Friday, May 31, 2013
JOTWELL: Campos on Jones on the Council of RevisionThe latest essay on JOTWELL's Courts Law is by Sergio Campos (Miami), reviewing Robert Jones' Lessons from a Lost Constitution (published in the Journal of Law & Politics), which considers the history and normative lessons from James Madison's support for a Council of Revision at the Philadelphia Convention.
The title of the post is a moniker Marc DeGirolami kindly gave some of my recent work on the church autonomy doctrine. While I've previously posted a bit on Prawfs about implied-consent institutionalism (although I didn't have the phrase yet), I couldn't help but mention that those thoughts have just been published in two separate articles: (1) Religion's Footnote Four: Church Autonomy as Arbitration, 97 Minn. L. Rev. 1891 (2013); (2) Litigating Religion, 93 B.U. L. Rev. 493 (2013).
On the plus side, I'm excited to see the articles in print. On the minus side, there's nothing I can do to change them when I inevitably receive some devastating criticism of my theory.
Thanks to the many in the Prawfs community that gave me some really great comments while I was working on these two articles!
Non-State Law Beyond Enforcement II
With grading finally behind me, I wanted to post again about non-state law "beyond enforcement." The question I've been exploring is in what ways do various forms of non-state law (such as international law and religious law) function as law even when these forms of law lack the ability to enforce their legal rules?
In my last post, I mentioned a forthcoming book by Chaim Saiman, which conceptualizes Jewish Law as "studied law" as opposed to enforced law. In making this point, Saiman highlights some Jewish legal doctrines that the Talmud explicitly notes are not meant to be applied in the public square, but simply dissected in the study hall. In this way, Saiman disaggregates the very concept of Jewish law from the enforcement of Jewish law.
Now there is a tendency to think that religious law - as opposed to other forms of non-state law - is particularly susceptible to manifesting law-like characteristics outside the context of enforcement. Religious law, at its core, is intended to connect individuals to something outside of this world and so it is not surprising that certain facets of religious law might be directed not to practical this-world enforcement, but to achieving some other-worldly religious value.
While I think this sentiment is true, over-emphasizing the point would lead us to miss the ways in which other forms of non-state law exhibit law-like features even in the absence of enforcement. At the symposium I ran a few weeks back on "The Rise of Non-State Law," Harlan Cohen (Georgia) presented a great paper titled ""Precedent, Audience and Authority." The paper wrangled with the following question: why is it that, even though international law denies international precedent any doctrinal force, precedent is cited constantly as authority in any number of international law fields?
To answer the question, Cohen emphasizes the way in which law - and in particular international law - is a practice with its own (often unspoken) interpretive rules and norms. On this account, Cohen focuses on how precedent speaks to the members of the international law community - the ways in which using precedent generates legitimacy for international law in the eyes of those within the international law community.
One of the striking features of Cohen's analysis - at least striking to me - is the persistence of precedent in the eyes of consumers of law even absent an actual doctrinal basis. It is almost as if, at least in certain legal communities, that law struggles to separate itself from an interpretive method that discounts precedent. All of this struck me as a bit Dworkinian, capturing another important way in which non-state law can function as law outside the context of enforcement. Put differently, certain legal systems can be identified as being systems of law not simply based upon the extent to which the law is enforced, but based upon certain methods of interpretation endemic to law.
In this way, Cohen's notion of international law as a practice parallels Saiman's formulation of Jewish law as studied law. In both instances, we find important ways in which non-state law functions internally as law based upon the way in which the law is interpreted and analyzed. On this account, non-state law can function as law irrespective of whether it is enforced.
Starting a summer series on the upper-level law school canon and my marijuana seminar
As revealed by this page on The Ohio State University Moritz College of Law website, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this coming Fall semester titled "Marijuana Law, Policy & Reform." As the title of this post reveals, I hope to discuss my ideas and efforts in this arena at great length in this and other on-line spaces in the months ahead.
As I pitched my faculty to approve this new course, I came to realize that I have a focused and strong perspective concerning why I am teaching this seminar, but only a diffuse and weak perspective concerning just how I am teaching this seminar. Thus, I thought it would be a useful summer project to do a lengthy series of posts here (and at my home blog Sentencing Law and Policy) explaining in detail why I am so excited about this new law school course and also revealing just how deeply uncertain I am about what to cover in this new course.
Following this kick-off post, I hope to do at least a few posts each week concerning the specific topic of my in-development marijuana seminar and the broader topic of what upper-level law school classes and seminars should aspire to achieve. I expect that I will do most of my posts in this series here at PrawfsBlawg; these topics are likely to be of greater interest to an audience made up mostly of law professors rather than sentencing practitioners and researchers. But my main goal throughout this series will be to encourage robust commentary and feedback regarding the criminal justice perspectives and teaching plans I hope to be able to set forth throughout this series of posts. Consequently, I will not be surprised if I end up doing a lot of cross-posting both here and at SL&P in this series, especially when I focus on the substance rather than the style of my new class on "Marijuana Law, Policy & Reform."
Speaking of substance, I will conclude first this post seeking input on whether, how and how much time I ought to consider devoting in "Marijuana Law, Policy & Reform" to the legal and social history of alcohol Prohibition. Public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco. I believe there are lots of important legal and social themes from the Prohibition era that merit significant coverage in my new class before we jump into the modern marijuana law and policy; my tentative plan has been to devote two or three weeks at the start of my "Marijuana Law, Policy & Reform" seminar (e.g., about 20% of class time) to coverage of the legal and social history of alcohol Prohibition.
But when I conducted a brown-bag discussion with some members of my faculty this past week, I was intrigued by feedback urging me not to "waste" too much class time on this legal history. A few colleagues reasonably suggested that, because I am not a legal historian, it might be worse if students were taught "poor legal history" rather than no legal history. (My half-joking retort was that if poor legal history is good enough for Justice Scalia, it ought to be good enough for law students.) Others reasonably suggested that students might be put off if my "hot topic" seminar was going to start with weeks of looking back 100 years.
Though I very much welcome feedback on the specific issue of whether, when, and how much class time I should spend discussing Prohibition, I would also love to hear thoughts more broadly about whether, when, and how much law professors who are not legal historians should focus upper-level class time on legal history. In some ways, I think this issue spotlights a core concern in broader debates over what law schools should do now in the classroom: teaching legal history does not readily help today's law students become practice-ready; but I doubt George Santayana is the only one who thinks there can be lots of long-term negative consequences from being ignorant of important historical stories and lesson.
Cross-posted at Sentencing Law and Policy.
Thursday, May 30, 2013
Grant Funding and Buying Out Your Time: Request for Information
In part because my work lies at the intersection of law and medicine, I have been able to participate in some wonderful grant-funded projects. So few of my non-clinical colleagues do grant-funded work, that Harvard has faced a series of interesting and new-ish questions about how to manage my time in relation to these grants. For those who are unfamiliar with "soft money" environments, many of my colleagues at our medical and public health schools, in particular, are "soft money" funded. Essentially this means they are expected to raise much of their salaries through grants, and end up teaching more or making less if they do not reach their goal in grant funding.
The law school environment is quite different, of course. I love teaching and would like to think I add some value to the teaching program there. At the same time, grant-funded work can be a really nice way to influence policy and contribute to solving tangible problems and working with stakeholders I would never encounter writing more theoretical or doctrinal scholarship. For example I am extremely excited that myself and my center at the law school will be working with our medical school, other parts of the university, and the National Football League Players' Association, on a 10-year 100 million dollar Harvard Integrated Program to Protect and Improve the Health of NFLPA Members funded by the players through the association. This is the kind of work I could never do except in the grant-funded milieu and I am also excited to involve our students in this kind of work.
As law school resources become more scarce I think many schools will be thinking more about whether there are grants that their non-clinical faculty could and should pursue. For thos schools that have encountered these situations before, though, I am very curious to learn if there are policies in place regulating non-clinical law faculty and their time in these regards? For example, does your school have a limit as to how much time you can buy out? Should it (my own prior is yes, but I have not deeply thought about it yet). To the extent your school has limits on the amount of "outside activities" such as consulting you can do (we have such limits at Harvard), is grant funded work counted as such? Should it be? In medical and public health schools the ability to get grant funded work is a major component of promotion and tenure decisions. I am also curious whether law schools have considered this in lateral or promotion cases?
- I. Glenn Cohen
Boston LSA info reminders
For those hanging out in Boston for Law and Society, I'll be talking this morning about my work in long progress, Luck or Law: Is Indeterminate Sentencing Constitutional?
Talk will be at 1015 am in Sheraton at the independence east room. Please join! And if you can't make it, then invite me to come talk about this paper to your school this coming year :-)
1) there's a crimprof happy hour on Thursday at 9pm at CityBar,
2) The general Prawfs and friends happy hour will be on Saturday from 9pm at the Sheraton SideBar.
3) And the Crim Prof Shadow conference is detailed here.
Wednesday, May 29, 2013
Bill Henderson Is Burning Through His Reputational Capital
As the person who brought the bimodal salary distribution to the legal masses, Bill Henderson has earned a substantial amount of respect from academics, practicing attorneys, and law students. His early warnings about the dire job market and its effect on law schools, students, and recent alums have proven correct. His academic research on the future of law firms, the plight of junior associates, and the use of LSATs scores has moved the ball forward in these areas and has often challenged the conventional wisdom. Henderson is not afraid of being a prophet, even when the people reject the prophecy.
This year, however, Henderson's tone has begun to change. It started in January, with news of the unprecedented drop in law school applications. In a New York Times article about the drop, Henderson and others reflected on its causes: a poor job market, big jumps in tuition, perhaps even pedagogical failures. At the end of the article, however, came this fairly specific prediction from Henderson: "There are going to be massive layoffs in law schools this fall. We won’t have the bodies we need to meet the payroll.” That line became the takeway message for the ABA Bar Journal and other blogs.
I want to leave to the side -- way to the side -- the normative question of whether law schools should be undergoing massive layoffs. Henderson's was not a normative point -- it was a descriptive one. For someone who made his bones as an empiricist, Henderson's claim seemed to come out of left field. Yes, law school applications were down to historically low levels, and schools were (and still are) offering substantial tuition discounts in order to maintain an incoming class with the right qualifications. But I have not seen anything about massive layoffs, other than the Vermont Law School story that was itself cited in the NYT article. Hastings cut a significant number of staff positions, but that was spring 2012. And yes, there is still plenty of time for Henderson's prediction to come true. But one would have expected that, given that the writing is on the wall this point, some layoffs would have already started, if there were massive ones to come. Professiorial hiring is certainly down significantly, but it is not non-existent. As my own institution has experienced, good folks are still getting lateral offers.
Now it seems that Henderson has taken a "double-down" strategy to his predictions of institutional collapse. In an op-ed published by the National Law Journal, he argues that massive layoffs would not be nearly enough -- instead, schools need to close. Framing his piece as a "letter" to a hypothetical university president, Henderson essentially argues that law schools have two choices: close or adopt a radical new pedagogical agenda. Here he is at length:
In summary, there is significant excess capacity in the legal education system. So the dilemma facing a large proportion of university presidents, such as yourself, is the need to choose one of two difficult paths. You can either tackle head-on the difficult restructuring issues facing your law school, or alternatively you can cut your losses today and close the law school rather than risk another devastating shortfall as your school edges toward open enrollment and disastrous future problems with bar passage.
One key factor to consider is the employment prospects of your current students. Since the American Bar Association began tracking more granular information, we learned that some regional law schools — such as Alabama, Kentucky, West Virginia and Louisiana State — enjoy relatively strong placement records (greater than 80 percent in full-time, long-term jobs that utilize the law degree) that are on par with the national law schools, albeit these legal jobs tend to be in Alabama, Kentucky, West Virginia and Louisiana, and few jobs pay six-figure salaries. In contrast, many law schools are feeding highly saturated regional markets. For example, for law schools located in California, the average rate of bar passage-required employment is 48.9 percent, with several schools below 30 percent. Law schools located in Michigan are in worse shape, placing only 42.3 percent of their graduates in bar passage-required jobs.
Because you are in one of several jurisdictions with [employment] numbers similar to California and Michigan, closure may be the best long-term course for the university. One step short of closure may be rolling the law school into the College of Arts and Sciences under a newly created law department that can service the undergraduate population. Faculty teaching loads and salaries can be rationalized accordingly. This would permit a dramatically pared down J.D. program that could one day be rehabilitated.
The one militating factor is your faculty's willingness to restructure its curriculum and mindset. . . . The first hurdle in restructuring is the faculty itself embracing the need for change. The second hurdle is your own willingness to expand the scope of academic productivity. The most successful law schools in the future will be closely engaged with employers seeking to adapt to a rapidly changing industry. These same schools will also need to effectively collaborate with professionals from other disciplines, including systems engineering, information technology, finance, marketing and project management. Law faculties locked into the traditional positional competition over published legal scholarship are going to be unable to meet these heightened job demands. As the university president, you need to provide the law faculty with the latitude to adapt.
Frankly, saving your law school is going to require courage and leadership. Brace yourself for vilification. Even if you are successful, your efforts and intentions will not be appreciated for years to come. I do not envy your choices. I certainly wish you the best of luck — you will need it.
These recommendations come at the end of Henderson's case that law schools are in really bad shape. He frames his argument using emotional terms -- "brutal facts," tradeoffs that are "extraordinarily difficult and painful," and "million-dollar shortfalls" with "no end in sight." In some respects, Henderson actually understates his case: he focuses only on declining enrollments and does not discuss the need to bring down tuition as well. There are undoubtedly huge changes in applicant pools -- many would call them corrections -- and law schools and universities have to deal with these changes. But why closure?
Henderson's analysis offers strikingly little insight into the actual market structure of law schools and universities. The decision to close should not be based simply on whether one is in Alabama or California. Law schools have far-ranging differences on a variety of axes: employment outcomes, tuition, applications, margin provided to university, fixed costs, marginal costs, endowments, etc. To say that a law school should close because it is in California, Michigan, or a jurisdiction with "similar numbers" is frankly ridiculous.
Looking at Henderson's hypothetical only adds to the confusion. He does not limit the fictional "President Smith" to whom his letter is addressed to any particular type of university. The only specification is that enrollment declined by 15% producing a $1.5 million shortfall. Henderson doesn't explain those numbers, but let's assume that the school dropped about 40 students from a prior enrollment of 270 at a tuition just less than $40,000. Why the drop in enrollment? Is it because the school wants to preserve its incoming qualifications at traditionally strong levels, or because the school accepted 100% of its applicants and could take no more? What is the margin that the law school has previously provided to the university? What is the endowment, for both the law school and the university? Is tuition too high? And that's before considering the variety of cost cutting measures that could be implemented, including the aforementioned massive layoffs. Henderson ignores all of those issues. No, it's simply enough that the school cut 15% of its incoming class and is located in California, Michigan, or similar jurisdiction. Illinois has a tough legal market -- goodbye, Northwestern Law?
Am I saying that law schools don't have to cut costs? No! In fact, back in the fall I wrote a whole series about how law schools could think about cutting costs (here, here, here, here, and here). My point there, as here, is that these issues may be caused by national trends, but the local impacts and school responses are very context dependent. Sure, it may in fact be a good idea for some schools to close, but I'm in no position to judge that. And I think the number is smaller than Henderson seems to imply, because he says (in effect) that at least half the schools should close.
Henderson doesn't seem to be interested in other solutions. He instead is generating an idea--a meme--that the "rational" university response is to shut down law schools. He doesn't discuss the underlying economics -- he's engendering panic. Chaos is key to Henderson's ultimate goal, which is reshaping the pedagogy of legal education. He talks about his proposal here -- it's an interesting one, and it has intuitive as well as empirical support. But it is one model among many. Henderson's problem is that in order for his reform to work, he needs massive buy-in from faculties who would be willing to convert to a new approach. (Part of that buy-in, it should be noted, is throwing scholarship out the window: or, in his words: "Law faculties locked into the traditional positional competition over published legal scholarship are going to be unable to meet these heightened job demands.") Given the difficulty of that task, Henderson is essentially pulling an end-run around faculties to other decison-makers. In his "letter," Henderson appeals to those dismayed university presidents who are facing sharp declines in law school revenue. According to Henderson, these presidents should give law faculties an ultimatum: adopt Bill's new approach or we'll shut you down.
This would be troubling enough if Henderson simply burned with the zeal of the converted. But his interest in dramatic reform to legal education may not simply be academic. Henderson is a principal and founder of the legal consulting firm Lawyer Metrics. The firm specifically offers its services to law schools:
In a legal marketplace increasingly focused on results and value, the best law schools will be those that understand — and help solve — the challenges facing legal employers.
Lawyer Metrics offers a powerful tool to connect with legal employers, gather data, enhance curricula and measure outcomes. By tapping into the expertise of faculty, prominent alumni and recent law school graduates, we build a competency model that strengthens relationships and gains the buy-in of all stakeholders.
Is Lawyer Metrics looking to work with law schools on Henderson's pedagogical reforms, such as "closely engag[ing] with employers seeking to adapt to a rapidly changing industry"? I don't know. But it seems like Lawyer Metrics would be a natural place to start for university presidents seeking to reform their law schools in the ways that Henderson recommends.
Henderson, like other reformers ("rebels"), has a strong perspective not only on the problems faced by legal education but also on the proper solutions. His solution to the law school crisis -- one that involves a substantial and largely unexplored change to legal pedagogy -- may be the answer to the field's longer-term problems. But I fear that instead of reporting on the crisis, Henderson is now using it to try to leverage a few shocked university presidents into adopting his methods. In the process of drumming up panic with wild-eyed claims and the specter of closures, Henderson risks squandering a pile of reputational capital that only a few legal academics have managed to achieve in the first place.
On "Moving On"
I really enjoyed, and was challenged by, Stanley Fish's recent "Opinionator" column, "Moving On." I have a lot of books, at home and in the office, and (I confess!) I like having a lot of books . . . in piles, on shelves, across the desk, in one of those wheel-cart things. I write in them (imagining ludicrously that I or someone else will someday be curious about my in-the-margins reactions) and just cannot buy the idea that Kindles and Audible.com are substitutes. Yes, I know, this "like" of mine reveals both an insecurity and a less-than-commendable showoffyness. Still, like the Facebook group that "judges you when you use bad grammar", I cannot pretend that I don't judge when I'm in a house with no books. And, giving them away -- even ones I didn't like -- has always been kind of hard.
Fish reports, though, that, after getting rid of a whole bunch of his own (heavily annotated, I assume!) books, he "felt nothing":
In the hours and days following the exodus of the books I monitored myself for a post-mortem (please excuse the hyperbole) reaction. Would I feel regret? Nostalgia? Panic? Relief? I felt nothing. What should have been a momentous event barely registered as I moved on to what seemed the more important task of choosing a new carpet. I was reminded of what a colleague who had left a university after 23 years replied when I asked him if it was difficult to do. He said, “It was like checking out of a motel.”
Really? "Nothing"? That's striking. And, I think, impressive. To be able to look at piles of notes, and annotated books and articles, and "to do" files, and shelves with banker-boxes labelled with various laughably-over-ambitious project-names, and "say," as Fish reports having said:
What I saw on the shelves was work to which I would never return, the writings of fellow critics whom I will no longer engage, interpretive dilemmas someone else will have to address. The conversations I had participated in for decades have now gone in another direction (indeed, in several other directions), and I have neither the time nor, if truth be told, the intellectual energy required to catch up. Farewell to all that. So long, it’s been good to know you. I’m sure you’ll do fine without me.
This strikes me as very . . . "healthy", and not just because Fish is, he says, moving toward retirement. The fact that the "conversations" in which we are (or imagine we are, or aspire to be) participating were happening before us, and will go on after us, and are probably indifferent to (most of) us is a tough one for academics to confront, I think. After all, we are required to assert confidently and often the novelty and importance of our interventions in these conversations. And, it seems fair to say, Fish's actually have been pretty important. He can still say, so long, it’s been good to know you. I’m sure you’ll do fine without me. Again, impressive.
The Surprisingly Minor Impact of Drug Incarcerations on Racial Imbalances in Incarceration
I want to turn my attention here from the impact of drug incarcerations on prison’s size to their impact on the distributions of prison populations, specifically their racial distributions. Given that blacks are over-represented in prison relative to their share of the general population, and given that blacks are over-represented among drug incarcerations relative to their share of the general population (more on this in a moment), it is easy to see how many can argue that drug incarcerations explain the racial disparity in prison populations. But is this true?
The easier answer is “clearly no.” The harder answer is “still no, but with a bit more nuance.”First, the easy answer. In 2009, non-Hispanic blacks1 made up just under 43% of all prison inmates and just over 50% of all drug inmates. Yet had we released all drug offenders of all races and ethnicities from prison in 2009, blacks would have comprised a hair under 41% of all prisoners. So the disproportionate number of drug incarcerations explains about 2 percentage points of the racial gap in prison populations.
This really shouldn’t be all that surprising. In 2009, only about 18% of all prisoners were in prison on drug charges. That fact, combined with the fact that the racial gap for drug offenses was only slightly larger than that in general, implies that racial disparities in drug sentencing simply can’t explain much of the disparity in overall prison populations.
But there is a trickier question to consider: is the disparity really a disparity? After all, the proper comparison isn’t the percent of blacks in prison to the percent of blacks in the population as a whole: it’s the percent of blacks in prison to the percent of blacks who commit offenses. And blacks commit crimes at noticeably higher rates than whites.
Consider murder, for which we have perhaps the most reliable offender data. Blacks committed 52.5% of all murders between 1980 and 2008; in 2009, blacks comprised 46% of all inmates locked up for murder and manslaughter. Compared to their 13.1% share of the US population, a 46% share for murder seems excessive, but it seems about right when compared to their 52.5% share for murders committed.
Some academics have argued that racial disparities will be lower for more serious offenses, since arrests are less discretionary for these crimes and scrutiny is higher; as we work our way down to less serious offenses, the argument goes, discretion rises and so too do disparities.
Does this explain the observed disparity—when compared to the population base-rate—for drug incarcerations? Unfortunately, the data are woefully insufficient.
There simply isn’t data on drug offending. For obvious reasons, we can’t use official drug arrests as a proxy for underlying drug offending. If we are concerned that blacks are disproportionately arrested for drug offenses, drug arrest data is clearly incapable of identifying that effect.
Some scholars, like Michelle Alexander and Michael Tonry, turn their attention to surveys of households and students on drug use, and argue that similar self-reports on drug use across races suggest that the imbalance in drug arrests and incarcerations reflect racial biases in criminal justice system.
I am quite confident that racial biases permeate the criminal justice system—although at least when it comes to sentencing the magnitude they can be hard to estimate—but there are at least three reasons to be skeptical of household and school surveys:
- Most obviously, use isn’t sale, and almost everyone in prison is in prison for distribution. Why should we assume that racial distributions are the same for consumption and distribution?
- There is evidence of racial differences in self-reporting: when it comes to arrests, for example, blacks tend to under-report more than whites. If similar patterns hold for drug use, then similar self-reports actually reflect higher levels of use among blacks. (Though again, we need to know the correlation between use and sale for this to be relevant.)
- There are selection effect problems with household and school surveys. We should be particularly concerned with school surveys, since those who sell drugs (or use drug heavily) are least likely to be in school when the survey is administered. Moreover, blacks graduate from high school at substantially lower rates than whites: the black male graduation rate, for example, is nearly ten percentage points lower than the white male rate. If we assume that drug use declines with academic achievement—which seems to be the case—then if drug use is equal across race/achievement groups (i.e., black A-students use at the same rate as white A-students) we should expect the average use level for blacks in high-school to be lower than that for whites, if the disproportionately-higher number of dropouts for black students are concentrated among the lowest levels of achievers. Similar rates thus again suggest higher use for blacks. (But once more, this only matters if use is at all a useful proxy for sale.)
That said, there is some evidence that police focus disproportionately on crack sales in open-air drug markets—at least in Seattle, where one leading study was conducted, crack appears to be the drug in question during 33% of all exchanges but 75% of all police actions—and that this disproportionate focus2 explains some of the racial disparity in arrests. Which in turn likely contribute to the racial imbalance, such as it is, in drug incarcerations.
And this imbalance in drug arrests could exert an important but indirect influence on the overall racial distribution of the prison population. These arrests, even if they do not result in incarceration, could destabilize future lifetime outcomes (employment, marriage, etc.) that are thought to contribute to the desistance from crime. So the racial disparities in offending for more-serious crimes could be in part the product of disparities in enforcement that do not necessarily lead to incarceration.
In other words, the racial distribution of offending is not some exogenous given, but is an endogenous rate that can be shaped by enforcement choices made earlier in time. We should not simply look at the racial distributions of offending and arrests and incarceration and, if they are similar enough, assume that there is no work to do when it comes to race and criminal justice.
That said, the evidence on the relationship between arrests and, say, lower employment is ambiguous. Ex-convicts, for example, inarguably earn less than non-convicts, but there could be a strong selection effect at play here. And quasi-experimental evidence suggests that this selection effect could be quite strong.
I think that is enough for this post. The tl;dr version: racial disparities in drug incarcerations cannot explain racial disparities in total prison populations, and those disparities (with respect to the population baseline) are going to be heavily influenced by more-serious offenders, for whom the racial composition of inmates remains fairly close to the racial composition of offenses. But just because offense-incarceration disparities are not as great as one might think does not imply that the underlying disparities in offending are independent of choices made by various criminal justice agencies and actors.
1The BJS defines its racial groups as non-Hispanic white, non-Hispanic black, and Hispanic. This is technically incorrect, since “Hispanic” is an ethnicity, not a race, and thus whites and blacks can both be Hispanic (i.e., Hispanic should be broken into Hispanic white and Hispanic black). However, my own analysis of the National Corrections Reporting Data revealed that well over 90% of Hispanics self-identified as white, so treating non-Hispanic blacks as blacks in total is a fairly accurate approximation.2Whether it is truly disproportionate is tough to say. Although much of the panic surround crack was just that—a panic—there is evidence that crack was in fact a distinctly harmful drug. As the markets have matured, much of the violence may have dissipated, but some of the public health concerns remain.
Tuesday, May 28, 2013
Drugs and Prisons: A Recap, and a Complication
After a brief hiatus (thank to the one-two punch of an infant with some serious health issues and a major deadline), I want to pick back up where I left off in my attack on the zombie ideas that plague research on American penal policy. Since it’s been a bit since I last wrote, though, I just want to quickly summarize my earlier points and then use this post to look at the implications of looking at prison admissions rather than prison populations when considering the impact of the war on drugs on prison growth.
My main argument so far has been that we put far too much emphasis on the War on Drugs as the cause of the massive increase in prison populations that has taken place since the 1960s. So far, I’ve been demonstrating why the blame-drugs story should be hard to accept on its own terms; in future posts I will look at other explanations to show why they are more compelling. My basic points so far have been:
- The shocking rate of increase in the number of drug inmates between 1980 and 2009—an increase of approximately 1,175%—reflects the small baseline number of such inmates at the start.
- For only about 18% of all state prisoners is the most serious conviction offense a drug offense. As a result, only about 21% of the increase in prisoners between 1980 and 2009 is due to increased drug incarcerations. Violent crimes account for 52% of the increase, and property crimes 16%.
- That said, defining what is a “drug incarceration” is not easy. One tricky issue is to ask whether a later arrest and incarceration for, say, robbery, was due to a downward spiral brought on by earlier, low-level drug arrest. In other words, how many non-drug inmates are in prison in no small part due to the War on Drugs? A tough question to answer, but data from the State Court Processing Statistics and the Survey of Inmates in State Correctional Facilities suggest that large percent of those entering the criminal court system do not have prior convictions, particularly prior drug convictions.
Now I want to turn to a fact that complicates my it’s-not-the-War-on-Drugs narrative a bit. It is true that only 18% of all inmates are in prison for drug charges. But in 2006, drug offenders comprised almost 31% of all prison admissions (see Table 1.2.1). Similarly, between 1985 and 2000, the increased incarceration of drug offenders explains 28% of the increase in prison populations but 52% of the increase in prison admissions (see pp. 32, 34).1 There are two important lessons to take away from this, the first of which supports my thesis that we focus too much on the War on Drugs, the second which does not:
- Drug offenders serve below-average sentences. In order for drug offenders to make up 31% of admissions but only 18% of total inmates, they must be released more quickly than non-drug offenders. Not surprisingly, we see opposite numbers for violent offenders: 24% of all admissions in 2006, but 53% of all inmates in 2009.2 The story of disproportionately long sentences for drug offenders is thus not supported by the data. That isn’t to say that drug offenses are too long in absolute terms; that is a much tougher, normative question to answer. But drug offenders clearly spend much less time in prison than violent offenders, and appear to spend roughly the same amount of time as property offenders (who make up 19% of prisoners in 2009 but 27% of the admissions in 2006, a flow/stock ratio similar to that for drugs). This approach is admittedly crude, but it is suggestive.
- If we want to measure the impact of the War on Drugs, perhaps focusing on the 18% stock elides over something important behind the 30% flow. What if what matters more is any sort of contact with the prison system, not necessarily the magnitude of that contact? In other words, how does the marginal impact on lifecourse outcomes of going from 0 weeks in prison to 4 weeks compare to, say, going from 4 weeks to 8 weeks? Or even going from 0 days to a few days compared to going from one year to three years? If there is a discontinuous blow to future outcomes from being admitted to prison in the first place—above and beyond conviction and the disruptions to family and work from arrest, pretrial detention, court/negotiating time—then looking at admissions provides information that is missing when we just look at total populations. That said, my earlier post on the role of prior drug incarcerations suggests that we do not want to embrace this theory too extensively: lots of people appear to be in prison without any prior drug-related prison contact. But this does show the importance of looking at both stocks and flows.
I will have one or two more posts about drugs coming up, and then I will turn my attention to other possible explanations. After all, the argument against the War on Drugs as the primary engine of growth is more convincing the more there are viable alternatives to consider. Not surprisingly, there will be several plausible explanations I will put forth.
1In my earlier post, I look at period 1980 to 2009. Here I cite 1985 to 2000 to save time: it is easier to cite Marc Mauer’s statistics (which come directly from the BJS) than to recreate the 1980 – 2009 numbers on my own. Also, it does show the importance of which endpoints we choose: by looking at 2009 rather than 2000, my results put less emphasis on drug incarcerations, since they have been growing relatively less rapidly in the 2000s.
2The different years just reflect different years of easily-accessible data. I don’t think much would change rolling the stock back to 2006 or the flow up to 2009.
Two high-profile federal trials are currently challenging controversial law-enforcement practices. In Arizona, District Judge G. Murrary Snow enjoined Maricopa County Sheriff Joe Arpaio's programs aimed at stopping and detaining undocumented individuals, finding that the program involved racial profiling in violation of the Fourteenth Amendment and that the sheriff lacked authority to seize people on nothing more than reasonable suspicion of being in the country unlawfully. In New York, District Judge Shira Scheindlin is presiding over a trial challenging NYPD's stop-and-frisk policies and is widely expected to hold that the program is unconstitutional, also under both the Fourth Amendment and equal protection.
One question: How do the plaintiffs have standing in either case? Both cases are class actions, brought on behalf of all persons who will be subject to these various programs; for example, the Arizona action was on behalf of “[a]ll Latino persons who, since January 2007, have been or will be in the future stopped, detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County Arizona.” The lead plaintiffs in both cases are individuals who have been subject to these unconstitutional law-enforcement programs in the past. No damages are sought in either case, only declaratory and injunctive relief.
But Clapper and Lyons seem to suggest that a plaintiff can obtain standing to challenge law-enforcement policies only by showing a certainty or high likelihood that they will be subject to enforcement efforts in the future. Even accepting the breadth of the challenged municipal policies, standing requires that this plaintiff show that he himself will be subject to enforcement efforts pursuant to those policies. And Lyons tells us that past harm is not sufficient to establish future harm; that someone was subject to unconstitutional enforcement efforts in the past (as was the plaintiff in Lyons, as well as the lead plaintiffs here) does not mean he will be subject to enforcement efforts in the future.
So how is either case different than those precedents for standing purposes? The only apparent difference is that both are class actions, while neither Clapper nor Lyons was. But should that be enough for Article III purposes? That seems to place a lot of substantive import on a procedural mechanism. I cannot imagine the five-justice majorities in either case would accept that the standing limits they imposed are overcome by nothing more than Rule 23. Are there any other differences that, in light of current doctrine, justify standing in these cases in light of Clapper and Lyons?
Hey, look . . . there's an administrative state!This WaPo piece by Jonathan Turley ("The rise of the fourth branch of government") was welcome (because it will be seen, I suspect, by at least some of my students as adding some plausibility to my own suggestions in class that the place and role of the "administrative state" in our constitutional structure raise tricky questions) but also kind of funny: "The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding. We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government." Whoa . . . who knew?
The Green Bag’s Next Micro-Symposium and First LP
A few weeks ago we issued a call for papers for our second micro-symposium, about Suzanna Sherry’s provocative paper, Why We Need More Judicial Activism. Our deadline was June 1, but, in response to appeals from some aspiring commentators who have been (admirably) dedicating themselves to grading exams and papers, we have extended the deadline to July 4. It is a good date to associate with activism, don’t you think? So, if you have 500 or so interesting words to say about what Professor Sherry has to say, please send them to email@example.com.
And in other business, we are pleased to announce the Green Bag Recording Company’s first foray into the record business: Learned Hand Sings Songs of His Youth. This album contains much more than just the two songs that have been floating around record stores since 1952 and the Internet since whenever it was created. There is a video preview here, directed by Cattleya Concepcion. The cover art of General Phil Sheridan charging into Winchester is by John A. Sargent, the painter who is already known to many Green Bag readers as the Supreme Court Sluggers artist. The liner notes are here, and links to all 13 tracks are available here.
Monday, May 27, 2013
Spring Self-Reported Entry Level Hiring Report: Reporting Rate 2013
As last year, I here compare the self-reported placement with the number of alumni from each school on the market this year, as reported on Leiter's Law School Reports last fall.
The graph below gives the self-reported hiring rate (the "reporting rate") for tenure-track U.S. law school jobs for each of the schools listed in Leiter's chart. This is calculated by dividing the number of reported tenure-track U.S. law school hires for a given school by the number of alumni from that school on the market this year based on the first FAR distribution, as reported by Leiter.
For example, the SSRELHR (Spring Self-Reported Entry Level Hiring Report) shows that 16 reported hires received their JD from Harvard, and Leiter reports that Harvard had 57 alumni in the first FAR distribution, so Harvard has a rate of 16/57, approximately 28%.
This is all subject to a lot of caveats, of course--here are four, and I'm sure I'm missing some. There are both numerator and denominator issues:
(1) Numerator: I don't know whether the apparently "unsuccessful" candidates weren't hired, or were hired but weren't reported to the SSRELHR.
(2) Numerator: Some schools tend to report their alumni to the SSRELHR very faithfully, so the reporting rate might well differ by school.
(3) Numerator: The data analysis includes only tenure-track, U.S. positions. Some people received other sorts of jobs. For example, seven Chicago hires were reported--one at a non-U.S. law school. If that hire were included in the data analysis, the Chicago percentage would go from 6/12 = 50% (already very high) to 7/12=58% (even higher!).
(4) Denominator: The "number of people on the market" is drawn from the first FAR form distributions. There are subsequent, albeit smaller, distributions, and some people hired were not in the FAR pool at all.
Keeping those caveats in mind:
Virginia 4/7 (57%); Chicago 6/12 (50%); Yale 18/37 (49%); NYU 12/31 (39%); Duke 5/13 (38%); Michigan 5/13 (38%); Penn 1/3 (33%); Harvard 16/57 (28%); UCLA 2/8 (25%); Northwestern 3/14 (21%); Cornell 3/14 (21%); Texas 2/11 (18%); Georgetown 3/18 (17%); Stanford 2/13 (15%); Berkeley 3/20 (15%); Columbia 2/18 (11%).
This is also available on the spreadsheet, on the tab labeled "Reporting Rate."
Originally posted 5/27/13; edited 5/28/13 to reflect change in Michigan.
Spring Self-Reported Entry Level Hiring Report 2013
Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2013. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools.
Here is the full spreadsheet:
We have reports of 106 people being hired, at 74 different law schools.
Two schools have been reported as doing no entry level hiring this year.
Here are answers to some frequently asked questions:
Q: 106 self-reported tenure-track hires? How does that compare to previous years?
A: Yeah. Not good. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year.)
Schools in the "other" category with two JD/LLBs who reported hires: Columbia; Texas; Stanford; UCLA.
Schools in the "other" category with one JD/LLB who reported hires: Brooklyn; College of Mgmt Acad Stud; Diego Portales; Fordham; Hastings; Kansas; Louisana State; Melbourne; Miami; Montana; New Mexico; North Carolina; Oklahoma; Penn; Phillipines (U of); Russian University; SMU; Tulane; Washington (St. Louis); West Virginia.
Q: How many reported hires had a fellowship, degree, or clerkship?
83 (about 78%) had a fellowship; 59 (about 56%) had an advanced degree; 53 (about 50%) had a clerkship.
Nonproportional Venn diagram:
A: It's a lot of fellowships.
Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column, for the two people out there who are actually following along on the spreadsheet.)
That said, looking only at what seemed to be the most advanced degree (apologizing in advance for mischaracterizing the relative advancement of anyone's multiple degrees), and including "expected" degrees, the 59 "highest" advanced degrees broke down like this:
LL.M. (or LL.M. expected) 10; Masters (or Masters expected) 23; D.Phil. (Law), SJD, or JSD (or SJD or JSD expected) 6; D.Phil or Ph.D. (or Ph.D. expected) 20.
Zero to Four Years (Graduated 2009-2013) 20; Five to Nine Years (Graduated 2004-2008) 59; Ten to 19 Years (Graduated 1994-2003) 21; Twenty or More Years (Graduated before 1994) 3; Blank 3. The year-by-year break-out is on the spreadsheet ("Years Since Hire" tab).
Women 49 (about 46%); Men 57 (about 54%). (Let's say this is right within +/-2 people.)
The self-reported entry level hires had diverse specialities--in fact, the hires named 116 different fields of specialty! (I did this differently from the "what kind of degrees" question--here, if someone listed four fields of speciality, I included all four.)
As for which fields were most popular:
You can see the full list, sortable either by number of people who stated an interest or alphabetically by interest, here (on the tab labeled "Subject Summary").
Q: More slicing! More dicing! Different slicing! Different dicing!
Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.
Q: This is all wrong! I know for a fact that more people from School Y were hired! Plus, you account for only 76 different law schools, and there are over 200!
Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete.
If you want to know about real entry level hiring, I commend to you Brian Leiter's report and the Katz et al. article. This is just a report about self-reported entry level hires as of the spring before the school year starts.
Q: What does it all mean?
Not much. But it's been fun!Originally posted 5/27/13; edited 5/28/13 to reflect misclassified hire from original spreadsheet.
Sunday, May 26, 2013
Lemon is Dead
The New York Times yesterday published the obituary of Alton T. Lemon, "a civil rights activist whose objection to state aid to religious schools gave rise to a watershed 1971 Supreme Court decision." That case, of course, is Lemon v. Kurtzman. Lemon died in Pennsylvania on May 4 at the age of 84.
Lemon's biography itself is interesting; I did not know, among other things, that he was African-American and a civil rights activist. He remembered playing basketball with Martin Luther King at Morehouse College. He was also, interestingly, the first black president of the Ethical Humanist Society of Philadelphia. The obituary concludes: "Mr. Lemon attended the Supreme Court argument in his case, but he found the experience a little alienating. 'When your case gets to the Supreme Court, it’s a lawyer’s day in court,' he said. 'It doesn’t matter to the justices if you are dead or alive.'" Certainly Lemon's name is famous today for a generally applicable legal test, not any personal details about the man.
The title of the post is, of course, not meant disrespectfully. It is the title of Michael Stokes Paulsen's famous article about Lemon v. Kurtzman, an article that also focused (understandably) on the test and not the man.
Saturday, May 25, 2013
Is a picture worth 1,000 words in a law school class? My experiment with visual aids
In my year-long visit at Yale Law School this Fall and Spring, I felt free to experiment with new teaching ideas. If they fell flat, I would have skipped town in just a few months, my reputation (such as it is) intact at my home institution. If it succeeded, I could take my new technique back with me. So, using my Yalies as guinea pigs, I used projected diagrams, pictures, and text as a teaching tool for the first time in my career.
My basic goal was to make doctrinal relationships, legal and political history, and legal text more intelligible by representing it visually in different modes -- color, shape, movement, or images generally. My prime directive was to adhere to Edward Tufte's principles: For instance, avoid "chartjunk," and never use bulleted text that you read from a screen. Within this capacious constraints, I tried a wide array of images and diagrams -- decision trees and flow charts, Venn Diagrams, statutory text in multiple colors, photos galore, and some often hokey but hopefully memorable visual representations of causal and doctrinal relationships.
My verdict? In anonymous surveys with a decent response rate, my constitutional law section (70+ members) seemed to like the slides. Many printed them out as guides during the final exam. My own sense: The pictures, if sufficiently simple and memorable, helped clarify ideas or narratives that had previously left some significant portion of the class baffled and frustrated. After the jump, I will provide some samples and invite you to share your comments on whether you think that these sorts of visual aids help and how they might be improved.
Here's an example of a very simple diagram that helped me explain Youngstown. (Download Youngstown Slide). The point of the diagram is to communicate graphically a few ideas that chalk and talk never seemed adequately to convey. First, I use a simple blank white screen and black circle to convey an easy-to-miss distinction: There are two ways, not one, in which the law can limit presidential power. The blank white screen is intended to convey the idea that, if Congress and the Constitution really both say nothing whatsoever about executive power, then normally the executive cannot act, even if neither statute nor Constitution implicitly or expressly prohibits an executive action. This is the sense in which the President is like Congress: Both are institutions with enumerated rather than residual powers, because they both need some grant of power (Constitutional in the case of Congress, Constitutional or statutory in the case of the President) before they can do anything, even if they are not transgressing any constitutional prohibition.
The slide suggests this basic truth with a blank white screen, followed by text in red stating that silence = prohibition. I pause after calling for the red text (just push the right cursor arrow to move the slide's animation along when viewing in "slide show mode") to emphasize that silence -- blankness -- means presidential inability to act. Another press of the right cursor arrow brings forth a green circle (the area of some sort of authorization for presidential action) followed by a black circle (the area where what would otherwise be within the green circle of authorization has been "affirmatively" prohibited). The idea of these three colored shapes (blank screen, green circle, black circle contained in the green) is to suggest the second sort of prohibition on presidential power: Presidential power might be absent (i.e., the action falls outside the green circle in the white screen because there is no grant from Congress or the Constitution), or the presidential action might be preempted (i.e., the act falls in the black circle in that there is some plausible grant that would otherwise confer presidential power, but it has been "affirmatively" taken away by some interpretation of a federal statute that extends the black space to "eat up" the green space).
There is a distinction, in other words, between a blank white screen and a black circle, even though points within both conceptual areas are prohibited forms of presidential policy-making. My example of a point in the black circle of "preemption" is Judge Silberman's use of Machinist preemption to eliminate President Clinton's executive order on replacement of striking workers in Chamber of Commerce v. Reich (1996): The Procurement Act would probably have given Clinton power to ban replacement of striking workers by contractors absent the limits of the NLRA: The EO fell within the part of the green circle blotted out by the black circle. My example of a point within the white screen is the President's unilaterally imposing a hypothetical special assessment on people living on the New Jersey coast to help pay for cleanup after Hurricane Sandy: There is no federal statute that implicitly or expressly prohibits such an assessment -- to my knowledge, Congress has never given the matter any thought -- but the President simply cannot impose taxes or fees on private citizens for the use of private property without an affirmative grant of power to do so. Little spots of red and green, respectively, bounce in to stand for these hypos.
I use smaller concentric grey and green circles to illustrate the "twilight zone" and the "core" of indefeasible presidential powers respectively. The color is supposed to suggest an idea: the twilight zone is a grey area (get it?), while the "green-means-go" circle of constitutionally guaranteed Article II powers that Congress cannot take away is bounded by a red line that the black circle cannot cross. I use a white dot labeled Myers to illustrate a point within that inner core, while I use In re Neagle to illustrate a point within the twilight zone that Congress could eliminate (say, with an express statute governing self-defense rights of supreme court bodyguards). Press the right cursor, and the grey twilight corona around Article II powers is swallowed up by the black circle of congressional preemption. Press the arrow again, and the corona fads back in. The idea is to suggest that twilight powers are instances of Presidential action that are a "halo" or penumbra emanating from those core Article II powers that Congress cannot take away -- powers to administer federal property, supervise federal employees, engage in diplomacy, control the armed forces, and so forth. The difference between that inner green circle and the grey twilight zone is that the latter can be swallowed up by sufficiently clear congressional statutes.
I have much simpler slides to illustrate much simpler ideas -- for instance, this slide (Download Trucks and Anvils) depicting a series of trucks carrying anvils to illustrate the idea of evidence (those are the trucks) carrying plaintiffs' and defendants respective shifting burdens of proof (the anvils -- get it?) under the Fair Housing Act's disparate impact theory. (I used bouncing tennis balls to convey the same idea with this slide (Download Tennis balls)). Maps come in handy to show the relationship between regions and county lines in New Jersey's implementation of Mount Laurel (Download NJ COAH regions). I used animated slides to illustrate some simple causal relationships like the downward filtering of affordable housing from the construction of luxury housing (Download Filtering). Slides are most obviously useful for highlighting the text of statutes and rules (Download Federal funds and housing segregation) or for displaying photos of buildings and neighborhoods subject to litigation in a land-use law class (Download Florida neighborhoods in Gulf Coast Recovery).
In any case, I am now hooked on this mode for presenting information. But my own addiction does not suggest that my efforts are effective, and they certainly could be improved: My products are obviously a far cry from Edward Tufte's masterpieces. So I'd be pleased to hear your suggestions and criticism. I'm also happy to trade tips and pool materials, especially in administrative law, constitutional law, land-use regulation, or local government law: Just send me an e-mail offline.
Curves in the upper level
Jessie raises some good issues about the use of curves. I agree with the commenters who argue that grades are inherently comparative and relative, so I am generally good with using curves.
I want to ask a slightly different question about using curves in upper-level classes. At least arguably, the curve's signaling and weed-out functions are gone, at least as to smaller, niche non-core classes, particularly with respect to 3Ls in their final semester. And smaller class size means that the mandatory low end may be one student forced to get a C-. Certainly the sample size may be too small to get a "natural" bell curve. Upper-level curves tend to be higher than 1L curves (fewer mandatory low grades, more mandatory high grades, higher median, whatever). But even if we accept curves in the first year, are they justified after that, especially as to the mandatory low end? At what enrollment point should the curve kick-in--15 students? 25 students?
Friday, May 24, 2013
"Sport as Speech" and Non-sport as Speech
I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.
Two further thoughts on the paper.
1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is another reason to bother defining what qualifies as sport.
2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?
Trouble with the Curve
Though I was taken by surprise by the extent to which my last post touching on the topic of grading provoked rather strong responses, I am now presenting a proposition that I very much hope and assume will provoke controversy. Here it is: There is no (as in, none whatsoever) pedagogical justification for the traditional law school curve, and it should be abolished.
Here are my problems with the curve -- by which I mean a strict curve requiring x% As, x% A-, etc. all the way down to the lowest grades, and not something like a "target mean grade." First, it corresponds to nothing at all. I'm no statistics expert, but even if there is reason to think that students somehow naturally fall out on such a bell curve if you take a large enough sample, I'm pretty sure there's no way any first-year section is actually large enough or diverse enough in its talents to ensure that the curve will be accurate in every case or even most cases.
Second, the curve hides and fails to discourage poor teaching. We should be trying to bring every student in our class up to a fairly high level (although that is not going to happen, of course, with every student). But whether or not most or all students reach whatever we perceive to be the basic level of competence we are shooting for (call that level of competence a "B"), we have to assign a certain percentage of students grades below that level. And in fact, it's better -- or certainly no worse -- if a certain number of students don't reach that level of competence, because then we can justifiably assign them grades below that level. And when students come to see us wanting some justification of their grades, we really don't need to (and in some cases can't) give them any explanation other than, "you got that grade, not necessarily because you deserved it, but because other people did better than you." It doesn't require us to think about what a "B" really signifies, or whether there is any consistency across courses or years in terms of the grades we give.
Now let me outline what I think might be some traditional justifications: First, curves protect against grade inflation. This is undoubtedly true, but it can be accomplished with the far less arbitrary system, such as a target or maximum mean grade for a course.
Second, I suppose one could argue that grades are inherently arbitrary and correspond to nothing in reality anyway. In other words, the only thing a grade ever meaningfully represents (or perhaps more modestly, is ever meant to represent in the law school context) is one's performance relative to others who happen to be in that same class. But this strikes me as somewhat cynical. I doubt many of us fully accept this view. Maybe employers see it that way to some degree. But if employers' expectations are driving the curve, I would first point out that this is still not a pedagogical justification. What's more, even if this is a reasonable defense of having a curve, it has to be weighed against the unfairness of using an arbitrary curve in the first place--one which does not necessarily correspond even to the differing levels of relative ability among students (i.e., even if you can come up with a relative ranking of exam scores that accurately reflects relative strength, which is what employers most likely really care about, you are still required to draw an arbitrary line between a B+ and a B exam, for example, which doesn't necessarily correspond to a meaningful drop-off in quality).
Finally, the other justifications are .... well, I have no idea. I'm out of them. I'm stumped. Can anyone defend the curve?
Non-State Law Beyond Enforcement
So I've been a bit behind in posting as I slowly drag myself toward the grading finish line (aside: thanks to all my Prawfs' Facebook friends who have been regularly taunted me by noting how long ago they finished grading. I get it - I'm slow). But today I wanted to post again about non-state law, focusing on what it might mean to be law even when the law in question is not enforced.
As an example of this dynamic, I've been reading some advanced chapters of Chaim Saiman's forthcoming book Halakhah: The Rabbinic Idea of Law (Princeton U. Press). One of the key questions Saiman tussles with in the book - and also addressed in his public Gruss Lecture in Talmudic Law - is why there are multiple Jewish legal doctrines which the Talmud expressly states are not intended to be enforced in any circumstance. As examples, Saiman notes how regarding doctrines like the "rebellious son" and the "rebellious city," the Talmud states the "law never did, nor ever will apply." In response to questions as to why there exist laws that are not intended to be enforced, the Talmud simply responds "To study and receive reward."
Saiman's book interrogates this response, exploring what it means to have "studied law" as opposed to "enforced law" - and by extension what it means to be unenforced law. Much of his analysis revolves around contrasting philosophical inquiry and legal inquiry, with the latter funneling the reader into concrete application of core values (in ways that abstract philosophical inquiry often does not) and requiring the reader to inhabit a particular religious world that can more effectively convey principles and values.
In this way, his project is a quintessential example of how the discursive practice of law - and not merely the enforcement of law - serves a unique legal purpose. It is the concrete and detailed method of legal analysis the pulls the reader into the legal text - much like a novel pulls the reader into a narrative - that captures a key facet of how Jewish Law functions as law (one hears strong elements of Robert Cover in Saiman's analysis). Moreover, it also provides important guidance to thinking about the internal elements (as opposed to external manifestations) of law and legal practice - a topic which I hope to explore a bit further in my next post.
How did Scalia's anti-federalism bluster in City of Arlington v. FCC go unnoticed by six justices?
Over the past decade, Justice Scalia has issued some oddly crabbed definitions of "federalism," but he has not always carried a majority for such sentiments. Unfortunately, his majority opinion in City of Arlington v. FCC, handed down this week, repeated the notion that federalism is irrelevant whenever Congress has "expressly" regulated some field. Consider the following paragraph at page 14 of the slip opinion:
[T]his case has nothing to do with federalism. Section 332(c)(7)(B)(ii) explicitly supplants state authority by requiring zoning authorities to render a decision “within a reasonable period of time,” and the meaning of that phrase is indisputably a question of federal law. We rejected a similar faux-federalism argument in the Iowa Utilities Board case, in terms that apply equally here: “This is, at bottom, a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew.” 525 U. S., at 379, n. 6. These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges. “[I]t is hard to spark a passionate ‘States’ rights’
debate over that detail.” Ibid.
This paragraph is rich with a kind of calculated confusion about the meaning of "federalism," confusion that is capable of a lot of mischief if it is taken seriously in future opinions. After the jump, I will suggest that the vision of federalism implied by this paragraph suggests why the some have accused the SCOTUS of a pro-business bias. The pro-business effect is real, but the theory of federalism is entirely principled, having been set forth by Caleb Nelson in an influential law review article and only one vote short of gaining a SCOTUS majority in PLIVA v. Mensing.
The problem with Scalia's paragraph is not that it could not be justified on principled grounds but rather that Scalia almost defiantly refuses to provide any such justification, instead engaging in pure rhetorical bluster. Kennedy refused to join Justice Thomas' endorsement of Caleb's theory in Mensing: Why did he fall for the same theory when Scalia smuggled it into this offhand paragraph?
Defining "federalism" to exclude any issue where some federal law "explicitly supplants state authority" uses a verbal legerdemain to make a difficult question of statutory construction look easy, by implying that Congress' textually "express' endorsement of some sort of preemption also "expressly" defines the scope of state laws thereby preempted. Of course, "express" preemption clauses might "explicitly supplant state authority" over some ambiguously defined set of issues. In fact, as I noted w.r.t the SCOTUS's decision in Dan's City Used Cars v. Pelkey, intrinsic aids and the rest of the textualist machinery are generally useless for divining the scope of most preemption clauses.
If the mere existence of a vague preemption clause means that federalism canons are irrelevant, then vague preemption clauses can be stretched elastically, ERISA-style, to supplant all sorts of state policies that no one in Congress ever intended to touch. Eliminating federalism canons in misleadingly labeled "express preemption" cases has been an agenda item for the U.S. Chamber of Commerce at least since Altria Group v. Good. There is a principled theory to justify such a position: Caleb Nelson has argued that the U.S. Constitution's "non obstante" phrase in Article VI ("any Thing in the Constitution or Laws of any State to the Contrary notwithstanding") is a term of art intended to eliminate the canon against implied repeal that might otherwise induce courts to strain to save state laws from preemption by federal laws.
As an aesthetic matter, Caleb's theory is elegant and insightful (albeit mistaken despite these virtues, as I have argued elsewhere). But note that Justice Scalia's glib little paragraph does not set forth Caleb's or any other actual reasoning. Instead Scalia implies that, because preemption turns on the interpretation of a clause in a federal statute ("the meaning of that phrase is indisputably a question of federal law"), it somehow follows that norms of federalism are somehow irrelevant to the clause's interpretation, even if the clause is ambiguous. This is the conclusion of an argument masquerading as textualist legal reasoning: It is the sort of colossal non sequitur that begs the very question that needs to be decided -- namely, whether ambiguous federal statutory text should be read to import norms of federalism.
The notion that such an issue "has nothing to do with federalism" is plainly silly: If federal statutes are read expansively, then states' reserved powers pro tanto will be narrowed. It is equally odd to assert that “it is hard to spark a passionate ‘States’ rights' debate over that detail” of whether bureaucrats or judges resolve ambiguities in preemption clauses. At least since Altria v. Good, the SCOTUS itself has been closely divided over precisely this "detail." Moreover, the Court ought to be closely divided: The question of interpretative authority is hardly a "detail" if one believes that federal judges are likely to be more likely than mission-bound agency bureaucrats to understand and care about general aspects of our legal culture like federalism -- an entirely plausible belief, as Nina Mendelsohn has noted, that has been, in large part, confirmed by Catherine Sharkey's study of federal agencies' enforcement (or lack thereof) of federalism-promoting executive orders.
How could six justices join this empty bluster of a paragraph mischaracterizing one of the central federalism debates as a "faux-federalism argument" by making an egregiously faux-textualism argument? Were Justice Kennedy's clerks asleep? Or did they simply dismiss this paragraph as dicta on the assumption that the Court granted cert to decide only the question of whether Chevron applied at all (the so-called "Step Zero" inquiry), as opposed to the "Step One" question of how statutory ambiguities should be defined and resolved? (One might read Justice Breyer's concurrence as distancing his vote from the paragraph to the extent that he would use all traditional tools of statutory construction to resolve the Mead question of whether an agency had a delegation of gap-filling authority. But it is hard to tell, given that he "join[ed] such portions of [the majority's] opinion as are consistent with what I have written here," without specifying specific language to which he was objecting).
Dicta or not, Justice Scalia's paragraph is so oddly devoid of reasoning and so dangerously consequential if taken seriously, that it deserved to be called out. The Court decides only eighty-odd cases a year: Letting this sort of rhetoric slip by unnoticed strikes me as phoning it in.
This blog post is actually a blatant attempt at crowdsourcing ideas, but hopefully one you will also find useful. When I was a first year law student, my "skills training" included one stab at writing a memo to a partner in a law firm, and one appellate brief. They were graded, at least, so one was required to take the exercise seriously, but that was it. There should be room for a bit more.
I teach contracts in the second semester here at FSU. I have four credit hours, so I already feel a bit pressed for time in covering everything that must be covered. This year, as I mentioned in a previous post, I added two memos, one graded, and one ungraded, that included a client counseling element as well as legal analysis. That was good, but I'm not sure it was quite right.
What "skills training" have you added to your courses, first year or otherwise? What would you most likely add first, if you could? Contract drafting? Statute drafting? Client counseling letters? Pleadings and responses? Dispute resolution? Negotiation? And what's stopping you?
Thursday, May 23, 2013
Gruesomeness and the First Amendment
As one who is interested in both women's reproductive rights and the First Amendment, I find issues at their intersection of those protections to be inherently fascinating. One such set of issues surrounds abortion protests, and a particularly thorny question under that broad rubric involves the permissibility of restrictions on the display of gruesome or graphic images of dismembered fetuses. Usually, such arguably content-basedrestrictions, which appear to raise First Amendment concerns, are justified as protecting children from the disturbing imagery.
Now, it appears the formidable Eugene Volokh has filed a cert petition in a case involving just such a restriction, in the form of a state-court injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age." The permissibility of restrictions like this has been the subject of a circuit split, and the Supreme Court is set to discuss the petition at its May 30 conference.
A few random thoughts follow the jump:
First, there are many problems with this sort of restriction that make me uncomfortable, not the least of which are the vagueness of the term "gruesome" and the problem of limiting what can be displayed in public because of concerns about the possibility that young (perhaps only very young) children might be disturbed by it.
At the same time, though, I do think there is a category of speech (really, imagery) that is so visually--one might even say viscerally--disturbing that there may well be a compelling interest in protecting children from it. Moreover, I say "compelling," because I'm assuming this is a content-based restriction requiring strict scrutiny, but I'm not completely sure that's true. This might be viewed as a content-neutral restriction on the manner of speech, justified by concerns about the physical impact ("secondary effects"?) of that speech on others -- not because of the message conveyed but because of the way it is conveyed. Of course, the problem is that it is exceedingly difficult to distinguish the medium from the message here.
Yet, at the same time, these sorts of arguments run smack up against Brown v. Entertainment Merchants Ass'n, where the Supreme Court made it clear, once again, that the only horror we can't expose our children to is sex. Only sexual content is so forbidden, so disturbing, and so inappropriate for children that it can be off-limits to them when it is constitutionally protected to adults. To be clear, I don't think sexually explicit content is usually appropriate for minors, and I also don't favor lots of new limits on speech in the name of protecting minors. But I really don't get the rationale, other than tradition, for drawing this sort of line between sex and violence or other content that is likely equally upsetting to children.
Finally, and a little more tangentially, I think the extent to which debates about abortion are often driven by a sort of "graphic-ness," in the sense of a highly visual orientation, both in the imagery but also in the language of Supreme Court cases, is peculiar and fascinating, as I have briefly explored elsewhere.
Police Body Cams
This afternoon, I appeared on a HuffPost Live discussion (hosted by Mike Sacks of First-on-First fame) of police use of body cameras to record public stops and interactions. During closing arguments in the trial challenging NYPD policies with respect to Terry stops, District Judge Shira Scheindlin said she was "intrigued" by the idea of police using body cams for all stops. Of course, I disagree with her comment that if we had cameras "Everyone would know exactly what occurred," because video is not that absolute. Still, this use of cameras (not unlike dashboard cameras) would be a good idea, so long as police accept that everyone else on the public street, including the person in the police encounter, gets to do the same.
LSA Happy Hours and info on the CrimProf Shadow Conference.
Some announcements for folks attending Law and Society next week in Boston:
1) there's a crimprof happy hour on Thursday at 9pm at CityBar,
2) The general Prawfs and friends happy hour will be on Saturday from 9pm at the Sheraton SideBar.
Nunc est bibendum!
3) My co-organizer, Carissa Hessick, has, in her typical god-like ways, assembled the info for the Shadow CrimProf conference. This year's shadow conference will have a fantastic turnout.
Info appears after the jump (although not in exact chronological order).
2013 LSA Shadow Conference on Criminal Justice
Criminal Justice 01: Sentencing
Thurs. May 30, 10:15am-12noon
Christine Scott-Hayward – Shadow Sentencing
Carissa Hessick – Enforcing Procedural Rights at Sentencing
Moderator/Discussant: Gerry Leonard
Criminal Justice 02: Policing and Investigation
Thurs. May 30, 12:30pm-2:15pm
Lauryn Gouldin -- The Law of Investigative Detention
Amna Akbar -- The End of Community Policing?
Seth Stoughton – Policing the Constitution
Sandra Thompson -- Defining "Independence" in Forensic Science Labs
Moderator/Discussant: Carissa Hessick
Criminal Justice 03: Crim Theory
Sat. June 1, 2:30pm-4:15pm
Vincent Chiao -- Criminalization and Liberalism
Michael Rich -- Flipping the Murder Switch: Limits on the Perfect Preventive State
Youngjae Lee -- Moral Uncertainty and Reasonable Doubt
Moderator/Discussant: Michael Cahill
Criminal Justice 04: Substantive Crimes and Defenses
Fri. May 31, 2:30pm-4:15pm
Avlana Eisenberg -- Criminal Infliction of Emotional Distress
Jonathan Witmer-Rich -- The Heat of Passion Defense: Tolerable Reasons to be Angry
Michal Buchhandler-Raphael -- Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization
Steven Morrison -- The System of Modern Criminal Conspiracy
Moderator/Discussant: Eric Blumenson
Criminal Justice 05: Kids, Crime and Punishment
Thurs. May 30, 8:15am-10am
Arnold Loewy -- Juveniles and the Constitution
Mary Graw Leary -- The Role of Technology in Child Sex Trafficking
Deborah Ahrens -- Parenting Behind Bars
Elaine Chiu -- The Movement Against Male Circumcision
Moderator/Discussant: Richard McAdams
Criminal Justice 06: Punishment and the Constitution
Fri. May 31, 10:15am-12noon
Will Berry -- When Dangerousness is Different
Meghan Ryan -- Juries and the Criminal Constitution
Beth Colgan -- Reinvigorating the Excessive Fines Clause
Todd Haugh – The Critical Mess Theory of Federal Sentencing
Moderator: Rick Bierschbach
Criminal Justice 07: Criminal Justice, Discretion, and Policy Challenges
Thurs. May 30, 2:30pm-4:15pm
Jennifer Laurin: Discretion, Pretrial Procedure, and Forensic Science
Cecilia Klingele: Revocation and Law Reform
Ion Meyn: Discovery and Darkness
Criminal Justice 08: Frontiers of Criminal Justice
Thurs. May 30, 4:30pm-6:15pm
Audrey Rogers: Cyber bullying and Suicide
Alex Kreit: Drug Truce
Michael Mannheimer: The Contingent 4th Amendment
Kenworthy Bilz: Punishment and social standing of victims and offenders
Criminal Justice 09: 4th Amendment
Fri. May 31, 4:30pm-6:15pm
Shima Baradaran: Reconsidering Fourth Amendment Balancing
Caren Myers Morrison -- The Drone Wars: Will Technology Outstrip the 4th Amendment?
Laurent Sacharoff -- Constitutional Trespass
David Gray -- A Technology-Centered Approach to Quantitative Privacy (co-author Danielle Citron)
Moderator/Discussant: Andrew Taslitz
Criminal Justice 10: Socio-Legal Panels on Defense Counsel & Prosecutors
Fri. May 31, 8:15am-10am
Ron Wright – Prosecutor Experience and the Culture of Self-Restraint (co-author K. Levine)
Jenia Iontcheva Turner – Effective Remedies for Ineffective Assistance of Counsel: A New Look After Lafler v. Cooper Cynthia Alkon -- Does your lawyer make a difference? Plea bargaining drug cases for indigent defendants (co-author J. Marshall)
Nirej Sekhon --- Prosecutors and politics
Moderator/Discussant: Don Dripps
Criminal Justice 11: Roundtable on Criminal Justice in 2020 book
Fri. May 31, 4:30pm-6:15pm
Song Richardson (Chair)
Criminal Justice 12: Juries
Sat. June 1, 8:15am-10am
Giovanna Shay -- In Open Court
Jenny Carroll – A Jury for All of Us
Catherine Grosso -- Information Seeking in Voir Dire: Could Modifying Juror Questioning Reduce Jury Selection Racial Disparities? (Co-Author Barbara O'Brien)
Moderator/Discussant: Luis Chiesa
Criminal Justice 13: Difference, Crime, and Punishment
Fri. May 31, 12:30pm-2:15pm
Barbara O'Brien -- Discrimination and the Death Penalty: Empirical Findings, Limitations, and Directions for Future Research (co-Author Catherine Grosso)
Kay Levine --- Romance, Education or Abuse? Media Narratives about Female on Male Statutory Rape (co-authors Emily Danker-Feldman, Brenda Smith, and Andrea Smith)
Moderator/Discussant: Frank Cooper
Criminal Justice 14 and CRN Feminist Legal Theory group: Vulnerability and Criminal Law
Fri. May 31, 8:15am-10am
Mary Anne Franks -- The Vulnerability Tax
Cynthia Godsoe -- Punishing to Protect
Aya Gruber -- Discriminatory Leniency in Criminal Law
Moderator/Discussant: Cyra Choudhury
Criminal Justice 15: Adjudication
Thurs. May 30, 12:30pm-2:15pm
Darryl Brown – Free Market Ideology in the Law of Bargaining and Trials
Brian Gallini -- Bringing Down a Legend: How Pennsylvania’s Investigating Grand Jury Ended Joe Paterno’s Career
Greg Gilchrist – Trial Bargaining
Melissa Hamilton – Sentencing: Politics or Empiricism
Moderator/Discussant: Brooks Holland
Criminal Justice 16: Roundtable on Future of Gideon at 50
Sunday June 2, 8:15am-10am
Darryl Brown (Chair)
Wednesday, May 22, 2013
Conference on Privacy and Data Security
GEORGE MASON LAW & ECONOMICS CENTER PUBLIC POLICY CONFERENCE ON THE LAW & ECONOMICS OF PRIVACY AND DATA SECURITY
Wednesday, June 19, 2013
George Mason University School of Law (Arlington, VA)
The Law & Economics Center’s Henry G. Manne Program in Law & Economics Studies will present its Public Policy Conference on the Law & Economics of Privacy and Data Security at George Mason University School of Law, Wednesday, June 19. The conference will run from 8:30 am to 5:00 pm.
This conference is organized by Henry N. Butler, Executive Director of the Law & Economics Center and George Mason Foundation Professor of Law, and James C. Cooper, Director, Research and Policy at the Law & Economics Center, and Lecturer in Law, George Mason University School of Law.
Consumers have an incredible array of technologies and services available to them online. As these technologies have progressed, there are growing questions as to what policies are best suited to protect consumers and encourage industry innovation. Topics include the role of the state attorneys general in enforcing privacy laws and a discussion of the rapidly changing landscape of spam, spyware, data portability and industry data retention guidelines.
You must pre-register for this event online at http://www.cvent.com/d/9cqbrj/4W.
If you have questions, please contact Jeff Smith at firstname.lastname@example.org or 703.993.8382.
Wednesday, June 19, 2013
PANEL 1: Privacy & Data Security: Substitutes and Complements
The opening panel will explore the relationship between privacy and data security. To what extent are they complements or substitutes? Is there too much focus on privacy in current policy debates?
PANEL 2: Privacy & Data Security Law: Harm and Unfairness
The second panel will examine the proper legal framework for dealing with privacy and data security issues, with special attention paid to the meaning of harm under the FTC Act.
LUNCHEON DISCUSSION: Privacy and the First Amendment
The luncheon program will address the extent to which privacy regulation implicates the First Amendment.
PANEL 3: Privacy Tradeoffs: What Do We Know?
What do we know about consumer demands for privacy and the efficacy of extant privacy regulation? This panel will examine the state of the empirical evidence germane to the privacy debate.
PANEL 4: Privacy and Competition: The Role of Privacy in Antitrust Analysis and How Privacy Regulation Affects Competition
The conference will conclude with a panel delving into the interface between privacy and antitrust. The panelists will discuss such issues as: Do firms compete by offering customers more privacy? What role should access to consumer data play in antitrust analysis? and How does privacy regulation affect competition?
CONFIRMED PANELISTS (as of May 20, 2013):
- J. Howard Beales III, Professor of Strategic Management and Public Policy, The George Washington University School of Business
- Daniel W. Caprio, Jr., Senior Strategic Advisor and Independent Consultant, McKenna, Long & Aldridge LLP
- James C. Cooper, Director, Research and Policy, Law & Economics Center and Lecturer in Law, George Mason University School of Law
- Lorrie F. Cranor, Associate Professor, Institute for Software Research, Carnegie Mellon University and Director, CyLab Usable Privacy and Security Laboratory
- Anna Davis, Attorney Advisor to Commissioner Maureen Ohlhausen, Federal Trade Commission
- Jim Halpert, Partner, DLA Piper
- Woodrow N. Hartzog, Assistant Professor of Law, Cumberland School of Law, Samford University
- Jonathan Klick, Professor of Law, University of Pennsylvania Law School
- Tara Isa Koslov, Deputy Director, Office of Policy Planning, Federal Trade Commission
- Ryan Kriger, Assistant Attorney General, State of Vermont Office of the Attorney General
- Thomas M. Lenard, President and Senior Fellow, Technology Policy Institute
- Paul Ohm, Associate Professor of Law, University of Colorado School of Law
- Frank A. Pasquale, Schering-Plough Professor in Health Care Regulation and Enforcement, Seton Hall University School of Law
- Randal C. Picker, Leffmann Professor of Commercial Law, The University of Chicago Law School and Senior Fellow, The Computation Institute of The University of Chicago and Argonne National Laboratory
- Sasha Romanosky, Microsoft Research Fellow, Information law Institute, New York University School of Law
- · Paul H. Rubin, Samuel Candler Dobbs Professor of Economics, Emory University
- Adam Thierer, Senior Research Fellow, Mercatus Center at George Mason University
- Catherine E. Tucker, Mark Hyman, Jr. Career Development Professor and Associate Professor of Marketing, MIT Sloan School of Management
- Christopher S. Yoo, John H. Chestnut Professor of Law, Communication, and Computer & Information Science and Director, Center for Technology, Innovation & Competition, University of Pennsylvania Law School
Founders Hall Auditorium
George Mason University School of Law
3351 Fairfax Drive
Arlington, VA 22201
For further information on the Law & Economics Center, please visit http://www.masonlec.org.
IRS and the political valence of constitutional litigation
I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.
In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?• SCOTUS has not yet established whether a First Amendment speech claim can be the basis for Bivens damages, a point the Court reiterated last term (in a case in which the plaintiff was arrested for verbally confronting Dick Cheney in a shopping mall).
• Lower courts are unanimous that a First Amendment claim requires proof of intentional viewpoint discrimination--that the officers acted a certain way because of disagreement with the viewpoint expressed by the speaker. Is using a political identifier per se treatment motivated by disagreement with that viewpoint?
• The Court hinted in Iqbal that there was no supervisory liability under Bivens. Even the most-forgiving view of Iqbal is that the state of mind required for supervisory liability matches the state of mind required for the underlying right. That means the supervisors must have created policies targeting groups because of their viewpoint. But the allegations state that the supervisors "knowingly and willfully applied the IRS Review Policy to True the Vote," which is not sufficient under Iqbal to plead their intent to discriminate.
• Lots of those darn conclusory and "information and belief" allegations, for example ¶ 54 ("Upon information and belief, under the IRS Review Policy, the IRS and IRSEmployees engaged in other discriminatory conduct toward applicants for tax-exempt status thatwere perceived to hold conservative policy positions or philosophical views contrary to those held by the current Administration."). The complaint has the benefit of media coverage and the Inspector General reports, but it shows how hard it is to allege state of mind and behind-the-scenes action in non-conclusory terms.
• Are the officers entitled to qualified immunity? Is the right allegedly violated clearly established? Courts keep insisting we cannot define the right at too high a level of generality (e.g., "the right to be free from viewpoint discrimination"). Is there case law holding that the First Amendment is violated by the use of political identifiers as the basis for a sorting mechanism for purposes of determining tax exempt status? And since several defendants are (or were) top-ranking federal officials, is this a case subject to Justice Kennedy's concurrence in Ashcroft v. al-Kidd demanding SCOTUS precedent to clearly establish a right as to top-level officials?
The complaint is generally well-drafted and it appears (I know nothing about tax law) the statutory and D/J claims can go somewhere. But the Bivens allegations look no different than in the many other recent lawsuits that SCOTUS and lower courts have rejected for varying reasons.
9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion
Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona's ban on abortion at 20 weeks. As the court described the statute:
The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:
A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.
B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.
The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).
After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don' t pretend to be disinterested.
Judge Berzon's opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat "paint-by-numbers" case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.
That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:
The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.
Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.
These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.
Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.
By contrast, I think Judge Kleinfeld's concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:
1. On pp. 39-40, Viability is a bad line from a normative and constitutional perspective but it is one we are stuck with.
2. Even though we think the science is against finding fetal pain in the meaningful sense (the experience of pain), as we worried courts might, he seem inclined to give significant deference to the legislature on this point (page 43).
3. If the conflicting science really did bear out the fact of fetal pain, the state could require fetal anesthesia as its regulation rather than banning these abortions altogether (as he puts it on pp.36-37 "were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out"). We said as much, so clearly *I* think that is right, although his opinion does not tangle with a hard point we raised in the article of whether the statute should be seen as aiming to prevent pain to a fetus versus treating the capacity to feel pain as a marker of personhood.
4. Even if fetal pain is real and unavoidable, that does not mean the Constitution permits the state to weigh the prevention of that state above a woman's right of bodily integrity. Kleinfeld puts the point at once a little less forcefully and much more graphically than we did on page 43: "But protection of the fetus from pain, even the pain of having a doctor stick scissors in the back of its head and then having the doctor “open up the scissors [and stick in] a high-powered suction tube into the opening, and suck the baby’s brains out” was not enough in Gonzales to justify a complete prohibition."
What happens next? Rehearing en banc is possible but my guess is it won't happen. I also do not think the S. Ct will take cert at this stage, and will instead wait for a Circuit split or at least another one of these cases to make it to the Circuit stage before doing so. That said it does worry me in terms of the likelihood of a cert grant that Judge Berzon's opinion makes so much of the idea that viability is an ABSOLUTE dividing line established by the Supreme Court's prior precedent, a view I could easily see several Justices wanting to "correct".
- I. Glenn Cohen
Tuesday, May 21, 2013
Sperm Donation, Anonymity, and Compensation: An Empirical Legal Study
In the United States, most sperm donations* are anonymous. By contrast, many developed nations require sperm donors to be identified, typically requiring new sperm (and egg) donors to put identifying information into a registry that is made available to a donor-conceived child once they reach the age of 18. Recently, advocates have pressed U.S. states to adopt these registries as well, and state legislatures have indicated openness to the idea.
In a series of prior papers I have explained why I believe the arguments offered by advocates of these registries fail. Nevertheless, I like to think of myself as somewhat open-minded, so in another set of projects I have undertaken to empirically test what might happen if the U.S. adopted such a system. In particular, I wanted to look at the intersection of anonymity and compensation, something that cannot be done in many of these other countries where compensation for sperm and egg donors is prohibited.
Today I posted online (downloadable here) the first published paper from this project,Can You Buy Sperm Donor Identification? An Experiment, co-authored with Travis Coan, and forthcoming in December 2013 in Vol. 10, Issue 4, of the Journal of Empirical Legal Studies.
This study relies on a self-selected convenience sample to experimentally examine the economic implications of adopting a mandatory sperm donor identification regime in the U.S. Our results support the hypothesis that subjects in the treatment (non-anonymity) condition need to be paid significantly more, on average, to donate their sperm. When restricting our attention to only those subjects that would ever actually consider donating sperm, we find that individuals in the control condition are willing-to-accept an average of $$43 to donate, while individuals in the treatment group are willing-to-accept an aver-age of $74. These estimates suggest that it would cost roughly $31 per sperm donation, at least in our sample, to require donors to be identified. This price differential roughly corresponds to that of a major U.S. sperm bank that operates both an anonymous and identify release programs in terms of what they pay donors.
We are currently running a companion study on actual U.S. sperm donors and hope soon to expand our research to egg donors, so comments and ideas are very welcome online or offline.
* I will follow the common parlance of using the term "donation" here, while recognizing that the fact that compensation is offered in most cases gives a good reason to think the term is a misnomer.
- I. Glenn Cohen
Entry Level Hiring: The 2013 Report - Final Call for Information (For Real)
This is (honestly) the last call for information for the Entry Level Hiring Report. The data collection will close on Friday, May 24. I am aware that I will miss some hires because of this closing date. C'est la report. (And yes, I am also aware that I do not know French.)
At any rate, if you have information about entry-level hires for this year, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.
Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.
As a reminder, I am looking to collect 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)
Helping OklahomaJust a quick PSA-type post from this Tuscaloosan: Here are a few sites with suggestions about how to direct your aid for the victims of yesterday's tornado in Oklahoma.
Monday, May 20, 2013
FSU Law Is Hiring, 2013 editionFlorida State University's appointments committee for the College of Law will be gearing up over the summer and we are looking (principally) for laterals in the following areas: Environmental Law, Torts/Products, Trusts and Estates, Tax, Health Law and ADR. If you or someone you know is a possibly good fit for FSU’s virtues (ie., extraordinary scholarly culture, good weather, great cookies, among other things), please feel free to (have them) send Wayne Logan (and/or me) a CV and statement of interest. The Fall 2013 committee includes Wayne (Chair), Hannah Wiseman, Manuel Utset, Courtney Cahill, and myself. (If you are outside our targeted area of interest, but still keen on FSU, please don't hesitate to send us your materials as needs and interests evolve.) As always, FSU seeks a diverse pool of applicants from a wide range of backgrounds and interests.
More on the Town of Greece
Following up on Paul's post, just a few quick thoughts (for now): First, I agree entirely with Paul that his book, and Chris Lund's excellent article, are must-reads on this subject. Since Chris is visiting at Notre Dame next year, I look forward to learning a lot from him about this case.
Next -- and proving true, I guess, Paul's predictions about disagreements-among-friends -- I think it would be a good thing if the possibility Eugene Volokh raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass. I think the criticisms directed at that test in Steven Smith's 1987 article had and have force.
Finally, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context. Yes, this context is an anomalous one and, yes, Marsh was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea. For reasons I mention in this very short piece, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try. Better, it seems to me, to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.
Beware of "Town of Greece" Bearing Gifts
The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of the Second Circuit involving prayers given by guest chaplains before monthly town board meetings. Here is the SCOTUSBlog page, and here's the Second Circuit opinion by Judge Calabresi.
There has been a good deal of circuit court action involving legislative prayer, but the Supreme Court has basically not touched it since Marsh v. Chambers. Prediction is pointless, so I'll just say the following.
1) I talk about legislative prayers and similar cases in my book The Agnostic Age. I characterize the rulings in this area as "constitutional easements" over the Establishment Clause and argue that they are constitutionally problematic, at least, although I suggest that we might be better off letting sleeping dogs lie. (Andy Koppelman criticizes Marsh in similar terms in his excellent recent book, Defending American Religious Neutrality and says clearly that it should be overruled.) It would appear that the dogs are awake and hungry.
2) There is a good deal of consensus and friendship among law and religion scholars these days, at least in my view. The friendships will remain, I'm sure. But this is one case that will reveal the differences among us more starkly than many recent cases. I look forward to friendly disagreements with colleagues like Rick Garnett and Marc DeGirolami.
3) The best scholarly work in this area that I am aware of is by Christopher C. Lund. If you're interested in this case and these issues, you ought to read Chris's work. I hope we can get him over here for a timely guest stint at Prawfsblawg.
Sex, People with Disabilities, Prostitution, and Universal Health Care: Reflections on "The Sessions"
One of my favorite initiatives at Harvard Law School, where I teach, is that faculty members get to offer an optional 10-12 student not-for-credit "First-Year Reading Groups" on a topic of interest to them that is related to law in some way but not too law-class like. I've taught a reading group on bioethics and law through film that pairs films with papers/topics in bioethics (e.g., A.I. with readings on personhood, Minority Report and neuroscience and law and predicting criminality, Dirty Pretty Things and organ sale and exploitation, The Constant Gardener with clinical trials in the developing world, Eternal Sunshine for the Spotless Mind and therapeutic forgetting and "cosmetic neurology" and many others...)
Next year I will add The Sessions, a film I found very enjoyable starring John Hawkes, Helen Hunt, and William H. Macy from last year that I also found very bioethically interesting. The film is based on a true story and follows Mark O'Brien, a poet who lives in an Iron Lung due to complications from Polio. After unsuccessfully proposing to his caretaker, and believing the end of his life may be nearing, he decides he wants to lose his virginity. He hires Cheryl Cohen-Greene, a professional sex surrogate, who will offer him a maximum of six sessions but makes clear to him this is therapy not romance. I will stop there to avoid ruining the film, but on to the bioethics...
There are fairly clear issues raised about commodification, exploitation, the difference between sex therapy and prostitution, that I have written about in various forms in various places. These are certainly interesting issues but familiar enough. What the film newly prompted me to think about, though, is actually universal health care. In particular, as I have written about indirectly in a couple of papers, what would some of the most prominent theories explaining why we need universal health care say about whether the state should pay for sex therapy (or perhaps even prostitution) for people with disabilities like Mark who find themselves otherwise unable to have sex?
For example, in his wonderful book Just Health, my colleague Norman Daniels, coming from a more Rawlsian tradition (i.e., a liberal tradition focused on promoting liberty and distributive justice through giving priority to the worst-off), grounds the state’s role in promoting health in the obligation, as a matter of political justice, to ensure access to the “normal opportunity range” to pursue the “array of life plans reasonable persons are likely to develop for themselves.” Although Daniels' focus is on health care, it seems to me that sexual satisfaction is also part of that normal opportunity range and part of a life plan most of us would like to pursue.
Similarly, Martha Nussbaum in her great book Frontiers of Justice, writing from a more aretaic (i.e., Aristotelian, focusing on character and virtue) perspective, has argued that the state’s role is to enable human flourishing by raising people above the threshold level on a number of “capabilities.” Among these she mentions “bodily integrity,” as including “having opportunities for sexual satisfaction and for choice in matters of reproduction." I have previously discussed how this kind of approach may justify funding reproductive technologies, but it seems to me as though it also fairly directly establishes an argument for funding Mark's attempts to lose his virginity.
Now this is meant to be provocative, of course. And for some this is no doubt a reductio ad absurdum against universal health care. Fair enough. But for those who believe there is a moral case for funding universal health care, does the argument also lead to funding these kinds of sex therapies? Health is important, of course, but let's be frank (and my parents can stop reading at this point) so is sexual satisfaction, and both seem to me essential parts of the normal opportunity range and/or human flourishing.
Now one distinction might be the anti-commodificationist objections I gestured at above in the sex therapy or prostitution case, that distinguish health care. But for those not moved to forbid the kinds of services Cheryl provides Mark on these grounds, should the state pay? Perhaps there is, to use Radin's term, there is an opportunity for an incomplete commodification posture by allowing it to be bought and sold but not having the government pay.
Others might say the kind of good Mark seeks, sexual satisfaction from a paid therapist, is a kind of ersatz version of what is good. I am not sure I agree with this, and think that there are many for whom sex with a relative stranger may be as valued as sex with a life partner, and this notion seems somewhat quaint in an era of hooking up and open relationships. In any event, even if you think this is a kind of second-class good, many health interventions also offer less than ideal artificial substitutes (prosthetic limbs instead of real ones) but that does not stop us from funding it.
Still others might agree that this is a valuable thing to fund for for someone like Mark, but suggest it should get relatively low priority in the pantheon of health care and education interventions. To those I would push back and say man people spend a disproportionate part of their life in search of a sexual partner, and attempts to cope with sexual dysfunction (e.g., Viagra) is something on which many Americans put their money where their mouth is (hmm... maybe not the best choice of aphorism in this context...)
Finally, some might object that some people with disabilities would not want these services. Fair enough, but as with Nussbaum's capabilities approach we are talking about enabling those who want it not forcing it on those who don't.
As I said, this is meant to be provocative. But I will be curious to know what others think, does the state have an obligation to fund these services the way it does health care? If so, should that obligation extend beyond those with disabilities like Mark to those who face other deficits making sexual relationships hard to achieve?
- I. Glenn Cohen
Friday, May 17, 2013
Non-State Law and Enforcement
As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise.
One theme that regularly emerges - and is often discussed - in the context of non-state law is the problem of enforcement. Put simply, without the enforcement power of a nation-state, non-state law must typically find alternative mechanisms in order to ensure compliance with its rules and norms. This hurdle has long figured into debates over whether one can properly conceptualize international law as law.
But the focus on enforcement is problematic for a couple of reasons. First of all, the challenge of enforcement for non-state law is in many ways overstated. For example, in a 2011 article titled Outcasting: in Domestic and International Law, Oona Hathaway and Scott Shapiro explored this issue, emphasizing - especially in the context of international - how certain forms of nonviolent sanctions, such as denying the disobedient the benefits of social cooperation and membership, can be deployed as a form of non-state law enforcement. Indeed, the use of outcasting has long been prominent in other areas of non-state law, such as a method to enforce religious law within religious communities.
There's, of course, much more to be said on the relationship between non-state law and enforcement (something I may explore in a subsequent post). But too heavy an emphasis on this piece of the non-state law puzzle is problematic for a second reason - it too often obscures other important ways in which non-state law functions as law. In my next couple of posts what I'd like to do is consider other ways in which various forms of non-state law function as law by focusing more directly on the internal practice of law within the relevant communities.
The Modified Workshop Queuing Experiment
In the interest of sharing ideas, I wanted to say a word about workshops. Over the last several years I have co-run with Einer Elhauge a workshop in health policy, biotechnology, and bioethics, where leading scholars present works in progress.
We usually have a significant number of faculty and fellows, as well as several students who enroll for credit. The session is about two hours, with 30 minutes ear marked for the presenter and the rest for Q & A. After observing our faculty workshops and other Harvard Law workshops over the years, I became dissatisfied with standard queue system, in part because tangents or ideas get lost and don’t build on one another as much as I would like. Instead I have used what I call the “modified queue,” am quite happy with it, and want to share it with you (and also get other ideas you have used that work).
Here is how it works (it sounds much harder than it is, it is pretty easy in operation):
- Raise one hand and get listed on the “regular” queue just like in most workshops.
- Raise TWO hands if you have a follow-up question to one that has been asked (or to the answer to it). I always remind people here that they will be policed by the social opprobrium of others if their “follow-up” question does not look sufficiently follow-up-esque. I then go through all the follow-ups and put them on a follow-up queue [But note that if you ask a follow-up to a follow-up you are given no additional priority on the follow-up queue, just put to the end of it]
- If you are on the “regular queue” and you ask a follow-up I “demote” you and put you to the end of the “regular queue” as it now stands, thereby making asking a follow-up question slightly costly in that it means your own question is delayed.
- Occasionally when there are too many follow-ups (say more than four or five) and/or when we are getting towards the end of our time and someone who has been patiently waiting on the regular queue has not yet got to ask their question, I will “cheat” and start putting people asking follow-up questions to the end of the regular queue. This way I ensure that follow-ups don’t swallow the whole regular queue.
I (and I think others who have attended the workshop from what I hear) have been very happy with this system. I have now started exporting it to conference sessions I chair where the format is workshop-y too. Try it out, if you care to, and let me know what you think!
Thursday, May 16, 2013
Missing Minorities in a New Publication About Law School Diversity
The publication Lawyers of Color just published a special issue on diversity in the legal academy, apparently aimed at students. It identifies "50 Under 50", the most influential minority law professors under 50 years old, a very distinguished group. It also purports to list the most diverse law faculties and to identify every minority law professor teaching at every law school.
Unfortunately, the reliability of these lists is impaired by the fact that many people were left off the list of minority law faculty. For example, at UC Davis, 10 colleagues were listed, but I was omitted. I might suspect that this was my dean's way of trying to tell me something, but he was another one of the ten faculty in total who were left off. The missing faculty may explain why UC Davis made the National Jurist Diversity Honor Roll but not this list. Seattle University, which has around 18 minority law faculty, was not mentioned at all.
Because this is a digital publication, I hope it can be corrected and updated before students making decisions are misled.
Learning from exams
I want to own and expand on a comment from Jessie's post about the teaching value of taking and grading exams.
Like Jessie's commenter, grading exams puts in stark relief what I did well and not so well during the semester. My exams showed that the two big problems this semester involved amendments to pleadings under FRCP 15(a) and the primary federal venue statute, § 1391. The answers I saw on the exam showed that the overwhelming majority of students did not understand what the language of either provision means or how the pieces fit together. This is a bit ironic, actually, because both provisions recently were revised (§ 1391 in the Juridiction and Venue Clarification Act of 2011 and FRCP 15 substantively and as part of the Restyling Project) specifically to make them clearer. So much for that. Like Jessie's commenter, I wish I had known this at the time so I could have spent a bit more time going over it.
At some level, the misunderstanding as to both provisions reflects a general weakness in reading and understanding statutes, triggering the ongoing question of how to get students to properly read statutes when they otherwise are focused only on case law.
For example, this is how FRCP 15(a) reads:
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
When given a question about whether an amended complaint had been properly filed, students regularly went for sub-part (A) rather than (B), probably because that comes first so they never got around to comparing the two provisions to see which one properly applied. Then they read either sub-part in isolation, ignoring the introductory paragraph and the word "within." So a large number of students wrote that the window for amending began at service and ran for 21 days, ignoring any other starting point. We talked about this at length in class and it came up in review sessions; apparently we needed to talk about it at even greater length. I may also give a short hypo to discuss in class (probably the question from this year's exam that caused all the problems) to illustrate how the rule works.
They had similar problems with § 1391 of not seeing how parts of a statute fit together. As amended, § 1391(b) lays out the three bases for venue, then § 1391(c) identifies the way "residency" is determined for purposes of § 1391(b)(1). But most students read (c) as an independent basis for determining venue, not as a definitional provision of a different section of the statute. Again, these exam answers show where I need to spend a little more time next year, since the venue discussion always feels rushed, thrown in between personal jurisdiction and Erie.
Finally, on a different but related note: To what extent do you hope that taking and reviewing exams/papers will be a learning experience for the students? And students, to what extent do you feel as if you learn something in taking and/or reviewing the exam with the professor?
Spreading out grading
I am happy to say I have finished grading for the semester and it was as thrilling an experience as ever. I experimented for the first time with a mixed short-answer/multiple choice format for the final in Civ Pro and liked it a lot as a testing mechanism; it gave me a good sense of what students did and didn't know (I will have more to say about that in a later post). I also did not find grading it overly burdensome.
The real struggle for me was grading the take-home essay portion--that is the part that feels overwhelming. And it struck me this cycle that the source of the struggle is several-fold: 1) the sheer number of essays to read all at one time, 2) that they all say basically the same thing (things actually, since students wrote on one of 3 questions), and 3) the fairly short time window (about a week) to get them all read, which even if sufficient time, feels crunched. So while it is perhaps too soon (my grades have not yet posted and I have not yet met the deluge of questioning 1Ls), I am thinking about alternative approaches for next spring.
One thought is if and how to spread written assignments, and thus grading, over the course of the semester. So: At the end of each portion of the course (for example, Pleading or Subject Matter Jurisdiction), I would assign a group of students to write an essay on that topic, due 7-10 days later. This would mean I am grading more regularly during the semester--I would have a group of papers to read every other week or so (more frequently if I sub-divide a longer portion of the class, such as pleading, into sub-parts). But I would be reading fewer of them at once and on less of a deadline Maybe I am completely wrong, but it feels like that would be more manageable and less of a slog than reading 60 papers all saying the same thing all at once (or even reading 30 papers on one topic at the same time I'm reading 30 papers on another) with a week to turn them in while also reading and grading their in-class exams. And I also believe (again, perhaps wrongly) that I will do a better job of reading and grading with more time and fewer papers.
I see a couple of obvious drawbacks to this. One is that students might balk at the "unfairness" of having their workload at a different time than their classmates, with every student believing that her time--early in the semester, late in the semester, close to legal-writing time--is disadvantageous. But I think randomizing it might help alleviate the objection. Another is the trick of making sure I can fairly compare grades across different assignments on different topics, but I've been doing a version of that for a few years, so it is just a matter of careful problem selection. It also may be more difficult to assign two essays each semester, as I've been doing the past few years.
Does anyone do something like this? And how do you find it works? Are there other drawbacks I'm missing?
Blog Symposium on Radin's BoilerplateThere is a blog symposium at ContractsProf on Peggy Radin's new book, Boilerplate. My micro-review on the fetishization of consent is available here.
First Amendment Institutions in the Law and Politics Book ReviewMy most recent book, First Amendment Institutions (it makes a good Victoria Day gift!), is reviewed in the latest issue of the Law and Politics Book Review by law professor Ruthann Robson. It's a tough but fair review. I welcome the criticism, and hope I may be forgiven for cherry-picking a couple of generous lines: the book "provides the most sustained, nuanced, and well-reasoned argument for an 'institutional turn' in First Amendment jurisprudence," and "admirably achieves" the goal of "open[ing] a conversation about First Amendment institutionalism, . . . providing a book that is worth reading, considering, and debating." Obviously, I hope people will read and even buy the book, and take part in that conversation. But it's very much meant to be a conversation, and Robson's criticisms are a valuable part of that. Read the whole review (and the book, of course!).
Wednesday, May 15, 2013
Rationing Legal Services
In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor. This only only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.
To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?
I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.
I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.
The end of the paper entitled “Some Realism about Rationing”, takes a step back to look for the sweet spot where theory meets practice. I use the foregoing analysis to recommend eight very tangible steps LSPs might take, within their administrability constraints, to implement more ethical rationing.
While this paper is now done I am hoping to do significant further work on these issues and possibly pursue a book project on it, so comments on or offline are very welcome. I am also collaborating with my wonderful and indefatigable colleague Jim Greiner and a colleague in the LSP world to do further work concerning experimentation in the delivery of legal services and the research ethics and research design issues it raises.
- I. Glenn Cohen
Posted by Ivan Cohen on May 15, 2013 at 02:57 PM in Article Spotlight, Civil Procedure, Law and Politics, Legal Theory, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (2) | TrackBack
Buy "The Business of Baby!"I almost missed it, but you might enjoy, from this weekend's New York Times Book Review, this review by Annie Murphy Paul of "The Business of Baby," a book by the capitalist journalist Jennifer Margulis.
JOTWELL: Coleman on Hoffman on federal rulemakingThe latest essay for JOTWELL's Courts Law is by Brooke Coleman (Seattle), reviewing Lonny Hoffman's Rulemaking in the Age of Twombly and Iqbal (forthcoming, U.C. Davis Law Review).
A Jot on "Balkan Ghosts"The latest con law "jot" from Jotwell: Pat Gudridge on Reva Siegel, balkanization, and equal protection. Enjoy!
The Getting (Criminal Law) Scholarship into Courts Project: Litigate This
I'm involved in a new project designed to connect practicing criminal lawyers with useful legal scholarship. I am very excited about it, because, contrary to some, I think law review articles are frequently relevant to legal issues decided by courts. Every month, a committee of practicing and academic lawyers will identify a set of articles about issues practitioners might want to raise in their cases, and the NACDL will circulate them. Here's the first batch, featured in the NACDL magazine, The Champion, which includes papers by Deborah Denno, Glenn Reynolds & John Steakley, and Deborah Tuerkheimer.
The premise is that practitioners do not have time to read law review articles systematically because, many articles, even in the criminal area, will be distant from the kinds of claims and arguments cognizable in court. The result is that lawyers may never see law review articles that could be sources of ideas, cases, and authority. We hope and believe there will be an appetite for innovative, ready-to-litigate articles. We invite all Prawfs readers to nominate recent articles written by themselves or others which might be of interest to lawyers litigating cases (contact Andrew Ferguson at aferguson -at- udc.edu).
My view is that the generally low visibility of articles is unfortunate for both professors and practitioners.Society invests massively in scholarly legal research. The work is uniquely important, at least potentially; legal academics do something no other institutional player can do. My thoughts about our role developed when I was an LL.M. student. A dear classmate from the Philippines, who was already a law professor there, told me that at some schools faculty earned $5 per class, and that it was necessary for many or most faculty to practice law in addition to teaching. The United States, by contrast, finances a fairly large, full-time legal professoriate. As a result, there is a body of lawyers whose interests go to the system as a whole rather than the interests of any individual client, and whose capacity is independent of what any client is willing or able to pay for. I suspect, for example, there are only a handful of criminal cases in any given year in which it is possible for an experienced practitioner to work on a single legal question for, say, three months, a summer, full time. But in the legal academy, that sort of focus is utterly routine. In many instances the scholarship that results is important, worthwhile and relevant.
I hasten to add that the project's focus on litigable papers is not meant to denigrate more theoretical, historical, or empirical work, which can be influential and important in its own way. But this particular project is intended to link academics and criminal practitioners.
Academic Advisory Board consists of Shima Baradaran
(Utah); Doug Berman (Ohio State), Stephanos Bibas (Penn);
Jack Chin (UC Davis); Roger Fairfax (GW); Andrew G. Ferguson (UDC Clarke School
of Law); Carissa Hessick (Utah); Cecelia Klingele (Wisconsin); Wayne Logan
(FSU); Margaret Colgate Love (DC practitioner); Michael J.Z.
Mannheimer (NKU); Marc Miller (Arizona); Song
Richardson (Iowa); Jenny Roberts (American); David Rudovsky (Penn); Giovanna
Shay (Western New England); Andrew Tazlitz (American); Yolanda Vasquez
(Cincinnati); and Ron Wright (Wake Forest). Needless to say, this blog post represents only my views.
Freedom of the Church Without Romance
I'm happy to share my latest draft paper, Freedom of the Church Without Romance. It was written for a symposium at the University of San Diego's law school called "Freedom of the Church in the Modern Era," and I must say that the articles coming out of that symposium, mine excepted, are very strong and will constitute excellent resources for those interested in the increasingly popular subjects of "freedom of the church," religious institutional autonomy, the ministerial exception, and related themes. Some of them are available for download here, and see also these pieces.
Every scholar has articles they're more or less proud of for one reason or another, and I'm quite proud of this one, for two reasons: (1) it takes an idea I have championed and associated myself with and subjects it to critical analysis, rather than simply defending it one more time; and (2) it makes the important (I think) point that church-state legal scholars ought to do much more with the substantial literature on the economics of religion. I hope others enjoy it, and I welcome comments. Here's the abstract:
This Article is part of a symposium issue titled "Freedom of the Church in the Modern Era." Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court's decision affirming the "ministerial exception" doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,the idea of "freedom of the church" has taken on new champions--and critics.
This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion.
Both historical and economic analysis of the concept of"freedom of the church" suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions--or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of "freedom of the church" means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion's status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church's well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church--the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime.
The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.
There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.