Thursday, February 28, 2013
Still more on judicial language
Picking up on Bill's thread on judicial language comes this from Aaron Caplan (Loyola-LA): In his opinion for the Court in Scott v. Harris (dealing with summary judgment in a § 1983 action resulting from a high-speed chase that was video-recorded), Justice Scalia repeatedly referred to Harris as "respondent" while referring to Deputy Scott by name. This included six times in which Scalia quoted either from the lower-court decision or from Justice Stevens' dissent and went out of his way to replace Harris' name with [respondent].
What should we draw from that--whether about judicial decision making, judicial writing, legal writing, Justice Scalia, or anything else? And is it worth talking about in class and, if so, how? Aaron posed the latter question to the Civ Pro Prof listserv, in anticipation of teaching Scott. I just finished it today, but am going to point this out to my students on the course blog.
Signing OffIt's the end of the month, and thus the end of my stint on Prawfs. As always, thanks to Dan and the entire community of bloggers and commentors, who always keep the place interesting. Best wishes to everyone, and keep counting those days til Spring Break!
Students engaged in cutting edge, grassroots advocacy
Continuing the theme from yesterday, today I feature the work of another group of former students, in this case Nicole Cortés and Jessica Mayo of The Migrant and Immigrant Community Action Project (MICA Project). The MICA Project is a community organization committed to working with low-income immigrants to overcome barriers to justice. The MICA Project utilizes legal services, organizing, advocacy, and education to promote the voice and human dignity of immigrant communities.
Engaging with low-income communities, and in particular immigrant communities, requires more than simply filling out and filing documents. As the MICA Project recognizes, there are a range of advocacy skills, both traditional and non-traditional, required to help low-income and socially vulnerable clients negotiate their way through difficult personal crises made harder by bureaucracy and language difficulties.
One feature of the MICA Project I find particularly interesting is that Nicole (along with a bunch of the students I taught in her Race Relations Law class) is a joint JD/MSW student. The MICA Project’s emphasis on the cutting edge of legal representation through holistic and interdisciplinary approaches, and through legal and non-legal advocacy, is a core component of contemporary approaches to advocacy on behalf of the poor. A central feature of their work is building “a comprehensive network of service providers” to help ameliorate their client’s myriad issues.
Many of these skills are not unique to the problem of immigrant communities: this style of interdisciplinary representation is at the core the holistic representation of indigent, addicted, mentally ill, and otherwise at-risk clients.As I did yesterday, I thought I’d let Nicole Cortés of the MICA Project describe who they are and what they do in her own words:
The MICA Project was founded in 2011 by law students Nicole Cortés and Jessica Mayo. The MICA Project addresses unmet need in immigrant communities by utilizing an innovative combination of strategies to promote the voice and dignity of immigrants. First, the MICA Project provides outreach to immigrant communities, including educational presentations, focus groups, and trainings. This helps to address the surplus need in immigrant communities by taking a proactive approach, providing immigrants with the information and resources they need before legal issues arise. Second, the MICA Project provides client-centered legal representation to immigrants who need an attorney for issues related to their immigration status. Finally, the MICA Project utilizes a comprehensive social service network with which it addresses immigrants’ needs that fall outside the area of legal services.
Jessica and I both had been committed to and passionate about serving the immigrant community and came to law school with this motivation. Through our work in the nonprofit immigration field, we observed a surplus need for legal services that the existing nonprofits were unable to meet. People were turned away because of their income level (e.g. working poor or lower middle class), geographic location (across the river in Illinois), or legal status. We felt there was a niche to be filled and formed the MICA Project in response to that.
We started by confirming with the existing providers what our impressions were about need. With their support, we came in as a collaborator rather than a competitor. We had both taken a "Nonprofit Planning and Drafting" course in law school and worked with that professor and other mentors to incorporate as a nonprofit. After that, we dedicated our last year of grad school to working on our business plan and fundraising to make the project a reality.
Jessica and I both came to law school with a passion-- to work WITH people who seek justice. Therefore, in regards to coursework, the really helpful parts of law school were those courses that fueled that passion. Our Civil Rights and Community Justice clinic experience, Race Relations Law, and Critical Jurisprudence are a few examples of the kinds of classes that strengthened our commitment to the ideals behind the MICA Project and ultimately made us better prepared to confront issues of injustice in the real world. The conversations we had in those classes helped us connect with like-minded peers and explore possibilities for social change through the practice of law.
Although the MICA Project charges fees on a sliding-scale, we do rely in part on grant funding to operate. Funding is something all nonprofits must constantly think about and our project is no different. We are in the process of seeking volunteers for grant-writing and other fundraising efforts which will allow us to focus on legal and community work.
As always, we appreciate support, financial or otherwise. Also, spread the word to anyone you think might be interested-- be they students, potential clients or fellow practitioners.
The Comic Book Version
Graphic novels have been getting a lot of attention and critical acclaim in recent years. Notable examples that I've enjoyed include Persepolis, Marjane Satrapi's story of her childhood in Iran during the revolution, and the "tragi-comic" family memoirs of Alison Bechdel, Fun Home and Are You My Mother? My family also enjoys the genre, including Hope Larson's graphic novel re-make of Madeline L'Engle's classic, A Wrinkle in Time. So I took interest when I received a review copy of Nathaniel Burney's comic book, The Illustrated Guide to Criminal Law. You can read about Burney, a criminal defense attorney in NYC, at his web site, here. Burney explains that he undertook the project as public education because he heard one too many times the myth that "an undercover has to tell you if he's a cop, otherwise it's entrapment." In his foreword, NY criminal defense lawyer and blogger Scott Greenfield writes that the book could be for anyone: "a high schooler, law student, or a street tough."
As a crim prof, I was somewhat concerned that a comic book approach might by its very nature over-simplify a practice based on statutory interpretation. However, I really enjoyed thumbing through the book. I particularly liked the "mens rea-o-meter," and the comics illustrating the difference between mental states such as negligence, recklessness, purpose, and intentionality. I also liked the discussion of attempt. Who among us has not tried to sketch a diagram on the board illustrating the "substantial step" doctrine? And in the final chapter, "Putting it All Together," Burney does introduce excerpts from statutes into the mix, demonstrating elements analysis. Certainly an entertaining read that might suggest some fresh teaching approaches.
And that's a wrap for February 2013! Signing off now, with thanks to Dan and all at prawfs. The snow has remained on the ground here in Connecticut all month. As we look forward to spring, I wish everyone a productive conclusion to the semester, and hope we have an opportunity to exchange ideas again soon.
The Law School Crisis Continues; ITLSS Does Not
Paul Campos has announced that "the time has come" for him "to move on" from his Inside the Law School Scam blog. I wanted to announce that: whether one liked his blog or not, it was a big voice on law school crisis issues, and ignoring its demise would seem to me the equivalent of trying to sweep it under the rug. I didn't intend to say much more than that. But perhaps a couple more words are necessary in light of rather harsh comments in a blog post by Brian Leiter and in the comments on a post on TaxProf.
Early on, I was a critic of various aspects of Campos's blog, although not of the existence of the blog itself or of the existence of a blog devoted to problems with law schools. Some of my early posts speculated about Campos's motives. I think that was a mistake; I've never met him, after all. My later position was simpler and I hope fairer; there was much I found distasteful about the blog, but I had promised to read it and I did, every post, and I occasionally linked to discussions I found useful or important, basically skipping questions of motives, style, etc. There were one or two exceptions along the way where I thought he had said something especially silly, but quite few. While it's fine to discount if one distrusts a source, one should take information about an important topic where one can find it, and appreciate it. I posted less from the blog as time went by, largely because ITLSS became highly repetitive--something I don't view as a big reason for criticism; it's tough to write that much that often on a single topic--and often provided more commentary (of variable quality) than facts, and also because the quality of dialogue one gets on these topics from commenters tends to be mixed.
But, if I was not the fan of the blog that others were, I think it still had definite value. Campos seems to me to be essentially a journalist moonlighting as a law professor, and perhaps without some of the professional norms I would expect from a full-time journalist. But he offered a fair amount of good journalism along the way: a lot of digging up and examination of data that I hadn't seen elsewhere and that, good or bad interpretations of it aside, provided a useful and often distressing basis for analysis. That's a genuine contribution, for which I'm grateful; certainly, although I have written about these issues for quite some time, I didn't do the digging he did.
The "style," although I mean more than just writing style, was another matter. Many of his fans loved his writing style. I found it repetitive (how many times do you need to use the same quote from Upton Sinclair before it gets old?), self-indulgent, evasive and squirrelly, preening, and finally tedious. His analysis of the useful data he provided was often correct, in my view. But he seemed rarely content to make a basic point that would have been sufficiently devastating in itself, if the opportunity presented itself to make a far more tendentious de-haut-en-bas observation about some "big truth" that everyone but himself lacked the courage and acuity to recognize. A vivid style is one element of good writing; but so is self-restraint. Campos was much stronger on the former than the latter. Now, your mileage may vary. Clearly many people loved his writing, although of course I think my criticisms of that writing are entirely on point.
But I do think there was a relationship between style and substance here. As I said above and am happy to repeat, in my view his best contributions were those posts that provided lots of data, and at various times there were many of those posts. The more untethered his posts were from the data, however, the weaker they were, the more questionable or inconsistent or hard to pin down in their fundamental arguments. Both before and after he dropped the anonymity pose, he traded on his ostensible authority as an "insider" in various ways, by suggesting that he was sharing an insider's knowledge, or that the fact of his own quite human and understandable complicity in the system gave what he had to say extra authenticity. In the final analysis, though, what he provided was public knowledge, not private knowledge--in short, journalism. He simultaneously danced up to and shied away from saying anything meaningful about his own situation, although he might have offered some interesting thoughts about that. In doing so, he would say that the real issue was the system, not any one person in it. But that is really a mixed message: an effort to trumpet one's authority and insider status without actually drawing on it or discussing it honestly. That's what I mean by trading on authority, and it was a constant in his work; it is certainly a glaring feature of his final post. (If that's a flaw, I should note, it's not his alone; I've said much the same thing about amicus briefs by law professors, and no doubt it's often true of law professors' blog posts.)
In short, there were plenty of reasons to find aspects of his blog objectionable, and his suggestion in his final post that everyone who objected to what he wrote did so either because they were angry at his intrepid truth-telling or because of personal animus seems to me badly exaggerated and self-serving. The latter seems especially silly because, judged by his writing, Campos certainly has no objection to responding to others in a personal rather than a substantive way and drawing broad conclusions about the motives of others. (None of this, however, excuses some of the absurd defenses of the present law school regime I have read elsewhere in the last few months, or some of the dismissals-by-ad-hominem of accurate points that Campos made along the way.) But it should be said that his blog was never really aimed at law professors as a readership. Nor was there any obligation for him to do that. It was aimed at (understandably) dismayed, dispirited, disgruntled law students and graduates, for the most part. The Internet being what it is, it would be foolish to draw any conclusions about how representative of broader views or intensity of emotion his readership was. But suffice it to say he did find and indulge a genuine readership with genuine concerns and anger. That's an important fact, I think.
Let me repeat something I argued very early in my engagement with both the Campos blog and the question of law school crisis and reform in general. The arguments that much needs to be fixed about law schools, in terms of numbers of students and schools, tuition and debt, curriculum, hiring, and so on, seems to me unassailable. The lousy and perhaps permanently changing legal economy adds a powerful element to that; one of the best Campos posts, in my view, was one about halfway through his run emphasizing just how central the lack of jobs is to the current crisis. But reform would still be necessary regardless of current conditions. I wrote early on that the danger of a "crisis" footing is that it may lead us to be even more complacent if the economy improves and fewer students are moved to complain about outcomes. But the changes needed in law schools are not just about responding to immediate stimuli; they're about doing the right thing, for students, clients, and simply for its own sake and because it ought to be part of one's ongoing academic duty. That Campos's blog is ending doesn't mean the issues aren't ongoing. Even if its discontinuation ends up turning down the temperature a little, which I'm not sure it will, that does not change the obligation to deal with these issues. And, again, for all of what I found its evident flaws, I would say his blog, at its best, contributed importantly to the discussion along the way.
Wednesday, February 27, 2013
Lyons, Clapper, and types of constitutional challenges
In writing about standing in the context of § 1983 constitutional actions, I have argued that it is easier to get standing to challenge enforcement of a law that regulates citizens' primary conduct than to challenge a law that regulates what the executive can do in the course of investigating and enforcing those laws--that is, the manner in which the executive operates.
This explains, for example, City of Los Angeles v. Lyons. The Court held that an individual lacks standing to challenge police department policies on the use of force (there, it was a particular type of chokehold) during encounters with citizens; it was entirely speculative that the plaintiff would: 1) break some law, 2) be stopped or arrested by police, 3) have the confrontation escalate, and 4) have the chokehold applied by that officer, thus he could not show an injury-in-fact. Compare, for example, a plaintiff who wants to operate a nude-dancing bar challenging a municipal ordinance prohibiting nude dancing; he shows injury by alleging that he owns the bar and wants to have nude dancing but is prevented from doing so by the likely enforcement of the ordinance that directly regulates his primary conduct. The Court is generally more receptive to standing in the latter than the former situation, because the injury is more obvious. The Court accepts as non-speculative that a plaintiff will engage in intended conduct that may violate a direct regulation and, if he does, that regulation will be enforced against him. It is less willing to accept that a plaintiff will engage in conduct that may bring him in contact with the police and thus subject him to the police methods of enforcement or investigation.
Yesterday's decision in Clapper falls on the Lyons side of that procedural line. Section 1881a authorized certain actions by government in the course of investigating overseas misconduct. Just as it was impermissibly speculative that police would stop and choke Mr. Lyons, it was impermissibly speculative that the government would choose to record the plaintiffs' conversations or that FISC would approve that surveillance. The result, of course, is that likely no one has standing to challenge the manner in which the executive investigates or enforces the laws, unless and until a person is actually investigated and subject to those investigative methods.
Clapper is groundbreaking and seems to do something new with standing in its insistence that a plaintiff show surveillance, and thus injury, was "certainly impending." But the context of the case fits fairly neatly in ground that Lyons already had lain.
Entry Level Hiring: The 2013 Report - Call for Information
Time once again for the entry level hiring report.
I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across (using the little triangle-looking thing at the bottom of the spreadsheet) to see all of the information we will be aggregating.
Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at slawsky *at* law *dot* uci *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.
We will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.
If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.
This report follows in the tradition of Larry Solum's excellent work over many years.
All PrawfsBlawg entry level hiring report tagged posts.[Originally posted 2/27/13; updated 3/1/13 to include clinical and LRW hire information]
What my students are up to...
Today and tomorrow I’m going to do something a little different: instead of featuring some of the stuff I’m thinking about and working on, I thought I’d feature two groups of former students working at ArchCity Defenders and the Migrant and Immigrant Community Action Project doing the sort of work providing legal services at the bottom end—to the people that the legal market mostly overlooks or is too overstretched to adequately serve. These are the sorts of clients that are struggling with issues of homelessness exacerbated by low-level criminal charges that preclude them from accessing state services; indigents facing stints in jail because of their inability to pay child support (and the prosecutor’s unwillingness, without legal intervention, to modify the payment plan), and immigrants seeking help with their legal status. Strikingly, the problems besetting low-income clients are mostly legally minor but devastating on a personal and community level, and these problems transcend legal categories, requiring what ArchCity Defender Executive Director Thomas Harvey calls a ‘holistic legal practice’ that emphasizes ‘interdisciplinary’ approaches to the law and legal services.The ArchCity Defenders is a 501 (c) (3) non-profit law firm that strives to prevent and end homelessness by providing holistic criminal and civil legal services in collaboration with a network of social service organizations, local governments, private businesses, and colleges and universities. Here’s a little bit about ArchCity Defenders in their own words.
Thomas Harvey (Executive Director), was inspired to create ArchCity Defenders because:
I was shocked at how the criminal justice system dehumanized people, saw that traditional roles within the system offered limited opportunities to change that, and didn't want to exacerbate the already entrenched dehumanization. As a third year law student, I interned at the public defender through Saint Louis University's clinic program with Professor Sue McGraugh.
I saw people chained together and brought into the courtroom for arraignment on non-violent crimes. My role was to conduct intake and determine economic eligibility for the public defender. If you had a minimum wage job working more than 20 hours per week, owned a car or had previously posted a bond over $500, you were ineligible. No one suggested these folks weren't poor; they just weren't poor enough for a public defender. If you feel into that gap, you were sent back to jail. Although ostensibly the purpose was to give the person time to get a lawyer, the effect was to drive them further into poverty and likely homelessness. While sitting in jail for a month, these individuals lost jobs if they had them and lost housing if they had it. When they returned to court at a later date and reported no job and no housing, they were determined to meet the eligibility requirements for the public defender. I thought there was a need for legal services that prevented the marginal from being pushed further and further into poverty and homelessness.
An Article in the St. Louis Beacon describes some of the conditions that inspired Harvey and his co-founders, Michael John Voss and John McAnnar. A central issue in Missouri is that the state precludes state legal services from providing the sort of holistic and interdisciplinary services that ArchCity Defenders champion. Public defenders “could address a person's criminal charges but were statutorily restricted from handling civil charges that often exacerbated the clients' problems.” But a central feature of the criminal justice system is that it is a system mostly for indigents, and disproportionately those suffering from mental illnesses or substance abuse problems, and Harvey, Voss and McAnnar were struck by the fact that these problems could not be handled in one location or by one source, but that “treatment, which was ‘cobbled together’ across agencies,” resulting in “waiting lists and maze of referrals that can face poor people needing legal help,” making it hard for poor, ill or addicted, unrepresented clients to keep track of their conditions of release, or even afford the time away from work to attend to their legal issues.
To set up ArchCity, Harvey got together with two fellow students, Michael John Voss and John McAnnar. As he tells it they:
were also doing clinical work during their third year. We all saw a need for services. I decided I was going to start doing this work after graduation and talked Voss and McAnnar into helping me. We did some research and found the Bronx Defenders in New York did the kind of work we wanted to do so I called Robin Steinberg, the Founder and Executive Director at the Bronx Defenders and asked her if I could emulate her model here in St. Louis. She was exceptionally generous with her time and advice. After that, we just started talking to people we knew about what we needed and how they could help us. The St. Louis legal community was very generous and we couldn't have done any of this without them.
We talked to Professors McGraugh and Miller and many people in the legal community who were helpful in guiding our early steps. We worked with Washington University and got some free help with our 501 (c) (3) application. Marie Kenyon from Catholic Legal Assistance Ministries helped us get a donation to pay for the costs of that application.
At the end of the day though, we just started offering our services. We took on clients and started helping people with no funding. We knew we had something because the demand was overwhelming and we could not keep up. Although it has turned out ok for us, it's not what I would advise today. All three of us had full time employment outside of the ArchCity Defenders to support us as well not to mention very supportive and gainfully employed wives.
We started the ArchCity Defenders because of our law school experience at Saint Louis University (SLU) which gave us the combination of blackletter law, theory, clinical opportunities, quality instruction and freedom necessary to create the ArchCity Defenders. We had the chance to discuss what the law is, what it should be, what lawyers should be doing, and how our role as repeat players in the system hurts or helps the clients. SLU isn't the only law school providing this experience and I know we aren't the only ones who took advantage of it. However, if law school becomes a factory that only produces lawyers who focus solely on how the law is right now instead of how it should be, law school will have failed on a massive scale.
As Harvey points out, a major issue for a startup law firm like this is funding:
We have done this work for free for three years and have now won a major contract with the City of St. Louis that will be announced on February 26, 2013. However, even with that win, the contract requires matching funds so a win is not a simple win. We need now and will always need money from supporters of our work. However, another major challenge is spreading the word about how holistic defense helps the client, helps the community and is the right thing to do. In short, there are huge benefits to holistic legal defense that extend beyond the individual to the community at large in social and economic ways. We need help spreading that information as much as anything else.
Readers can donate directly at archcitydefenders.org at any time or write us with a donation. Readers can also point us in the direction of grants and other funding opportunities for our organization as that is always welcome. Finally, we need partners in the academy to help us strengthen our economic arguments. If there are folks interested in helping us out with research, we would greatly appreciate it. I can be reached any time at email@example.com.
Tuesday, February 26, 2013
So much for unanimity
Keep with this week's theme of procedure and jurisdiction, SCOTUS today decided Clapper v. Amnesty Int'l., Inc., holding that a collection of attorneys, journalists, and activists lacked standing to challenge the constitutionality of certain surveillance provisions of the FISA Amendments Act of 2008.
The decision was 5-4 along the expected lines. While I stand by my suggestion that most of the Court's recent jurisdiction decisions have been unanimous or close to it, I should have included standing as the exception. There always has been a strong political/ideological valence to standing, particularly as it affects constitutional litigation. Actually, this is what made the birther lawsuits fun, as well as the ACA litigation if the courts had delved into it--standing doctrine, created in cases with plaintiffs trying to litigate "liberal/progressive" constitutional causes, being used to the disadvantage of plaintiffs trying to litigate "conservative" constitutional causes. It would have been interesting to see how the five-justice majority might have responded in that situation.
Symposium on the gender gap in the workplace
FIU Law Review will host Minding the Gap: Reflections on the Achievement Gap between Men and Women in the Workplace in 2013, this Friday, March 1. The conference is organized by my FIU colleague (and alumna Guest Prawf) Kerri Stone. Presenters include former guests Nancy Leong (Denver) and Marcia McCormick (Saint Louis), along with several top employment/employment discrimination scholars.
The symposium will be published in June 2013.
"Why Jury Duty Matters"
Who says legal scholarship has little practical benefit? Prof. Andrew G. Ferguson of the University of the District of Columbia (UDC) is working to change the perception that the legal academy is out of step with the practice of law and the work of the courts. He has helped to launch a project of the National Association of Criminal Defense Lawyers (NACDL) called "Getting Scholarship Into Courts," through which a revolving panel of academics (I'm taking a shift) recommend scholarship to NACDL members that might be useful in criminal litigation. A podcast about that effort is here. He also has published a book through NYU press called "Why Jury Duty Matters: A Citizen's Guide to Constitutional Action," which is designed to help the public view jury duty as a an important facet of citizenship, like voting. Andrew writes, "imagine that instead of considering jury duty an inconvenience, you considered it a day of reflection--a day to reevaluate your role as a constitutional actor." Written in an accessible style with anecdotes including the story of former Pres. Bill Clinton's jury service, the book covers the history and role of the jury. Prof. Charles Ogletree of Harvard wrote the introduction. I think this is a very admirable effort, although I wonder how many prospective jurors will buy the book, giving Andrew the opportunity to sway them. One possibility is to distribute the paperback through civic organizations like the League of Women Voters. In any event, kudos to Andrew for his important work and great example in making legal scholarship more relevant.
Monday, February 25, 2013
The "Mini-Cruel and Unusual Punishments Clauses" of the 1783 State Customs Legislation
I thought I would take a break from pissing people off to write about some additional evidence I had never seen before today on the original understanding of the Cruel and Unusual Punishments Clause. This evidence further supports the views that (1) the Clause encompasses a proportionality principle and (2) that proportionality principle takes as its benchmark the punishment norms of the individual States. On April 18, 1783, Congress, under the Articles of Confederation, passed a customs act, imposing duties on certain imports, in order to pay off the country’s war debt. As was required under the Articles, each of the thirteen States then had to pass ratifying legislation in order for the customs act to go into effect. Each of them did so. Interestingly enough, in a majority of the state legislation affirming the new federal customs act, the States inserted what can be called a mini-Bill of Rights. Each of these States apparently recognized that Congress could punish its citizens for failure to pay the new duties. These States inserted a proviso that, in essence, required that Congress bring such an action in a court of that state and follow state procedures: there was a clause requiring warrants to search dwelling houses, trial by jury, and so forth. Six of these States – Georgia, Massachusetts, New Hampshire, Pennsylvania, Rhode Island, and South Carolina – included a “mini-Cruel and Unusual Punishments Clause.” Virginia included a “mini-Excessive Fines Clause” but not a “mini-Cruel and Unusual Punishments Clause.”
Pennsylvania and Rhode Island forbade Congress from imposing “unusual punishments” for violations of the new act. Read in the context of a paragraph that generally requires Congress to follow state criminal procedure (e.g., “the proceedings shall be in the usual form”), and to bring the action in a state court, it is certainly reasonable to read “unusual punishments” as referring to what is usual or unusual in that State. This is greatly strengthened by the language used by Georgia, Massachusetts, New Hampshire, and South Carolina: each forbade the infliction of punishment that is “cruel or unusual in this state” (or in Massachusetts, “in this Commonwealth).
This further supports the notion that when state ratifying conventions began proposing amendments to the Constitution a scant four years later, they used “cruel and unusual punishment” (or “cruel or unusual punishment”) as a shorthand way of limiting federal punishments to that which was “cruel and unusual” (or “cruel or unusual”) in each particular State. At the very least, it supports the notion that this was a widely shared understanding. Of course, critics will say that the whole point of the Constitution was to make federal laws uniform in a way that they were not under the Articles. But the point of the Bill of Rights, as I have argued, was to push back on that enforced uniformity and retain for the States a measure of autonomy that was otherwise being taken away by the Constitution, including autonomy on setting the outer bounds of criminal punishment for offenses punishable by the States.
At the same time, this new evidence is pretty strong evidence that “cruel and unusual” and “cruel or unusual” were used in the 1780s to refer to punishments that were disproportionate. That is to say, it refutes the view held by Justices Scalia and Thomas that the language was understood as covering only methods of punishment, those that inflict a tortuous or lingering death or inflict pain for pain’s sake. One can scarcely imagine that the six States mentioned were really concerned that those evading the new customs laws would suffer the same treatment that awaited traitors under English common law – partial hanging, disembowelment while alive, drawing and quartering, and beheading – or that Congress would devise an ingenious and painful non-capital punishment for the loathsome smuggler. To the contrary, my understanding is that criminal prosecutions for smuggling were rare; the government was typically content with civil forfeiture of the goods and the vessel in which they were found. It thus appears more likely that these States were concerned that, if smugglers were to be punished, they would be punished more harshly than they could be under state law but with something short of a tortuous, painful death. This is especially so when considering that some of the legislation further limited the penalty to forfeiture of the goods and vessel “in cases of prosecution in rem.” Indeed, that is probably why Virginia included only a mini-Excessive Fines Clause, and six States apparently did not consider the danger serious enough even to include any such provision.
Political Participation and Libel Law
The news today is that Sheldon Adelson is suing the Wall Street Journal for libel. So here's my question. If Adelson is deemed a public figure because of his very public involvement in electoral politics, then does imposition of the actual malice standard constitute a burden on that political participation, in violation of the First Amendment? My intuition is that that can't be right: the whole question of whether someone is a public figure turns largely on whether the person has injected himself into the public discourse. Since presumably you do that by engaging in speech, it can't be an unconstitutional burden on free speech to impose a higher liability standard: if it were then much of the "public figure/higher fault standard" structure is suspect.
But then what about Davis v. FEC, the "Millionaire's Amendment" case? If Davis stands for the proposition that a person's spending of his own money to influence the outcome of an election can't trigger burdens on that person or his speech (or, rather, that such burdens have to satisfy a high standard), then isn't that what's going on here? Adelson participates in politics -- that leads to his becoming a public figure -- which in turn leads to his having to satisfy the actual malice standard -- that leads to any alleged libel likely going uncorrected.
Or is the answer that libel is different because the plaintiff, by being a public figure, can vindicate the reputational interest that libel is designed to protect to begin with? So in that case Adelson doesn't lose anything by virtue of his having a tougher time in court -- he can protect his reputation through self-help, and that's all that libel law ultimately cares about. If that's the right analysis then I'd be tempted to ask by Davis himself couldn't just spend his own money and get his message out: that's his self-help, which remains in competition with the opposing (or in this case, libelous) speech that stays out there in the market. And in both cases, the end result is more speech. But that's a more detailed argument, that gets to the merits (or lack thereof) of Davis itself.
The Voting Rights Act: On Strategic Compromise and As-Applied Challenges
It's time to wade into the Voting Rights Act fun. On Wednedsay the Court is hearing oral argument in Shelby County v. Holder regarding the constitutionality of Section 5 of the Voting Rights Act, and the smart money is that the Court will invalidate Section 5. But there's a narrower option. It's the tale of strategic compromise and as-applied challenges.
Section 5, as many readers know, requires "covered" jurisdictions to seek "preclearance," or preapproval, from the federal government for any changes it makes to its voting system. It is a law that stems from the civil rights movement and is widely lauded for its impact on achieving greater equality for racial minorities in voting.
Just a few years ago, however, the Supreme Court put Section 5 on life support, using a tortured statutory analysis to avoid the constitutional question in a 2009 case called NAMUDNO v. Holder. In dicta, the Court strongly suggested that Section 5 was unconstitutional. That constitutional question is now squarely before the Court in Shelby County.
Are we all up to speed? Good. Now I want to dive deeper and suggest a path for the Court that, if it is inclined to close the deal on striking down this provision of the Voting Rights Act, would not be as drastic as invalidating Section 5 in its entirety. To be sure, there are very strong reasons to uphold Section 5, and the Court must consider those arguments carefully. But the warning signs from NAMUDNO were ominous. A modified approach is available, and it stems from recent trends in Supreme Court election law jurisprudence.
The idea is actually quite simple: if a majority of the Court is not willing to uphold the Act as-is, then it should exhibit the same kind of strategic compromise as it did in the 2009 case and allow only as-applied challenges.
In the 2009 Section 5 case, NAMUDNO, the Court ruled 8-1 that it could avoid the constitutional issue by stretching the statutory language to allow the plaintiff, a water district in Texas, to "bail out" of the Act's coverage. As my essay on this case reveals, the voting trends of the Justices hearing this case should have portended a 5-4 conservative decision striking down the Act, with Justice Kennedy siding with the conservatives. Indeed, even though Justice Kennedy is widely considered to be a "swing" vote, my analysis of Voting Rights Act decisions up to that point showed that his voting pattern has been quite similar to that of Justice Scalia in these cases, ruling "expansively" toward the Act only about a quarter of the time. (By contrast, the more liberal side of the Court ruled "expansively" toward the Voting Rights Act about three-quarters of the time.) Why, then, did 8 Justices (all but Justice Thomas) refuse to pull the trigger in NAMUDNO and invalidate Section 5? It is because of what I termed "strategic compromise."
By strategic compromise, I suggested that "currently the Justices are taking a holistic view of election law and sacrificing their short-term goals in a particular case for the greater good of long-term ends." The conservative Justices were satisfied by settling for a minor victory to achieve incremental change without having to suffer the hit on legitimacy they surely would encounter with a headline that "Supreme Court Strikes Down Major Civil Rights Legislation." The liberal Justices were able to ward off a far-reaching constitutional ruling by embracing a statutory narrowing of Section 5 with which they otherwise may not have agreed. Both sides compromised their true positions to achieve longer-term goals: for the conservatives, whittle away at the Voting Rights Act; for the liberals, preserve as much of it as possible.
The same considerations face the Court in Shelby County. But there is no statutory alternative in this case. The compromise, however, can come from another trend evident in recent election law cases: the move toward allowing only as-applied challenges. In a series of cases, the Court has rejected facial challenges to election laws, saying that plaintiffs could succeed only in an as-applied challenge. In the 2008 voter ID litigation, for example, the controlling opinion declared that the law was valid in the abstract but might be unconstitutional as applied to a particular voter who could not obtain an ID and therefore could not vote. That case, in fact, also exhibited strategic compromise: Justice Stevens, writing the controlling opinion, may have aligned himself with the Court's conservative Justices so that he could write a narrower decision that kept the possibility of a future successful challenge alive. Otherwise, the conservative Justices might have upheld voter ID laws in all circumstances.
The same option is available in Shelby County. The plaintiffs are bringing a facial challenge to Section 5 of the Voting Rights Act. But the Court need not sanction that broad challenge. If it is inclined to cut back on the Act's coverage, it could rule that facial challenges are also disfavored in the Voting Rights Act context. A covered jurisdiction could seek a ruling that, as-applied to its particular voting rules, Section 5 goes too far in regulating its activities. A jurisdiction that is not eligible for statutory bail out still might be able to demonstrate that Section 5's coverage is unnecessary for it because it no longer exhibits the same voting discrimination that made it fall within the coverage formula. Congress's reasons for sweeping that jurisdiction under the coverage formula might be outdated. But the whole of the Act should survive.
This is different from another potential "narrower" ruling, that the coverage formula itself (as opposed to the Act in its entirety) is unconstitutional, as that would require Congress to re-write the Act--effectively nullifying it. Instead, the Court could compromise by saying that Section 5 is a valid exercise of Congressional authority, but that a specific jurisdiction could make an argument that it should no longer be subject to the preclearance requirement.
This approach couples strategic compromise with the push toward as-applied challenges in election law. The conservatives might embrace this approach just as it embraced the statutory interpretation in NAMUDNO to maintain the Court's legitimacy and ward off striking down a bastion of the civil rights movement. The liberals might embrace this interpretation to preserve as much of Section 5 as possible. And Section 5 would live on to do its vital work in deterring the worst voting rights abuses.
It would be preferable for the Court to uphold Section 5 in its entirety. Congress considered a wealth of information regarding disparities in voting in covered jurisdictions that supports Section 5's vitality. But if the Court is going to follow through with its threat in NAMUDNO and rule this portion of the Voting Rights Act unconstitutional, it would be well served to remember what it has done recently in similar cases: embrace strategic compromise to rule that only as-applied challenges are permissible.
More jurisdiction from SCOTUS
SCOTUS last week decided two of the jurisdiction/procedure/Fed Courts cases on this term's docket. In Gunn v. Minton, the Court unanimously held that a legal malpractice claim derived from a patent dispute does not “arise under” federal law so as to vest exclusive jurisdiction in federal court. In Chafin v. Chafin, the Court unanimously held that an action under the Hague Convention on the Civil Aspects of International Child Abduction does not become moot when the child is returned to her country of habitual residence while an appeal is pending.
A few random thoughts on the cases after the jump.1) These cases, along with last month’s Already LLC v. Nike, Inc. (a defendant's voluntary cessation through a covenant not to sue renders a case moot), continue the Roberts Court’s interest in procedure and jurisdiction. Interestingly, Chief Justice Roberts kept all three opinions for himself; he did not assign them to either of the former civ pro professors, nor to the former district judge with ground-level civ pro experience. Perhaps Roberts himself is driving this civ pro revival. And as with most of this run of civ pro cases (Iqbal and Wal-Mart being glaring exceptions), all three decisions were unanimous (Already included a short concurrence from Kennedy, Thomas, Alito, and Sotomayor, warning lower courts about the narrowness of the Court's decision).
2) Gunn does a very nice job of explaining the two situations in which a case arises under federal law. In describing the core "rule of inclusion" that "accounts for the vast bulk of suits that arise under" (federal law creates the cause of action), the Court cites American Well Works (the original opinion by Justice Holmes) rather than the Court’s more recent statement in last term’s Mims v. Arrow Fin. Servs. This is surprising because Mims appeared to elaborate and expand on the Holmes test, looking not only to the source of the cause of action but also to the source of the rule of decision (or right) asserted. (Lou Mulligan wrote a great analysis of Mims). Not sure if this reflects a backing away from the more-elaborate statement of the standard in Mims or just invocation of the “Cite Holmes Whenever Possible” Principle.
3) Gunn also does a good job of turning Grable & Sons Metal Prods. v. Darue Engineering into a clean four-part test for analyzing when state claims with embedded federal issues arise under. At the same time, it seems to modify the third prong, which requires the federal issue be “substantial.” While this could have meant substantial within the case (that is, an important aspect of the case or important to the parties), Gunn insists that it means substantial to federal law and the federal judicial system as a whole. Thus, while the validity of the notice provided by the IRS in enforcing a tax lien (the embedded issue in Grable & Sons) was substantial in that it broadly affected the government’s ability to recover delinquent taxes, a patent issue buried as a “case-within-a-case” in a backward-looking claim for damages is not substantial because it does not effect federal patent law or the work of federal courts at a systemic level.
This form of substantiality in turn overlaps with and affects the fourth prong of the analysis--whether the congressionally approved balance of caseloads would be altered by allowing this class of case into federal court. Because the federal issue is not substantial, keeping it in state court is plainly not inconsistent with that balance--end of analysis.
4) Gunn did not discuss one other unique aspect of this case--whether the exclusivity of patent jurisdiction affects the fourth-prong of Grable. Federal jurisdiction in patent cases is exclusive. Thus, holding that these cases arise under federal law not only allows them to be filed in federal court and gives the parties a choice of forum, it requires them to be filed in federal court and eliminates state courts as an available. Thus the "balance" question looks very different--it is not only about creating an additional forum, it is about stripping state courts of jurisdiction. But because the balance question was largely resolved by the substantiality question, the Court did not have to consider this.
5) Chafin and Already appear to be good teaching cases on mootness. Both demonstrate the links between mootness and other doctrines. Already shows how standing and mootness interact. In arguing that the case was not moot, Already tried to identify harms that it continued to suffer despite the covenant not to sue; the Court insisted that none of these harms could establish Article III standing in the first place and therefore could not demonstrate a continuing controversy to overcome mootness.
Chafin discusses the difference between mootness and merits and explicitly seeks to maintain a line between them (an effort I always appreciate from the Court). The district court held that Scotland (where the child had lived with her British mother) was her country of habitual residence; the mother moved back there with her daughter while the appeal was pending (after the district court refused to stay the case pending appeal). The mother tried to show mootness by arguing that even if the court of appeals reversed, the district court could not issue a "re-return" order under the Convention, Scottish courts would ignore the re-return order, or she was not subject to enforcement of that order in Scotland. But the Court insisted this "confuses mootness with merits"--the utlimate legal availability or effectiveness of relief are not pertinent to the mootness inquiry. This principle holds at least so long as the merits arguments are not "so implausible that it is insufficient to preserve jurisdiction," a reservation I could have done without, as it leaves a glimmer of merits defects limiting jurisdiction. Still, I was pleased to see the Court sharply rejecting merits-based arguments against jurisdiction.
6) Roberts throws into each of these opinions one or two pithy turns of phrase--metaphors, cultural references, etc. In Already, rejecting the argument that Already might make a new, potentially infringing shoe not covered by the covenant, Roberts said such a shoe "sits, as far as we can tell, on a shelf between Dorothy's ruby slippers and Perseus's winged sandals." In Gunn, in pointing out that it was not creating embedded-issue doctrine on a blank canvas, he said "[u]nfortunately, the canvas looks like one that Jackson Pollock got to first." There was less of this in Chafin (perhaps because a cross-border child-custody dispute invites more judicial seriousness than an intellectual property fight), although at one point he said that the case was not moot because "[n]o law of physics" prevents the child's return from Scotland if the district court orders it and the mother complies. Roberts obviously is trying to be an engaging writer (in cases that most observers may not find engaging). Does it work? Or does it just come across as snarky and distracting?
7) We still are waiting for the Court's other big jurisdiction case, Kiobel v. Royal Dutch Petroleum, which was the first case argued this term. Obviously there is going to be a dissent and perhaps multiple opinions in the case, hence the delay. What remains to be seen is whether the division on the Court is about the jurisdictionality of corporate liability under the ATS or just about corporate liability generally.
More on Judicial Language
As a follow up to my tongue-in-cheek post last Friday about language from judicial opinions I want to mention something that's bothered me for a while now, and see if people think I'm being over-sensitive: the jocular riffing on Justice Holmes's "Three generations of imbeciles is enough" language from Buck v. Bell.
This came up again last week in the Supreme Court's oral argument in Bowman v. Monsanto Company, a patent case dealing with a farmer's claimed right to replicate patented seeds without a license from the patent holder. At first glance, the case has a lot of implications for innovation in industries where the patented products can be easily replicated by persons possessing the product -- seeds, cell lines, etc.
Anyway, that sets up the context. As reported by the New York Times, during the oral argument Justice Breyer said the following: “There are three generations of seeds. Maybe three generations of seeds is enough.” Adam Liptak reported that his comment elicited "knowing chuckles" from the audience. So that's the question: Should that be a laugh line?I don't want to be a humorless scold. On the other hand, riffing off a truly cruel remark seems gratuitous: there are enough funny lines in the U.S. Reports that we don't need to pick up on problematic ones. Or is there a reason this particular line is not problematic? Has the word "imbecile" been defanged by its increasingly humorous connotation of someone as just plain dumb? (I guess that's possible: after all, "idiot" had the same clinical connotation at one point, which it seems to have lost.) But it seems to me the problem with the phrase in question is not just with the word "imbecile," but with the entire phrase, which inevitably calls to mind the cruel ideology behind Buck. Is it really OK to make that reference as a joke? Have we so clearly moved past Buck that it's safe to joke about it?
I'm truly curious about this. In what seems to be a hyper-cautious age, using this phrase doesn't seem to elicit any reaction. Is there a good reason for that?
Sunday, February 24, 2013
The Economics of the Infield Fly RuleMy longer treatment of the infield fly rule, The Economics of the Infield Fly Rule, is now available on SSRN and forthcoming in Utah Law Review. The abstract is after the jump. Comments welcome.
No rule in all of sports has generated as much legal scholarship as baseball’s Infield Fly Rule. Interestingly, however, no one has explained or defended that rule on its own terms as an internal part of the rules and institutional structure of baseball as a game. This paper takes on that issue, explaining both why baseball should have the Infield Fly Rule and why a similar rule is not necessary or appropriate in seemingly comparable, but actually quite different, baseball situations. The answer lies in the dramatic cost-benefit disparities present in the infield fly and absent in most other baseball game situations.
The infield fly is defined by three relevant features: 1) it contains an extreme disparity of costs and benefits inherent in that play that overwhelmingly favors one team and disfavors the other team; 2) the favored team has total control over the play and the other side is powerless to stop or counter the play; and 3) the cost-benefit disparity arises because one team has intentionally failed (or declined) to do what tordinary rules and strategies expect it to do and the extreme cost-benefit disparity incentivizes that negative behavior every time the play arises. When all three features are present on a play, a unique, situation-specific limiting rule becomes necessary; such a rule restricts one team’s opportunities to create or take advantage of a dramatic cost-benefit imbalance, instead imposing a set outcome on the play, one that levels the playing field. The Infield Fly Rule is baseball’s prime example of this type of limiting rule. By contrast, no other baseball situation shares all three defining features, particularly in having a cost-benefit disparity so strongly tilted toward one side. The cost-benefit balance in these other game situations is more even; these other situations can and should be left to ordinary rules and strategies.
If the Shoe Fits...
I am generally no fan of accusation by easy labeling, which is often misleading or inaccurate, rarely helpful or informative, and generally not conducive to clear thought. My pet example is Project Censored, whose annual top ten list of "censored" stories rarely involves actual censorship. Whatever merit there is in the claim that these stories deserved more coverage than they got is, for me, swallowed up by the cheap, attention-seeking misuse of the charged word "censorship."
All this is by way of talking about Senator Ted Cruz, who has been accused for the past week of engaging in McCarthyism, merely because he engaged in half-baked accusations and cheap insinuations. In the past couple of days, the New Yorker has dug up another example: in this case, a 2010 speech in which Cruz
"went on to assert that Obama, who attended Harvard Law School four years ahead of him, 'would have made a perfect president of Harvard Law School.' The reason, said Cruz, was that, 'There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.'"
This was a laughable assertion, but people say silly things all the time. So I am duly impressed that a spokesperson for Cruz has doubled down, saying to The Blaze in response to the New Yorker story:
“'It’s curious that the New Yorker would dredge up a three-year-old speech and call it "news,"'. . . . Regardless, Senator Cruz’s substantive point was absolutely correct: in the mid-1990s, the Harvard Law School faculty included numerous self-described proponents of ‘critical legal studies’ — a school of thought explicitly derived from Marxism – and they far outnumbered Republicans.”
I am impressed by this response on any number of levels, not least for constituting a dredger complaining about the dredging activities of others. Mostly, though, I am impressed by the claim that Cruz's earlier suggestion that a dozen HLS faculty members believed in the Communist overthrow of the United States government is "substantively correct" because the faculty included a number of adherents of critical legal studies--the most prominent among them being former CIA employee Duncan Kennedy.
I hope it's not too Tushnetian to say so, but I worry about a United States Senator, bright, well-educated, and often treated as the great non-white hope of the Republican Party, who can't tell his Reds from his red-diaper babies. I doubt that Cruz cares much whether he's accused of McCarthyism. If he does, though, he could probably avoid it more often in the future if he acts less like, well, McCarthy.
Read more: http://www.newyorker.com/online/blogs/comment/2013/02/ted-cruz-sees-red-not-crimson-at-harvard.html#ixzz2Lmyx8rcW
Saturday, February 23, 2013
The Costs of Legal Scholarship
Over at the Faculty Lounge, Tamara Piety has some wonderful posts on the value of legal scholarship, here and here. I won’t try to improve on what she has said. But she has generated a lot of blowback in the comment section, some by other law profs and some by disgruntled law students and recent law grads. Aside from questioning whether legal scholarship is as valuable as Tamara says, the main theme of the comments seems to focus not on the value of legal scholarship but on its costs. Tamara has not yet endeavored to address that issue– which, of course, has not prevented some from attacking her for failing to address an issue she expressly said she wasn’t addressing! – so I thought I would broach the issue.
Many of the students and recent law grads who show hostility toward legal scholarship, both in the comments to Tamara’s posts and otherwise, have focused on the terrible job market for lawyers and the terrible debts that many now must bear. I sympathize with those who were duped into investing heavily in a legal education for very little payoff. I’m just not certain what that has to do with legal scholarship. Their main quarrel is with those schools that have inflated their placement numbers to make law school seem like a better investment than it really is. Indeed, it is that aspect of the quarrel that has blossomed into litigation. But faculty have little or nothing to do with putting out placement statistics. No matter how seriously a school takes faculty governance, such things are an administrative function, not a faculty function.
To the extent that the hostility is directed at the costs of legal education, I do not understand the argument that, at least below the more elite law schools, legal scholarship is a driver of costs. Perhaps at more elite schools that have to attract high-quality scholars as lateral hires by bumping up salaries, the emphasis on scholarship is reflected in faculty pay and is therefore passed onto the student in the form of higher tuition. (Perhaps not: what is the difference in tuition between an elite private school and a non-elite private school, or an elite state school and a non-elite state school? I’m curious to know.)
But, then, putting to one side the elite schools – whose students still tend to come out okay on the job market – where is the evidence that legal scholarship drives up tuition? I suppose one can point to the ABA requirements that law library collections be substantial enough to support faculty scholarship. But has anyone actually looked at the numbers and concluded that those requirements – and, not, say, wasteful administrative practices largely hidden from view – are driving up costs? My sense is that costs associated with faculty salaries and maintaining an adequate library are easy targets because they are visible. As has been true across the university, administrative waste and abuse are likely far more responsible for spikes in law school tuition but are invisible to all but those who benefit from said waste and abuse – who, by the way, are also those responsible for putting out the placement numbers.
Finally, I try to imagine a world in which I didn’t produce any scholarship. That would free up a lot of my time. But what would I do with that time? Would I use it to somehow help students get jobs? No. To the extent that I can help in that department, I am already doing all I can. More jobs aren’t going to just materialize because I stop producing scholarship. Would I interact with students more? No. I already work in my office with my door open for several hours on the days I teach and very few students come to see me as it is. Would I give my students more graded assignments to provide more formative assessments? YES! And that is something we as a profession need to do more of in any event because I think it will improve the quality of legal education. But how would that help students get jobs? Again the jobs won’t just materialize because of changes we make to the curriculum and I doubt that anyone considering hiring a freshly minted lawyer cares much that the B+ she earned in my class came after multiple assessments or just a final exam.
Would I be required to take on more teaching, so that my faculty can become smaller and leaner, and tuition can go down? Perhaps, and I think this is where the foes of scholarship have their best argument. But the extent to which that is practicable is very limited. At most non-elite schools, the teaching load is already 2-2. My school has a very "bare bones" curriculum -- a lot of required and core courses, not too many electives and seminars, and the students tend to stick mainly with bar courses. I'd hazard that most non-elite schools are similar. I already teach three required courses, in the areas where I have expertise and can impart value to the students. To stick me in front of a class where my expertise is limited to the fact that I took that same class 20 years ago (or not!), or had a case in practice that involved some discrete issues in that vast subject area, does not really add value to the students’ experience. We’ve all had professors who didn’t know or care much about the subject matter. Was that a good experience or a bad experience?
In addition, most of the professors I know at non-elite institutions are like me: we went into academia because (1) we love teaching the few areas in which we have a real expertise and interest and (2) we love writing about them. If I didn’t do scholarship and were weighted down teaching classes in which I have no interest, academia starts to look a lot like practice: a 60-80 hour work week doing something I don’t particularly enjoy. But there’s one big difference: in practice, I can do things I don’t particularly enjoy for a lot more money. Most law professors at non-elite schools make far below their market value. The trade-off is that we do what we enjoy, set our own research agenda, and have flexible hours. Take that away and being in academia is not worth it. So, at least as far as the non-elite schools are concerned, faculty who can leave academia and get better pay will do so; those who can’t will put in as little effort as possible; and, perhaps most importantly, those schools will stop attracting faculty who go into academia as a choice and attract only those who do so because they can’t make it in practice. As mediocrity of the faculty increases, of course, the salaries they demand should go down, which should lower tuition. But that’s like saying that it’s cheaper to eat at McDonalds than at the Corner Bistro.
So those who are understandably upset that they heavily invested in legal education in a down market are swinging in a blind rage against faculty scholarship without really showing that it has anything to do with their upset. From where I sit, their rage is better directed against law school administrators, those responsible for the lack of forthrightness regarding the job placement numbers. And let's make them show us where the tuition dollars have gone.
Scholarship and Indemnity Clauses by the Law Reviews
I'm on the AALS Scholarship Section exec board for some reason, and in that capacity, I recently rec'd a great email from Donald Tobin, the associate dean for faculty at Ohio State Law, who writes on an important but frequently neglected issue: indemnity clauses in law review agreements. Specifically, he wrote the following:
I think there is a growing and real problem with law reviews requiring authors to sign indemnity clauses. These clauses require authors to indemnify the journal and university from any costs associated with lawsuits, including, in some cases, costs associated with frivolous cases. The problem with these types of clauses is that they impact the most vulnerable of our faculty and also those writing in controversial areas including human rights, minority rights, equality, etc. I have just finished trying to help one of my faculty members negotiate one of these releases. We came across the following problems:
1) While Universities will defend faculty members who are sued based on their scholarship, many Universities will not indemnify other institutions. For example, the State of Ohio prohibits its institutions from indemnifying other institutions.
2) Insurance protection does not work. I looked at whether the faculty member could purchase insurance through AAUP. The insurance company indicated that it would defend the faculty member, but would not make payments under an indemnity clause.
3) The faculty member is thus stuck. We are placing the burden on the people least able to bear it. From the university to the faculty member and the faculty member has no means of protecting herself.
4) Journals sometimes say, Don't worry; suits are unlikely. But if the suits were so unlikely...why shouldn't journals bear that risk?
5) Journals might also say: the author has the most control to determine if they are committing a tort. But there is no protection for frivolous suits or for suits generated for political reasons.
6) These indemnity clauses, I am led to believe, were standard. I did not think that was the case but I have a list of a number of top journals that had similar clauses.
7) Finally, I was told that the AALS model agreement had an indemnity clause – and it does. So we as an institution are contributing to this mess.
To me, this is what institutions do. They protect academic freedom and they should shoulder the burden of dealing with frivolous suits. They should not then seek payment from an author. It might be different if the author did something wrong – like plagiarized – but the idea that in general authors are on the hook seems very wrong to me. As an institution we should either discourage these types of provisions or we should obtain some type of group insurance that either authors or institutions can buy for protection. When I spoke about this at AALS, most people were unaware of these provisions and there is some indication that even as lawyers we just sign these things, but they pose a real problem for some of our most vulnerable colleagues. Here is a link to a model agreement containing an indemnity clause: http://www.aals.org/deansmemos/98-24.html
The AALS agreement is better than the one my faculty member was asked to sign because it at least doesn’t put the author on the hook for frivolous claims, but it still requires an author to pay the judgment and attorney’s fees.
Thanks for that Donald. So, what is to be done? A collective response by the associate deans for scholarship at the top law schools or even better, more generally, would be helpful. Of course, indemnity clauses are just one obnoxious aspect of law review agreements. Copyright assignments are typically the other!
Friday, February 22, 2013
Green Bag's new winter 2013 issue
Volume 16, Number 2 (Winter 2013)
(Most of the issue is available here now.)
Mistakes • Exemplary Legal Writing 2012 • Law on the Map • Valentine
To the Bag
Original Intent, by Charles Fried
In Defense of Scholars’ Briefs: A Response to Richard Fallon, by Amanda Frost
On “A Ticket Good for One Day Only”, by Richard M. Re
The Bridges of Arlington County, by William H. Rehnquist & Francine Zorn Trachtenberg
Making Records in the 21st Century, by Stanley Thompson
Pendent Appellate Bootstrapping, by Stephen I. Vladeck
Orin S. Kerr’s A Theory of Law, by Ross E. Davies, Lee Anne Fennell, Caitlin M. Hartsell, Kieran Healy, Jeffrey M. Lipshaw, Geoffrey A. Manne, Chad M. Oldfather, Arthur Stock, and Ryan C. Williams
Call for Papers
Micro-Symposium on Suzanna Sherry’s Why We Need More Judicial Activism
Wow, That Helps
The one piece of judicial language you don't want popping into your head when you check your email to see if anyone's accepted your article:
"But in America they are miserable merchants of unwanted ideas; their wares remain unsold."
Dennis v. United States, 341 U.S. 494, 589 (1951) (Douglas, J., dissenting).
"Is religion special?" comes to NPR
My friend and mentor John Witte and I did a bit yesterday, on "Talk of the Nation", about religious exemptions -- their history, rationale(s), importance, and frequency. If you are interested, check it out. If there was a consistent theme in the callers' questions, it was "is religion special?" (Cf., e.g., Micah Schwartzman, "What if religion isn't special?") In response, John and I both suggested that the answer is (still) "yes."
Thursday, February 21, 2013
Holy "Acoustic Separation"!
Sometimes legal doctrines operate to create a gap between the law's ostensible normative messages and its real-life outcomes. This is the argument, as I understand it, made by Meir Dan-Cohen in his 1984 article Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law. Dan-Cohen wrote that some legal doctrines operate to "trans[mit] different normatives messages to officials and to the general public." Millbrook v. United States, a case argued this week at the Supreme Court, illustrates a variant of "acoustic separation" at work. Millbrook highlights continued obstacles to relief for prisoners alleging sexual abuse, even as the DOJ announces a "zero tolerance" policy.
When I guest-ed at prawfs in September, I posted about the Supreme Court's then-recent cert grant in Millbrook. The issue in Millbrook is the scope of the waiver of sovereign immunity in the Federal Tort Claims Act (FTCA) for the intentional torts of federal corrections officers. Or as Kevin Russell explained at scotusblog, the case concerns an "exception to [an] exception." Russell's post is way more lucid than the intricate question in Millbrook deserves. Here's my condensed paraphrase of his great explanation: while the FTCA generally waives immunity for negligent acts but not intentional torts by federal employees, an exception (the "law enforcement proviso") permits suit for certain intentional torts committed by law enforcement officers. The question here is the scope of the law enforcement proviso.
As I explained in my last post, the plaintiff in Millbrook alleges a sexual assault by federal prison guards. The Third Circuit affirmed a grant of summary judgment to the defendants in Millbrook's suit, reasoning that the "law enforcement proviso" applies only when the federal officers are engaged in a search, seizure, or arrest. Millbrook filed a pro se cert petition and the SCOTUS granted cert. At this point, as explained by Russell at scotusblog, the United States ceased defending the Third Circuit's narrow interpretation of the FTCA law enforcement proviso, and the Supreme Court appointed an amicus to defend the Third Circuit's decision and counsel to represent the prisoner.
Argument in Millbrook took place on Tuesday. That was when I was reminded of Dan-Cohen's "acoustic separation," albeit in a different form from what Dan-Cohen described in criminal law doctrine. Recall, as I posted in September, in May 2012, the Department of Justice issued new regulations under the Prison Rape Elimination Act (PREA), binding on the Bureau of Prisons (BOP) and announcing a "zero tolerance" policy regarding custodial sexual abuse. Of course, we do not know whether Millbrook's allegations have any factual basis. And the government's brief said they were rejected as "not substantiat[ed]" by the Office of the Inspector General (OIG). (p. 7) But it seemed notable to me that, so soon after the PREA regs were issued, the Millbrook argument focused not at all on how to create rules that would expose prisoner abuse or make victims whole.
Rather, conversation centered on whether interpreting the FTCA waiver of sovereign immunity to include corrections officers' assaults on prisoners would result in an avalanche of prisoner suits. For example, Justice Kennedy asked, since there are 200,000 federal prisoners, and "there is a lot of shoving" by prison guards, would the government's interpretation "vastly expand the number of cases in which the government is the defendant"? (p. 22)
And here's where I thought things got very "acoustic separation-y": the Solicitor General's office argued that any increase in prisoner suits resulting from a more generous interpretation of the FTCA law enforcement proviso would not really be a very big deal, because the Prison Litigation Reform Act (PLRA) cuts down on prisoner litigation so much anyway. (pp. 22, 55) The Millbrook argument left me wondering whether, in Dan-Cohen's terms, there may be a "selective transmission" of different normative messages regarding the meaning of "zero tolerance."
Things got weirder still when I looked back at Dan-Cohen's 1984 article while writing this post. In describing the defenses of duress and necessity as a form of "acoustic separation" (known to judges but not to members of the public and so not undercutting the normative message of the criminal law), he wrote that the prison escape cases presented a "low degree of acoustic separation." Courts restricted the use of these defenses in prison escape cases. Dan-Cohen explained this was because of the possibility of high numbers of attempted escapes based on "threats of homosexual rape," and because "the relevant constituency--that of prison inmates--is highly attuned to legal prounouncements affecting it."
We shall soon learn the "legal pronouncements" in Millbrook, but we can only wonder how they will be received by all relevant actors.
Federalism Battles in the War on Drugs: Cruel and Unusual Punishment
Given the advent of state legalization of marijuana for medicinal – and now in two States, recreational – purposes, the federalism battles in the war on drugs can be expected to grow in intensity. In President Obama’s first term, the U.S. Attorneys in California took an aggressive stance on medical marijuana facilities, threatening their owners and, in some cases, even the landlords that rented them space, with criminal prosecution under federal law. Now some of those chickens have come home to roost. Last month, California medical marijuana dispensary operator Aaron Sandusky received ten years in federal prison.
Let that sink in for a moment: a decade in prison for conduct that is perfectly legal under state law.
Cases like Sandusky’s form part of the reason I have called for a more robust reading of the Eighth Amendment as it applies in federal cases. That last sentence, a stickler might note, is redundant: the Eighth Amendment applies only in federal cases. But we have gotten so used to speaking of the Eighth-Amendment-as-incorporated-by-the-Fourteenth as simply “the Eighth Amendment” that I feel the caveat is necessary. Indeed, that is part of the problem I have identified. The “Eighth Amendment” standard the Supreme Court has developed in non-capital cases stems entirely from state cases: Rummel v. Estelle, Hutto v. Davis, Solem v. Helm, Harmelin v. Michigan, Ewing v. California, and Lockyer v. Andrade. That is to say, they are Fourteenth Amendment cases and not, strictly speaking, Eighth Amendment cases (and I think that, as attorneys, we should always be “strictly speaking”). That standard is extraordinarily deferential to legislative decisions. In effect, if the legislature could reasonably think that the carceral sentence in question served one of the goals of punishment – deterrence, incapacitation, rehabilitation, or retribution – the punishment meets constitutional requirements. But that standard is so deferential to legislative judgments in large part because it comes from cases involving state legislative judgments. There is a heavy dose of federalism in the cases listed above.
Such deference is misplaced when it comes to the judgment of Congress, for it was precisely the judgment of Congress – not the executive or judicial branch – that the Cruel and Unusual Punishments Clause was meant to check. We know this because, for one thing, the Eighth Amendment (like most of the Bill of Rights) was originally going to be placed within the text of Article I before Congress decided to list the amendments out as addenda to the Constitution. For another, the few statements made during the ratification period about the need for a clause banning cruel and unusual punishments were aimed at the danger of Congress creating such punishments. I do not pretend to know precisely what the framers and ratifiers of the Eighth Amendment thought “cruel and unusual punishments” were. But I do think they would be stunned to find out that, in essence, Congress can punish in any way that it wants.
Once we determine that the Cruel and Unusual Punishments Clause was originally understood as containing some requirement of proportionality, and the overwhelming evidence is that it does (I will explain in a later post why the Scalia-Thomas view to the contrary is erroneous), the difficult task is determining the benchmark: to what do federally imposed punishments have to be proportionate? For me, especially given the states’-rights orientation of the Anti-Federalists, who demanded the addition of the Bill of Rights, the best answer is the punishment meted out by the States. That may mean that federal punishments for an offense cannot exceed: how the States generally punish for that offense; or the harshest punishment meted out by any State for that offense; or how that offense is punished by the State in which the crime occurred. I prefer the last option for reasons explained in my work – it is probably most in line with what the Anti-Federalists were thinking. It is also easily administrable, at least compared to the first option.
Mr. Sandusky’s case represents an extreme example, where his actions do not even constitute an offense under state law. But his case also fits within what I think the Anti-Federalists were most afraid of. One wishes we could just ask George Mason or Patrick Henry: does your Cruel and Unusual Punishments Clause forbid Congress from punishing someone who committed an act that the State could have criminalized but chose not to? I think I know what they would say.
"People should get off their butts" to register and vote
Senator Rand Paul just finished a visit to the UK College of Law, which was sponsored by the Federalist Society. I was on the panel to ask questions. In response to my question about how we can fix our election system, after he first said that the story about the 102-year-old woman who waited 6 hours in line to vote was fanciful because anyone would have let her cut the line, part of his response was the following gem:
"It should require some effort to register and vote. People should get off their butts."
Standing Humor(H/T: One of my 1L Civ Pro Students)
The Rational Basis Mini-War of OT 1980
Rational basis review often seems to be a stepchild of equal protection scholarship, except when scholars perceive that the court in the given case is really not doing rational basis review at all. (The standard examples of such covert heightened review are City of Cleburne v. Cleburne Living Center and Romer v. Evans.) This decision to largely ignore rationality review is unfortunate. The requirement that government act only in pursuit of a legitimate, public-regarding purpose, and that it be reasonable when it does so, is one of the foundational rules of the Fourteenth Amendment.
Of course, aggressive judicial policing of that requirement triggers allegations of judicial legislating, Lochnerizing, and other epithets. And it's standard learning that, as a historical matter, judicial withdrawal from the practice of second-guessing garden-variety social and economic regulation has included a refusal to engage in serious rationality review -- at least when that review is not a cover for heightened scrutiny, as is often suspected of Cleburne and Romer.
But there's more that can be said, and should be said. Justice Stevens had some creative thoughts about rational basis review, as I discuss in this paper from a couple of years ago. But other justices did, too. Most notably, Justice Brennan and Justice Rehnquist engaged in fascinating little mini-war over the correct approach to rational basis review, and the components of such review, in the OT 1980 term. In December 1980, in Railroad Retirement Bd v. Fritz, the two justices squared off over Justice Brennan's famous description of Justice Rehnquist's extremely deferential style of rationality review as "tautological." The latter's oh-snap conclusion to his footnote engaging Justice Brennan's approach -- "The comments in the dissenting [Brennan] opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion." -- is by itself worth inclusion in a casebook as an exemplar of, to pardon the pun, non-rational argumentation. Still, Justice Rehnquist had a point: Justice Brennan's argument for testing legislation against the legislature's actual purpose created difficult practical and conceptual problems, convincing even an otherwise-sympathetic Justice Stevens to conclude that Brennan's approach was not workable.
The war continued on two fronts that term. In Schweiker v. Wilson, decided in March of 1981, it was Justice Powell's turn to take up the mantle of ratcheting rationality review up a notch. Joined by Justice Brennan, Justice Marshall (who had joined Brennan's Fritz dissent) and the previously-sympathetic Justice Stevens, he essentially agreed with Brennan's argument for heightened fit review when the legislature's goal is not apparent from the legislative history. A few weeks later Justice Brennan himself renewed a version of the fight, in the dormant commerce context. In an opinion concurring in the decision to strike down the Iowa law in Kassel v. Consolidated Freightways, he argued that the law should be evaluated based on the legislature's stated purpose, rather than the purpose furthered by the state's lawyers in litigation defending the law. Again Justice Marshall came with him, but this time he had no other allies. Justice Rehnquist, dissenting, renewed his Fritz attack on this sort of more intrusive review. Again using colorful language, and citing their battle a few months before in Fritz, he wrote that Brennan's argument "calls to mind what was said of the Roman Legions: that they may have lost battles, but they never lost a war, since they never let a war end until they had won it."
But Rehnquist's analogy to the never-say-quit Roman legions seems to have been inapt. The mini-war over rational basis review appears (at least at first glance) to have ended with the OT 1980 term. As discussed in the paper I referenced earlier, Justice Stevens went on to think creatively about garden-variety rational basis review. And remants of the debate resurfaced in cases like Nordlinger v. Hahn. But I'm not sure Justice Brennan ever re-engaged. If my initial impression is correct, this war was intense, and implicated some pretty fundamental issues in American constitutionalism, but burned itself out quickly. Like I said, it has the makings of a fascinating little story.
Wednesday, February 20, 2013
An Angsting Thread About Angsting Threads
OK, now that I've submitted my brilliant article to several law reviews (editors: it's called "The Right to Vote Under State Constitutions"--you can't miss it. It's the one screaming "publish me" from the first page to the last), it's time to start the real fun: angsting over whether the journals who have rejected others but have not yet rejected me are just about to hit "send" on their acceptance email to me.
But this, predictably, has led to more angst: how often should I check the angsting thread? When I receive information from a journal, do I share it anonymously, post it under my real name, or withhold it altogether? Why are commenters so evasive about their offers, and have I divulged too much?
And these questions present even more angsting opportunities. Should I look at the law school hiring angsting thread, just in case someone mistakenly posts some law review info on that forum? Now I'm angsting about whether I was too early in my submission, or too late, and whether I should pose that question on the thread. Hold on -- I need to go check my spam folder in case that sought-after offer is sitting there. . . .
Oh look -- while writing this post three more people have contributed their angst about journals who have sent out rejects. But I haven't received a rejection from those journals. So I'm still in the running, right? There sure are a lot of people named "anon" out there.
Anyways, all of this angsting about my law review submission, and how I should use the angsting thread, has made me anxious. Luckily, because I'm guest blogging this month I have this forum to angst publicly. But many of you may not. So feel free to use the comments section of this post to angst about the angsting threads.
Oh, and law review editors? It's called "The Right to Vote Under State Constitutions," and it's brilliant. Trust me. And don't worry, I'll respond as soon as you send me that offer. That is, unless I'm too busy angsting.
Disagreement, contempt, and the "merriment of heaven"
Prof. Robert Miller (Iowa) has a nice post up at First Things, called "Thanatopsis for Ronald Dworkin." The last few paragraphs really stood out for me. After noting his frequent and deep disgreements with Prof. Dworkin, Miller writes:
Especially with people whom we do not know personally, it is easy to pass from thinking that a person holds bad ideas to thinking that the person who holds such ideas is a bad person—to move from disagreeing with a person to contemning him. This is a moral lapse, of course, because we should love everyone and contemn no one, even people who really are bad, but it is a mistake in another way as well, for it usually involves us in a simple factual error.
In my experience (and as a religious and political conservative in academia, I have a lot of experience of this kind), when we get to know the people with whom we disagree deeply, it usually turns out that they are very good people—people who love their spouses and children, who work hard at their jobs, who have overcome serious hardships and obstacles in life, who are kind to strangers, who are truly upstanding and morally admirable people. Rather than despising them, we end up liking and admiring them.
With people we never meet, however, we do not have this opportunity to see more of them than their ideas. Seeing just the ideas and thinking these are wrong, we too often dismiss the person with the ideas, and people we dismiss we easily come to hate. Reflect for a moment on your feelings for your least favorite politician currently in office. Allowing ourselves to have such feelings, however, reduces us as human beings because the final end of human nature requires that we will the good of all human beings, and it also has deleterious consequences, for it erodes social capital. It makes it harder for us to trust those with whom we disagree, to discuss matters reasonably with them, and to find common ground where such ground can be found in order to work together despite persisting disagreements. . . .
I never met Ronald Dworkin, which is too bad for me, because I am sure I would have enjoyed questioning him about his ideas and perhaps being questioned by him in turn. This, however, is but a minor misfortune. I still hope to meet him in the merriment of heaven.
The Rehnquist Conversion
Thinking about the Court's cert. grant yesterday in McCutcheon (the campaign contribution case) reminded me of a question I've wondered about for a while, but have never researched: Chief Justice Rehnquist's conversion to a view of the First Amendment hostile to campaign finance regulation.
It's easy, with the line-up ever since at least McConnell v. FEC (the 2003 case upholding most of McCain-Feingold), to see campaign finance issues as an issue that cuts precisely along the Court's liberal-conservative faultline. But it wasn't always that way. On the liberal/moderate side, Justice White was always sympathetic to regulation, Justice Marshall became more sympathetic, while Justice Brennan tried to split the baby, most notably in FEC v. Massachusetts Citizens for Life but also more fundamentally in Buckley v. Valeo (if the speculation is correct that Justice Brennan wrote the key parts of the campaign finance part of that per curiam opinion). On the other side of the ledger, Justice Scalia was never sympathetic to such regulation, while -- to the point of this post -- then-Justice Rehnquist appeared to have no problem with most of that regulation. He dissented in First National Bank of Boston v. Bellotti, the 1978 case that in the modern era established at least the abstract proposition that corporate political speech was protected. He wrote the majority opinion in FEC v. National Right to Work Committee, the 1982 case that endorsed congressional concern with corporations using "war chests" to influence the political process, and deferring to congressional judgments about the best way to regulate them. He wrote the dissent in the aforementioned Mass. Citizens for Life, arguing -- contra Brennan -- that even a pure advocacy corporation could be subject to limits on its political spending. And he joined Justice Marshall's 1990 opinion in Austin v. Michigan Chamber of Commerce, the case that became the whipping boy for First Amendment-based attacks on campaign finance regulation until it was largely overruled in Citizens United. But by McConnell Chief Justice Rehnquist had changed, firmly joining the anti-regulation bloc.
So what happened? Was his shift just an artifact of the jurisprudential politicization of this issue after Austin? Did he ever explain it? Maybe this question has been asked and answered -- I have not done any research. But it's surely one of the more fundamental issue shifts a justice has performed in the modern era. And, given the 5-4 nature of the campaign finance issue since McConnell, it's also one of the most consequential.
More on defining sportThe surprising and controversial announcement that wrestling is being dropped from the core Olympic programme effective with the 2020 Summer Games made me think that we may have found a reason why it matters whether something is a sport or not: Whether something is a sport (as opposed to a game or a competition) should be a tiebreaking factor when choosing between two events. In other words, when the IOC is deciding between wrestling and, say, synchronized ballroom dancing for a spot in the Games, the former wins out because it is a sport and the other is not.
Tuesday, February 19, 2013
Dorf on cameras in the courtroom
Mike Dorf offers some thoughts on cameras in the courtroom (particularly SCOTUS and appellate courts), in light of Justice Sotomayor's recent announcement that she would not support allowing cameras into oral argument (a switch from the position she took during her confirmation hearing). He does a good job rejecting the arguments that people will not understand what is going on and that the justices and/or attorneys will grandstand for the cameras. He also adds a nice First Amendment twist--at the very least, the burden of persuasion that these harms may occur rests with the opponents of cameras (the "censors") rather with than the proponents of cameras. I had not thought of that in my prior comments, but it is a great point.
Best Trilogy Since Star Wars
Okay, that might be over-selling it just a bit. But David Ball of Santa Clara recently has posted to SSRN the third in his trilogy of articles inspired by the California prison "realignment." Since the Supreme Court's 2011 decision in Brown v. Plata affirmed an order directing the California Department of Corrections to reduce its prison population to within 137.5% of design capacity, California has passed legislation to move people sentenced for certain offenses from state prisons to county facilities, and commentators have debated the effects of this "realignment." In his three articles, David demonstrates that counties rely on state corrections facilities (and funding) to varying degrees, and makes proposals that he hopes could require counties to internalize the costs of their reliance on incarceration. In Tough on Crime (On the State's Dime), David demonstrates through dogged empirical analysis that counties with similar crime rates can have very different "prison usage" rates. For example, David shows that, although San Bernadino County and Alameda County are about the same size and have roughly similar crime rates, San Bernadino has twice the new felon admissions of Alameda County. In Why Should States Pay for Prisons, When Local Officials Decide Who Goes There?, he makes the normative argument that states should not subsidize prisons when who goes there is controlled by the decisions of local prosecutors. And, finally, in Defunding State Prisons. David argues that states should receive "violent crime block grants" based on their violent crime rates that they could spend as they think best--on prison beds, police on the streets, or drug programs. When David presented Defunding State Prisons at the prison scholarship roundtable at the University of Michigan a few weeks ago, a few readers were skeptical that poor counties could address the fundamental problems underlying their violent crime rates with just the resources "recaptured" from a decision to purchase fewer state prison beds. Others posited that David's proposal would in effect "crash" county systems that refused to confront their unsustainable levels of incarceration. Whatever your ultimate assessment of David's proposals, this is one trilogy definitely worth checking out. (I will spare you further Star Wars references).
Holistic Practice and Legal Discretion
Two features of problem-solving courts are at the cutting edge of both legal practice and legal theory. One is their emphasis on holistic legal practice. I’ve argued in a recent post that holism is the central feature of low-level legal practice—and it’s certainly something that can set our students apart from writ-writers, online forms, and all the other pressures from the bottom that are squeezing a practice of law that consists solely in drafting skills. I’ll not belabor that point here. But holism also features in the nature of judicial discretion and problem-solving courts address holism in a particularly intriguing way: by setting up a treatment team to advise the judge, and potentially—and I will argue, ideally—to constrain her discretion.
The idea that the judge would defer to the other members of the treatment team—those with more expertise of the social welfare or medical aspects of the offenders case—is both obvious and controversial. It may even be deeply worrying. It’s obvious because the judge, to the extent she lacks relevant expertise, should rely on the experts. It’s controversial because the judge is the authority in the courtroom, and the offenders interests are usually represented through counsel rather than through social workers or health officials. And it’s potentially worrying if judicial authority ranks lower than “treatment authority” in ex-parte meetings in which defense counsel sometimes does not appear.
Problem-solving courts are at pains to allay the controversies and worries by asserting the primacy of the judge at the head of the treatment team. She is the decision-maker, with ultimate authority, and exercises her decision-making authority independently of the team members: there is, in problem-solving court doctrine and ethics, no participatory adjudicator. (Thanks to Caroline Cooper at American for clarifying these points in an email).
But my question is: shouldn’t this holistic treatment team constrain judicial discretion? Isn’t the alternative judicial domination of the process, with the risk that the judges colonize social work and health care discretion. And this presents a problem for holistic practice in the criminal law more generally: what ought to be the professional posture between lawyer and other professionals (social worker, psychiatric expert, and so on). These issues arise in other areas of legal practice as well, with different experts and different relations. Negotiating our way through these thorny ethical and doctrinal issues is a central part of modern (and perhaps especially low-level) legal practice. Problem-solving courts are at the cutting edge of resolving and responding to these issues.Problem-solving courts represent in miniature a problem that confronts legal professionals on a regular basis. As Greg Berman, director of the Center for Court Innovation has argued. problem-solving courts deal with a plurality of justice issues, and must balance their therapeutic orientation towards the offender with the interests of the community and the victim, as well as professional standards and norms of members of the treatment team.
At their best, problem-solving courts, understood as promoting the well-being of both the offender and the community, operate through an holistic “model of representation [that] is client-focused, interdisciplinary, and community-based.” Since the holistic model locates itself “as part of the larger community,” rather than as simply the zealous advocate for the client (whom Robin Steinberg and David Feige of the Bronx Defenders disparage as “the canny trial attorney”), the model is not merely interdisciplinary in the sense of being well-informed about other relevant practice-areas: it is directed towards partnerships among professionals, clients, and communities.
four … relationships …: 1) the relationships among professionals, 2) the relationships between clients and lawyers, 3) the relationships between clients and the other professionals, and 4) the professional teams relationship with broader communities. The most important of these are the relationships among all the legal and nonlegal professionals.”
Problem-solving courts bring these relationships under the ultimate authority of the judge, in a criminal court. Here, holism presents a novel form of the traditional net-widening worry, one that occurs on the institutional level. That worry is that the court’s power overflows its traditional focus on the trial and colonizes areas those areas—social services, health care—that traditionally compete with the law as sites for intervening with offenders. One way of expressing the colonizing effect of institutional net-widening is that, rather than internalizing the values of other therapeutic agents in the courtroom, what judges export what they do elsewhere in the courthouse into the “therapeutic” sphere. And that is perhaps particularly a concern to the extent that the court employs a style and measure of treatment that emphasizes risk management and disciplining offenders through stringent forms of behavior modification.
In prior posts, drawing on the work of McNeill and Tata, I’ve identified some aspects of the interaction between social workers and judges that—at least in the Scottish context—ought to give us some cause for concern. Their work suggested that, unbeknownst to the judge, the social worker or treatment professional advocates for their professional self-image or for their client in ways that attempt to “speak the language of the judge” and shape the judge’s decision. And the judge may use the individualizing aspects of the social workers report for their own, law-related purposes. This is the middle ground of understanding and misunderstanding that McNeill and Tata identified under the rubric of risk and responsibilization, but might as well apply to treatment too.
Here, the holistic institutional net-widening worry is that, in speaking the language the judge wants to hear, a poorly structured holistic practice serves not to limit, but to increase the reach of the criminal justice system. In that case, while we might worry about the penological consequences of such an arrangement, there is no additional worry about misapprehending the purposes of that arrangement.
As the Norwood and Paterson comment makes clear, however, what matters is how these relationships are structured. Properly structured, the judge’s discretion could, and perhaps ought to be, limited by the professional expertise of other treatment providers. That is, if one worry about problem-solving courts pressed by critics is that judges have too much discretion, and risk engaging in arbitrary decision-making, one way to push back is to argue that their discretion is limited by the input of the other professionals. The fine line is that these professionals, while serving to counsel the judge, cannot participate in some collaborative decision-making process: the ultimate authority is the judge’s alone.
Things sometime appear—to outsiders at least—as if the judge’s authority is divided. But what is a tricky matter of self-discipline, courtroom management, professional ethics and constitutional doctrine for the judge may be a come out differently for the attorney. Perhaps, as part of an holistic practice, attorney legal competence and discretion ought to be limited by, and deferential to, that of experts. Perhaps sometimes a lawyer ought to give up their authority as a legal expert, and engage other professionals’ expertise in serving the needs of the client. Of course, that requires lawyers who are not only expert in the law, but also sophisticated interdisciplinary actors, able to recognize professional boundaries and solicit expert advice. But, at least for certain attorneys at some locations of the legal system, this is not the wave of the future, but the wave of the now.
[I know there is a massive literature on holistic practice out there, including the ethics of judging in problem-solving court. I realize I have not fully engaged with it in this post, but I hope to continue do so in a future post. But if folks want to get started on discussing that literature in the comments section, I encourage you to do so.]
Monday, February 18, 2013
CFP for the Green Bag’s second micro-symposium
With our first micro-symposium available online and either in print (in the Journal of Law) or on press (in the Green Bag), now seems like a good time to invite submissions for our next one. And so . . .
The Green Bag invites submissions for its second micro-symposium, to be published in 2013 in the Green Bag and the Journal of Law.
Theme: Professor Suzanna Sherry’s Why We Need More Judicial Activism, which is available now on SSRN and sometime soon in a festschrift for Professor Murray Dry of Middlebury College. Sherry’s article offers a compact yet wide-ranging combination of the theoretical, the empirical, and the practical to support her argument, which concludes,
“In evaluating the appropriate role of the judiciary in a democracy, theory can take us only so far. No theory can draw the line between too many and too few judicial invalidations, nor specify parameters or constraints that produce a perfect balance. We are left with the pragmatic task of making the best trade-off between false negatives and false positives, and only an examination of the actual consequences of judicial activism or restraint can inform that decision. What such an examination teaches us is that too little judicial activism is worse than too much. We most regret the cases in which the Supreme Court failed to prevent popular majorities from making serious constitutional mistakes. If we wish to avoid such regrets in the future, we should encourage more judicial activism, not less.”
Invited topics: Any theoretical, empirical, or practical commentary that will help our readers better understand Sherry’s argument – its correctness or incorrectness, the good or bad uses to which it might be put, the consequences if her views were to prevail or not, or anything else of the sort. Sherry will, of course, have the last word, if she wants it. Some micro-symposium topics may lend themselves readily to humorous submissions. We suspect this one does not.
Length limit: No longer than 500 words, including title, text, footnotes, and everything else.
Deadline: Finished works must be received at firstname.lastname@example.org by June 1, 2013. No extensions will be granted and no post-deadline tinkering will be permitted.
Selection criteria: Works will be selected for publication by the Green Bag and Professor Sherry based on how novel, interesting, well-written, good-spirited, and potentially useful they are.
Inquiries: Please write to us at email@example.com.
Judicial Neutralities and Judicial Self-Images In Lower-Level Courts
I’ve been pushing the idea, over the past fortnight or so, that problem-solving courts provide an important insight into the workings of state trial courts and especially criminal trial courts. My hypothesis is that there is much profit from regarding “specialized” courts as retaining some of the features of “mainstream” courts. Rather than regarding specialized or problem-solving courts as some sort of niche feature of the legal system—as a small stream of courts or dockets separate from traditional courts—we should consider that they are part of the river of traditional case processing, albeit with some unique—perhaps “revolutionary”—twists. Put differently, what happens if the “marginal” is “mainstream?”
One aspect of problem-solving courts that appears particularly resistant to this line of thought is the way in which judges interrelate with offenders. The idea is that the court is less (though by no means un-) concerned with formalized criminal due process, and focuses more on rehabilitating offenders through a non-adversarial, “treatment team” model which requires the judge to interact directly and interpersonally with the offender in order to encourage her through the rehabilitation process. For both those who celebrate and criticize the problem-solving court, this aspect of the court’s proceedings is often the major battleground. Celebrators point out that this sort of interaction is individualizing, even egalitarian, and restores a sense of humanity and legitimacy to the criminal justice process. Critics argue that this sort of interaction affords too much discretion to the judge, and transforms the judge from operating as a neutral official calling balls and strikes to actively engaging as a partisan in the rehabilitation process.
I think there is merit on both sides. What I want to highlight, however, is whether this model of interaction is transferable, and what might be the costs of engaging in the “mainstreaming” process. It’s an issue with not only national, but international ramifications, as—highlighting Jane Donoghue’s work on the English Magistrates courts—I’ll hope to demonstrate.Is judicial engagement transferable out of specialized courts and into the courtroom more generally? Internationally, my sense is that it is generally, assumed that American judges, being more experimental and informal, are more receptive to the interpersonal and rehabilitative aspects of problem-solving judicial engagement than foreign judges, and especially those in the more “stuffy” courts of England and Wales (one jurisdiction) and Scotland (a separate jurisdiction).
I tend to think that this picture is overly simplistic: anecdotally, many American judges currently working in problem-solving courts tell a conversion narrative of being initially unreceptive to the idea of problem-solving, but once assigned to problem-solving courts, many find that their opinion is transformed. These judges apparently initially share the critics’ “due process” worries about judicial neutrality; some may be dubious about the “therapeutic” or “social work” aspects of project. Some are converted, some may not be; and among those who are not converted may be those who just don’t believe in the rehabilitation ethic of the court (people who believe in incapacitation or deterrence, rather than rehabilitation).
Having spoken to some of the judges in problem-solving court, both in the US and abroad, as well as some really compelling conversations with Greg Berman and Aubrey Fox at the Center for Court Innovation, my sense is that the educational aspect of acting as a problem-solving is deeply powerful. These courts educate, not only the lawyers and the community impacted by the court, but at the very least a generation (perhaps the second generation) of judges converted by the court to recognizing the problems of drug addiction and the difficulty of managing offenders struggling with addiction (Judge Peggy Hora also has some interesting data on this). In addition, Berman points out, drug courts (and the other problem-solving courts) may have helped educate the wider public and politicians to the nature of drug abuse, and have made a pivotal contribution to changing drug laws in New York and elsewhere.
One aspect of the attempt to mainstream, not only the rehabilitationist approach to drug crimes, but also the style of court process, is a transformation in nature of authority wielded by judge. The judge moves from having “detached authority” over others (as an umpire in adversarial contest) to a model of “engaged authority” with others (as a collaborator in team process). Furthermore, this change in the nature of authority is accompanied by a move from procedural justice to consequential justice; that is, from ensuring optimal procedures to producing optimal outcomes. The traditional judge is measured by success in administering fair process; the problem-solving judge is measured by success in producing optimal results. Finally, I’d suggest, the court moves from a notion of “disinterested neutrality” (again, the umpire metaphor) to “scientific neutrality,” where what ensures that the judge’s interventions are appropriate is the wealth of social scientific data, including self-studies of the court’s process as part of a measure of effective results, that justifies interventions.
It’s at this point that the critique of scientific neutrality often enters the picture. Drawing on the work of David Garland or Malcolm Feeley and Jonathan Simon, critics provide a “governmentality” analysis of problem-solving courts. I think Bernard Harcourt’s work on prediction is particularly apposite here, but I’m not going to pursue this line of thought in today’s post.
Instead, I want to introduce the work of Jane Donoghue on English Magistrate courts, which I think deserves some mileage on this side of the pond. Her article, Anti-Social Behaviour, Community Engagement and the Judicial Role in England and Wales, provides a fascinating account of the operation of the English and Welsh magistracy in running what, over here, would be called “community court.”
Donoghue engaged in a detailed empirical study that is unique in accessing and recording the operation of the Magistrate court (which, like some US courts, is run by lay judges, but otherwise much like a low-level criminal court). In England and Wales, the UK government attempted to mainstream problem-solving practices by political directive, from the top down, without any real training. Lacking any specific direction, Donoughue found that magistrates generally resisted the informal aspects of the court—interaction with offenders and with communities to assess the problems presented both individually and locally by antisocial behavior—and the formal aspects of repeat monitoring—the ability of a single magistrate within the court to track repeat offenders through the sentencing process. Instead, the Magistrates reasserted their role of disinterested neutrality and detached authority and characterized the scientific and engaged aspects of the new process as requiring them to act as “social workers” instead of “judges.”
Donoghue’s research reveals that, on the ground, impartiality and authoritarianism may be precisely the parts of the professional role that low-level court officials regard as central to their professional identity. These findings match some studies indicating that problem-solving courts are highly dependent upon the attitudes of individual judges, independent of the structure of the court. I think there may be some structural solutions to the problem of judicial resistance, and I’ll discuss those tomorrow. However, Donoghue’s research is an important contribution to describing the consequences of failing to properly train recalcitrant or ambivalent judges for problem-solving court practice: that they will simply default to a guilt-oriented approach. What that means for individual judges or courts may vary.
I’ll quickly throw out the thought that this response is one mirrored by police reactions to community policing. It’s also mirrored in the Tata and McNeill studies I mentioned in a previous post, that detail the manner in which the Scottish judiciary resist and re-read social work reports when sentencing drug offenders (though that study does not apply to the Glasgow Drugs court). And Gil McIvor’s work on Scottish juvenile courts suggests the dangers when a judge who resists the “social work” aspects of the problem-solving movement engages in “tough love” to set offenders straight.
These are issues that folks in the problem-solving movement have been discussing for quite some time now. But, as I suggested at the beginning of this post and in earlier ones, they are problems that also operate in mainstream courts, outside the trial in the more administrative aspects of case processing. I’d suggest that greater attention to these debates, and the way that judges, lawyers, and policy-makers are wrestling with them at home and abroad, shines an important light not merely on the margins of the criminal justice system, but the mainstream too.
The Important Voting Rights Case this Supreme Court Term
This case has everything to make an election law/federal courts junkie salivate: a clash between the federal government and a state on who has proper authority over election regulation. It is the tale of a law that rhymes (Motor-Voter), a fractured 9th Circuit en banc decision, and a novel question of preemption, all neatly wrapped in a question of how far a state may go to prove a voter's eligibility. It also may have widespread implications on the interaction between the federal government and states in administering elections.
In 1993, Congress passed the National Voter Registration Act, often referred to as the Motor-Voter law. Most people know that this law is why, whenever you obtain your drivers' license, the state official also asks whether you would like to register to vote for both federal and state elections. That part of the law is not at issue here. Another part of the law creates a national registration form for states to use to register voters. The form includes a spot for the state to ask for basic registration-related information. In addition, states may add state-specific voter requirements, such as asking the voter for his or her social security number or drivers' license number. Virtually every state has included state-specific instructions. In fact 17 of the form's 25 pages entail a list of state-specific requirements.
Arizona, no stranger to non-citizens within its borders, asked to include a requirement that a new registrant prove his or her U.S. citizenship by providing documentation. This contrasts with the federal form, which simply asks a voter to attest, under penalty of perjury, that he or she is a U.S. citizen. Simply checking the box is not good enough for Arizona, so it wants to require its registrants to do more. It also said it will refuse new voter registration forms that do not have accompanying documentation regarding U.S. citizenship. The U.S. Election Assistance Commission (EAC), which is the federal agency that administers the form, refused to allow Arizona to add a requirement of proving U.S. citizenship as part of the state-specific instructions.
Here the concept of conflict preemption rears its head: does Arizona's refusal to accept the federal registration form if the voter has not provided proof of U.S. citizenship conflict with the National Voter Registration Act's mandate that states "accept and use" these forms?
The Ninth Circuit, sitting en banc, determined that the test for conflict preemption under the Elections Clause, which allows a state to regulate the "Times, Places, and Manner" of holding Congressional elections which is then subject to Congress's decision to "make or alter" such regulations (Art. I, Section 4), is different from conflict preemption principles under the Supremacy Clause. In essence, the court ruled that "courts deciding issues raised under the Elections Clause need not be concerned with preserving a 'delicate balance' between competing sovereigns" like in the Supremacy Clause context, because the Elections Clause specifically grants Congress the authority to "make or alter" election regulations.
This one is tricky. On the one hand, Arizona is blatently refusing to accept the federal form without the voter providing additional proof of U.S. citizenship, which would seem to go against the federal law's mandate that a state "accept and use" the form. Moreover, the form already asks a registrant to attest to the voter's U.S. citizenship. On the other hand, the federal government was probably incorrect in refusing to allow Arizona to add the requirement of proving citizenship in the state specific instructions. It is not clear why asking for proof of U.S. citizenship would not enable the state official to verify a voter's elibility. But, of course, the practical reality of the law is that many genuine citizens who have not or cannot gather the proper documentation will be denied their right to vote. The Bush DOJ precleared the Arizona law under Section 5 of the Voting Rights Act, but common sense suggests that this law has a disparate impact on certain groups of voters.
I think this case comes down to whether the federal form is considered a "floor" or a "ceiling" to state registration rules. If it is a ceiling, then Arizona cannot ask for additional proof of citizenship. If it is a floor, however, then Arizona can add to what the federal form requires.
Although I think the Arizona law is patently stupid (a technical term) and potentially harmful on voters' rights, it pains me to say that the state seems to have the better of the legal argument. What is most persuasive here, to me, is that the federal form specifically contemplates state-specific instructions, and the Arizona request to ask for proof of U.S. citizenship would be a state-specific instruction that goes to a voter's eligibility. The EAC was therefore likely unjustified in refusing Arizona's request to add this requirement. Moreover, the federal statute explicitly allows a state to ask a registrant for information to demonstrate the registrant's eligibility: A state "may require only such identifying information (including the signature of the applicant) and other information (including data relating to previous registration by the applicant) as is necessary to enable the appropriate State election official to assess the eligibility of the applicant." This suggests that the federal form is a floor, not a ceiling, as the state can ask for additional information about the voter's elibility. And information about a registrant's citizenship is "other information . . . as is necessary to enable the appropriate State election official to assess the elibigity of the applicant." But it's a close case, because the Elections Clause contemplates a specific role for Congress, and Congress acted in promulgating a federal form that already asks about U.S. citizenship, albeit in a less stringent manner than Arizona would like.
What makes this case significant is the implication the Court's analysis could have on all sorts of election regulation. If Arizona wins, then Congress must be much more explicit in any election law it passes. The power of regulating elections would shift even further to the state. If Arizona loses, however, then the Court will be signaling that Congress's role over election administration remains broad, allowing it to dictate how states must run its elections without exceedingly specific language on each aspect of the voting process. We therefore have a clash not only over federalism issues but more broadly over who has the proper authority to regulate our election system. Without being overdramatic, the fate of Congress's practical ability to "make or alter" election regulations depends on how far the Court is willing to see conflict preemption in this setting. If Congress must be extremely detailed and specific in every election law, then states will almost always be able to find a workaround, shifting the balance of power to run elections squarely to the states.
These days it is virtually impossible for Congress to accomplish anything. This is probably even more true in the election setting, when the partisan stakes are so high. A win for Arizona could mean that states will have the authority to impose more and more restrictive voting regulations on its citizens, and Congress is likely unable and unwilling to do anything to stop it in the near future. So although as a doctrinal matter Arizona might have the better argument, I hope my legal analysis is wrong. Otherwise, states will have too much power to override Congressional statutes meant to make voting easier and simpler for all voters.
Why no First Amendment?
So far this term, the Supreme Court has only one First Amendment case on its docket--Agency for International Deveopment v. Alliance for Open Society International, Inc., which considers whether a federal law requiring organizations to explicitly oppose prostitution and sex trafficking as a condition for receiving federal funds to provide HIV and AIDS programs overseas. This contrasts with the previous years of the Roberts Court, which had seen a general uptick in First Amendment cases from the late Rehnquist Court, to the tune of 10-15 cases per year.
Any thoughts, speculation, guesses, or general spitballing as to the drop-off this term? One-year fluke? No cert-worthy cases? Has the current Court reached a general consensus on First Amendment (at least Free Speech Clause) matters for the moment?
I participate in an annual end-of-term panel on the Court's First Amendment cases and the panel organizers last week circulated an email wondering what we should talk about (not sure we can get two hours on whether AIDS prevention programs are government speech for Rust purposes). One possibility is to try to speculate on what exactly is going on this year.
Update: And as if on cue. The case likely will be for next term, however.
Sunday, February 17, 2013
Disconnects in the Law Review "Affirmative Action" Discussion
All the notional ink spilled in the past week on the question of whether law reviews ought to self-consciously select articles with a thumb on the scales of particular identity traits has certainly been interesting. The discussions have been interesting, and so has the amount of energy spent on it. I have little to add on the main subject, largely because I am still undecided about precisely how small the stakes are.
But I would like to make one observation. It seems to me that, in a sense, the arguments in favor of allowing law reviews to engage in this kind of activity actually end up with two very different implications, and not especially welcome ones for those making these arguments. On one reading, those arguments end up suggesting that there are good reasons why public law schools' law reviews cannot legally do so. On another, perhaps more puckish reading, the arguments in favor of "affirmative action" by law reviews amount to arguments against the constitutionality of affirmative action altogether, at least under current doctrine. Of course some generalizations follow. I think they're supportable ones, but they're not meant as definitive, so much as they're meant to make us ask what this smaller debate says about the larger issue.
Several things strike me as common features in contemporary arguments for the constitutionality of race-conscious admissions in the university context. 1) Largely because the Supreme Court requires it, it is routinely argued that such admissions programs involve a careful, holistic, nuanced, all-things-considered consideration that takes full account of the merits of each applicant and takes more than just race into account for diversity purposes. 2) For a variety of reasons, offices of affirmative action, diversity management, etc., both inside and outside of universities, routinely argue that their job is a complex one that requires a good deal of expertise and experience. 3) For both reasons, as well as for reasons relating to academic freedom, defenders of race-conscious university admissions argue that both the need for and the execution of such programs requires expert judgments of the kind that courts are ill-suited to make, and that courts therefore ought to afford universities substantial deference in this area.
Now contrast that with some of the arguments in the past week suggesting that law reviews, presumably including public university law reviews, are entitled to and perhaps ought to engage in article selection in part based on particular identity traits of the authors, including race. The arguments have been interesting and sometimes persuasive. But they still involve a brute bottom-line conclusion: that sorting according to identity trait (including race) can be undertaken by a bunch of 24-year-olds, who have at most a year's experience as journal editors and who, most people seem to agree, are not even qualified to judge the merits, such as they are, of the articles they are reading.
To the extent that it is true that journal editors are young and inexperienced--not to mention busy with a full load of coursework--I find it hard to imagine that anything they do would fall within the kinds of parameters that have led courts to defer to and permit race-conscious actions by other sectors of public universities. (Of course, it may be that the law reviews' actions fall outside the legal scope of any 14th Amendment prohibitions, if only because the law should not concern itself with trifles and law reviews are just that.)
Understandably, I haven't seen any suggestion, from defenders of law review editors engaging in this kind of authorial sorting, that those editors are simply unqualified to engage in what everyone has been calling "affirmative action." They seem to assume they are competent to do so. That leads me to my second, somewhat more provocative question. To the extent that they, or anyone else, think that law review editors are qualified to do so, and draw on broader arguments about race-conscious university admissions in talking about what law reviews might be doing or ought to do, shouldn't that lead us to doubt all the claims concerning complexity, expertise, holistic consideration, and so on that are made on behalf of public universities? Shouldn't it lead us to wonder whether any deference at all is warranted on the part of courts toward those universities? And if universities didn't receive that kind of deference, isn't it much more likely that race-conscious policies by universities would be struck down altogether? In short, if, for God knows what reason, the Supreme Court justices are sitting in Washington, taking a break from working on their opinions in the Fisher case to read the blog arguments in favor of affirmative action in law review article selection, shouldn't they conclude that Grutter v. Bollinger ought to be overruled?
Just a thought.
Friday, February 15, 2013
Down the Runway It Goes
As anyone knows who's written an article or even a long paper, there's a discernible cycle in the author's attitude about his work. You have what you think is a good idea, you write up the basics, you get discouraged, you put it away, you get another idea and come back to it. So it goes, on and on, until you decide it's done and it's good and it's polished and it's ready. I was at that stage last night.
Then I watched Project Runway. It's a great, fun show to watch. One of the most interesting parts is watching the designers as they see their work going down the runway. I'm no fashion critic, but it's usually clear enough when someone has done a really bad job. And what's striking is that, more times than not, the designer is absolutely delighted with his work. His smile just yells out, "it's good and it's polished and it's ready."
So OK, so it's hard to be objective about your own work. But what I'm really curious about is when people know that their work is ready for submission. What are your last steps? Another proofread? Another substantive read to see if you just missed something? Another footnote? Another tweak of the cover letter? I ask this both in terms of what you're insistent on as matter of your personal pride in your work -- what you're willing to have editors see -- as well as instrumentally -- what might make the difference between a good submission result and a bad one. What are the last-minute fixable issues that matter? Any thoughts?
Blocher on "First Amendment Institutions"The New England Law Review has a review of my recent book, First Amendment Institutions (available for Kindle readers! Makes a lovely Purim gift!), written by Duke's Joseph Blocher. Joe has some very generous things to say about the book and, more important, some good tough but sympathetic questions and criticisms concerning the institutional First Amendment project. It's an excellent read.
The Laundry List of Irrelevant Subjects
Yesterday, I rejected the argument that academics are incapable of teaching practically useful subjects. Today, I’ll reject the argument that teaching some laundry list of academic subjects is somehow impractical.
Before getting into the argument, I want to emphasize that my issue is not whether law school education is too expensive: it is. Nor is it to come up with some explanation of how it got to be too expensive. And I fully agree with, for example, Brian Tamanaha’s compelling explanation of the perverse and deeply troubling redistribution of wealth from least able to afford to most able to afford. All I’m interested in here is whether the value of “academic” professors, and in particular, “academic” subjects, has been adequately accounted for in some of the literature.
Here’s how I understand the argument:
(1) The purpose of (particularly non-elite) law schools is to train lawyers in practice-relevant subjects
(2) Academics teach practice-irrelevant subjects.
(3) Practice-irrelevant subjects distract from training practice-ready lawyers;
(4) Therefore: academics distract from the purpose of training practice ready-lawyers
That means that they don’t belong in the law school, but rather with the rest of the academy; they should do their academic stuff on the main campus with the undergraduates, and not at the law school.
Brian Tamanaha is one of the folks who makes this type of argument. In his telling, it has a couple of components. First, he asserts a generalized form of (1), (2), and (3):
“Law students attend law school to learn how to become lawyers. Law professors are academics. The interests of the two main constituents of law schools are at odds owing to this difference in orientation.
Brian Z. Tamanaha, Failing Law Schools (2012).
Tamanaha states this as a fact: the last sentence is either true or false. It’s presented in categorical terms. He bolsters his grand pronouncement by producing quantitative and qualitative data. The loose quantitative proxy for practice irrelevance is the fact that practitioners, including judges, don’t cite most of what academics publish. The dearth of citation is a loose proxy, Tamanaha believes, for lack of influence. The qualitative proxy that bolsters the quantitative data is citations to two judges, Hon. Harry Edwards of the D.C. Circuit and Chief Justice Roberts of the United States Supreme Court, who dismiss most of what is published in law reviews as useless junk. From this, we are supposed to conclude that the profession thinks that what academic professors teach is irrelevant.
There’s a leap here—professors teach what they write about—that is filled by the list of subjects Tamanaha identifies as practice-irrelevant. Here’s his list:
“Theories of constitutional interpretation, normative arguments about what the law should be, legal philosophy, critical race theory, sociological studies of law, legal history, economic analysis of law, quantitative studies of judging—these and other perspectives on and about law are what occupy legal academics. Most of this is not immediately relevant to the daily tasks of judges and lawyers, although it may have direct and indirect benefits for the legal system more generally.” Brian Z. Tamanaha, Failing Law Schools (2012).
Now, there’s a problem here. “Not immediately relevant” does not mean irrelevant, nor does it mean of no interest or of conflicting interest to what students need for practice, nor does it mean unimportant. It may be very (though not immediately) valuable. Furthermore, Tamanaha’s test is so rigorous it seems to screen out skills classes along with the “academic” ones. Some classes concerned with “the skills that will enable students to succeed as lawyers” may be “irrelevant for the daily tasks of judges and lawyers.” That’s because this “daily tasks” stuff depends on the class, the judges and the lawyers. Evidence, trial advocacy, and so on are not immediately relevant for most lawyers, for most lawyers don’t see the inside of a courtroom. Many students take these courses because they are immediately relevant for the bar, though not for practice. Intriguingly, depending upon one’s area of practice, theories of constitutional interpretation may be “immediately relevant.” Just think of the Crawford line of cases in evidence law. And as I’ve argued elsewhere, sociological studies of the law may be essential for lower-court practice.
The reason why sociological and anthropological studies may be vital for the daily tasks is nicely exhibited by two studies of lower-level courts. One I’ve flagged is the study by Fergus MacNeill and Cyrus Tata (among others) that showed that lower level court judges and lawyers read and used pre-sentence reports in ways that promoted quick plea agreements and aggregate sentencing. The study had plenty of useful information to make the daily practice of law by lower-court judge and advocates more fair and more effective (the two are not the same). Most importantly, the study showed that the lawyers, judges, and social workers drafting and using the presentence reports routinely misunderstood each other and perhaps themselves. In this case, asking one or other of the practitioners would have provided a mistaken view of the practice. So good academic stuff can provide good insights into the practice of law. And this stuff is useful in putting into practice the skills of advocacy and client contact required in these setting.
Furthermore, these studies are not likely to be cited even if the judges read them unless the judge actually publishes. Elite judges in federal courts and courts of appeal publish. Many—most—judges (particularly those in lower-level state courts) don’t. And some areas of their practice are less publication friendly than others (pre- and post-trial release and revocation decisions, for example). So Tamanaha adopts an elite standard—the doctrine used in the D.C. Circuit and the Supreme Court—and takes that as a proxy for everyone else.
If he came down to earth, he’d see that a bunch of judges cite and discuss sociological studies and quantitative (and qualitative) studies of judging. For example, New York Chief Judge Judith S. Kaye set up the Center for Court Innovation (CCI) to better equip New York problem-solving courts with data to determine what works to treat offenders in this style of court. One purpose of CCI is to convene colloquia of practitioners, policymakers and academics to examine problem-solving courts so as to educate each other on the operation of the courts, and to improve the services they deliver. CCI, for example, commissioned sociologist Jeffrey Fagan and anthropologist Victoria Malkin to examine the Red Hook Community Justice Center, a flagship problem-solving court in Brooklyn, New York. The results of that study have proved controversial, but influential.
CCI is educating judges around the country, and indeed around the world. They recently made a presentation to the Scottish judiciary, along with some problem-solving judges and a bunch of academics (including Cyrus Tata and myself). Two features of this experience are suggestive: first, why would we suppose that law reviews and so citations to law reviews are the location at which judges and practitioners get their information on the law? The pipeline is more lengthy and mediated than that. So it’s possible to have a direct effect without citation. Second, if we want to know what is important for, e.g., judges in in medium to low-level practice in state courts, why would we consult the higher levels of the federal judiciary?
It turns out that in many courts, including problem-solving courts, the judges just are more interested quantitative studies of judging. As a brief perusal of the National Association of Drug Court Professionals publications page makes clear, problem-solving court judges are obsessed with themselves and their output (dealing with offenders) as part of an experimentalist institution. The same goes for the Missouri State version of the association (these courts are strongly supported by the last two Chief Justices of the Missouri Supreme Court).
Or take Judge Peggy Hora, who, when working in California State Court, adopted therapeutic David Wexler and Bruce Winnick’s work on therapeutic jurisprudence (TJ) into the problem-solving courts, where it is the dominant legal philosophy; (another influential judge is former Judge Jeffrey Tauber). These, and other, judges also draw often and expressly on Wexler and Winnick, and more recently Tom Tyler’s work, as well as a bunch of other “academics.” And they publish as “academics” themselves. They share articles and insights on the TJ listserve, and the NADCP arranges conferences and colloquia that these judges and practitioners attend. The scholarship they consume is varied and eclectic: much is driven by some really excellent and innovative work coming out of legal clinics; but much is driven by the work of psychologists, sociologists, criminologists, social workers, and even legal theorists—all the “law and” stuff that supposedly fails the “daily tasks” criterion. In these courts (and in the evidence-based field of the sentencing more generally) judges want data to evaluate their daily tasks, and theories to help explain and improve them. Opining, in categorical fashion, that these subject areas are not immediately relevant, and implying that they are thereby less valuable, is just a bad ethnography of the academy and these courts.
The problem is that the usual suspects—Harry Edwards and John Roberts—are elite federal judges who do not themselves practice in the sorts of courts that non-elite lawyers are likely to inhabit. Problem-solving court judges, and legislatures considering what to do about prison overcrowding and seeking non-incarcerative, community-based solutions, do engage with this sort of scholarship. Again, however, the elitist standards of academic influence over practical and judicial decision-making overlook low-level courts, where judges do not cite articles in opinions—because they are not writing opinions, and the people writing many of the articles *are the people practicing in the courts*, and are seeking to influence others engaged in similar practice.
As an aside, the articles produced by clinical faculty have opened up both problem-solving courts and holistic practice more generally. Yet this scholarship is presented as a bad thing. Tamanaha dissaprovingly notes that: “Drawn by its gravitation pull, the designated and avowed Hessian trainers on law faculties are themselves morphing into scholars.” Brian Z. Tamanaha, Failing Law Schools (2012). Yet this scholarship is plausibly read and discussed by more judges and practitioners than the high-end and narrowly “doctrinal” stuff pumped out for consumption by discombobulated law clerks looking for some secondary source that can summarize the law so they can sound competent before their federal or appellate judges (or before some white-shoe law firm partner)].
I also find singling out critical-race theory rather troubling, given that the point of the course is often to help marginalized communities make sense of law school and their place in the profession. Much of critical race theory is obsessively practice based: Derrick Bell famously kicked off the discipline by asking: do cause lawyers ignore their clients’ best interests in favor of making an argument? (Note, the argument is that about subject matter, so the fact that Bell was a practitioner-academic is grist to my mill). Much of the current work by, for example, Devon Carbado and Mitu Gulati asks: what are the ways in which law firms engage in discrimination and how can we make it better? These just *are* daily tasks that occupy lawyers. So much—though certainly not all—of CRT passes Tamanaha’s test.
But even if a professor teaches nothing but (supposedly) abstract ideas of subordination: a class that is at its core focused on cultural competence addresses one of the most pressing needs in the curriculum, and especially one that low-end practice requires. Too often, the core classes (and sometimes the skills ones too) dismiss as irrelevant the features of race and gender, or power and subordination, that students raise and that that clients experience. So if we’re going to have students think outside the box to engage with the sorts of clients the traditional law firm overlooks, then how better to train students do so than to identify with those clients.
Here’s a couple of examples, close to home, of how that works. Thomas Harvey, a former student of mine, along with Michael John Voss and John McAnnar created a nonprofit law firm, ArchCity Defenders, to provide holistic legal services to individuals, mostly homeless, facing state prosecution. They were working without local exemplars, in part because state law separates the civil and criminal legal services provided to indigent defendants, and many fall through the cracks. Thomas recently addressed the AALS about what inspired him to set up ArchCity, and pointed directly to his critical race class and the law school’s clinic. Why? Because the combination of reflection and practice enabled him to think about social justice in ways that simply are not available through the traditional course offerings and local externships. In particular, Sue McGraugh at our clinic has been championing interdisciplinary practice for years.
Similarly, two other former students, Nicole Cortes and Jessica Mayo, were in my race relations law class, as well as their immigration law clinic. On graduation, they set up the Migrant and Immigrant Community Action Project (MICA Project): a community organization committed to working with low-income immigrants to overcome barriers to justice. The MICA Project utilizes legal services, organization, advocacy, and education to promote the voice and human dignity of immigrant communities. The combination of clinical and social justice perspectives were, so they tell me, vital in thinking about how to engage with a woefully underserved community in the city of Saint Louis.
What both sets of former students—one group from Saint Louis University, one group from Washington University—have in common is an emphasis on holistic legal practice. Holism is by definition interdisciplinary. It seeks to provide comprehensive legal *and* social services. It is, one judge has suggested, the future of legal practice in the 21st century. Slaps at courses that encourage quantitative, qualitative, and ethical reflection on legal practice as unconcerned with the daily tasks of lawyering and judging just seems a little last-century. Alternatively, it seems to imply a form of legal practice that is unconcerned with the workplace, and obsessed with the sort of product consumed in elite spaces: the D.C federal circuit and the Supreme Court, or other citation locations valued by—ironically enough—academics. This is a unitary model of legal practice that fails to account for the plural nature of the current profession.
There is much about Professor Tamanaha’s book that I admire. I think that is description of the perverse economics of law school is spot on. I agree that law schools are too expensive to adequately serve undervalued communities. The ArchCity Defenders work two jobs: their daily work (solo practice and large law firms) and the huge amount of time they devote to their pro-bono work. I agree wholeheartedly that we should be making it financially possible for many—most—over our students to engage in this sort of work. Let me reiterate: law school is too expensive. And some of the stuff that is taught in law school (as in any department of the university) may not be that good. The question is whether these subjects are necessarily too academic, meaning that they undermine the interests of our students.
Attacking a laundry list of subjects based on little more than one person’s opinion, and certainly without any data—quantitative or qualitative—about what is taught in those classrooms is at best speculative and at worst misrepresents the value of those subjects. It's allied to an argument that fairly straightforwardly implies they hurt the interests of our students. That is a powerful argument, but it’s wrong.
The gift of grift?I am impressed, I think, by the new law review entrepreneurs. Here is my guess as to what is happening. Scholastica and their associates at prestigious Scholastica-only law reviews have identified a herd of academics (law professors) who are desperate for prestige publication and whose acts of desperation are often 100% subsidized by equally status-desperate moneybags (deans) who have been acclimated (by ExpressO) to pay-to-play in the law review submissions game. So long as these desperadoes remain either unaware that they are being scammed or aware that someone else is paying for the scam -- and the operators don't get too greedy -- the money will flow, the operators will split the take, and tuitions will rise ever-so-slightly as cash is moved out of the law schools and into ... the pockets of a few non-law academics (who are cleverer than their marks) and a few fancy law reviews at top-tier law schools. Who knows, maybe this will catch on more broadly and develop into a feature of a new normal in legal academic publishing as it appears to be in other fields, where allegedly predatory publishers and their proxies seem to be dining well. My guess, given the stinginess of law professors when it comes to our own money, is that deans can put a plug in this new budgetary siphon by simply empowering us to pay our own way when it comes to pay-to-play. But I could be wrong.
Thursday, February 14, 2013
Prawfs in Practice
Just when I decide to write a post on whether and to what extent law professors should have practice experience, Eric Miller beats me to the punch. Dagnabit! (Since a commenter on a previous post of mine complained about the potty mouth, I have decided to adopt the persona of a cartoon version of a nineteenth-century prospector). Well, there are some things Eric didn’t cover, so let me give it a go.
First, I disagree with the premise that a significant number of law professors have no practice experience. At the least, no one has shown me data that would suggest as much and my experience has been to the contrary. I'm pretty sure that every single person on my own faculty has spent some time in practice. Virtually everyone I know through AALS has practiced (perhaps everyone; I really don’t feel like taking the time to think of everyone I know through AALS to see if there’s even a single person who has never practiced). Of course, I’m not at an elite law school, and I don’t generally pal around with those who are. But I attended a law school that might reasonably be called elite – why, some say it’s the second best law school in Manhattan! And I can’t recall a single one of my profs who never practiced. Sure, some of them practiced during the New Deal, and that might raise a wholly different issue. But the idea that there are oodles of law professors out there who never practiced is a canard.
Once we expose that straw man, the real issues that are flushed out are what type of practice is ideal for a law professor and for how long. I’d say clerkship experience, followed by two years at a big firm, followed by five years doing criminal appeals. And they must have red hair. But, seriously, it seems that the main point of disagreement is whether the 3-5 years of practice experience most newly-minted law professors have is enough. I’ve heard the argument made, from members of my own faculty on occasion, that 10-15 years of experience practicing is ideal. That is to say, one must have reached “partner level” and practiced at that level for some significant amount of time for one to be the ideal teacher. It seems to me, though, that, while some practice experience generally makes one a better teacher, there is a point of diminishing returns. Even after only five years of doing criminal appeals, I found that work was starting to get somewhat repetitive. Sure, the legal and factual issues were different in each case but the daily minutiae of practice became second-nature. I would imagine the same is true for many fields of practice, even general litigation.
More fundamentally, at least as I understand the argument, it contains an inherent contradiction. The argument that a sustained level of “partner level” practice experience is ideal is premised on the notion that it simply takes that long to accrete the knowledge, skills, and judgment to really say that one has "practiced” law. See, for example, this comment made to a recent post on this blog: “[Y]ou haven't really practiced law until you've had primary responsibility for important client matters. You ran the deal, you took witnesses and made arguments in the big case, you discussed with the client the objectives of the representation and the fees - then you have something to teach about practicing law.” But if it really does take that long for one’s practice experience to kick in and “count” for purposes of being able to train others, how on earth does one convey that training to others over the course of a fourteen-week semester? That is, the argument must be that there is some ineffable quality to practicing at the level of partner that those of us who spent only a few years at a big firm cannot wrap our heads around; but then how can that ineffable quality be transmitted to second- and third-year law students? One cannot, for example, just say to the students: “Here’s how you `discuss with the client the objectives of the representation.’” Being able to do that takes the judgment and the wisdom that come only with practice. Indeed, that’s the point.
Which gets me back to a point I made in a previous post: there are many, many aspects of practice that cannot be conveyed during the course of six fourteen-week semesters. They cannot be conveyed whether one has practiced for three years or thirty. They can be picked up only in practice. After all, maybe that’s why we call it “practice.”
False Binary: Academics Who Have Not Practiced Cannot Teach Lawyers About Law
One thing I learned from my last post on the false dichotomy between practice and academia, and from Michael Mannheimer’s great follow up post and ensuing discussion, is that lots of people see “practice” as a straw man, and that when we start to cash out what practice-readiness really means, it turns out we mean a bunch of different things, depending upon who’s doing the training. So unless “practice-ready” is handled with care, not only is it a straw man, but a Trojan straw man at that: one that likely to capture you unawares.
One version of the claim is that academics who have not practiced are ill-equipped to teach lawyers about law. For example: “It is questionable whether a professor with little or no practice experience is ideally suited to train students for legal practice.” Brian Z. Tamanaha, Failing Law Schools (2012).
I cite Professor Tamanaha merely to provide one, pretty powerful, source for the argument. Because it has a wider public circulation, I’ll consider some permutations that are not attributable to him. Treat them as straw men or not, at your leisure.
Here’s what I take to be the steps of the argument:
(1) Academics have not practiced:
(2) Practice experience is required to train lawyers how to practice;
(3) Therefore academics lack the experience required to train practice-ready lawyers.
Note that this argument goes through even if academics teach practice-relevant subjects.There’s a different argument, one that deals with which subjects are practice relevant and which are not, that I’ll engage with tomorrow. I’m assuming that we’re talking about who is teaching the black-letter law classes, and how they ought to do it. Even if the argument is that we should include small drafting simulations in the course, as some of the comments on Professor Mannheimer’s post suggested, that’s not exactly a radical change, but a minor tinkering with the casebook.
If the argument that is non-practitioners are ill-equipped to teach practice then it’s quite radical. The model of law schools for quite some time now has been to hire people who have not practiced but who have clerked. So it ignores much of the history of the law school. Simply put, if any adequate law school curriculum requires people with lots of practice experience to teach it, then we’ve been failing to teach lawyers for over 100 years. I’m open to that argument, but it seems to me that it’s not the argument being pushed by people who want to get rid of the interdisciplinary stuff or who worry about faculty being distracted by the academic pursuits of writing law review articles.
And if the argument is that, in the past, before the ABA raised the standards, there were more adjuncts who did the sort of modified experiential learning, then the argument becomes: we’ve been failing to teach lawyers the core subjects for over 100 years, and they’ve only learned law in peripheries of the law school. That may be right. But if it is right, then the current change is not down *just* to ABA standards, but to the larger movement of law firms that no longer want to pay huge sums to train lawyers. Practice-ready, on that view, is about shifting the cost of apprenticeship from the firm to the school (which, unless the school gets extra funding or makes cuts, means the student).
More importantly, the argument suggests that players make the best coaches. Perhaps I'm biased because I'm a Bill Bellicheck fan, but Mike Singeltary was great at practice (playing), not so good at teaching. Good coaches make the best coaches, whatever their experience.
If the idea is that academics are not interested in practice, or in teaching practice, I think that's an interesting hypothesis with as yet no empirical support. The argument amounts to: subjectively, it appears to [anti-interdisciplinary person] that interdisciplinary faculty are not interested in discussing how to draft contracts, or complaints, and so on. In my experience, that’s just not true. But experiences differ. It appears to me that legal academics are in the law school rather than some other university department precisely because they are interested in the intersection of (other perspective) and law: how (other perspective) operates in (legal) practice. Without some detailed data, however, there is no way to settle this. I’ll discuss this feature of the “dichotomous interests” claim tomorrow.
There may be another assumption at work here, which is that some folks who teach, and especially those with no firm experience, can’t work out the basic bits of practice that include drafting a complaint and so on, or won’t recognize its significance. But, unless there is some data to support this view, it amounts to no more than a form of cognitive essentialism: people who haven’t practiced can’t get it; it’s a practice thing, you wouldn’t understand. But the relatively minimal amount of pretty basic practice stuff that we can deliver in the classroom doesn’t require a huge amount of practice-oriented sophistication. It’s the sort of thing that, in my firm, we used the practice guide to figure out (how to draft a complaint, motion to dismiss, and so on, which the practice guide had cut-and-paste forms for, and which the law firm often had exemplars for) and then got a yay or nay from the partner. It’s not rocket science, and takes very little legal experience to pick this up.
It seems to me that the challenge to reproduce in the large classroom what goes on in the firm or the courtroom or even the chambers is doomed to failure. We can provide a tiny taste, but not the meal. One of my colleagues, Tom Stewart, who has 23 years of practice experience, organized his class as a small law firm, and taught evidence by dividing the students into small collaborative groups making presentations to the partner. Exciting stuff; innovative teaching; and mimicking practice, and the students loved it. But Tom thought that this style would only work with small groups of no more than 25 or so students. The *real* stuff that mimics practice, whether in the classroom or the clinic, occurs on an (expensive) small scale.
What the best practice-oriented folks bring to the table in the large classroom is a sense of how the law really works on the ground, as applied. In my area of study—problem-solving courts—I’ve been lucky to be exposed to some wonderful ethnographic work that gets you into places that are sometimes not easily accessible *even in practice*. So all that sociological and anthropological, political, historical, and so on, stuff just is really useful to work out the hows and whys and wherefores of practice. Put differently, all the stuff that the great tellers of war stories bring to the table, so do the ethnographers, historians, or anyone concerned to understand the practice, just data rather than anecdotes.
So the idea that “academic” faculty don’t need to *or want to* know the law is rubbish. They do—at least the one's I know. And the idea that they can’t convey a sense of the practice to the students is also rubbish. In fact, what we see is an interpenetration of practice and theory, so that the good practitioners are thinking about new developments in the law, and the good academics are thinking about making connections between the stuff they teach and practice.
For an example of the former, take my colleague Mike Wolff. Mike is a former Chief Judge of the Missouri Supreme Court, and as Chief Judge, he published an article on evidence-based sentencing that argued for risk assessments of the various programs available to offenders, so as to better inform judges as to the relevant options. Here’s someone who meets all the criteria for practice engaging with the academy in a quite detailed and abstract manner. (Full disclosure, he cited one of my articles).
For an example of the latter, my colleague Jeff Redding writes in, among other areas, comparative law. His article on the rule of law in private shariah courts is based on an ethnographic study of one woman’s experience getting a divorce in one of these shariah courts. It’s a view that usefully challenges us to think about the location of the rule of law in specialist courts. It is certainly practice oriented, even if the location of that practice is somewhat unusual. But even in a comparative law class, Jeff’s ethnography provides opportunities to discuss what clients get out of the legal process, how to think about alternative resolutions, how to determine the value of traditional courts from specialized ones: the sorts of things that the war story approach brings, and which is the fodder of the large class discussion about practice-ready lawyering.I’ve been banging on about ethnography: but part of declining to entertain the Trojan Straw Man of practice readiness is recognizing that what counts as a practical orientation in a large lecture is very different from a skills course or a clinic. More experiential learning is appropriate for the clinic and perhaps for small classes. Using practice stuff to help students learn to identify issues, reason well with and from rules and authorities, write well, and so on, is the focus of the large class. The range of experiences we are able to provide students in that setting is likely to be quite basic and readily discovered by those of a mind to do so. If the argument is that more law professors ought to be of a mind to do so, then I’m in full agreement with that.
Curbing Our Enthusiasm: Do We Need Conservative Chaperones at the Progressive Party?
My friend Peter Berkowitz, a scholar at Stanford’s Hoover Institution, has written a self-help book for conservatives. In Constitutional Conservativism, just published by Hoover’s own press, Berkowitz argues that conservatives can regain coherence and relevance as a political force through repositioning themselves as the voice of moderation and restraint in public life. But, rightly, Berkowitz insists that conservatives need first to moderate themselves in order to claim justly that they can counterbalance the supposed excesses of progressivism. Thus, to stake the territory of moderation, conservatives must abandon “the attempt to dismantle or even substantially roll back the welfare and regulatory state” and “refrain from attempting to use the federal government to enforce the traditional understanding of sex, marriage, and family.”
This may seem like just another pitch that the Republican Party ought to recapture the political center. But Berkowitz grounds his argument in a conception of conservativism (and progressivism) that he finds, above all, in Edmund Burke. He may well overestimate the extent to which Burke’s attack on the fanaticism of the French revolutionaries can be applied to American progressives. But in rather anti-Burkean fashion, Berkowitz tells American conservatives that they need to get a theory before they can get moderation, whereas Burke himself tended to identify political theory with political immoderation. Of course, Burke was theorizing in his very attack on theory, and awareness of this paradox permeates the fine, illuminating treatment of Burke’s ideas in Constitutional Conservativism.
According to Berkowitz, the moderation taught by Burke consists in an awareness of the human costs and risks involved in violently breaking with tradition, of seeking perfection rather than reasonable improvement in laws and society, and of being unwilling to tolerate compromise, error and even an element of abuse and injustice in political life. But to be true to his own objection to the universalism of theory (and Berkowitz notes this) Burke has to admit that there are times and places where only sweeping change or radical upheaval can establish or re-establish a healthy polity (“as a last resort”). Is it possible that the New Deal and the Sixties (where the standard conservative narratives most liken American progressives to Burke’s Jacobins) were two such moments of necessary transformative politics? And transformative politics inevitably gives rise to hopes that cannot fully be satisfied, to expectations that will be not met. As Tocqueville observed, “the generation that witnesses the end of a great revolution is always anxious, discontented and sad.” Was the retrenchment represented by Reaganism in the US built so much on a conservative legacy of political moderation as on the exploitation, in various ways, of post-Sixties depression or disappointment? The question is whether and how one distinguishes political moderation from mere disillusionment with political idealism.
Berkowitz, who, cautions against viewing compromise as an end in itself, does not want to dispense with political idealism. He is only against conservative political idealism. While admirable as personal values or social norms, respect for private property, free enterprise, the traditional family, piety etc., are nevertheless not themselves suitable as political ideals. It is just that they are useful if not indispensable for checking or moderating progressive political idealism when it veers too far in the direction of overbearing governmental bureaucracy or secular social engineering. In sum, conservatives are valuable because they know too much of a good thing when they see it. And that means that progressivism is, in fine, a good thing.
But is it correct that we progressives need conservatives as our chaperones? Though reviled by conservatives, were not FDR and more recently Ted Kennedy masters of compromise and coalition-building, knowing when to push forward and when to back off? And what of Bill Clinton? The jury is out but I venture Obama will prove no slouch either as a practitioner of prudent progressivism.
As for theory, there is a strong case that the progressive Montesquieu is a sounder source of political moderation for progressives than any conservative thinker. This suggestion is supported by Berkowitz’s own turn in his argument from Edmund Burke to the framers. Those (according to Berkowitz) consummate practitioners and expounders of political moderation were also, and especially the greatest of them, revolutionaries—establishing, in most un-Burkean fashion, a constitutional order on the rights of man and the abstract principles of self-government.
And they were students of Montesquieu. As noted, Berkowitz has difficulty articulating any independent political ideal or value for which moderation stands-he is constantly presenting it as a negative principle of necessary constraint or limitation on excess. But Montesquieu’s grounding of political moderation in gentleness and unprejudiced understanding does connect moderation to a positive conception of human goodness. I venture that Montesquieu comes closer to the spirit of Berkowitz’s idea (and to Peter as I know him as a person, I might add) than Burke’s idealization of the actual, which, as Leo Strauss very perceptively noted in Natural Right and History, points toward that fateful replacement of G-d by History on which the worst excesses of left and right in the last century were built.
An OK ConferenceI'm off to the Sooner state for this way-better-than-ok election law conference at the University of Oklahoma. It features an all-star cast of my Election Law casebook co-authors Ned Foley and Mike Pitts, as well as the great Nick Stephanopoulos and Charles Stewart. (Quite frankly I'm not sure how I was lumped into this stellar group!) I'll be presenting my new paper, The Right to Vote Under State Constitutions, which I'll be discussing in this space shortly. (Feel free to email me for an advanced copy.) Hope to see any OK readers there!
LaPierre on Mad Max's America
This column by the NRA's Wayne LaPierre is well worth reading, even though it appears in the Daily Caller, for at least two reasons:
1) Proof, just in case it was needed, that the paranoid style is alive and well in American politics, and of the continuing deterioration of rhetoric on the Internet.
2) The total absence of mention of the NRA's post-Newtown proposal that Congress "act immediately, to appropriate whatever is necessary to put armed police officers in every school — and to do it now, to make sure that blanket of safety is in place when our children return to school in January." At the time, LaPierre described that proposal as urgent and necessary. Today, it doesn't even make the list of priorities, the first two of which are litigating and making sure the NRA receives more money. Incidentally, I wrote a while back that "[i]f the organization does not actually make a concerted and resource-heavy effort to see legislation proposed, advocated, and scored, then, at that point, I think it would be more than fair for even his supporters to conclude not only that the whole thing was political theater, but that--for professional purposes!--LaPierre does not really care all that much about the safety, well-being, or death of children."
Wednesday, February 13, 2013
Scholastica’s Diversity Question
Over at Josh Blackman’s blog, he has an interesting discussion of Scholastica’s “diversity question.” Scholastica, for the six of you who do not yet know it, is the new entrant in the field of law review submission management, a direct competitor to Expresso. Apparently, when submitting an article, Scholastica asks for information, on an optional basis, about the author’s gender, race, sexual orientation, and “economic and hardship diversity.” It notes on this page that “[s]ome journals request additional data from authors to aid in their diversity initiatives.” Presumably, this aids some journals in openly taking into account diversity factors in deciding whether to extend an offer of publication. Josh has a nice screen shot so you can see exactly what I am talking about. Dave Hoffman also mentions this over at Concurring Opinions.
I share Josh’s and Dave’s concern over this development but not their surprise. I had always assumed that in our bizarro world of decidedly non-blind law review submissions, some articles editors occasionally took race, gender, and other diversity factors into account. These factors can sometimes be discerned from an author’s CV, which is routinely submitted along with the article. But if not, a photo of the author is usually just a click away. I am not in favor of taking into account any factor unrelated to the quality of an article. However, I don’t find using diversity any more or less offensive than using any other arbitrary factor, such as where the author teaches. Indeed, I would prefer that editors openly admit that they use such considerations rather than trying to keep that fact hidden.