the founder of a consulting firm, Flex-Time Lawyers.  According to consultants quoted in the article, flex programs are more successful if the conversation is "de-parent[ed]" and "de-gender[ed]" so that employees can get time off regardless of the nature of the family or personal obligation.  Supervisors also stressed the importance of communication and transparency, so that all team members know who is taking time off and when (although not necessarily why).  Seligson asked: "who gets priority . . . if one employee's son has his back-to-school night on the same night as another's poker game?"  The interviewees' answer  was that co-workers cover for one another, regardless of the reason.  This all seems very sensible as a human resources strategy.  I wonder, however, about the broader implications of equating care work with other personal activities, such as hobbies. 

Some amount of care work (for children, yes, but also for ill, elderly, or disabled loved ones) possesses social utility and fills a gap that exists because of our collective decision not to invest in social services.  Yet we tend to discuss parenthood as if it is solely a personal lifestyle choice, not a social contribution.  Maybe some of the push-back is due to the hyper-intensive model of parenting prevalent among privileged parents, the one described by Madeline Levine in her recent book, Teach Your Children Well.  The examples of parental flex activities given in Seligson's article were childrens' swimming lessons and soccer practice.  These parenting obligations look a lot like leisure, at least relative to activities such as, say, taking your kid to the doctor.  Indeed, Bruce Feiler had a piece in the NYT this Sunday entitled It's O.K. To Skip That Bake Sale, suggesting that volunteering at your child's school has become "a status symbol of sorts." 

Of course, less-privileged parents face a more fundamental kind of work-life balance: earning a living while ensuring their children's safety and adequate supervision.  One of the employers interviewed in the article stated candidly that, when hiring employees for her business, she looks for people who can "fall back onto their own systems" if a family issue arises.  Working people with care responsibilities know exactly what that means: you're on your own!

Posted by GiovannaShay on September 3, 2012 at 08:25 PM | Permalink | Comments (15) | TrackBack

Preaching to the choir: Conventionspeak

Hi, all - thanks to Danny Markel for welcoming me back to prawfsblawg.

So, it's convention season. One last week, one this week. The media covers the conventions, the speeches, plays snippets and then reports "reactions" and "responses" complete with some kind of statistics as to the candidates "standing" in the polls following the speech.

Some of us teach persuasive speech as a component to oral advocacy. What speeches do we use as illustration - MLK's Letter from a Birmingham Jail, Lincoln's Gettysburg address , etc. I recently used Obama's inauguration speech. These partisan convention speeches made (somewhat) available to the general public are being touted as "persuasive," to the extent that the audience is listening to candidates and their supporters say things with which the audience already agrees. Really, when the audience is already on board these speeches are not persuasive, then, are they? Does anyone find convention speeches useful for study and practice on the topic of oral advocacy? Curious to hear your views.

Posted by DBorman on September 3, 2012 at 02:24 PM | Permalink | Comments (5) | TrackBack

The Shadow Class

Well, tomorrow is the first day back to school at BU Law, and it's all very exciting.  I'm teaching Administrative Law for maybe the 8th or 9th time in my career.  Currently, there are about 46 students registered for the class, but because our add-drop period is so incredibly long (I think the deadline to decide what classes to take falls somewhere around Thanksgiving), it takes a long time for me to know excactly how many people are going to be in the class and who they are.  Being neurotic and generally bananas, I check the class list online like three times a day to see if anyone has added the class (yay) or dropped the class (boo).  It's an emotional roller-coaster.  "I'm up to 47!"  "Oh, no, 44!"  Especially if there's a student that I know and like and that person is in the class and then suddenly they're gone, this can send me into an emotional tailspin that can last until lunchtime.  Once in a while someone you know adds the class (awesome!) only to drop the class the next day (can you say "extended tailspin"?).  For some reason, at BU, we also have the ability to see the list of students who have dropped the class since registration first opened sometime in June.  For a big class like admin law, the list of students who have dropped can be longer than the list of students actually taking the class (lots of people register for the class but hope to be able to drop it when they get into a seminar or clinic or whatever; also sometimes they learn more about who they've chosen for a prof and, let's just say, flee).  I always think of this group of students as the "shadow class"--the group of students walking around the law school united by nothing more, perhaps, then the fact that they were once a registered student in my class but no longer are.  It's like I have two classes at the same time--one learning administrative law and the other pointedly not learning administrative law.  Sometimes I see a member of the shadow class around the school and ask him or her how's it going not learning administrative law.  Usually they say it's going pretty well.

Posted by Jay Wexler on September 3, 2012 at 09:44 AM | Permalink | Comments (4) | TrackBack

Saturday, September 01, 2012

On the Ballot in CA: Prop 34 - Death Penalty "Replacement"

Hello, Everyone - it's good to be back this month at PrawfsBlawg. For folks who don't know me, I teach and do research at UC Hastings in San Francisco. I study the criminal justice system and, in recent years, have been focusing on the correctional crisis in California. I'm currently working on a book with UC Press about the impact of the financial crisis on the American correctional landscape, and in particular on a scarcity-centered correctional discourse that I call "humonetarianism" (here's a webpage with a downloadable version of my first paper on this.) I also blog about everything corrections in CA at the California Correctional Crisis Blog, where I'll share this month's posts as well. Some of the themes of this month's posts will discuss ideas from the book, and I look forward to your comments.

As a first post, I want to introduce a voter initiative on the November ballot - Prop 34, also known as the SAFE California Act - and talk a little bit about incremental change and "marketing techniques" for soft-on-crime propositions.

Jonathan SimonKatherine Beckett and more recently Vanessa Barker told it like it is:

Regardless of a politician's party affiliation, presenting oneself as soft on crime is akin to political death (interestingly, Kamala Harris, who as San Francisco DA was opposed to the death penalty, called her book Smart on Crime). Bringing up propositions for leniency using human rights discourse is an unacceptable thing to do in American politics. But, as I discuss in the book, the last few lean years have had a silver lining: Scaling back punitive policies becomes more acceptable if done in the guise of financial prudence. So, in recent years we see some developments that are swinging back the punitive pendulum that has been moving in one direction for forty years. We're seeing more talk of drug legalization and decriminalization; we're hearing more talk of priorities in prosecutorial offices; and we're discussing categories of offenders based on their cost, such geriatric parole of the old and the infirm.

One manifestation of these developments is a recent trend of death penalty abolition or, in the least, moratoria. Over the last year alone, five states have abolished the death penalty, citing its costs as a main factor, and bringing the number of no-death-penalty states to 17. After a legislative effort to do the same in CA failed, a public movement consisting of a coalition between activists, new non-punitive victim groups and law enforcement supporters managed to obtain the necessary 750,000 signatures to place the proposal on the ballot as a voter initiative.

I can't engage in prophecies as to the outcome in November, but Prop 34 has been fairly successful so far in winning endorsements from newspapers, public organizations, former supporters of the death penalty, and important public figures in law enforcement. And I think the reason they have managed to appeal to so many different constituents has a lot to do with their remarketing of the death penalty as costly and unaffordable. Their printed and online materials refrain from using the word "abolition" but rather use the term "replacement" (funny enough, many friends of mine have not jumped on the wagon because they are uncomfortable with the movement's extolment of life without parole and do not believe in incremental reform.) Their activists and volunteers are advised to stay away from denouncing the death penalty as barbaric and inhumane, but rather to argue for its expense and inefficiency. Watch how this video, ofr example,  emphasizes the issue of cost. The cost factor may also partially explain the recent decline in public support for the death penalty in CA.

This sort of newspeak isn't really new. Nonpunitive propositions are often marketed as "smart" (which they often are!). What's new here is the emphasis on money.

Elsewhere, I talked about the changing discourses in anti-death-penalty activism. The intellectual, Enlightenment-era conversation about its merits and pitfalls, which was so powerful and influential in Europe despite being a top-down intellectual experience rather than a public conversation, didn't really happen seriously in the United States. Our first serious conversation about this happened in the 1970s, with the period of moratorium between Fuhrman and Gregg. And then, much of the conversation revolved around deterrence. Then, with the emergence of DNA testing and innocence projects, the conversation turned to wrongful convictions and the irreversibility of mistakes (see more about the exoneration process in Brandon Garrett's new book.) And now, the discourse focuses on cost and savings.

And there's one more thing to consider: In most countries, as Frank Zimring and David Johnson eloquently showed, once the death penalty goes away, it doesn't come back. But American exceptionalism, as David Garland points out, cannot be discounted. And, in the United States, the death penalty did return after four years of constitutional moratorium. Assuming Prop 34 passes (and, being a huge believer in incremental reform, I very much hope it does), would we bring back the death penalty when the economy improves?

Posted by Hadar Aviram on September 1, 2012 at 12:05 PM | Permalink | Comments (11) | TrackBack

'No man but a block-head ever wrote, except for money' department

Here's a story for our times.  It's got it all: the glories of the unbridled entrepreneurial spirit; the gargantuan overproduction and instantaneous dissemination of information (the possibilities generated by e-publishing for "vanity presses" seem limitless, and it doesn't seem the good intentions of the FTC can keep up); the mighty egalitarian ethos of the internet -- "Reviews by ordinary people have become an essential mechanism for selling anything online"; and the genial exploitation of the morally ambiguous zone between what is deemed corrupt and repugnant by acclamation and what the market can stomach without actually vomiting. 

As somebody who thinks well of the reading and writing of book reviews, it's a little discomfiting to be told just to depend on the inherently moral foundations of consumption to distinguish between "artificially embellished reviews" and the genuine article (or review), but I'm sure I'll get over it.  "Consumer reviews are powerful because, unlike old-style advertising and marketing, they offer the illusion of truth."  It's enough to make one wistful for the days of honest lying.  

And then there is this helpful assurance: "The market will take care of the problem of insincere enthusiasm."  'Insincere enthusiasm' -- what a suave euphemism.       

Posted by Marc DeGirolami on September 1, 2012 at 11:11 AM | Permalink | Comments (2) | TrackBack


It's September 1, and thus, the anniversary of the end of Terry Fox's great Marathon of Hope in Thunder Bay, ON (take note, Erik!). But it's also the onset of a new month, which means time for rotations.

This coming month, I'm excited to see a band of returning friends: Jason Solomon (W/M); Hadar Aviram (Hastings); Trey Childress (Pepperdine); Ari Waldman (CWSL); Jay Michaelson; Debbie Borman (Northwestern), and Gio Shay (WNE).

I also want to take a moment to thank all of our wonderful contributors this last month in August. We hope to see you again soon. In the meantime, enjoy the long weekend!

By the way, I'll be up in Philly/Camden for this Rutgers conference on law and neuroscience next weekend and then at NYU for the crim theory colloquium on the 10th. Hope to see some of you there at one of these (at least!).

Posted by Administrators on September 1, 2012 at 08:15 AM in Blogging | Permalink | Comments (0) | TrackBack