Monday, October 15, 2012
Confusion about Separation
This blog post, "Of Babies and Beans," by Adam Gopnik, at The New Yorker, is mainly about abortion (and about what Paul Ryan said during the vice-presidential debate on the subject) but it also included some sharp -- but I think misguided -- criticism of what Ryan said about the role of religious faith in citizens' "public" lives. Gopnik characterizes as "disturbing and scary" what struck me as Ryan's (to me)unremarkable observation that “I don’t see how a person can separate their public life from their private life or from their faith. Our faith informs us in everything we do.” Here's Gopnik:
That’s a shocking answer—a mullah’s answer, what those scary Iranian “Ayatollahs” he kept referring to when talking about Iran would say as well. Ryan was rejecting secularism itself, casually insisting, as the Roman Catholic Andrew Sullivan put it, that “the usual necessary distinction between politics and religion, between state and church, cannot and should not exist.” . . .
. . . Our faith should not inform us in everything we do, or there would be no end to the religious warfare that our tolerant founders feared.
Now, I believe strongly -- in part for "religious" reasons -- in the separation of church and state, properly understood. But Ryan did not say that the "distinction between politics and religion" or the distinction between "church and state" (which is a different distinction) "should not exist"; and there is nothing mullah-ish about the statement that faith "informs" people's lives -- public and private -- comprehensively. He didn't say that the positive law should enforce religious teachings or require religious practices, and there's nothing contrary to "secularism" (properly understood) in his statement.
Which reminds me . . . I participated this past weekend, along with a number of Prawfs-bloggers and friends, in a really stimulating and fun roundtable conference at the University of San Diego's new Institute for Law and Religion, on "The Freedom of the Church in the Modern Era." Our own Paul Horwitz's work on the subject was, of course, at center-stage! More on this later (I hope!).
The Hitman's Tale and Wrongful Convictions
This is my second post on the terrific article by Nadya Labi, The Hitman's Tale, in the Oct. 15, 2012, edition of The New Yorker. Labi tells the story of Vincent Smothers, convicted of eight murders in Detroit, all of them committed as a gun-for-hire. There's no dispute about Smothers' guilt; he continues to concede his guilt while serving a life sentence. But Smothers confessed to twelve murders. Police prosecutors did not pursue charges on four becuase they had already convicted a teenager, Davontae Sanford, of those murders. Sanford's conviction has all the red flags of a wrongful conviction: it is based on little more than his confession, given under police interrogation as a fourteen year old of sub-par intelligence, and with a history of falsely claiming to have committed lesser crimes but no history of violent crime. Labi describes Sanford's trial judge has having pushed the parties to reach a plea bargain, which they eventually did, and of opening stating that he would have given a harsher sentence after a trial conviction. (Instead, Sanford got 37 to 90 years.)
There's nothing new here for those familiar with the literature on both false confessions and wrongful convictions. But what continues to shock is how poorly the criminal justice system responds to very strong indicators of wrongful convictions, and how poorly designed it is to do so.Part of the barrier is the overwhelming commitment to finality of judgments, no matter the stakes or the reasons for believing a prior decision erroneous. Part of it is the absence of any structure to really investigate post-conviction errors seriously. Whether Smothers' confessions undermined Sanford's conviction was assessed by the same police and proseuctors who handled Sanford's prosecution, that is, those with personal confidence that their prior work was correct and a disinclination doubt the results they worked to achieve. (They are apparently convinced, even in retrospect, that a 14-year-old with no record and no physical evidence or eyewitnesses linking him to the murders is the more likely killer than the experienced hit man with a record of committing similar drug-deal-related killings who can testify to the murders in detail.) It seems obvious that reassessment of cases like Sanford's should be handled by a different team of police and prosecutors who can view the case with fresh eyes and less vested interest—or by a different sort of body altogether, like the wrongful conviction commssions in North Carolina and the U.K.
Finally, there are also clear indications in the article—especially in last two pages, which focus on Sanford’s attempt to set aside his guilty plea, which the trial judge refuses to do—about how individual judges, and the judicial system as a whole, just don’t take seriously their responsibility to uncover and establish the truth. As the work of Mirjan Damaska and other comparativists have described, this is a tendency of the adversarial system of justice (in contrast to the European inquisitorial model) taken to extremes: the priority is on resolving conflicts between the parties, which the plea did, rather than ensuring that public court judgments establish, and rest upon, the factual truth.
One example from this case: part of the reason for not setting aside Sanford's guilty plea is that Smothers initially declined (Labi suggests perhaps he would not now) to repeat his confessions in a hearing on Sanford's case. His thinking, as Labi describes it, is that he had done enough of that already—he'd confessed to police and repeated his admissions subsequently; surely would be enough to help Sanford. A system that took factual truth seriously would not hinge its outcome in good part on a witness's idiosyncratic rationale for choosing not to testify. It would compel Smothers to testify. It could do so by granting his immunity for his testimony, without the slightest cost to the public interest, because Michigan already has Smothers in its custody for the rest of his life; there' no more punishment to add, and so no loss from waiving a chance for additional convictions. There is, however, a need for ensuring that Sanford's conviction is correct. And there is, or should be, a public interest in establishing who actually killed the four victims Sanford was convicted of killing. But our system instead prioritizes efficient conflict resolution and finality, and places the levers of power in the hands of officials with little incentive to revisit their mistakes and great incentives to avoid recognizing them.
The Potential Bias
New insights about our biases toward rookie potential over established success are here just in time, as we assess the DC interviews and manage the mix of entry-level and lateral candidates [I couldn't make it to DC because I was committed to speaking at the L&E conference at Wash U, but I know the other
members of the USD committee represented us well, and now comes the difficult task of making choices].
A study just published in the Journal of Personality and Social Psychology confirms our tendency to get more excited over someone's potential to become a star than one's actual achievements, awards, and proof of productivity and talent. Here is the abstract of the study, which is entitled The Preference for Potential:
When people seek to impress others, they often do so by highlighting individual achievements. Despite the intuitive appeal of this strategy, we demonstrate that people often prefer potential rather than achievement when evaluating others. Indeed, compared with references to achievement (e.g., "this person has won an award for his work"), references to potential (e.g., "this person could win an award for his work") appear to stimulate greater interest and processing, which can translate into more favorable reactions. This tendency creates a phenomenon whereby the potential to be good at
something can be preferred over actually being good at that very same thing. We document this preference for potential in laboratory and field experiments, using targets ranging from athletes to comedians to graduate school applicants and measures ranging from salary allocations to online ad clicks to admission decisions.
Slate has an interesting take on the study and its implications in the context of screenwriters, Hollywood, and sports. But for us in the legal academia, I am sure we can all think about how the potential bias impacts the market.
A New Essay on the Roberts Court and the Press: Not a Free Press Court?
The abstract for my new essay , Not a Free Press Court?, is as follows:
The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two decisions in FCC v. Fox Television Stations, both of which avoided the looming First Amendment issue they contained, and the only decision involving new media is Brown v. Entertainment Merchants Ass’n. This essay, taking its cue from Erwin Chemerinsky’s recent lecture, Not a Free Speech Court, attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, the Roberts Court appears committed to protecting unpopular speech, limiting the spread of “medium-specific” First Amendment doctrines to new media, and broadly defining speech of public concern. As far as the media are concerned, however, this good news may be overshadowed by the bad. Not only has the Court sidestepped two opportunities to free broadcast media from the FCC’s content-based regulatory oversight, but, what is worse, the Court appears to see the “Fourth Estate” as little more than a slogan media corporations bandy about to further their selfish interests. In light of these observations,perhaps the media should be grateful that the Roberts Court has addressed few cases directly involving them and should hope the trend continues.
I wrote this small essay, which is now available on ssrn, for a wonderful symposium at BYU Law School on the Roberts Court and the Press. The essay is forthcoming in 2012 BYU L. Rev. __ (2012).
Sunday, October 14, 2012
Canonical Critiques of Canonical Works
A friend and I were trying to think of really well done critiques of canonical legal works, and I thought this perhaps might be a good 'many-minds' sort of question. What are the most elegant and well designed critical reactions to works which everybody agrees are canonical? What methodological, structural, stylistic, or substantive features of the critique are especially admirable or deserving of imitation? What if one is thinking about an older canonical work -- say, something written more than 10 or 20 years ago -- that has as yet not received a systematic critique? Are there excellent examples of such critiques, and are there particularly clever methods of addressing the canonical work?
Against Common Answers
Let's switch gears from HDTVs to light cigarettes. Suppose you walk into a convenience store to buy a pack of cigarettes (again, humor me). You notice an ad stating that light cigarettes are healthier. You decide to buy a pack of lights. Sometime later, you buy a pack of lights because the lights were on sale.
Years go by, and you read a newspaper article about a class action alleging fraud claims against cigarette makers. It turns out that light cigarettes are not, in fact, healthier, and that cigarette makers knew this. However, you read that class certification was denied because the class representatives could not show that every class member relied on the fraud to buy the cigarettes. This makes sense because you don't even remember whether you bought light cigarettes in the past, or even why you did. It's not like you saved the receipts.
This is a real case, and reflects a consensus that class certification requires common proof of injury for every class member. The most famous example is Wal-Mart Stores, Inc. v. Dukes, where the Supreme Court required some "glue" tying together the thousands of gender discrimination claims of the class members, who were all individually discriminated against by lower level managers. The Court in Wal-Mart relied upon the work of the late Richard Nagareda, who argued that class representatives had to show not only "common questions," but that those questions had "common answers." This term the Court granted certiorari in two cases, Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds and Comcast v. Behrends, where the Court will essentially address whether a class representative must prove injury (or some element of it) for every class member to obtain class certification.
I argue against the requirement of "common answers" in "Proof of Classwide Injury." There, I argue that the requirement of common answers is misguided because it effectively requires the class representatives to prove the merits before class certification. This undermines the whole point of the class action, which is to equalize the incentives of the parties to invest in the merits. If a plaintiff won't file a small claim, let alone invest in it, absent a class action, then why predicate the availability of the class action on proving the claim for the entire class?
More importantly, proof of classwide injury is unnecessary to fulfill the enforcement function of the litigation. As noted by others, the class action in small claims litigation is meant to deter defendants from injuring a large number of dispersed plaintiffs who otherwise wouldn't file separately. Deterrence only works if the prospect of the litigation (and the resultant liability) induces the defendant to follow the law. But at that ex ante moment, the defendant doesn't know how his conduct will specifically affect the population exposed to that conduct. Thus, the decision is made on a projected, aggregate basis. If, at the time of litigation, the liability and damages are assessed on an aggregate basis, you get the full deterrent effect of the litigation without having to determine whether each and every class member was injured.
Let's go back to the cigarette example. You may think that denying class certification is either benign (the losses are small, after all) or that you are protecting the rights of other to sue separately. But if cigarette makers know they can engage in fraudulent marketing claims with no consequences, then protecting that right to sue separately only causes more fraud. Who wants to protect such a right? It's like protecting a right to a fire extinguisher that causes fires.
A Hit Man's Story: legal v. journalistic truth
I highly recommend an article in the Oct. 15, 2012, edition of The New Yorker, by Nadya Labi, headlined The Hitman’s Tale: From Honors Student to Hired Killer (subscription required). Labi tells the story of Vincent Smothers, who is serving life for eight murders in Detroit that he carried out as a hired hit man. I plan to write separately on some legal issues raised in the article. For now, I want to offer the observation that this sort of high quality journalism has a greater capacity to present us with the truth of an offender such as Smothers than the legal process does, which strikes me as both inevitable and unfortunate.
Most of Smothers' victims were drug dealers; a rival dealer paid Smothers to kill them. His last victim, however, was a police officer's wife; the officer hired Smothers to kill her. Smothers' guilt is not in doubt for any of the murders, even by Smothers himself, and his sentence is not open to challenge. Yet in Labi's nuanced profile, Smothers comes across, at least to me, as somewhat sympathetic, and certainly human in the sense of possessing a recognizable moral capacity for reflection and regret. He describes feeling great remorse now for his killings, and for having instantly regretted murdering the officer's wife because he recognized her as an umabiguously innocent victim. (He rationalized killing his drug-dealer victims with the view that everyone who enters the drug trade knows that it ends one of two ways—with one's murder or imprisonment.) He concludes that for his crimes there is simply "no atonement." (Which, in turn, led him to attempt suicide.)
What strikes me about all this is that this portrait of Smothers is credible precisely because it is journalism rather than a part of legal process. The criminal justice system would have a very hard time giving us a comparably subtle and credible portrait of a serial killer's conscience, even though that conscience is (or can be) legally relevant to sentencing. The very fact that Smothers is speaking to a journalist, and speaking post-conviction, makes his claims, and the broader portrait, credible. Smothers' same narrative offered during trial or sentencing, on the other hand, would be equally credible to few people if anyone—even though it would be equally true. In that sense, the legal process just doesn't have to some the truth about some legally relevant things as other ways (or venues) in which we reach conclusions about truth. Add to that the additional barrier of (or for) judges and prosecutors. They hold the most power over a defendant's legal fate yet are the least inclined, by their professional/political roles, to accept a subtle, morally complex story such as Labi presents about Smothers. Much more likely to prevail is a more typical, incomplete (if not inaccurate) legal narrative of "a cold blooded killer" or the like. Even if it doesn't change the legal outcome--even if life without parole is appropriate for an eight-time murderer with a conscience--there's something lost in the reductive accounts that legal systems (and other, lesser forms of journalism) provide.
Clear eyes, full hearts, can't lose (the election)
A mini controversy has sprung up over Mitt Romney adopting the slogan "clear eyes, full hearts, can't lose" from the tv show Friday Night Lights as a campaign rally slogan. Peter Berg, the show's creator, wrote a letter to Romney telling him that his "politics and campaign are clearly not aligned with the themes we portrayed in our series" and asking him to "[p]lease come up with your own campaign slogan." No word, at this point, whether the campaign is going to acquiesce.
This is just the latest in a repeated story--GOP candidate uses some pop culture theme (song, show, slogan, character, etc.) and its creator complains and asks him to stop. And to the extent Berg is correct that Romney's politics are contrary to the show's message, that, too, is par for the course. Politicians (and others) have long been using Mellencamp's Pink Houses and Springsteen's Born in the U.S.A. as "rah-rah, America is great" songs, completely missing the songs' obvious theme that America has ignored and abandoned segments of society--the working class, Viet Nam vets, working-class Viet Nam vets.
Several media critics have argued that it is not clear whether the show's political message is consistent or aligned with the campaign's message, because the show's politics are not clear. The show, they suggest, was both liberal and conservative--"bi-partisan," as one critic writes. Slate's David Plotz argued last year that the show's politics are "communitarian;" it values the communities that we create of whatever form--families, friends, schools, small towns, teams, team boosters, churches, etc. It's an interesting insight, although I would counter that the central institutions depicted--the school, the football booster club, and the town that loved its team--all were corrupt and influenced by wealthy individuals with questionable motives and all screwed over Coach and Mrs. Coach at just about every turn. Anyway, the argument now seems to be that a show with political universality should not be coopted by one side or the other.
The question is whether it matters. Putting to one side any intellectual property issues and whether a political campaign can claim fair use of the song/slogan/show, what difference does it make whether the candidate's use of the song/slogan/character is consistent with its original or intended message? In fact, isn't the "fair use" argument stronger if the candidate can argue that he is giving new or altered meaning to the culture referent? Plus, whatever the message of FNL itself, the "clear eyes" slogan has little or nothing to do with any of that.
Friday, October 12, 2012
Negative Commercial Advertising
At this time of year, there are always complaints about politicians' negative ads. I never bought into these complaints; it seemed to me that negative ads tended to be more useful than positive ones. An ad claiming that a candidate was soft on crime or was in the pocket of big business was at least likely to convey some information about ideology. An ad claiming that a candidate had good character, however, tended to be worthless to me because anyone can claim to have good personal qualities.
But whatever the merits of negative political ads, I am intrigued by the negative commercial ads that I have seen lately. Take, for example, Samsung's ad that's critical of the iPhone. One of the messages of the ad is that young people shouldn't want the iPhone -- simply because middle-aged people do want it. Similarly, the "not for women" softdrink campaign and the Miller Lite "man up" ads appeal to men to buy the products strictly because women (or effeminate men) aren't supposed to like them.
This is different from products that are meant to appeal to certain groups. Dove's Men + Care, for example, might appeal to men because it lacks the flowery perfume that marks some other soaps. These newer products, by contrast, are being promoted strictly by denigrating other groups of potential purchasers.
Am I right in thinking that this represents a new development? I don't recall ad campaigns exactly like these, though it might be simply a variation on the don't-trust-anyone-over-30 mantra from the 60s. Does it say something about modern culture that commercial companies now think they can make more money with divisive ads than by appealing to all demographics?
In Defense of the Infield Fly Rule
My two posts on the controversial Infield Fly Rule call in last week's National League Wild Card game generated a number of comments and emails, several suggesting that, not only was the call wrong, but that the rule itself is a bad idea and should be scrapped. This motivated me to write a defense of the Infield Fly Rule, which now has been published on The Atlantic.
No Coercion, Maybe?
Imagine that you haven't been following the news for a month (humor me). You walk into a Best Buy browsing HDTVs. You have already decided on a limit on how much you would pay for a new HDTV, say, $1000. While browsing, you notice that all of the HDTVs are now $800 or less. Giddy with joy, you buy your dream HDTV.
As you walk out of the store, you see a headline plastered on the front page of the Miami Herald that states: "New Mandate to Purchase HDTVs Lowers Prices." You look up the article and discover that, a month earlier, Congress passed a law requiring all persons to purchase an HDTV, and that the law caused TV manufacturers to lower prices. Were you coerced by Congress into buying the HDTV? What if you knew about the mandate before buying the TV?
In a new paper I co-wrote with Ralph Boleslavsky, an economist at Miami, we argue that there is no coercion in both cases.Instead of TVs, our paper, entitled "Does the Individual Mandate Coerce?," focuses on the individual mandate provisions of the Affordable Care Act, which require certain individuals to buy health insurance or pay a certain amount in taxes.
As probably everyone who reads this blog knows, last term the Supreme Court upheld the individual mandate, but a majority of justices concluded that Congress cannot use its Commerce Clause power to coerce individuals to buy a product. Much of the commentary about the case has assumed that the mandate coerces (it is called a "mandate," after all). However, we use a simple game-theoretic model to show that the mandate may not coerce if the market for health care and health care insurance has certain features. The basic intuition is reflected in the hypothetical above: the individual mandate may cause insurers to sell health insurance at a price that everyone subject to the mandate would be willing to pay. Thus, no coercion.
Admittedly, someone may not want to purchase affordable health insurance for ideological reasons. We are skeptical, however, that anyone would be that ideologically rigid. Moreover, the Act excludes from the mandate those who do not want to purchase insurance for religious reasons, excluding the very individuals most likely to forgo purchasing health insurance, no matter the price, because of their beliefs.
In the paper we concede that the model is stylized. But we also point out that certain features of the model -- relative risk homogeneity among the persons subject to the mandate, and economies of scale that insurers can use to purchase health care from providers -- have some empirical support. Now, I cannot force you to accept this conclusion, but it is certainly food for thought, and suggests that maybe supporters conceded the coercion of the individual mandate too easily.
A Job Talk Flashback
This week I had the interesting--and by interesting I mean slightly terrifying yet highly productive--opportunity to present my most recent article to my own faculty. It was my first such formal, colleague workshop since my original job talk. The article I presented will be published in Fordham Law Review this spring and is titled, Agencies in Crisis?: An Examination of State and Federal Agency Emergency Powers. In it I make both a quantitative and a normative analysis of agency emergency powers with some surprising and intriguing results. If you are interested, you can read the full abstract after the jump.
I will note, despite how oddly disconcerting it is to present a paper to colleagues I both admire and know well, in the end I found the resulting mentorship invigorating--I recommend the process to all you pre-tenureds out there. And now that I'm done, I'm going to Disneyland! (No, really, I am).
Agencies in Crisis?: An Examination of State and Federal Agency Emergency Powers
Fordham Law Review (forthcoming)
That state and federal agencies have emergency powers, is well known. Much less is known about the process and circumstances under which these powers are exercised--subjects that divide scholars into two theoretical camps. Scholars on one side assert that ample agency discretion in time of need is not only desirable, but it is laudable in the pursuit of efficiency and "deossification" of regulatory action. Scholars on the other side contend that emergency powers are so broadly granted, and representative procedure is so easily abandoned, that the inevitable result is agency unaccountability and aggrandizement. In response, this article presents new empirical research that shows a starling rise in the actual use of federal emergency power (the "good cause" exemption) and extensive use by certain state agencies of their comparable emergency rulemaking powers. After conducting a novel and comprehensive normative analysis, this article concludes by offering an approach to reharmonize the efficiency/public participation trade-off for emergency rulemaking at both the state and federal level: (i) to restrict federal agency emergency powers in language and structure and (ii) to increase agency flexibility at the state level. Discussion of these proposals is particularly timely, as not only has the general level of emergency rulemaking increased, but federal and state administrative agencies must now gird themselves for an increased burden on agencies that regulate health insurance programs. In this arena in particular, the empirical evidence reveals intense tension between administrative efficiency and public participation and a compelling need for an immediate rebalancing of these competing interests.
Thursday, October 11, 2012
Escaping the WardmanGood luck to everyone going through the FRC over the next couple of days. I strongly recommend taking a walk away from the Wardman when your schedule allows -- even if you don't have the time to watch the otters play at the zoo (as commenter Bacon suggests), just taking the one-third mile trek up Connecticut Avenue to Starbucks will do wonders to rejuvenate the mind and body.
10 Works that Mattered Most (to you!)
Via SSRN, I just stumbled across Rick Pildes' little essay for the Int'l Journal of Constitutional Law, which is celebrating its 10th Anniversary by asking a gaggle of distinguished prawfs what 10 works have most influenced them and their academic work. Check it out and keep a watch for the contributions from the others: Justice Stephen Breyer, Catherine MacKinnon, Philip Bobbitt, Jeremy Waldron, Seyla Benhabib, Sam Issacharoff, Martin Shapiro, and Michel Rosenfeld.
Feel free to add your own voices in the comments.
Judicial Legitimacy When the Stakes Are Personal
I just finished reading the Federal Circuit’s new opinion in Beer v. United States, in which a divided en banc panel held that the Compensation Clause of the Constitution bars Congress from revoking cost-of-living-adjustment (COLA) raises for sitting federal judges. The majority concluded that current Article III judges had reasonably relied on the provisions of the Ethics Reform Act of 1989, which set out the formula for automatic annual COLA raises. The majority also concluded that Congressional legislation revoking the judges’ COLA raises in certain subsequent years constituted an impermissible diminution in judicial salary. In reaching its decision, the Federal Circuit overruled its own 2001 decision in Williams v. United States, and distinguished the Supreme Court’s decision in United States v. Will, on which the Williams case relied. A sharp dissent argued that the majority’s position, no matter how reasonable or just, impermissibly disregarded an authoritative opinion of the Supreme Court.
The Beer case is a gold mine for those of us who teach and think about the judicial process. Among other things, it touches directly on the debate over pragmatic approaches to judging, judicial ethics and recusal, federal judicial selection, the legislative-judicial relationship, and the process of justifying decisions in written opinions. It also offers an interesting demonstration of how a court can secure the legitimacy of a decision when the judges themselves are not – indeed, cannot be – neutral.
The neutrality of a decisionmaker is a well-recognized component of procedural fairness, and one of the most important contributors to the legitimacy and public acceptance of a decision. Public perceptions of whether legal procedures and outcomes are fair often turn on the belief that the decision was rendered by an impartial, honest, and principled judge. Even if the outcome is viewed as favorable, Americans are (rightfully) queasy if they believe that the decision was made with the judge’s personal or pecuniary gain in mind.
As the Federal Circuit readily acknowledged, in Beer a financial conflict of interest was unavoidable. The legislation at issue affected the salary of every Article III judge, regardless of level of court or geographic placement. The court (with the agreement of both sides) invoked the time-honored Rule of Necessity in concluding that it was appropriate for it to rule on the matter. But the Rule of Necessity does not solve the neutrality problem. It allows the court to rule when no other judges are available, but does not by itself lend sufficient legitimacy or credence to the ruling.
Yet the Federal Circuit managed to minimize the neutrality problem and preserve its legitimacy – and it did so by employing three techniques that normally are thought to threaten legitimacy. First, the court unapologetically stressed the importance of judicial independence, and tied stable and predictable salary increases to that value. This was a potentially risky move. Notwithstanding general public support for an independent judiciary, naked assertions of judicial independence historically have backfired. (Rose Bird’s failed bid for retention as California’s Chief Justice in 1986 is one notorious recent example.) In Beer, however, the court was careful to describe judicial independence as a public good rather than a perk of wearing the robe. Even though the judges faced a conflict of interest in the case before them, the larger value of judicial neutrality in the vast bulk of cases was better preserved through an independent (read: financially secure) judiciary.
Second, and somewhat counterintuitively, the court’s legitimacy was probably helped by the presence of a dissenting opinion. Dissents are often thought to weaken the force or legitimacy of a majority opinion, either by pointing out flaws in the majority’s reasoning or by pressing the majority author to narrow the scope of a ruling or soften his or her rhetoric. The presence of a vigorous dissent in Beer, however, sent the message that the court was aware of, and considered, a multiplicity of views – including views that contradicted the judges’ own pecuniary interest. A unanimous opinion might well have sent the opposite message: that the court failed to critically examine all views before reaching its decision. (As I explain here, this “groupthink” interpretation of a unanimous opinion likely contributed to the non-retention of three Iowa Supreme Court justices in 2010.)
Finally, Judge O’Malley’s substantial concurrence in Beer took a risk by eschewing a formalist/legalist approach in favor of a much more functional or pragmatic form of decisionmaking. Judge O’Malley dedicated several pages to explaining how the relevant legislation had created vested expectations for Article III judges, and exploring the negative consequences of abandoning an expectations-based approach. While legal pragmatism has its adherents, it is more susceptible to public concerns about court legitimacy precisely because it diverges from the comfortable formula of looking backward to precedent, and instead looks ahead to the potential consequences of a decision. But here, too, the Federal Circuit balanced the pragmatic and legalistic approaches, emphasizing legalism in the majority opinion and pragmatism in the concurrence. The result is a set of opinions that highlight many forms of legal reasoning and reinforce the message that the court addressed the issue thoughtfully and carefully.
The Federal Circuit obviously lacks the salience of the Supreme Court, yet public acceptance of its decisions is no less important. Beer v. United States suggests, in a fascinating manner, how court legitimacy can be sustained by combining diverse components of legal justification in unexpected ways.
Law on TV
It is not breaking new ground to say that television is fascinated by law and lawyers, even if the portrayal is never quite right. It does give us some exam or discussion ideas or at least something to blog about. To wit:
On Parenthood, the lawyer character got into trouble at work because she missed the deadline for submitting her responses to Request for Admissions (that phrase was repeated multiple times, probably because it sounds fancy--I don't think I mention Requests to Admit that many times in my entire semester-long class). As a result, the case was going to be dismissed, her client was going to be out millions of dollars, and the firm was going to be sued for malpractice. Opposing counsel declined to accept the late responses because doing so would hurt her client.
This seems really far-fetched to me. Courts don't dismiss cases for a single inadvertent discovery mistake; it would have taken a whole lot of prior discovery problems for the court to get to that point; would the court really have not forgiven a one-day delay (to the extent the court is even involved in discovery at that point).? I also would expect opposing counsel to agree to the after-the-fact extension, since there probably was no prejudice. The show obviously was trying to set-up work problems so the character can face a work-family balance crisis. And maybe discovery sounded fancier and more lawyerly than a problem (like failing to file a lawsuit on time) that might actually get a case dismissed.
And, hey, anytime you can make drama out of discovery, you have to go there, right?
More questions, with SPOILERS, after the jump.I also am right in the middle of the most-recent episode of Elementary (Sherlock Holmes in New York), which does not feel that much different than any other CBS police procedural. Holmes suspects the neighbor of the murder victim of having stolen something from the victim's apartment, so he kicks in the door to reveal the stolen item; as he is doing this and the neighbor is screaming about him having to get a warrant, Holmes says "it's a good thing I'm not the police." That is just flat-out wrong; Holmes acts under color of state law under at least two (maybe three) tests. Can anyone come up with a conceivable argument that he doesn't?
Finally, here is the one I genuinely need help on, because I know nothing about wills. In that same episode, Sherlock discovers that the two murder victims both had been fathered by the philandering father of a prime suspect. The wealthy man had recently died, with a will leaving the estate to his marital daughters (the suspect and her twin sister). But, Sherlock says, the two victims are "pretermitted heirs" who would be able to come back and make a claim on the estate, thus giving the suspect motive to kill them.
This seems really, really wrong. If the father made out a will, assuming it is valid, he can disinherit or devise to anyone he wants, can't he? That there might be heirs entitled to a claim in the absence of a will does not mean they can make any sort of claim on an estate that has been probated pursuant to a valid will. In other words, they only would be entitled to millions of dollars (the basis for the motive) if they could show the willis invalid; they could not show entitlement to recover simply because they are descendants. Am I wrong about this? Am I missing something?
Something I Do Not Like Lots
Hey, I haven't met most of you, and this is crazy, but I want to start my stint on Prawfsblawg with a very mild complaint. My colleague, Michael Froomkin, founded JOTWELL (The Journal of Things We Like Lots), where scholars can write brief essays praising (rather than criticizing) legal scholarship. JOTWELL is truly a wonderful thing, one of many brilliant things Michael has done at Miami. I am truly lucky to have him as a mentor and next door neighbor.
Michael started JOTWELL mainly to fill a gap -- to provide a way for those interested in legal scholarship to find out which new articles and books are worth reading. The Mission Statement notes that "[a] small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important," but now "[g]reat articles appear in relatively obscure places." Consequently, one would think that the vast majority of JOTWELL entries would be about great articles in less-than-famous law journals.
But based on my own experience (and not on any data analysis of any sort), most JOTWELL entries are about articles placed in top law journals. This result (again, based on my own subjective experience) conflicts with the oft-stated complaint that student-run, non-peer reviewed journals do not choose the best articles to publish.
Now, I am not blaming Michael for this development. He is at the mercy of the reviewers who submit review essays to JOTWELL. I also do not blame the reviewers themselves, since the goal of JOTWELL is, after all, to let people "know what we should be reading in related areas," and they may be doing just that. And I simply may be wrong that JOTWELL skews towards articles in top journals. But if I am right, it suggests that maybe the placement crapshoot isn't that much of a crapshoot after all.
UPDATE: I apologize for not mentioning this in the original post. As Michael points out in the comments, I had addressed this concern to Michael, and Michael did tell me that he is planning "to mention this concern in my next annual letter to contributors." Michael, in fact, has been very conscientious in developing JOTWELL, which is why it is the great resource that it is.
Coming soon?: All-You-Can-Watch Local Sports (whether you want it or not)
I teach antitrust and communications law--both filled with meaty, topical issues that can generate complex questions--but a perennial student favorite is "Why can't I watch my hometown team on TV?" This question typically elicits a dry recital of specific league rules, FCC blackout regulations and a varied assortment of broadcast deals. But I've been pleasantly surprised that recent developments are changing that answer--and may soon even eliminate the question. For example the NFL has relaxed its blackout rules, designed primarily to bolster gate receipts, in an apparent nod to evolving league economics. The FCC's sports blackout rules, are also up for reconsideration, as changing economics and video delivery preferences have arguably undercut the underlying rationale for the rules. Finally, there has been a flurry of new contracts, new channels and new methods of bringing you your local team--at a price; sometimes a price paid whether or not you're interested.
The latest deal to hit my area is a new Laker/Time Warner Cable contract. Now if you live in official, Laker Nation territory, all regular season Laker games that are not nationally broadcast (that's about 53 out of 82, although reports vary) will be brought to you on Time Warner SportsNet. Not a Time Warner Cable customer? (There are about 3.1 million Angelenos who aren't.) No problem! Go to iwantmylakers.com, type in your zip code and Time Warner will show you which provider can bring you SportsNet (spoiler alert: in all zip codes you can get the channel from only one operator: Time Warner Cable). The site also allows you to email/tweet your provider directly to demand that they add the new channel for only $3.95 per month, per subscriber--yes, even you non-Laker watching subscribers will pay (at least some of) that fee. Compare that to the most expensive national channel, ESPN--rumored to command $4.69 per subscriber--and, depending on your persepective, it either looks like ESPN has paved the way for competition or some cable/satellite customers are being highjacked. Either way, the Pac-12 asking price of $0.90 suddenly looks like a bargain basement sale.
Later I'll take a closer look at some intriguing antitrust and regulatory implications of these new trends--and I would love to hear your comments--but for now, since I don't have Time Warner Cable, I guess I'll just go watch some Los Angeles professional football . . . oh . . ..
Localist Statutory Interpretation
I have uploaded to SSRN my latest statutory interpretation piece, Localist Statutory Interpretation, forthcoming in the University of Pennsylvania Law Review. An abstract follows:
This paper argues for more attention to citizens’ point of contact with our legal system within local courts – and makes an effort to conceptualize local judges as parts of local governments. Once the paper highlights the role of local courts within the constellation of local government, it offers an argument for why certain forms of "localist judging" are appropriate postures for local judges to take when confronted with hard cases of statutory interpretation. The paper explores the virtues of a type of "intrastate judicial federalism."
This paper provisionally works out some puzzles I stumbled on in my last piece on elected judges and statutory interpretation with Aaron-Andrew Bruhl, available here.
A Macro story for rising criminal court caseloads
A recent article by two German legal scholars, Krey and Windgatter, in the German Law Journal (published in English) discusses some causes of the exceedingly high caseloads in German trial courts. Krey and Windgatter point to high caseloads as a primary cause of the plea bargaining in Germany, the nation John Langbein could once describe admiringly as “the land without plea bargaining.” In this caseload problem, of course, German courts join their American counterparts. But they also join the courts in most advanced nations from what I can tell, judging from those I have read or heard a bit about: the U.K., Italy and Korea are other examples. There’s been some very good comparative law scholarship on plea bargaining in recent years—by Maximo Langer, Jenia Turner, Markus Dubber, Steve Thaman, and others. But I’m not aware of much scholarship on why caseloads have risen across nations in recent decades, though we have some good work on why that is so in the U.S. The uniform caseload rise is somewhat puzzling to me. I’ll explain why, then offer a very speculative idea that strikes me as a likely contributing cause—in short, the rise of the welfare state.
The first reason that a worldwide rise in criminal caseloads seems puzzling is that the reasons for America’s caseloads increase don’t seem likely to explain the situation elsewhere. America has a uniquely high violent crime rate among advanced democracies (no so with regard to property crimes), although that rate rise and fall in tandem with caseload rates. We have an even more distinctively high incarceration rate. Combine that with America’s disposition for more thinly funded public institutions in most sectors (with huge exceptions for prisons and the military). The caseload increases we worry about are ratios: cases per judge or prosecutor. So it’s easy to imagine that America has turned to greater use of criminal punishment—either in response to higher crime rates, or simply as a matter of policy despite steady or decreasing crime rates—without a willingness to make sure funding for courts and prosecutors keeps pace. But European countries like Germany don’t seem as likely to fit that same story—they have lower crime rates, vastly lower incarceration rates, and more of a tradition of funding courts at levels that until recently avoided plea bargaining.
The second reason that higher court/caseload ratios seem puzzling is that every country is richer than it was 30 or 40 years ago, as measured by per capita GDP. All things equal, that suggests they have money to keep courts funded at levels that prevailed 30 or 40 years ago. Yet Germany hasn’t, and that seems like it’s probably a widespread pattern across nations.
So why are cases-per-judge ratios worse now than earlier? My suspicion, based simply on only a broad sense of these developments, is that the answer lies in macroeconomic trends of the last 40 years and the increasingly challenging social policy conditions of advanced democracies. In short, rates of GDP growth have slowed, birth rates have slowed, and retirees live longer (making the young/old, worker/retiree ratio less favorable), so that welfare states face greater challenges in funding pensions, health care and the like. These trends alone have required nations to shift a greater share of national spending toward welfare spending, simply to keep the same benefits in place. (Though they haven’t kept them in place—nearly all have adjusted benefits downward in recent decades to deal with this challenge.) On top of this challenge, the politics of western democracies have shifted to the right, though much more so in the U.S. and U.K. than elsewhere. That’s meant lower tax rates especially on upper incomes and further cuts in public budgets (though again, the U.S. has made exceptions for prisons and the military; indexed entitlements like Medicare also rose here and elsewhere, and are now budget-cut targets). The result, I suspect, is that every state, without putting it in these terms, has shifted scarce public funding from courts to other public projects—in some broad sense, to the social safety net (again, more so in Germany than the U.S.). Thus, caseload increases aren’t just a function of rising crime, nor of cuts to court budget per se; they reflect choices to squeeze courts more in order to squeeze other public spending less. Clever econometricians may have ways of testing this thesis. I’d love to see the results; again, what I offer isn’t much more than a hunch.
Wednesday, October 10, 2012
Tomorrow: MLEA highlights
Tomorrow I am off to Washington University in St. Louis for the Law and Economics Conference. Thankful to guest speakers -- I have a terrific speaker driving down from Los Angeles to teach the sex harassment section of my employment class, with war stories on how he singlehandedly defended NBC studios in the lawsuit brought by a writer on the Friends sitcom, claiming the jokes in the writers' room, during the brainstorming sessions for each episode, created a hostile work environment.
At Wash U, I will be presenting two behavioral law and econ articles: one on my experimental work of the effects of non-competes on motivation and performance, here; the other on the effects of decision-making environments and age on risk in the context of pensions and financial planning, here. As I glance at the MLEA program, it strikes me how much our ideas of what law and econ scholarship can look like have expanded dramatically compared to a decade ago. Interestingly, many papers this year about legal education itself. The first talk of the first day is by Peter Huang, presenting his memoir as an ex-child prodigy. It sounds fascinating; I have always like Peter's work on positive psychology, wellbeing and the law, and now he brings to us his personal story. here is a taste:
I am a Chinese American who at 14 enrolled at Princeton and at 17 began my applied mathematics Ph.D. at Harvard. I was a first-year law student at the University of Chicago before transferring to Stanford, preferring the latter’s pedagogical culture. This Article offers a complementary account to Amy Chua’s parenting memoir. The Article discusses how mainstream legal education and tiger parenting are similar and how they can be improved by fostering life-long learning about character strengths, emotions, and ethics.
FriendsHello all. Glad to be back at Prawfsblawg for another round of blogging. I'm looking forward to sharing some thoughts about entertainment contracts, the orphan works problem in copyright, and the new settlement between Google and several publishers over Google Books. Today, I want to talk a bit about file-sharing and friendship. A recent study asked U.S. and German citizens whether they thought it was "reasonable" to share unauthorized, copyrighted files with family, with friends, and in several different online contexts. Perhaps unsurprisingly, respondents in the 18-29 range responded more favorably to file sharing than older respondents in every context. What interests me is that respondents in every context see a sharp difference between sharing files with friends, and posting a file on Facebook. We call our Facebook contacts "friends," but I'm curious why the respondents to this study made the distinction between sharing with friends and sharing on Facebook. I have a few inchoate thoughts, and I'd love to hear what you think. Megan Carpenter wrote an interesting article about the expressive and personal dimension of making mix tapes. I grew up in the mix tape era as well, and remember well the emotional sweat that I poured into collections of love songs made for teenage paramours in the hopes of sustaining doomed long-distance romances. Carpenter correctly argues that there is something personal about that act, and it seems reasonable that it would fall outside the reach of the Copyright Act. I also remember copying my uncle's entire collection of David Bowie LPs onto casette tapes when I was in junior high. In that instance, music moved through family connections, and in my small town in Wyoming, there were no casettes from the Bowie back catalog on the shelves of the local music store. But the only effort involved in making those casettes was turning the LP at the end of a side. Less expressive, but within a fairly tight social network. A properly functioning copyright system might reasonably allow for these uses, and still sanction a decision to post my entire Bowie collection on Facebook, or through a torrent. I'm skeptical of any definition of "friends and family" so capacious that it would include Facebook friends, and I suspect that many people realize now, if they didn't then, that what constitutes a face-to-face friend is different than what constitutes a Facebook friend, but you may have a different impression. I hope you'll share it here, whatever it is.
Inazu on "The Four Freedoms"
Last Friday, we welcomed to Notre Dame my friend Prof. John Inazu (Wash. U.), to workshop his paper, "The Four Freedoms." Here's the abstract:
The First Amendment’s rights of speech, press, religion, and assembly were once
“interwoven” but distinct. Together, these freedoms advanced a pluralist
skepticism of state orthodoxy that protected religious and other forms of
liberty. The connections among these rights were evident at the Framing. They
were also prominent during the 1930s and 1940s, when legal and political
rhetoric recognized the “preferred position” of the “Four Freedoms.” We have
lost sight of the Four Freedoms, supplanting their unified distinctiveness with
an undifferentiated free speech framework driven by unsatisfying concepts like
content neutrality and public forum analysis. It did not have to be this way,
and it may not be too late to change course. This Article seeks to renew the
pluralist emphasis once represented by the Four Freedoms.
The consequences of losing the pluralist vision are nowhere more evident than in the
diminishing constitutional protections for religious groups, which are
paradigmatic of the expressive, dissenting, and culture-forming groups of civil
society. The Four Freedoms remind us that the boundaries of religious liberty
have never rested solely in the First Amendment’s free exercise clause —
religious liberty is best strengthened by ensuring robust protections of more
general forms of liberty. But the normative effort to reclaim pluralism is not
without costs, and it confronts powerful objections from anti-discrimination
norms pertaining to race, gender, and sexual orientation — objections that
cannot go unanswered.
Among other things, the John's paper -- in the course of a discussion about the Bob Jones case -- engages and criticizes parts of this paper of mine, "Religious Freedom and the Nondiscrimination Norm." Fun was had by all.
Oral Argument in Fisher
Today the Supreme Court holds oral arguments in the Fisher case, involving the use of a race-conscious, although holistic, admissions plan at the University of Texas in addition to its state-mandated use of a top ten percent plan. With eight fairly closely divided Justices sitting in this case and an array of factual complications, it may be difficult, it seems to me, to get to five clear votes for a major statement of law on the issue. Obviously, though, if the Court speaks clearly it will indeed be a huge case, one that again likely turns on Justice Kennedy, to whom most of the briefs were addressed as clearly as if they'd all begun, "Dear Tony, and may it please the Court." In the meantime, closely placed sources are no doubt diving through Dumpsters to figure out what the swing Justice had for breakfast this morning, and con law teachers set to teach the Fourteenth Amendment next semester have a lot of "[tk]" marks in their draft syllabi.
Although I thought Judge Higginbotham's opinion for the Fifth Circuit below was excellent and should be upheld, I won't venture any predictions or strong views here. I will add a couple of things. It seems to me there are a host of oppositions involved in this case, not just one of "diversity" vs. "race-blindness." They include, in particular, a number of oppositions that might broadly be thought of as involving firm constitutional rules vs. a permissible range of institutional experimentation, or deference versus lack of deference. Much of this will play out doctrinally in the question how deference to the university, if any, should play out (if at all) in the narrow tailoring inquiry.
This is one of the central differences, to me, between former Justice O'Connor, who wrote the Court's opinion in Grutter, and Justice Alito. Justice O'Connor at least paid lip service in Grutter to the idea of the autonomy of higher educational institutions and the need for deference to those institutions, although I can't say she wasn't driven to use this language by other considerations. I see no signs that Justice Alito is of the same mind on these questions. Like the specially concurring judge in the court below who urged the reconsideration of Grutter, Justice Alito strikes me as someone who has a pretty firm and conventional (also, in my view, too rigid and outdated) view of the university and its purpose and is not inclined to defer to universities that see their mission differently. His screed against "political correctness" in the CLS case as something that is simply and alway contrary to the academic mission of the university is a strong example of that. To the extent the Court is inclined to extend any deference to the university in this case, I actually thought the record suggested that UT did a good and sincere job of considering what its mission was and how this should affect its admission policies when it came to reexamine them after Grutter; it was not just a crude afterthought to let it do what it wanted to do anyway. But the degree of deference the university will receive for this kind of thoughtful work may be affected by a sense among several Justices (one that is shared more widely elsewhere) that affirmative action in universities has become something of an industry or bureaucratized affair, and that some universities' defense of racial diversity has become routinized and dogmatic rather than a thoughtfully and intimately arrived at product of genuine academic consideration. Whether and how any of this will play out remains to be seen, obviously.
I'm not in a position to offer hypertext links, but I will add that Scotusblog has a number of great roundups on the case, and that the Vanderbilt Law Review has a good series of short pieces online discussing it as well. Finally, Professor Eboni Nelson has an op-ed in The State, which came out in the last day or two, arguing that the question whether to adopt race-conscious admissions policies should be squarely within the hands of the universities, not the courts. I am broadly sympathetic to that view, but with two caveats: 1) This discretion cuts both ways, of course, and I would perhaps have been happier if the op-ed had stated more emphatically that universities should be equally free to reject such policies as inconsistent with their mission(s); and 2) this institutionally oriented view leaves open the harder question of what do do when neither the courts nor the universities, but the people of the states themselves, intervene to set admissions policies for their universities, through the kinds of legislative or popular initiatives we saw in Michigan and California--and Texas, whose top ten percent plan will loom heavily in today's arguments.
The political is the personal
One of the venerable "predictors" of a presidential election is the World Series winner--American League team means Republican president, National League team means Democratic president. It has held 16 out of 26 times (when I first learned about it in a freshman poli sci class in 1986, it had held 13 out of 20 times).
Now, I'm a Cubs fan, so my rooting and political interests generally align (not that anyone is worrying about the Cubs playing in the World Series). My wife, however, is an Orioles fan and I have been watching and rooting for them (and wearing a '70s-era bird hat) as a show of spousal support. But with the election fast-approaching, Obama's polls tanking, and Andrew Sullivan losing his mind, I am beginning to wonder if I should continue rooting for an AL team right now. What should I do?By the way, if you are looking for other sports-related predictors, try this: If the Redskins win their final home game before the election, the incumbent party retains the White House. This has held in 18 of the last 19 elections. The 'Skins play the Carolina Panthers on November 4.
NYPD, Spying, and Civil Liberties
The writer Michael Greenberg has a pair of very good articles this month (Oct. 11 & 25) in the N.Y. Review of Books on the NYPD and especially its Intelligence Division. The office is essentially a clandestine spying operation rebuilt in the wake of 9/11 to focus primarily on potential “home grown” domestic “lone wolves,” rather than members of established terrorist groups that federal authorities concentrate on.
Greenberg raises some good questions about this operation, with a thoughtful recognition that we can never really know how much good such operations do, especially how much harm they prevent. In the second article he describes the three prosecutions that the NYPD unit takes explicit credit for, noting that all three are problematic in multiple ways: all three involved mentally deficient defendants with whom undercover agents established long relationships that raise questions of entrapment. The FBI and federal prosecutors declined to get involved in two, concluding the suspects posed little threat.
Additionally, he describes and questions the attention devoted by the NYPD, through its intelligence unit and more broadly, to the Occupy Wall Street protesters and even journalists and observers who seem sympathetic to it. (He also notes woefully self-defeating tactics by OWS activists in refusing to negotiate with the NYPD for parade permits and the like.) I take away from this account a reminder of the difficulty in assessing the balance of intrusive security strategies and civil liberties; the enduring tendency of bureaucracies to justify themselves and seek new projects and problems; and the importance of internal professional culture as well as outside monitoring in keeping such units within proper bounds.
Worrisomely, the NYPD seems a good example of why *democratic* monitoring per se isn’t necessarily a reliable check. Public opinion strongly supported the NYPD’s clandestine operations in New Jersey once they came to light (and briefly drew criticism from Gov. Christie, until the polling data came out). And regarding an NYPD practice that Greenberg does not mention but which is well known—aggressive street frisks of young minority men for weapons and pot—popular/political/democratic pressure have done little to change NYPD practice.
Tuesday, October 09, 2012
Hi everyone. It has been a long time since I last rapped at ya, but the good folks at Prawfsblawg have been kind enough to let me blog here again this month. Like my previous stints, I will focus mainly on the class action and similar procedural issues. I will, however, discuss some other projects that deal with procedure outside the narrow context of civil litigation, such as the constitutionality of the individual mandate and the filibuster in the Senate. More to come soon, but, in the meantime, please enjoy these two videos (one, two). I guarantee that both of these videos will be parodied in every law revue-type show at every law school in the country now that Andy Samberg has left SNL. Be forewarned!
Monday, October 08, 2012
The LEC Workshops
Thanks to the Law and Economics Center based at GMU, I had the chance this past summer to enjoy some instruction on law and economics while nestled at the Stanley Hotel in Colorado. I'm happy to report that Henry Butler and the LEC are expanding some of the program offerings this coming year. After the jump, you can find out more about these very helpful gatherings designed to make your legal toolkit a good bit more diverse and sharp.
The George Mason Law & Economics Center invites applications for the following five 2013 Workshops for Law Professors. Each Workshop offers a unique opportunity to join colleagues from around the country to learn from some of the most well-respected scholars in the law-and-economics field. There is no tuition, and all but one program provides hotel rooms and group meals at no expense to the professors. The LEC will begin reviewing applications on October 15, 2012.
January 25-28, 2013
South Seas Island Resort, Captiva Island, FL
January 25-28, 2013
South Seas Island Resort, Captiva Island, FL
January 25-28, 2013
South Seas Island Resort, Captiva Island, FL
May 20-24, 2013
George Mason University School of Law, Arlington, VA
July 7-19, 2013
Park Hyatt Beaver Creek Resort, Avon, CO
Saturday, October 06, 2012
The Eidolon: Thoughts on Solum's New Piece
Haunted by ill angels only,
Where an eidolon named Night,
On a black throne reigns upright,
I have wandered home but newly
From this ultimate dim Thule.
Maybe it's because Halloween is upon us that as I read Larry Solum's terrific new piece, The Effects of NFIB v. Sebelius and the Constitutional Gestalt, I thought about Edgar Allan Poe's poem and the mysterious eidolon (as well as the unmappable isle of Thule). An eidolon can mean either an unachievable ideal or an insubstantial phantom; both images suit my purposes. Larry opts for the more psychiatrically sober metaphor of the gestalt to describe the "indirect effects" of the Commerce and N/P Clause portions of the health care case. In this post, I thought to (a) describe his discussion of those indirect effects; (b) note a similar (even if not parallel) development in the Supreme Court's treatment of the Free Exercise Clause; and (c) pose 2 questions about the sorts of doctrinally destabilizing resolutions that this Court seemingly favors.
(a) First, Larry's paper. After an interesting discussion about the vertical and horizontal stare decisis effects (the direct effects) of the Commerce & N/P Clauses, the real fun in the paper begins. The indirect effects of a Supreme Court decision are those which affect the sorts of arguments that are plausible, and those argumentative norms, when aggregated, take on a certain look or appearance when viewed from a distance. This is the constitutional "gestalt" -- an "overall picture of the constitutional landscape." Larry uses the image of cartography to describe the gestalt: some territory remains to be mapped, while some has been mapped beyond dispute. The concept of the gestalt is not the same as that of the paradigm, because the paradigm has to do with reaching agreement by referring to core or canonical cases and then making arguments for an extension of the core. The gestalt, by contrast, has only to do with a holistic picture that "organizes" -- or maps -- "our perception of cases, rules, and theories." Constitutional gestalts, says Larry, "operate at a level of abstraction that floats above, doctrines, theories, and narratives," and in so doing they provide a highly impressionistic map of our perceptions.
Shifts in the gestalt destabilize what was previously thought to be settled. It is as if a new map were made which redraws certain land or water formations in ways that would previously have been thought absurd, but which now seem quite reasonable. Larry describes two existing maps of the Commerce and N/P Clauses -- a dominant map ("The Dynamic New Deal Settlement") and an alternative map ("The Frozen New Deal Settlement"). While the case law was actually fairly complicated in the period covered by "The Dynamic New Deal Settlement," the map was fairly simple. Its organizing principle was that "Congress had plenary and virtually unlimited legislative power" and this heuristic informed the map-making process:
Imagine a sea of federal power that spans the globe. The New Federalism decisions of the Rehnquist Court created islands of state power, including the anti-commandeering principle . . . the expanded Eleventh Amendment sovereign immunity doctrine . . . and the Lopez and Morrison limits on the Commerce Clause. This gestalt underwent modification -- the ocean of federal power was dotted with isolated islands of state sovereignty -- but the basic pattern (the sea of federal power) remained intact.
The alternative map was structured by reliance on a very different organizing principle: it accepted the New Deal Settlement, but essentially froze it in place and did not endorse any dynamic view of it: "This far, but no further." Wickard v. Filburn was wrong, but is now settled, and the New Federalism decisions are proper correctives rather than little carve-outs:
[T]he alternative gestalt admits the existence of a great sea of federal power but insists that there are whole continents above the high tide line . . . . There are peninsulas of state authority almost surrounded by federal power. There are great bays and fjords, where federal authority extends deep into the reserves of state power. Preserving the status quo is not a matter of elegant doctrines constituted by a few distinctions rooted in a general theory of federalism. At the doctrinal level, the alternative gestalt sanctions and encourages categorical distinctions that may seem arbitrary if evaluated in isolation, one by one. From the perspective of the alternative constitutional gestalt, these seemingly arbitrary categorical distinctions make sense when viewed from a distance. They freeze the New Deal Settlement, as it exists here and now—this far, but no further.
What NFIB v. Sebelius did, in Larry's view, was to destabilize the primacy of the dominant gestalt and to throw into question which map of federal power is the accurate one. Its most important indirect effect, he believes, is to have greatly expanded the grounds of constitutional contestation. We have reached a moment of perfect equipoise -- perfect tension as between rival pictures of the world. "But this moment cannot last," says Larry. "The constitutional gestalt must eventually settle -- one way or the other, dynamic or frozen."
(b) Though the analogy is imperfect, I believe that this Court has done something very similar to the Free Exercise Clause. The existing gestalt was the map whose guiding principle was Employment Division v. Smith, with its oft-chanted rule that neutral laws of general application are constitutional even if the burden that they impose on religious believers is significant. The interesting thing about the rule is that it contains numerous exceptions. Some of these have not been very important. But some have. The exceptions to Smith (and their subsequent interpretation by other courts) might in turn have had the effect of developing two competing gestalts. Indeed, from the cartographic point of view, I think this is a useful way to see things: a dominant gestalt of the "Ocean of Neutrality" dotted by islands of non-neutral or non-generally applicable case law (see, e.g., Lukumi-Babalu); and, just as in Larry's telling, an alternative map in which it was admitted that there was a large sea of neutrality, but there were also large land masses which encroached on that sea, depending on how broadly the exceptions to Smith had been interpreted by courts. Yes, Smith genuinely remapped the world (just as the New Deal cases did for the Commerce Clause). But the map in the alternative view actually represented a series of far greater restrictions on the government's power than was believed by adherents of the dominant gestalt.
With the coming of Hosanna-Tabor, the stability of the dominant gestalt of free exercise has been thrown into question. I said up above that the analogy is imperfect, because (1) it is true that Hosanna-Tabor could be grounded in the Establishment Clause alone (though this is not what the Court said); and (2) the Court purported to distinguish individual from institutional autonomy (whether it did so convincingly is the subject of serious disagreement). But both the methods of the Court and the indirect effects of Hosanna-Tabor strike me as being similar to those discussed by Larry. The Court has now cast doubt on the reliability of the dominant map of the Free Exercise Clause. It has destabilized doctrine, and in such a way that we are now unsure of the direction of future Free Exercise Clause developments. The Court's particularistic approach in H-T adds to that instability.
(c) Here are two questions.
(1) It is interesting that this Court has opted for destabilization in both of these contexts. Note that the destabilization is two-fold -- it has put in question the previously dominant gestalt, and it has given us little indication about what the future holds. It has instead opted for a holding together of positions in tension. Is there something more systemic that could be said about the sorts of resolutions that this Court prefers?
(2) I wonder about Larry's belief that "the gestalt must eventually settle" one way or the other. Maybe not. Maybe what we are seeing in this Court is a preference in some areas of the law for instability and for ambiguity in the state of the law. That might be because in the end, a gestalt is actually an eidolon -- an idealized picture, and a phantom.
Friday, October 05, 2012
Parents who Help Parents Overcome Irrationality
I like this new blog which offers a creative way to respond to the dangerous and irrational anti-vaccination movement that has swayed too many parents. Moms who Vax presents real discussions of mothers, rather than scientists or policymakers, to send the message that the science is solid on vaccines.
I study risk perceptions and decision-making enviornments - for example, most recently, in the context of age, future financial risk and pension policies, and I have seen up close how easy it is to affect people's choices by small changes in the presentation or ordering of information. Policymakers can help, as we have argued here and here. But in the end, most choices are made privately and it is the culture and the discussions available on the Internet (where Jenny McCarthy, one of the zealot anti-vaccination activists described as obtaining her medical degree from "The University of Google").
Scholarship: collective assessment
Jason and Paul's defenses of legal scholarship--and endorsements of the need for a defense--bring to mind a few thoughts: one on measuring scholarhip individually or collectively, another prompted by recall ing the worst reactions to scholars' "impact."
(1) Once you look for their effects, ideas can seem to matter a whole lot, but scholarly contributions to the success of ideas is mostly a collective endeavor; the "impact" of a single article is rarely measurable in a useful way. The conservative movement recognized the power of ideas, and of academic scholarship, when it committed a lot of money legal scholarship (notably through the Olin Foundation), D.C. think tanks, magazines, etc. Economic ideas seem to matter a whole lot right now in what path German, ECB and EU officials take in saving (or not) the Euro, and a lot of those ideas are generated and spread through scholarship. Bernard Harcourt's book last year, "The Myth of the Free Market," describes important effects of ideas, often developed in scholarship. Daniel Rodger's "The Age of Fracture" devotes much attention to changes in scholarly ideas and their effects as well.
All this suggests that scholarship's value often should be assessed collectively, not by the individual book or article. A body of work with common methods, premises, values and interests, to which many contribute, can have significant impact in affecting people's beliefs, worldviews, perspectives. (Recall the concern that colleges "brainwash" students with disfavored ideas--feminism, socialism, whatever.) At the level of the individual book or article, only for the most very notable work can probably make a good assessment of "impact" and "value." Yet the tendency I think is to focus at that level, and to lean toward generally poor proxies that take quantifiable form, e.g., by citation/download counts, or England's dreadful meansures of its universities' scholarly productivity through publication counts and the like.
(2) Scholarship's fuzzy value has comes into sharper focus relief when governing elites come after scholars, whether with intimidation or much worse.To shift the context about as far as possible from that of present day U.S. law professors, the extreme cases are those in which authorities literally kill the scholars and other educated elites--Poland at the start of WWII, Cambodia under Pol Pot. In other cases, faculty are merely fired, or intimidated into joining or disavowing some ideological affiliation, etc. Eastern Europe experienced much of this in the postwar era; we had a lesser but noteworthy variant in the era of Red Scares. Democracies need among other things vibrant civil societies and independent intellectuals, as dictators recognized. Granted, these are references to officials with particularly extreme sensitivity to "scholarly impact." Still, this, too, suggests that the value of scholarship is more collective and amorphous than individual and measureable.
Canada's next political drama: past is prologue
Canadian politics is heating up. The recent election of a separatist (and xenophobic) government in Quebec may give a new lease on life to the national Liberals, the party to whom federalist Canadians have traditionally turned when national unity was menaced by the threat of Quebec secession. In the last national election, talk show pundit and Harvard professor Michael Ignatieff led the Liberals to the most humiliating and devastating defeat in their history. Many said the party no longer knew what it stood for in the 21st century.
The new uncertainty about Quebec could be a game changer.The Conservatives, who are in power today, have always done well when they could appeal to soft Quebec nationalists-as have the social democrats (the NDP) who are the current official opposition. But in the struggle against the hardline separatists it is the legacy of liberal Prime Minister Pierre Trudeau that most Canadians remember. In what must seem to outsiders like Greek political theatre, Trudeau’s eldest son Justin and his former lover Deborah Coyne are now competing to lead the federal Liberals. (Coyne had a daughter with Trudeau, who seems destined for the rather different theatre of Wall Street finance).
Whatever the outcome of the race, Deborah Coyne and Justin Trudeau are fated to be on the frontlines of the federalist effort to preserve the unity of Canada in the face of a new separatist offensive. Justin Trudeau is a 40 year old parliamentarian, former high school teacher and social activist. He is notoriously handsome. Justin is passionate and sincere. What he lacks are policy depth, a defined vision for Canada, and, quite simply, gravitas. For some, his playful stunts (such as a boxing match with a Conservative senator) bring back fond memories of his father’s antics as a young politician. But Pierre Trudeau entered politics as a former law professor, who had published tomes on political philosophy and constitutional theory. While Pierre could afford to lighten up a bit, Justin runs the risk of coming off as an overage party boy.
If the Liberals worry about that image in a leader who will be defending Canada against yet another bid for Quebec independence, they will certainly find a stark alternative in Deborah Coyne, an engaging policy intellectual with a mind like a steel trap, an enormous level of energy, and proven experience in building a grassroots citizen movement. Coyne came to national attention in the 1980s and 1990s, when she launched a Canada-wide campaign opposing Conservative constitutional reforms that would have given concessions to Quebec nationalists and decentralized power in the federation. Ultimately, these changes were defeated in a federal referendum in 1992.
Coyne taught me constitutional and international law at the University of Toronto around the time that she was growing her coalition, on which I had the chance to work. (We became friends. In the interests of disclosure I support her leadership bid, though I'm not really involved: the Liberal Party has had enough for a while of Canadian-born professors at East Coast American universities).
The party establishment that brought in Ignatieff is backing Justin, with money and a lot of hype. But there are those in the rank-and-file who can’t forget what happened when the old guard bet on the wrong horse the last time. Coyne has been building a network of supporters steadily but surely, reaching out to people as individuals not herd-animals, in the way she did in her constitutional campaign a couple of decades ago. But now the pace is greatly accelerated thanks to the internet and social media. In fact, the contrast between Coyne and Justin Trudeau is displayed by the difference between their websites: Coyne’s http://www.deborahcoyne.ca/ contains detailed policy positions on most major national questions; Justin’s http://justin.ca/get-the-latest/ has a one-page “message” full of platitudes.
The most specific statement of Justin on foreign policy (found in a recent speech) is that he wants one that “will give us hope in the future and that will offer solutions to the world.” He astonished many by objecting to the Conservative government’s characterization of honor killing as barbaric, suggesting he is on the opposite pole from Ignatieff’s human rights hawkishness. Coyne, who studied international relations at Oxford ( Anne-Marie Slaughter was among her classmates) will likely make a pitch that Canada should be more vocal and more committed on global issues, from climate change to the reform of international financial regulation. She will almost certainly take her outspokenness about the importance of women in political life to the international stage. Coyne served on Canada’s refugee tribunal and has a strong interest in questions of migration in relationship to security issues and human rights.
We won’t know until April who the Liberals’ new leader will be. In the meantime, as with the battles that Pierre Trudeau fought in the last century, Canadians will witness a personal and political contest that may define the country and its place in the world for long to come.
What's in a name and what does it say about your political preferences?
This is kind of neat: It charts political donations by first names (including all names appearing 25 or more times in the databases of contributors to the two major-party presidential candidates), trying to also sort by gender. It shows some definite patterns in names that lean one way or another. There even are differences between full names and nicknames (i.e., Christopher leans Republican while Chris leans Democrat). Obviously, this somewhat maps onto the gender divide between the parties (since women lean Democrat). It probably also maps onto ethnic divides, as some first names are more common in racial or ethnic groups that lean one way.
The article includes a search function, so have fun looking for your name and your friends'/family's names. For my part: Howard leans slightly Democrat (52 %-48%), while Jennifer/Jen (my wife) and Lillian/Lily (my daughter) all were overwhelmingly Democrat.
How (Not) to Defend (Legal) Scholarship
I've really enjoyed and appreciated Jason Solomon's guest posts on Prawfs in the past couple of weeks and am very sympathetic to some of the questions he's been asking about the cost and value of law schools. In his latest post, Jason argues that "one benefit of the increased scrutiny that the taxpayer subsidy of law school loans are about to receive is that we -- the legal academy -- will be forced to defend the value of legal scholarship." He questions attempts to justify legal scholarship on certain kinds of instrumental bases, such as that it helps enhance schools' reputations. "[L]egal scholarship has to be defended on its own terms, and that's a good thing," he writes. I agreez! In his view, legal scholarship has lots of things to offer that are of "importance to the real world." And he links to a post by Marcia McCormick that argues on similar grounds that "there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work."
I enjoyed Jason's post, but let me add a few thoughts of my own.First, as Steven Lubet suggests in the comments, I think this doesn't really answer the key question. Except for a subset of critics who believe legal scholarship ought not exist at all (or something; they're not always very clear about this), the real question is how much legal scholarship ought to exist, or at least how heavily subsidized legal scholarship ought to be. Pointing to useful scholarship--or crap scholarship--doesn't tell us whether we as a system are paying too much for it.
Second, I think Jason has unwisely just substituted one set of instrumental arguments for legal scholarship for another one. I think there ought to be more doctrinal, empirical, practical, useful legal scholarship. But I also emphatically think there's a place for good scholarship, legal or otherwise, that is not necessarily useful, or whose value is much more indirect, including simple contributions (or attempted contributions) to understanding the world better. I don't depend on legal history or theory--or non-legal history or philosophy--to be functionally useful; I just want it to be good, true, and productive of thoughtful discussion. If Jason says something useful about civil justice in his writing, I think that's a good in itself, whether he finds takers in the legal system or not. If someone writes about Kantian theory and the ACA decision, I don't care much that Chief Justice Roberts is unlikely to pay much attention to it; I just want it to say something intrinsically correct and interesting. There is a lot of crap in legal scholarship, period, and some good stuff; not all the instrumentally oriented legal scholarship is good, and not all of the non-instrumentally valuable scholarship, even if it's not useful, is bad. We ought to be asking hard questions about the standards for and quality of legal scholarship, and we ought to be asking how much we pay for any and all of it. But I think defending it on strictly instrumental grounds is a mistake, and perhaps even a disservice to scholarship, whose goods are sometimes much more intrinsic than instrumental. Truth is not always a particularly instrumental value, but I think it is a value, and one worth upholding.
Finally, and somewhat relatedly, I think either of our views leave a lot of room open for other questions about how we structure the conditions for scholarship. Whether you think it ought to be instrumentally valuable or just of high quality regardless of its instrumental value, that doesn't tell us much about how to improve the ratio of good to bad scholarship, what aspects of the current academic structure are necessary to scholarship and what aren't, and so on. I see no reason in principle, for instance, why Jason and I couldn't disagree on the purpose and value of scholarship, legal or otherwise, while still agreeing that, say, there ought to be a robust requirement of post-tenure review, or that 70 percent of the law journals out there ought to be eliminated, or that law schools ought to be able to make much greater use of adjunct professors, or that most tenure-track law professors ought to be shifted into undergraduate schools of law, or history or philosophy departments--or, if the demand isn't there, fired and left to fend for themselves in the non-academic sector. I'm not arguing for these things; I just don't think our position on the value of legal scholarship necessarily says much about them.
Pulpit Freedom Sunday and Church Autonomy
In case you haven't marked your calendars yet, Sunday is "Pulpit Freedom Sunday," a day on which churches, encouraged by the Alliance Defence Fund, will engage in more or less overt endorsement of candidates for political office, in contravention of the rules limiting electioneering by tax-exempt organizations, and dare the IRS to enforce the law against them. (Stories here and here, to start.)
As my friend and co-blogger Rick has written, the law in this area is "intimidating," and I can't do an adequate job of examining it all here. I do want to ask one question about it, however. Rick and I have both written approvingly about a principle of church autonomy. Lloyd Hitoshi Mayer has written an excellent article arguing that church autonomy, or principles of "institutional free exercise," militate against the enforcement of the anti-electioneering laws with respect to churches, writing that "a proper appreciation of that view would bar the government from applying the prohibition to not only sermons but also a broader range of internal communications from religious leaders to the members of their houses of worship on matters of religious importance." Does belief in some form of church autonomy require this position?
I think the answer is no. Church autonomy is at bottom about the right of churches to be left alone, to preserve a sphere of non-interference from the state even in the face of neutral, generally applicable laws so that they can do their work, and to recognize the potentially limited scope of the state's jurisdiction over churches. That work most certainly may include speaking out in favor of or against policies and candidates; it is absurd to suggest that this kind of activity falls outside the proper scope of religion. An institutional view of churches and institutional religious freedom certainly suggests a right to speak out on such issues. But I don't understand it to include a right to tax-exempt status, or a right to receive conditional benefits shorn of those conditions, provided the conditions are generally applicable. The church's fundamental right to exist has much more to do with its right to subsist and thrive (or fail) on its own bottom than with some kind of right to state support for its existence. With Hosanna-Tabor decided, albeit with many details left to be worked out, the debate over church autonomy will be moving increasingly toward its role where "funding with strings" is involved, in my view. There's a good deal to be written in this area. But in my view, while church autonomy requires a sensitive application of conditions in this area, it does not free churches that seek to participate on an equal basis in receiving state subsidies from the obligation to abide by the conditions of those subsidies.
There may be other issues here, such as the application of RFRA and the doctrine of unconstitutional conditions. But church autonomy itself, I think, does not offer any additional support for "Pulpit Freedom Sunday." To the contrary, I think there are good arguments for supporters of church autonomy that, not that refraining from electioneering is a good thing--that's a matter for individual churches--but that tax-exempt status itself is a dangerous thing for those who believe in what has been called the principle of "a free church in a free state." Churches are free to seek to participate on an equal basis in seeking state subsidies and exemptions, in my view, but they ought to consider at the same time whether doing so is always the best thing for that church and its independence.
Public Opinion on Replacement Refs and the Supreme Court
Thanks to Dan and the rest of the regular Prawfs crew for inviting me back.
I have been a hockey and baseball official since 1991, and I want to use my initial post on this guest-stint to discuss a parallel between judging and sports officiating. As most know by now, the NFL's lockout of its officials ended last week after replacement officials -- whose performance had been criticized extensively since the start of the season -- made a particularly bad call that cost Green Bay its game against Seattle on September 24.
That said -- and I am certainly not defending the replacements' calls -- the NFL's key miscalculation when locking out the officials was not the poor quality of the replacements. The key miscalculation was in not understanding the way that the public would perceive the replacements' incompetence.
Fans rarely perceive sports officials as providing their teams a benefit. Rather, calls in favor of their teams are "right" or at least arguable, and in any event aren't dwelled on. Calls against their teams, however, are tremendous injustices. The result is that a controversial call makes one team far more upset than it makes the other team happy.
Accordingly, the replacement officials never had a chance.Nobody was ever going to think they did well. If they did a perfect job, they would be perceived as no better than the regular officials. And when they inevitably made mistakes (or even simply when their decisions were controversial), fans would speculate that the "real" officials would have made better calls.
It strikes me that the same phenomenon is at work with the judiciary. Most people rarely see the courts as providing them anything positive. A "victory" is when the court agrees with the position that the litigant claims has already existed; a loss makes the status quo worse for that party.
And this effect is true, I think, regardless of ideology. Conservatives, especially originalists, become upset by non-originalist interpretations that tend to result in politically liberal outcomes. But they are not similarly pleased by originalist interpretations, which they perceive as neutral. By contrast, liberals see Warren-Court-era decisions as the status quo. They therefore fear conservative retreat from those precedents and perceive liberal decisions not as "victories" but as the status quo's survival.
There is a saying among sports officials that we do a good job when we make both sides mad at us, because both sides are never going to be happy. As the Supreme Court opens its term with speculation about whether there are still hard feelings about the healthcare case, I wonder if the Court, too, will inevitably find itself disappointing everyone.
Thursday, October 04, 2012
Defending Legal Scholarship
I like a good silver lining. And I think one benefit of the increased scrutiny that the taxpayer subsidy of law school loans are about to receive is that we -- the legal academy -- will be forced to defend the value of legal scholarship.
Many recent, public justifications for legal scholarship -- and student funding of it -- have been on instrumental grounds. The argument goes like this: We need to be doing excellent legal scholarship so our school will have a strong reputation, which is important to U.S. News rankings, which is important to students who want jobs. Vik Amar's recent column is an example of this.
I've always found this justification kind of depressing, in part because it appears to be false. As far as I know, the only factor that has been shown to affect a a school's peer assessment score in the U.S. News rankings is the previous year's movement...in the overall U.S. News score! There is no evidence that the reality or perception of strong (or improved) legal scholarship, quality or quantity, has an effect on the U.S. News rankings. Deans know this, and have for a while. The key determinant of movement in U.S. News has been incoming students' credentials, and increasingly, it is employment outcomes.So legal scholarship has to be defended on its own terms, and that's a good thing. Because despite the caricatures, we have a good story to tell. I just look around my own faculty at William and Mary, and see Alan Meese challenging the Justice Department's conclusion that stronger enforcement of the Sherman Act's ban on monopolies would mean greater economic growth, Jim Dwyer working with a local prosecutor to explore what does and should happen to child witnesses of domestic violence, and Vivian Hamilton presenting a forceful case for lowering the voting age in the U.S., drawing on cognitive psychology, democratic theory, and her own prior work on the state's role in the development of young people. I could go on. And as in science and medicine, foundational -- not just applied -- research is critical as well.
So my eloquent response to the claim that law professors don't write on things of importance to the real world is: "Really?" I just think the critique is off-base, and we ought to defend the value of legal scholarship more forcefully and explicitly.
Without academic study of the legal system, debate on important legal and policy issues would be driven exclusively by interested parties -- a phemonenon that torts scholars like me are all too familiar with, as the punitive damages debate has been dominated by research that Exxon created by funding Cass Sunstein and others.
What have you seen that defends the value of legal scholarship? One of the best things I've seen recently is by Marcia McCormick at Workplace Prof Blog, and I'd love folks to post links in the comments to more.
Civil Justice Reform after the Duke Conference
Two weeks ago, I attended the Third Civil Justice Reform Conference sponsored by the Institute for the Advancement of the American Legal System (IAALS). (Full disclosure: I served as IAALS’s Director of Research before entering the academy.) The conference offered a chance to look back at the seminal themes of the Litigation Review Conference at Duke Law School in 2010, and assess the progress that has been made since then. The full agenda from the IAALS conference is here.
A major theme of the Duke conference was that civil litigation has become too expensive and time-consuming for some cases, forcing parties to settle claims for reasons unrelated to the merits (or worse, for some plaintiffs, to forgo bringing meritorious claims at all). There was extensive debate about both the causes and the magnitude of the problem. Participants were urged to study the issues further and, where possible, to implement pilot projects and case-specific protocols to test how cost and delay might be better controlled.
Two years later, there is much progress to report. More on the IAALS conference after the jump.
One conference panel focused on state court efforts to reign in excessive discovery through a combination of rule changes and increased judicial case management. The most extensive reforms occurred in Utah, which completed a comprehensive overhaul of its civil rules in 2011 (and to which I will dedicate a separate post in the coming days). Massachusetts and Colorado instituted pilot projects to limit discovery and provide more litigant access to judges in business disputes, and task forces are in place in Minnesota and Iowa. The early returns on the existing projects are encouraging: anecdotal evidence in Colorado and survey evidence in Massachusetts suggest that participants in the pilots were pleased with their cost-effectiveness; more importantly, there is a small but perceptible cultural shift among attorneys from the “demand everything, give up nothing” approach to a warmer embrace of proportional discovery.
Pilot projects are more difficult to implement at the federal level, as the federal rules require substantial uniformity across districts. But here, too, change is in the works. Last November, the Southern District of New York implemented a pilot project for complex cases with more than $300,000 at issue; rather than changing any rules, the court emphasized greater case management, including more focus on the initial pre-trial conference, streamlined processes for the resolution of discovery disputes, and pre-motion conferences which allow judges to give the parties informal feedback on the strength and weakness of their arguments before a motion is filed. The Seventh Circuit also instituted a pilot project (back in May 2009) that focuses specifically on electronic discovery. Surveys showed strong levels of attorney satisfaction with the pilot. It entered a third phase of development this past spring.
These pilots represent a classic bottom-up approach: courts across the country are examining a variety of different approaches to see what works, in the hope of learning from each other. More feedback on the pilot projects will help tailor future reforms and hopefully promote critical buy-in from attorneys, judges, and litigants when it is most needed.
My formal contribution to the IAALS conference was to encourage courts and researchers to share raw data on reform efforts more extensively. In scientific research, the ability to replicate results is the name of the game, but in legal research, all too frequently we approach the same problem using entirely different data and/or methods. (The glut of Twombly-Iqbal studies, which use a variety of different data sets to reach a variety of conclusions, illustrates the point.) I proposed creating a clearinghouse where the raw data could be posted for continued analysis by researchers. I also proposed removing existing barriers to court data, by (for example) creating national fee waivers for PACER research and posting all internal Administrative Office data on the U.S. Courts website. Time will tell whether the widespread sharing of data becomes commonplace, but it seems to me an indispensable tool for thoughtful reform.
TPRC Celebrates 40 Years of Research in Telecom
Two weeks ago the Telecommunications Policy Research Conference (TPRC) had a great event to celebrate its 40th year of delving into communications, information and Internet policy issues (I'm a member of the program committee so, yes, this is a shameless plug). What I enjoy most about TPRC is that it is truly interdisciplinary; that should come as a relief to anyone who's been in a room filled only with lawyers--bless our hearts. The conference brings together scholars from all fields as well as policy makers and private and non profit practitioners. There were many outstanding sessions including a Friday evening panel (soon available on video) about The Next Digital Frontier with speakers straight out of the "who's who" of telecom: Eli Noam (Columbia), David Clark (MIT), Gigi Sohn (Public Knowledge) and Thomas Hazlett (GMU).
There is much more work of note, I'll single out a few articles after the jump, and I encourage you to look at the TPRC Program files for additional articles of interest. Also, around March keep your eyes open for next year's call for papers. I will still be on the program committee so, in case you're interested, you should know I'm highly motivated by gifts of chocolate (dark preferred).As mentioned, the TPRC website has the full program of presented articles so be sure to check it out. I particularly enjoyed the work of the legal and economic scholars--and not just because they made the math easier than the engineers did, but that didn't hurt. Three pieces that come to mind are Payment Innovation at the Content/Carriage Interface by James Speta, American Media Concentration Trends in Global Context: A Comparative Analysis by Eli Noam and Political Drivers and Signaling in Independent Agency Voting: Evidence from the FCC by Adam Candeub and Eric Hunnicutt.
First, if you haven't exhausted your interest in net neutrality issues, take a look at Speta's article that considers payment innovation at the customer level as a means by which congestion may be resolved in a content neutral manner. This is a highly topical piece as current net neutrality regulation is arguably on shaky, jurisdictional ground. Second, my friend Eli Noam, who never fails to intrigue, shared some counter intuitive observations from a multi-year, 30 country research project that tracks concentration levels in 13 communications industries. And third, Candeub and Hunnicutt make a welcome, empirical entry in a largely qualitative arena by quantifying the effects that party affiliation (of FCC Commissioners, Congress and the Executive) has on agency decision making. It's really a must read for anyone interested in the areas of communications, administrative law and political economy (and who isn't!).
Finally, a shout out to my fellow blogger Rob Howse who recently wrote on our need to be more patient with each other when we accidently hit "Reply to All." The conference also featured some innovation demonstrations and, Rob, I have just the plugin for you! The product is "Privicons" and as self-described (because I could not make this up):
Unlike more technical privacy solutions like tools that use code to lock down emails, Privicons relies on an iconographic vocabulary informed by norms-based social signals to influence users' choices about privacy.
In other words,with this plugin you can send a graphic reminder to email readers that they should "act nice." I think I'll send some Privicons to my students right around evaluation time.
Action subject to judicial review v. judicially reviewable action
My argument recap for Kloeckner v. Solis is up on SCOTUSBlog. (This was the third of the jurisdiction cases on the schedule this week).
It was a fun argument, involving close parsing of language in a complex statutory scheme. The government's argument turned on the distinction between an "action subject to judicial review" and a "judicially reviewable action." When the government's attorney first offered that distinction, the Chief asked her to say it again, a little more slowly. When the Chief repeated her argument back to her, she said “Say it again? I’m sorry?” After which, the attorney said "This is going to happen a lot." Indeed.
Wednesday, October 03, 2012
Correlation <--> Causation
A nice response to one of the most common default challenges every empirical researcher must deal with:
The correlation phrase has become so common and so irritating that a minor backlash has now ensued against the rhetoric if not the concept. No, correlation does not imply causation, but it sure as hell provides a hint. Does email make a man depressed? Does sadness make a man send email? Or is something else again to blame for both? A correlation can't tell one from the other; in that sense it's inadequate. Still, if it can frame the question, then our observation sets us down the path toward thinking through the workings of reality, so we might learn new ways to tweak them. It helps us go from seeing things to changing them.
Thanks to Dan for the invitation to guest-blog this month. I like the characterization of Sukkot as a holiday of palm fronds and lemony fruit – it sounds so tropical! Here in Boston, Sukkot also means drizzly rain and an abundance of warty gourds. Chag sameach.
During my stint, I plan to post some thoughts on civil justice reform, next month’s judicial elections, and the antebellum Supreme Court’s unhealthy obsession with commas. I look forward to your comments.
Conservative Judaism, Cartelization, and the Ministerial Exception: Richman and Crane Debate
Professors Barak Richman (Duke) and Daniel Crane (Michigan) are having a very interesting debate about an issue involving the process for hiring rabbis in conservative Judaism. Barak believes that the process violates the antitrust laws and is also not protected by the First Amendment. Dan disagrees (his first post will appear shortly). The first posts will involve the antitrust issue; the second series will involve the constitutional question. Come by and visit at your leisure.
Reply to All
Perhaps the most common social professional mistake in our world is hitting "reply all" and sending a message to many colleagues that was only intended for one. I used to do it a lot before switching to Gmail, which has the safeguard of requiring the use of a drop down menu to work "Reply to All" (unless you have set the default the other way). But on the Blackberry, which I am typically operating in one hand while doing something else with the other, it still happens from time to time.
Fortunately, I've never had a major debacle happen (unlike, for instance, a colleague at another law school, who sent the the grades of the students in his class to a large group of people). But I have thought occasionally that it would be nice to have a warning pop up every time one tries to hit "Reply to All": "Do you REALLY want to reach all these folks?" (Apparently something like that is available for Outlook. )
But my plea is for a little tolerance and understanding of this faux pas on the part of the unintended recipients. We are all emailing at breakneck pace, usually on several different devices and often different accounts in the same day. It's going to happen sometimes.
I'll share a secret (which therefore isn't a secret): I enjoy reading these misdirected messages not because I take pleasure in the embarassment of the senders (I feel for them) but because of the little windows they give into the lives of people I usually only see at faculty workshops or pass hastily in the corridor. It's time to get to work on a new novel...
This week in jurisdictionality
Having read the argument transcripts in Kiobel and Lozman, SCOTUS' early-term jurisdictionality cases, I am somewhat at a loss. Nothing in either case should have had anything to do with jurisdiction. The arguments both seemed rife with the mixing of jurisdiction and cause of action that I thought the Court had cleaned up fairly well over the past several years. And I am a bit worried that these cases will muck things up a bit.
Lozman considered whether the property at issue was a "vessel." And the Chief at one point insisted they needed to find the easier test, because this was a jurisdictional statute, which should be "clear and easy of application." But "vessel" does not appear in the maritime jurisdiction grant, which states simply that district courts have original jurisdiction over "[a]ny civil case of admiralty or maritime jurisidiction." Rather, the word appears in the Maritime Lien Act, which is the substantive law at issue in the case. Thus, the meaning of vessel, and whether the thing at issue here is a vessel, should be a merits question. I cannot see any difference between defining vessel here and defining "employer" or "employee" in a Title VII action, both of which are treated as merits issues, with jurisdiction established because the action "arises under" federal law.
As for Kiobel, there was no talk of jurisdiction v. merits or Morrison, although that was one of the issues on which the Court granted cert and reargument. The discussion was largely about what international norms are. The petitioner's arguments sounded, implicitly, in an understanding that corporate liability and extraterritoriality went to the merits of international law as incorporated into federal common law. I agree with that understanding, but continue to believe these are properly merits concerns and that § 1350 is satisfied by the allegations by an alien of a tortious violation of the law of nations
Speaking as a proceduralist, one of the more interesting exchanges came at the end of the petitioner's argument. Justice Ginsburg asked whether, given the argument that this involved a universal norm incorporated into federal common law, there was general federal question jurisdiction under § 1331. The petitioner ran from that notion, citing the history of § 1350 and the Founders' intent to allow certain law of nations laws to be implemented through common law tort actions. But, Justice Scalia channeled Justice Homes and argued that general common law was not deemed state law, but was "a general law that was up there in the sky" that, while enforceable in court, was not necessarily federal law. The petitioner responded that post-Erie cases preserved foreign relations as an enclave of common law that could be considered federal. That works, Justice Kennedy argued, only if Justice Ginsburg is correct that the case could have been brought under § 1331. Justice Ginsburg then added that the reason that Congress enacted the ATS may have been simply that there was no general federal question jurisdiction in 1789.
This is an interesting path. It would render § 1350 superfluous, just as § 1331 (sans amount-in-controversy requirement) has rendered other statute- or subject-specific jurisdictional grants superfluous. But it would also clarify that all of these arguments about the scope and application of federal common law are, properly, arguments about the merits of the claim. That should be true whether jurisdiction is established under § 1350 or § 1331.
The Dachau PuzzleTriggered by Howard's post on the Dachau puzzle, I'll share this somewhat oblique reaction after my first--and frankly hope only--visit to the Dachau memorial camp recently (posted earlier to my elite FB network). The power of visiting the site (including its crematoria) is formidable; I won't attempt to describe it. But I was struck also by the fact that Dachau remains the name of the lovely, still thriving little town in which the camp was located. "Dachau" strikes me, as an American, as synonymous with "concentration camp." Yet ordinary people go through life saying, in effect, "I'm from Dachau." Perhaps more striking, a street of nice-looking, seemingly upper-middle class houses have small back yards that border the camp property, with second-story windows look out over the (perhaps) 8-foot fence into the camp site. They didn't strike me as low-rent properties of people with few economic choices, though one assumes the view must surely be factored disfavorably into the property value.
Geographic separation of powers
Consider this comparison triggered by attention to the U.S. and German high courts this season. The German Constitutional Court is located in the university town of Karlsruhe, near the French border, far from the seat of government in Berlin. Imagine the U.S. Supreme Court sitting in, say, Boulder, Colorado, or Madison, Wisconsin (cities roughly the size of Karlsruhe). Germany is the only country I know of that locates its high court out of the national capital, although the EU divides up its institutions across European cities. The idea, which my German colleagues here endorse as a sound one, is that that geographic distance from the center of government helps to remove the court from politics. Geographic separation reinforces separation of powers, and law/politics separation.
For all of American law’s concern with legal principle, judicial integrity, etc., not to mention Justice Roberts’ politically clever characterization of his job as merely that of an umpire “calling balls and strikes,” Americans just don’t have the same faith that law can be separated from politics. Trey Childress’ post last week touched on this theme from a different angle. But the difference in legal ideology aside, the interesting thing to me is to consider whether locating the U.S. Supreme Court in a small regional city far from D.C. would affect who would be willing to serve on the court. Would anyone turn down a Supreme Court slot because they had to live in Madison or Boulder? Would some, to the contrary, find such a site more attractive? Justice Souter comes to mind: he famously hated D.C., and resigned much earlier than most justices do to return to his beloved New Hampshire. But he’s surely an outlier in that preference. Yet plenty of justices have spent their free time far from D.C. (Douglas in Washington state, Stevens in Florida), and the Supreme Court is pretty close to a nine-month-a-year job.
The other thought is whether the separation really would have some effect of separating justices from politics by separating them from politicians—especially Washington’s partisan social scene in which many justice have long joined. The current justices’ political friendships and partisan networking are nothing new, of course. Noah Feldman’s book “Scorpions” recounts plenty of political socializing and private counsel sessions between FDR or his staff and the justices he appointed. (And Justice Douglas was a top prospect for the Democratic ticket in the1940-48 elections.) But one wonders whether fewer dinner parties and poker games would make a difference, given the ease of communication otherwise and the justices’ frequent travel, whether to partisan conferences or to hunting trips with one’s vice-presidential buddy.
Tuesday, October 02, 2012
FSU Law Review Announces its Exclusive Fall Submission Window for Volume 40Adam Kramarow, the Senior Article Selection Editor at the FSU Law Review, has asked me to pass this along. (Feel free to cc me on your submissions.)
The Florida State University Law Review is now conducting exclusive spring article reviews. Any article submitted to this exclusive review between now and October 15, 2012 will be evaluated and responded to by October 26, 2012. By submitting the article during this window you agree to accept an offer for publication should one be extended. Any articles accepted through this review will be published in Volume 40, which is slated for publication in 2013.
If you have an article which you would like to submit, please e-mail an attached copy of the article and your CV and cover letter to firstname.lastname@example.org with the subject line "Exclusive Fall Article Review." (The character after the k in Adam's email address is a zero, not an "o".) This opportunity also applies to articles you may have submitted to FSU LR earlier this season but you need to resend the piece under the appropriate subject line. If you have submitted an article for review through ExpressO, you will have to resubmit it through this process to be considered under the exclusive review process. We look forward to reading your articles.
What were they thinking? or Not so bad?
A colleague sent me this story from the Jewish Daily Forward: Amazon will no longer sell a 250-piece Jigsaw puzzle featuring a picture of Dachau Concentration Camp. The puzzle, marketed as appropriate for ages 8-and-up, met with objections from German legislators, as well as the head of the Dachau memorial.
I want to raise two points and I ask them honestly, not trying to be provocative.
1) I was struck by the comment that the head of the memorial wanted an investigation into whether prior sales of the puzzle were unlawful under German law, once again demonstrating how the U.S. departs from other countries on the subject of the freedom of speech. We can debate whether the puzzle is offensive or in bad tatse. But unlawful?
2) Is this really that offensive? The picture was taken by Robert Harding, a well-known international travel photograph who has had many photos made into puzzles. He also has taken a number of photos of Dachau. The picture itself is not disrespectful (at least reports don't suggest that it is); it is an image of a historical place where something awful happened, something that we should remember. I assume no one would object to anyone selling the photograph (although maybe I am wrong on that).
It seems to me that puzzles are simply one way of creating or presenting a picture or photograph. There is nothing wrong with having that picture be somber or meaningful or emotional, as long as the picture created is respectful or tasteful. We have puzzles of great works of art; why not also of photos of historically significant places or events. There were comments in the story about a "toy" being a "trivialization" of the events there. But this is not Dachau action figures or Dachau trading cards. Perhaps it is inappropriate for children and eight is too young as the target audience for the puzzle. But the call was for a total ban on (and suggestion of illegality of) all sales, not just a change in marketing.
Update: I am guesting at CoOp this month and I cross-posted this. One commenter over there suggested that anything that facilitates "never forget," even in the form of a jigsaw puzzle, serves a beneficial purpose. He also poses a great hypo: What would our reaction have been if Iran had banned those puzzles because they acknowledged Dachau as a special place, thus acknowledging the Holocaust? Would we be troubled by a combination of denial of free expression and denial of the Holocaust?
It has indeed been a rare pleasure chatting with and learning from the Prawfs community. I enjoy it every time. I'm just sorry I didn't have more time to post more often. The life of a PhD candidate planning his dissertation experiments leaves little room for much else.
But, I'll tease one last project. In analyzing the role online social networking plays in our daily life, sociologists, legal experts, and policymakers should be interested in the connection between social networking and student academic performance. There are many studies already done about academic success, using test scores as indicators of success or failure. There are too few studies seeking to determine the role technology and online social networking -- virtual homework groups, virtual study clubs, chatting online about the latest Harry Potter book, for example -- have on academic success, and too few studies that quantify academic success as more than just test scores -- including, say, participation in class, perception of school, willingness to do outside learning, and so on. Exactly none of those studies factor in the harm done by cyberbullying, its frequency, and its target victims to determine the relative strength of the correlation: Are the benefits of social networking to learning outweighed by the harm done by cyberbullying? There are indeed cyberbullying and bullying studies; I've conducted my own and published them in a law review article in the N.Y.U. Journal of Law and Social Change. But, no one has conducted a sufficiently rigorous multivariable nonlinear regression to determine how much each variable (online social networking as a tool for learning versus harassment and hate online hurting learning, for example) is correlated with academic success/failure. This has legal implications, as well: Today, children under certain ages are not permitted to engage on social networking tools through schools because they are considered unsafe. We need to create a balance, a balance where we protect students from harm, but give them the freedom to learn in a 21st Century way.
In coordination with a foundation, I am studying the role social networking can play and the ways we can minimize the harm done by cyberbullying in school-structured social networking platforms. I look forward to reporting the results next year and, perhaps, in these pages!
Again, it has been a pleasure. Happy Fall!