Monday, September 30, 2013
I really enjoy teaching federal income tax—it is relatively clear-cut and entertaining, with a lot of great stories. In fact, for the tax people out there, here is a fun story one of my students sent me about the history of the federal income tax code, as well as an incredible Disney propaganda video in support of a federal income tax.
Thoughts on the Court's new legislative-prayer case
I had this contribution, "Legislative Prayer and Judicial Review", to the symposium on the Town of Greece case that the folks at SCOTUSBlog are hosting. (Go here for a list of all the very-worth-reading contributions, including ones by Prawfs-alums Jessie Hill and Nelson Tebbe.) Here's a bit:
. . . In my view, the court of appeals got it wrong and the Town’s before-meeting prayers are permissible solemnizations rather than an unlawful establishment. What is happening in the Town of Greece is consistent with what has been happening at public meetings since our country’s – and our Constitution’s – beginnings. “Establishments” of religion do exist in the world, but this is not one. Town officials did not purport to draft, let alone to enforce, a religious creed and the government inviting voluntary “chaplains of the month” to pray at a meeting is not very much like the government imposing a prayer-book on churches. “Coercing” religious activity is unconstitutional and unjust, but to characterize the Town’s policy as “coercive” is to expand the both the idea of coercion and the power of judges dramatically and unmanageably.
The Town of Greece case, though, is interesting not only for what it could tell us, going forward, about the Court’s First Amendment doctrines and precedents, about the place of religious expression in the public square, and about the extent to which secular governments may acknowledge their citizens’ religious convictions. The case also provides, I think, a good opportunity for reflection about the role and power of the Supreme Court and about the nature and practice of judicial review in a constitutional democracy like ours. . . .
What we do and why we do it
A few days ago, Matt put up a thoughtful post about the ABA Task Force Report on "The Future of Legal Education." Because Chief Justice Randall Shepard, the chair of the committee that produced the report, spoke the other day at Notre Dame Law School on the topic, I took the opportunity to re-read it, and with the benefit of Matt's post.
I agree with Matt that "there is not consensus that the content and quality of legal education has failed to educate attorneys for their work, or that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis. To make these much more contestable claims, there needs to be data and analysis to back it up." And, like him, I was struck by the following assertion in the Report:
- "People are generally risk-averse. Organizations, which are composed of people, tend to be conservative and to resist change. This tendency is strong in law schools (and higher education generally), where a substantial part of the organization consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments." (p. 15)
The last sentence resonates, I realize, with many who are angry at what they regard as a law-school scam, and I suppose no one would deny that there are some people who fit that last sentence's description who work in higher education. But, as someone who has spent a number of years on a law school's Appointments Committee, and met hundreds of incredibly talented young lawyers and scholars "on the market," it seems to wrong to say - let alone to report confidently, without data -- that a "substantial" number of those on law school faculties have "sought out" positions in legal education "because" those positions "reside largely outside market- and change-driven environments."
Still, even if the claim strikes me as too-quick, there is no denying, again, that it resonates, and it is hard to say to someone for whom it resonates "well, it shouldn't! You need to feel differently!" Instead, I think someone like me -- i.e., someone who looks at his colleagues and sees (for the most part) people who care about the formation and education of students, about the good of the profession, and about the importance to human well-being of the legal enterprise and who are engaged and excited by ideas and exchanges with students and colleagues alike -- has to ask, "o.k., why is it the case -- what have we said and done or failed to say and do -- that a distinguished ABA committee thinks this hasty udgment is spot on and that many students, recent graduates, prospective students, and practicing lawyers think the same?"
My thought here, to be clear, is not, "geez, we pampered law profs need to do some better, image-improving messaging"; it is (I hope) more sincere and self-critical. This sentence in this report suggests that we are failing to communicate -- that is, to express through what we say and do in our teaching and writing -- why we were drawn to and why we are committed to (what many of us see as) our vocations, because -- again -- I don't think it is the case for very many that the answer to this "why?" was or is "to avoid market forces or change."
What just happened at the Naval Academy?
I have been following the military prosecution of several Naval Academy midshipmen for sexual assault, partly because news stories seem to reflect a yawning gulf between this case and our general understanding of the federal rape shield statute (which I just taught last week). I turned to my colleague Eric Carpenter, who writes on sexual assault in the military and had a long career in the Army JAG Corp.
The military just concluded a hearing at the Naval Academy into whether three midshipmen committed criminal sexual offenses against a female midshipman. According to the government, the woman attended a party and became drunk to the point of blackout and possibly passed out. Later, she heard rumors and saw social-media that led her to believe that these three men has sexually assaulted her while she was too drunk to be capable of consenting. The defense claims she was capable and did consent.
While the facts as reported by the media are disturbing, lawyers who read reports of the hearing should find something else alarming – the female midshipman was questioned by three defense counsel for over twenty hours, and the questioning went into areas that would often be off-limits due to rape shield rules. Reports are that she was cross-examined on whether she wore a bra or underwear, “felt like a ho” afterward, and how wide she opened her mouth during oral sex.
What’s going on here? What was that hearing and do rape shield rules apply to it? Why is a sexual assault victim testifying and subject to cross-examination in the first place?
What happened was something unique to the military – a hearing called an “Article 32.” This article of the Uniform Code of Military Justice (UCMJ) requires that before charges can go to a general court-martial (the rough equivalent of a felony-level court), an officer must investigate the truth of those charges (reasonable grounds that the accused committee the offense, or roughly the same thing as probable cause) and make a recommendation to the convening authority (usually a two-star general) on how she should act on the charges.
Your first reaction to that might be, “That hearing sounds like a grand jury proceeding.” My answer would be, “Yes, but mostly no.”
An accused at an Article 32 has rights that a defendant at a grand jury doesn’t. The accused can be present; has a right to a military defense counsel; can cross-examine witnesses; and has full opportunity to present evidence to rebut the charges or to seek a lower disposition.
There is no jury – just an investigating officer, and that officer usually has no legal training (she gets her legal advice from a neutral judge advocate). In the most serious or high-profile cases, like capital cases, judge advocates and sometimes military judges serve as the investigating officer. In the Naval Academy case, the media reports that a military judge served as the investigating officer.
Unlike a grand jury’s finding, the investigating officer’s conclusions and recommendations are not binding: the convening authority can still make her own decision about the case.
Evidentiary rules apply. Not the full-blown Military Rules of Evidence (which are very similar to the federal rules), but rules nonetheless. Generally, if a military witness is within 100 miles, she needs to show up, and even if the witness cannot show up in person, she usually testifies over the phone. You can’t simply turn in the victim’s sworn statement. In the Naval Academy case, that is why the victim had to testify.
Contrary to what some of the news reports imply, the rape shield rule applies. The military’s rape shield rule is essentially the same as the federal rule, and the President made this rule apply to these hearings with Rule for Court-Martial 405(i). In the Naval Academy case, I would assume that the parties argued about what the defense was allowed to ask in cross examination, and I assume the investigating officer (in this case, a lawyer) found an exception—but that may be a faulty assumption.
If the investigating officer decided that this evidence fit one of the written exceptions to the rape shield rule, that conclusion may be suspect. Generally, evidence of past sexual behavior or sexual disposition is inadmissible in inadmissible except to show that someone other than the accused was the source of physical evidence; to prove current consent with the accused if the past sexual behavior was with that accused; or the exclusion would violate the accused’s constitutional rights. The attorney for one of the accused asked her the questions about oral sex because “This is an act that cannot be performed while someone is passed out.” According to reports, the lawyer further argued that “her client could not have had oral sex performed without the woman’s consent.” Most people would disagree with that. The victim had a prior sexual relationship with one accused, but his attorney asked her about what she was or was not wearing and whether she felt like a ho on this occasion. The rule is limited to evidence of past experiences between the two. The defense counsel could have argued that this evidence was constitutionally required because the accused were mistaken as to whether she consented. But from the news reports, it appears that their defense is that was capable of and did in fact consent, not that she didn’t consent and they misread the situation.
Again, I was not at the hearing and don’t know how the investigating officer analyzed the facts. If he was right, the cross examination she faced at this hearing may have been allowed at trial. A very real issue is that he may have been wrong, and if he was wrong, there is no remedy for his mistake. With few exceptions, none of the testimony at an Article 32 is admissible at the later trial, and even if the government closed down all of the exceptions, the victim has already gone through the experience.
So it appears that Article 32 is ripe for criticism. To understand why Article 32 is the way it is and to properly frame criticism of it, we need to understand its history and original function.
As Oliver Wendell Holmes said, “The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains.” That is what happened here.
Service members don’t have a constitutional right to a grand jury, and what has developed was not because the military was trying to replicate one. Rather, the original purpose of the Article 32 was to conduct an investigation when it was very likely the only investigation that happened prior to trial. That function has now been subsumed by other features of the modern court-martial system but the investigative features of Article 32 still remain.
Prior to 1917, most charges were not investigated prior to going to trial. A commander would send charges to a court-martial, which would very often be held within a day. The accused had very few rights. There were no defense lawyers or judges or professional law enforcement investigators or appellate courts. This was quick trial before a board of officers. If you have seen the movies Breaker Morant or Paths of Glory, you will have a sense of how courts-martial worked back then.
The few cases that were investigated (because an officer demanded it) were sent to Courts of Inquiry. These courts were used to investigate a wide range of issues (the conduct of generals in combat, or to resolve allegations against character). These boards were used to resolve disputes and the procedures that developed for them reflected that purpose: the service member was present, the Court could compel witnesses, and the service member could cross-examine them.
Starting in 1917, in response to criticism that commanders had too much power and could push meritless cases through the system, commanders were required to conduct an investigation prior to sending the case to court-martial. The investigation would ensure that probable cause existed and would recommend an appropriate level of discipline. With this new requirement, commanders looked around for something familiar to model for this task and found the Courts of Inquiry.
Additional rights followed. In 1949, the accused gained the right to counsel. In 1951, Congress passed Article 32 as part of the new UCMJ, adding the right for the accused to make a statement and present evidence. In 1968, Congress required that the accused’s counsel be a real lawyer.
At the time, the rules were necessary because they provided a measure of due process that a service member did not find in the rest of the court-martial process. Since 1951, however, the court-martial process has steadily “civilianized,” with statutory requirements for independent military judges and legally qualified counsel who operate under the nation’s most liberal discovery laws (and so can marshal evidence for trial). The military’s law enforcement also became a professional, fully-functioning investigative community, complete with independent forensic laboratories.
The reasons to have an Article 32 investigation no longer exist, but the rule remains. That, I think, means it is time for change. Otherwise, we risk what we just saw.
Returning to the Naval Academy case, probably nothing new was learned at this Article 32 that could not have been learned by otherwise investigating the case, interviewing the witnesses, and conducting discovery under the military’s liberal rules. But while pursuing this now obsolete investigative function, we managed to take a service member through 20 hours of invasive testimony – which she may have to do again at trial. Twenty hours is more than enough. Forty hours is senseless.
We could have come to a probable cause determination without having this type of hearing. In a recent Op-Ed, Gene Fidell argued that it is time to get rid of this “trial before a trial” and instead have “a bare bones preliminary hearing” to determine probable cause.
A more measured response would be to modify the Article 32 so that it serves the functions that we want it to serve. We no longer need a formal investigation. Get rid of the investigative features – no more calling live witnesses, no more presentation of a defense case. This also takes care of the rape shield issue, because the defense is the party that presents that evidence.
We do need a probable cause hearing, and we can use the hearing as a discovery tool at no additional cost by allowing the accused and counsel to be present and to examine all materials presented. Make the probable cause determination binding on the convening authority (to protect the accused), but to do that, we need to make the Article 32 look more like a grand jury. Have a panel rather than one officer; have a judge advocate serve as a presiding officer. This won’t be a bare-bones hearing – knowing that the panel might kill the case should provide incentive enough to the government to produce a significant amount of information.
So what is next? Most of the current debate between Senators Gillibrand and Levin turns on who should make the disposition decision in a court-martial – the commander or the staff judge advocate. The Article 32 problem is on the radar, though. The 2013 National Defense Authorization Act mandated that the Secretary of Defense establish a panel (called the Response System Panel) to work on many of the difficult issues related to the military’s sexual assault problem. One of the mandates is to “[r]eview and assess those instances in which prior sexual conduct of the alleged victim was considered in a proceeding under [Article 32] and any instances in which prior sexual conduct was determined to be inadmissible.”
This is a good opportunity to decide what the modern functions of Article 32 should be and to revise it to promote those functions and only those functions. And I expect the Naval Academy case will be front in center in that debate.
(With thanks to Major Mike Kenna for shaping my perspective).
Steal this Map!
It's been a fun month blogging here at Prawfs -- thanks to Dan and crew for letting me hang out. As it happens, this final installment in my SCOTUS mapping series falls on the very last Monday in September. The first Monday in October is thus just around the corner. However, while Court junkies everywhere should be smiling, the prospect of a federal shutdown threatens to delay the our precious fix. Mercy!
Yet let's not let the Congressional anarchy get us down. Instead, we can embrace the farce Yippie! style. The Court Term will start sooner or later -- and doctrinal controversy will surely follow. And when those good days come at last, we'll all once again get to debate and dispute the meaning of our favorite constitutional Clauses and Amendments. So let the clowns play. In the meanwhile, fellow junkies might like to recall some recent highs the Court gave us.forthcoming piece in Northwestern Law Review Colloquy. Download it if you like, it's free!
Of course, Obamacare is at the heart of this whole federal shutdown boogie. Now didn't the Court actually decide whether that contentious law was consitutional a couple of Terms ago? Gee, I think I do. I even seem to recall that the law was upheld under the Tax Power. Then again, NFIB v. Sebelius did stir up a hornet's nest with its treatment of the Commerce Power. That was quite a colorful doctrinal fight. Want a picture? You know there's a map for that.
Looking above, we can see that debates over the reach of federal power go way back. Back to the Civil Rights Era. Back to the New Deal. Back to Chief Justice Marshall and even to the Constitution itself. Perhaps we can take some solace in this chain of disagreement. Regardless of the particulars of this Commerce Clause dispute (explained more in this piece), the fact is that we've been arguing about Big Government forever. Though freshly annoying, the shutdown controversy we're experiencing today is hardly new.
So forward we march. The Court has a host of intriguing arguments teed up this Term -- from Town of Greece v. Galloway to Fernandez v. California to McCutcheon v. F.E.C. to Walden v. Fiore and more. Such cases promise to be hotly disputed. And they, in turn, will all require judicial interpretation of prior hotly disputed cases. Lines of competing opinions will stertch back and clash forward. In short, there will be doctrinal dialectics. Such dialectics are perfect for doctrinal mapping.
As I mentioned in my last post, modest stipends are available for folks potentially interested in using the SCOTUS mapper software to chart out such doctrinal debates. Though this Term's cases provide great material, proposals need not concern doctrines currently before the Court. Indeed, any map that helps build the free library visualizing a contested area of Court doctrine is welcome. Please let me know if you have questions or are interested.
Well, it's time to sign off. I may hang out on Prawfs a bit more in October, but I promise not to talk about maps anymore. Have a great Term and here's to the Blawg!
Part I [Introduction to Mapping], Part II [Dissents and Competing Traditions], Part III [Network Analysis Compared], Part IV [Maps in the Classroom], Part V [Maps and Doctrinal Scholarship], Part VI [SCOTUS Mapping Going Forward].
Call for Applications: Petrie-Flom Academic Fellowship, 2014-2016
The Petrie-Flom Center is now accepting applications for 2014-2016 Academic Fellowships.
PURPOSE: The Academic Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Center pursuing publishable research that is likely to make a significant contribution to the field of health law policy, medical innovation policy, or bioethics. For more information about current and past fellows, please visit the Fellowship Programs section of our website.
ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in a discipline that they intend to apply to issues falling under the Center’s umbrella. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship at the intersection of law and health policy, bioethics, or biotechnology during the term of the fellowship. Applicants will be evaluated by the quality and probable significance of their research proposals, and by their record of academic and professional achievement.
APPLICATION: Applications will be accepted from September 16, 2013 through November 18, 2013. Please note that applications submitted before November 18 will not be reviewed early.
Sunday, September 29, 2013
Harmonization of Laws
One of the most dynamic areas of family law—other than same-sex marriage—is the harmonization of family laws currently occurring in Europe. The aim is to make family laws more consistent across international borders to accommodate continued mobility. In the area of matrimonial property law, for example, the most recent issue is whether EU member countries can agree to a common property regime for married couples. Germany and France have begun cooperation by introducing a new regulation that permits spouses to contract into a common property regime. The remaining European Union countries must now determine whether they too are ready for the common property regime.
For a long time, there was doubt whether family laws can ever be harmonized across countries. The main reason for doubt was the cultural differences among European countries. However, harmonization started to progress, especially in family law areas devoid of cultural values, such as marital property regimes.
Harmonization success in Europe, however, prompts certain questions—whether harmonization is desirable in itself, and if so, how it could be achieved. There are many issues to consider in answering these questions, such as the role of jurisdiction autonomy, cultural relativism, and legal absolutes. These concerns are especially relevant in the field of family law, which regulates the intimacy of fundamental human relationships.
How else do you enforce rules?
Last week, the NCAA reduced some of the sanctions imposed on the Penn State football program for the sexual abuse committed by a former assistant coach. Geoffrey Rapp (Toledo) describes this as "punisher's remorse"--the NCAA "realized the victims are the current players. It’s not really putting any hurt on the people that we think are really responsible."
I disagree that only the current players are being hurt. Penn State University as an institution was being punished. And if Penn State cannot be punished, then the entire scheme of NCAA regulations is unenforceable (and humor me for the moment and assume NCAA regs are worth enforcing). Any long-lasting institution survives its individual members; old members are replaced by new members, but the institution is understood to survive uninterrupted. And the institution bears responsibility for the conduct of its members--past, present, and future. The players and coaches who break rules are always gone by the time enforcement comes down. If that punishment is wrongful because current (rather than rule-breaking) players are in the institution at the time of enforcement, then punishment of the institution always becomes wrongful. Even in a case of lack of institutional control (as Penn State arguably was), the institution could always argue that its failure was to control previous players, but that shouldn't be taken out on current players. But then the university gets off scott-free and has no incentive to police its future members, because it always can argue against punishment falling on its current players.
Taken to its conclusion, Geoff's argument applies to any institution and institutional punishments. Germany should not be made to provide reparations or other compensation to Holocaust victims because the punishment falls on the current German government and citizens; ditto for arguments with respect to slavery. International law (which I rarely cite or discuss) recognizes the concept of successor governments. Why not for universities in the field of NCAA enforcement?
All that said, I agree with Geoff that this is an example of "punisher's remorse", a term I wish I had used in a radio interview I did last week. But the remorse is over punishing Penn State--the NCAA does not want one of its flagship institutions under such a harsh punishment.
Thursday, September 26, 2013
Courts vs. Agencies in Child Support Collection
Child support enforcement is universally a difficult proposition. In fact, the United Kingdom has overhauled its child support system several times since the Child Support Act 1991 replaced the previous, piecemeal framework. However, one feature has stayed the same in these overhauls: the significant authority over child support placed in a centralized agency.
This is, of course, stands in stark contrast to the American court’s role in adjudicating parent’s child support issues. Only custodial parents receiving welfare must assign their right to sue for child support to the state, the rest may sue an obligor parent in court.
In a forthcoming article in the Catholic University Law Review, I consider the pros and cons of each approach, although neither seems to have achieved an efficient child support system. On the one hand, a centralized agency may be beneficial to those custodial parents who cannot afford to litigate. On the other hand, perhaps it is best to let the biggest stakeholder in child support enforcement—the custodial parent—retain control over the collection. Ultimately, however, efficiency must be improved in the child support system, as more children depend on it than ever.
Wednesday, September 25, 2013
SCOTUS Mapping Going Forward
Over the past weeks, I've been blogging here about the SCOTUS Mapping project. Up until now, my focus has been on the theory animating doctrinal maps and their potential application in teaching and scholarship. By now, Prawfs fans should get the basic idea. Today then, I want to pull back from the cartographic details and discuss the big picture project. Instead of individual maps, let's consider the whole atlas.
In broad strokes, the project has two distinct components.The first component is the Mapper software. While the software already supports the creation of complex doctrinal maps and interactive slideshows, the plan is to develop it further. The project's second component is to create a public library of doctrinal maps. Right now, the project has generated about a dozen maps that cover disparate areas of due process, equal protection, commerce, and Fourth Amendment doctrine. Many uncharted territories remain -- and the idea is to build up a library that would be a useful free resource for law students, practictioners, and academics alike.
I hope that Prawfs readers who study Court doctrine and enjoy visual thinking might consider participating in the library-building component of the project. To wit: I'm looking for folks to play with the software and create doctrinal maps. To help pique interest, I have secured funding from my home institution that will allow me to offer modest stipends to potential map-makers. These stipends will range from $250 to $500 per doctrinal map. Obviously no King's Ransom, these stipends aim only to give a little extra incentive to folks otherwise curious about doctrinal mapping and sympathetic with the SCOTUS Mapping Project.
For potentially interested folks, the basic process from here is simple enough. First, choose a doctrine. This means thinking of a line of Supreme Court cases -- or intesecting lines of cases -- that you would like to chart out. Second, send me an email describing the line(s) you would like to map. In your email, please try to give me a sense of the complexity of the map you are considering. How long is the line? What are the major opinions you suspect will be in it? Do you envision a map with competing lines?
To be clear, I do not expect proposal emails to have the doctrinal details perfectly worked out. Indeed, the whole point of the mapping process is to help uncover such details and to facilitate making previously unnoticed doctrinal connections. I just want a fair sense of your ambition and current familiarity with the uncharted territory. This will help me assess the complexity at issue and amount of time likely required to put a map together.
I hope to review proposals fairly quickly and respond within two weeks. If we agree on a map and stipend, the next step will involve signing a contract, getting you the software, and jumping in to map making! After you make your proposed map, you receive the stipend and then your map goes into the Project library. You then keep the software and may make as many more maps as you please. In return, I only ask that you give feedback on the software (it is still in beta development) and credit the project if you use the maps in a public forum.
So that's basic idea for the SCOTUS Mapping Project going forward. In my next post, I'll discuss areas of doctrine that are ripe for mapping -- based largely on cases the Court will hear in the upcoming Term. Until then, and as always, I welcome comments or questions.
p.s. To contact me offline or to send a mapping proposal, my email address is email@example.com
Subject matter ties
On the first day of Civil Rights, I discuss Reconstruction activity, including the Emancipation Proclamation. In honor of that, I wore a tie with the text of the Emancipation Proclamation, a fact I mentioned to the students. On the second day, students asked about the meaning of that tie; I chose it at random, which seemed to disappoint them. One even tried to find a tie that could represent action under color of law; he actually found one containing a police badge.
So my goal since then has been to match my tie to the topic of the day. Sometimes this is easy, as when I wore a tie with the U.S. Constitution when we covered "rights, privileges, or immunities secured," or one with cars when we covered Burton v. Wilmington Parking Authority. Others have been a stretch, such as the one with elephants for legislative immunity (explanation: The Republicans are in the majority in the House right now). We will see how this goes for the rest of the semester.
And if anyone has a relevant tie he would like to donate to the cause, I promise to return it in good condition.
Tuesday, September 24, 2013
Uncertain Future for the Indian Child Welfare Act?
Veronica, the girl at issue in last term’s U.S. Supreme Court case Adoptive Couple v. Baby Girl, was just handed over to her adoptive parents last night by her biological father after the end of continued litigation. In Adoptive Couple v. Baby Girl , the Supreme Court considered the application of The Indian Child Welfare Act of 1978 (ICWA), which was enacted to preserve the cultural identity and heritage of Indian tribes. The Court determined that the ICWA did not bar the termination of the biological father’s paternal right despite his membership in the Cherokee Nation.
However, the ICWA may face a new challenge. A Virginia appellate court has just issued this opinion, joining the growing number of courts refusing to recognize the Existing Indian Family Exception, which limits the application of ICWA to the removal of Indian children from an existing Indian family. There is some concern that if the judicially-created exception to the ICWA is not recognized, the ICWA would be subject to constitutional doubt under the Tenth Amendment.
Monday, September 23, 2013
Longer Sentences and Prison Growth, Part 2
In my last post, I made a broad—but vulnerable—argument for the claim that longer sentences have not driven prison growth. So I want to provide some stronger evidence for this point over the next few posts.
I want to start by looking at what we can learn from the National Corrections Reporting Program, a powerful and strangely-underused dataset compiled by the Bureau of Justice Statistics. Almost all work on prison growth simply uses the BJS’s aggregate annual admissions, stock, and release data. But the NCRP provides us with the ability to examine the role of time served more precisely.
The NCRP, unlike the aggregate data, reports information on individual inmates. States gather data on the inmate when he enters and then again when he leaves prison. With a bit of work, it is possible to construct the entire distribution of time served by an entering cohort: that of those admitted in, say, 1994, 35% were released within one year of admission, 15% between one to two years after admission, and, as of 2011, 4% of that cohort is still in prison.1 (Technically, this distribution can be calculated down to the number of days in prison.)
This granularity allows us to do two things that we can’t really do with the aggregate data: compute how the distributions in time served have changed over time, and consider how much different our prison population would look had our admissions or release policies been different. I’ll address the first point in this post, the second in my next one.Now, there are two major limitations to the NCRP that I need to acknowledge up front.
First, participation in the NCRP is voluntary, and while about 40 states contribute now, in its early years only about thirteen or so states sent in data. Moreover, much of the data they sent in was flawed in one way or the other, producing any sort of long time series requires dropping a lot of states. The upshot of these limits is that my paper from which these results come can use only 11 states, and these are all disproportionately “Blue”: more urban, more industrial, more Democratic. My sample here is highly self-selected.
(Don’t dismiss my results yet: in a later post, I’ll produce some results that replicate my basic findings here using all fifty states. Self-selection does not guarantee bias, just increases the risk of it.)
And second, the NCRP does not begin to provide consistently reliable data until the mid- to late-1980s or early 1990s (depending on the state). So if a major factor in prison growth was a one-time upward shift in time served in the mid-1980s—as my caveats in my last post suggested could not be ruled out at first—my results here will miss that and thus undersell the importance of changes in time served.
But there are two important counter-points to the limitations as well. First, the results I mention above that extent 11 states to 50 also extend my starting years from the late 1980s to 1977. And those results seem to show no real change in time served. And second, just showing that time served hasn’t grown since the late 1980s is still a surprising result. Observers as astute as Frank Zimring have argued that the 1990s represent the period where we shift from “lock ‘em up” to “throw away the key.” That’s just not the case.
Enough qualifications and hedging and counter-hedging. On to the results.
The following figure plots the median, 75th and 90th percentiles of time served for each entering cohort. In other words, a value of, say, 2.5 for the median and 4.25 for the 75th percentile in 1995 means that half of all prisoners admitted in 1995 were released within 2.5 years, and 75% were released within 4.25 years. Not surprisingly, as we reach the end of the time series some values can’t be computed: for many latter cohorts, the 90th-percentile prisoner was not released by the time my data ends (in 2004, for the paper I from which these results come).
Two clear trends appear here:
First, the quantiles all appears fairly constant over time.
And second, the three quantiles plotted here are not really all that long. In many states, the 90th-percentile time-to-release is four to seven years, and the median is often about 1.5 to two years.2
Neither of these results is consistent with the Standard Story, and both argue against viewing changes in time served—or time served in general—as the primary, or even a major engine of prison growth.
In my next post on sentence length, I’ll employ the NCRP data to make the case against sentence length even stronger, using it to generate some counterfactual thought experiments which indicate that changes in time served simply do not explain the growth in prison population, at least since 1990.
That said, these results are not conclusive, and at least one major statistical caveat needs to be addressed up front. Time served can stay flat or fall even during a period where almost all growth is due to longer sentences. This is, I think, an example of Simpson’s Paradox.
Consider a world that has serious drug dealers and minor drug dealers. In Year 1, the state convicts one serious dealer and sentences him to 10 years and ignores the minor dealers, and it repeats this every year. After a while, the prison has an equilibrium prison population of 10. Then, in Year 20, the state increases the sanction for series dealing to 20 years, but it also decides to crack down on the minor dealers and convicts 2 of them every year to serve one-year sentences. The prison population rises to 22 in the long run, although the median falls from 10 years to 1, and the mean from 10 to 7.3. All this despite the fact that 10/12 of the growth is due to longer sentences.
As I’ll argue in the near future, Simpson’s Paradox may be playing some role in these results—particularly in California (which, given the size of its population, is a major concession on my part)—but it does not explain all the stability: even if the “real” effect isn’t as flat as my results suggest, it is more flat than we generally think it to be.
That said, at least as a first step away from the overly-simple argument in my earlier post, these results continue to argue against longer sentences as the main engine of prison growth.
1 Recent, impressive revisions to the NCRP make these calculations quite easy to make for post-2000 data. Which is great, although this renders two long statistical appendices I had written on how to make them moot.2 The low median in California is driven by its disproportionate reliance on short-serving parole revocations.
JOTWELL: Vladeck on Reagan on National Security CasesThe latest essay on JOTWELL's Courts Law is by our own Steve Vladeck, reviewing Robert Timorthy Reagan's National Security Case Studies, published by the Federal Judicial Center. Steve uses this compendium to show that Article III courts are capable of handling cases touching on national security, obviating the need for special national security courts.
The post-hoc First Amendment
At some point in the future, I hope to write an article on the problems with enforcing First Amendment liberties through § 1983. One problem (not unique to free speech claims) is qualified immunity. Case in point is this recent Fourth Circuit decision involving sheriff's deputies in North Carolina allegedly fired for supporting the opposing sheriff candidate.
The case has drawn praise for recognizing that clicking "Like" on Facebook constitutes protected speech. And this certainly is a good thing from a court of appeals. Of course, the district court decision on this point reflected such a lack of understanding of how people can express themselves (quite apart from how technology works) that this was almost too easy. But lost in the celebration of a court getting technology right (for once) is that the deputies largely lost. The divided court held that the sheriff was entitled to qualified immunity from damages for the firings. The judges wranged over the scope and meaning of a particular divided en banc decision from a few years earlier; for the the majority, their wrangling shows precisely why the right was not clearly established, on the old "if three federal judges can't agree on the state of the law, then how can we expect a layperson to understand?" rationale. So it all ends up looking like a giant advisory opinion. Especially since this looks like a case in which it was entirely unnecessary to reach the merits--an obvious dispute about the meaning of circuit precedent made it obvious this was not clearly established. So why bother with the merits?
Interestingly, the plaintiffs' claims for reinstatement survive; that is prospective/equitable relief, to which qualified immunity does not apply and to which for Ex Parte Young does. This raises an interesting question--what if the plaintiffs sought front pay in lieu of reinstatement? Lower courts have all held that this is not available, because it is monetary relief paid for out of the state treasury. But this seems like it would fall within the Eleventh Amendment's prospective compliance exception, which provides that there is no sovereign-immunity bar to the state paying (out of the treasury) the ordinary costs of complying with prospective relief. If the plaintiffs prevail, the state has to pay them the same amount of money either way--either for actually working or for the work they would have done were reinstatement a viable option. And the latter will be paid out for less time. It seems incoherent to label identical payments in identical amounts for identical purposes differently.
Two Tragedy of Religious Freedom Items
Please forgive the self-promotional book chatter, but here are two quick items on The Tragedy of Religious Freedom:
First, a review in the Law and Politics Book Review by political scientist Jesse Merriam. Here's the conclusion, which both gives a sense of Professor Merriam's (important) criticisms of the book and contains a little nice stuff too: "If DeGirolami truly is going to provide a middle-ground theory, one in which both theory and conflict can co-exist, we need to know more precisely how history and precedent can guide us. The reader will likely find that DeGirolami does not satisfy this standard. Nevertheless, DeGirolami does provide an important service in probing and pushing us closer to this understanding. And something that must be emphasized here is that he performs this service with a clarity, elegance, and intellectual depth surpassing almost every work in this field. TRAGEDY OF RELIGIOUS FREEDOM is an excellent starting point for a discussion of how to arbitrate the principled conflict underlying church-state adjudication, and in starting this discussion DeGirolami does an exquisite job of defending his approach. For these reasons, it is not only an important but also an immensely enjoyable book to read."
Second, a Liberty Fund podcast in which the gracious Richard Reinsch and I discuss the book. If you are not familiar with the web resources provided by the Liberty Fund (the greatest of which, in my view, is its extraordinary, free on-line library), you should be.
The Professor Behind Breaking BadTo celebrate Breaking Bad's Emmy win tonight for best drama, here is a recent interview with the (chemistry) professor advising the show.
Sunday, September 22, 2013
American Children Adopted by Europeans
It is no secret that racial politics play a significant role in adoption, most recently seen in the Adoptive Couple v. Baby Girl case last term. These politics often drive international adoption, with many Americans adopting from abroad to match their race. Much family law literature has arisen around this topic, but for today, I’ll just spotlight this heartwarming CNN story, which reports a continued increase of European adoptions of American children unable to find homes in the United States.
FSU Law Review Exclusive Period Begins for Fall 2013The Florida State University Law Review will be conducting exclusive fall article reviews over the next few weeks. Any article submitted to this exclusive review between now and October 1st will be evaluated by October 8th. By submitting the article you agree to accept an offer for publication should one be extended. Any articles accepted through this review will be published in our fourth issue, which is slated for publication in summer of 2014.
If you have an article you would like to submit, please e-mail Sean Armil a copy of the article and your CV at firstname.lastname@example.org with the subject line "Exclusive Fall Article Review." We look forward to reading your submissions.
Saturday, September 21, 2013
Business Advisors for the Youth
Under Roman law, the age of emancipation was the age of puberty, set at 14 for males and 12 for females to avoid embarrassing physical inspections. However, both males and females retained a business advisor, called a curator, until the ancient age of 25 to help them with business matters (in fact, life expectancy at birth in ancient Rome was about 25, but this average was brought down by a high infant mortality rate). Maybe the Romans were onto something?
Defining public law
What is public law, as distinct from private law? Has anyone come up (or can anyone offer) a good defintiion of the distinction, where the line is, and falls in which category? A student asked a question the other day, which rested on the premise that the Constitution (and constitutional claims against the government) was public law and everything else was private law (the issue was a plaintiff bringing claims under both § 1983 and Title IX or Title VII). But that doesn't reflect convention, where we typically speak of statutory anti-discrimination law (Title VII, Title IX, et al.) as public law, even when it involves claims against private entities.
So where is the line and why?One possibility is that anti-discrimination are like the Constitution, in that Congress was attempting to enforce the Fourteenth Amendment. But that doesn't work because these statutes were actually enacted pursuant to either the Commerce or Spending powers, not § 5. It reflects the values of the Fourteenth Amendment, but it is not really enforcing that provision. Plus, a lot of other statutory areas (labor law comes to mind), though not touching on the Fourteenth Amendment or discrimination at all, are labeled public.
Another is to include all constitutional and statutory issues as public. But a lot of stuff that often gets called private (say, corporations, business formation, and business deals) involves statutes and statutory issues. Even contracts (which a Roman Law expert might call the quintessential private law issue) is somewhat displaced by the UCC in many areas.
Friday, September 20, 2013
Notice to all law faculty: Read this Report
According to the ABA Task Force Report released today, you prawfs out there need to "Become Informed About the Subjects Addressed in This Report and Recommendations, in Order to Play an Effective Role in the Improvement of Legal Education at the Faculty Member’s School." So get to it! (However, in a separate statement, Task Force member and former OSU Law Dean Nancy Hardin Rogers "see[s] no need" for such a command.)
Having endeavored to follow the Task Force's directive, I was somewhat surprised with the lack of data in the Report combined with its willingness to make sweeping empirical observations and reforms. I saw no specifics in the report about attorney employment rates, law student debt levels, or law school tuition rates, or any analysis about how these might have changed over time. There is no data about faculty salaries, faculty workloads, or faculty scholarly productivity. There is no real discussion about what kind of education might be needed to be a 21st-Century attorney, and how this might differ from the education currently being provided. Instead, there are pronouncements such as these:
- "Prevailing law faculty culture, and the prevailing faculty structure in a law school, reflect the model of a law school as primarily an academic enterprise, delivering a public good. This entrenched culture and structure has promoted declining classroom teaching loads and a high level of focus on traditional legal scholarship." (p. 26)
- "Rankings of law schools strongly influence the behavior of applicants, law schools, and employers. Some ranking systems (in particular U.S. News) purport to supply objective consumer information. However, little of the information used in ranking formulas relates to educational outcomes or conventional measures of programmatic quality or value." (p. 9)
- "Law schools price a J.D. education by reference to their cost of delivering it, less revenue from other sources (such as endowment income or state subsidies). In general, law schools do not take market price as given and seek to manage costs on the basis of that market price." (p. 10)
- "What is not reasonably disputable, however, is that the [ABA] Standards do not encourage innovation, experimentation, and cost reduction on the part of law schools." (p. 11)
- "The current market forces now require more drastic changes for law schools than they have faced in the memories of current law faculties or administrators. Universities are requiring law schools to become financially self-sustaining, and competition for students and tuition revenue has come to resemble competition in the non-education economy. Many, if not most, law schools lack the expertise or the organizational structure to deal with these new conditions; some constituencies in law schools resist dealing with them; and in some cases universities are unwilling or unable to support law schools as they attempt to make a transition to a new market-oriented way of conducting their affairs." (p. 13-14)
- "People are generally risk-averse. Organizations, which are composed of people, tend to be conservative and to resist change. This tendency is strong in law schools (and higher education generally), where a substantial part of the organization consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments." (p. 15)
- "There continues, and will continue, to be a need for professional generalists. However, there is today, and there will increasingly be in the future, a need for: (a) persons who are qualified to provide limited law-related services without the oversight of a lawyer; (b) a system for licensing of individuals competent to provide such services; and (c) educational programs that train individuals to provide those limited services." (p. 23)
I think all those involved in legal education can roughly agree on two things: (a) over the last five years, the available legal positions have fallen significantly lower than the number of new graduates; and (b) over the last decade, law school tuitions have increased to levels that create unsustainable debt for new graduates. Although these points are contestable, I think one would find large consensus about them as well as data to support them. However, there is not consensus that the content and quality of legal education has failed to educate attorneys for their work, or that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis. To make these much more contestable claims, there needs to be data and analysis to back it up.
As anyone who has written a term paper or law review article knows, the policy recommendations are always the "fun" part. But the work is largely in establishing the facts and principles that make those policy recommendations compelling. The Task Force Report is an almost entirely normative document, proceeding from certain descriptive assumptions and value choices. I wish it had spent more time establishing the factual assumptions and value choices before moving into its rather specific and contestable recommendations.
Words for ParentsFrom Freakonomics. The story is a couple of years old, but good listening for the weekend (for those moments when you're not schlepping your kids everywhere).
Thursday, September 19, 2013
Maps and Doctrinal Scholarship
In my last post, I looked at SCOTUS Maps in the classroom. My basic suggestion was that maps could help 1L students "find their way into" otherwise befuddling topics like FRCP 8 pleadings doctrine. Using the slideshow function, the mapper software allows law teachers to introduce complexity at a pace, and in a sequence, tailored to an audience just beginning to learn the law.
In this installment, I consider how maps might help facilitate conversations among more sophisticated audiences -- those engaged in serious doctrinal scholarship. Once again, the software's payout comes in its ability to visually represent complexity. This time around, however, the complexity we're talking about is very complex. For scholars who like to trudge deep in the doctrinal weeds, maps can provide a neat way to present an information-dense snapshot of their arguments.
Let's jump right into an example. The map below attempts to capture the complex argument advanced by Jennifer Laurin in her insightful and compelling 2011 article Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence.
In her article, Professor Laurin argued that the doctrinal roots of the Court's 2009 Herring decision traced back not only to exclusionary-rule jurisprudence (Herring was a 4th Amendment case) but also to certain lines of constitutional tort and qualified immunity opinions. Building on Professors Tebbe and Tsai's vital work on constitutional "borrowing", Laurin introduced the novel concept of "convergence" -- where two otherwise distinct doctrines start to align after an initial cross-fertilization. After applying the convergence concept to explain certain peculiarities in the Herring decision, Laurin further suggested how borrowing and convergence can enrich our understanding of the "hydlaulics" of doctrinal development.
To be clear, Professor Laurin herself did not author the map above. I made it to help me understand and critique her important work. So I do not pretend that this map captures the full richness of Laurin's extensive analysis. Rather, it simply charts the essentials of her genealogical account of Herring's mixed lineage and brings into a single frame the major opinions from exclusionary-rule and consitutional-tort lines. It can serve as a general reference and quick illustration of Laurin's argument that, beginning with Justice White's invocation of Harlow in Leon, the two currents of doctrine have swirled forward together. Perhaps more interestingly, the map also graphically represents Laurin's metaphor of doctrinal hydraulics.
As I said before, the intent of this blog seies is not to delve into the substance of the doctrinal arguments portrayed. (I'd be happy to do that in another forum if anyone was keen). Rather, the idea is just to highlight the potential of the mapping technique as a way to frame scholarly arguments about doctrine. So let's briefly consider a different doctrinal claim to further flesh out this idea. This time the example concerns the Court's "incorporation" jurisprudence.
Readers may recall that incorporation refers to the doctrinal trick that allows the Court to apply the protections of the Bill of Rights against the States. Of course, the Court had found in 1833's Tiernan v. Mayor of Baltimore that the Bill of Rights only protected citizens against the federal government. Not the States. Eventually though, the Court found that most of the Bill of Rights protections could be applied to the States via the Due Process Clause of the Fourteenth Amendment. Thus, incorporation is essentially a substantive due process doctrine. And one that was deeply controversial on the Court and in the academic community from the 1940s through the 1960s.
How did the due process incorporation theory come into the Court's doctrine?
This first incorporation map tells one version of the story. It is, in fact, the version of the story that I have previously defended. In this version, Justice Black's dissent in Adamson v. California is the most important ancestor to contemporary doctrine. Though Black was certainly inspired by the first Justice Harlan and his remarkable victory in Chicago B&Q, it was Black's majority opinion in Gideon that truly marked the the Court's adoption of the incorporation theory.
Of course, this version of the story can be contested. Consider then an alternate take:
The primary difference in this second version is Mapp v. Ohio's starring role in the incorporation story. Given that Mapp was decided two years before Gideon -- and that Justice Black in Gideon and Justice Brennan Malloy both relied on Mapp in their incorporation analyses, the argument could be made that Mapp was the transformative case. On this reading, 1952's Rochin v. California also assumes a doctrinal signficance.
(I still reject this second interpretation. This is mainly because Justice Clark did not write a word about incorporation in Mapp and then Clark clearly later sided with the second Justice Harlan is his anti-incorporation campaign. Even though Black's Adamson dissent was not directly cited in subsequent majority opinions, it continues to strike me as a far more important opinion in effecting doctrinal change than Mapp).
Once again, the point is not to dwell on the substantive merits. Instead, I hope to empasize how two two different maps of the same territory can help tease out competing perspectives on the true origins of the Court's doctrine. This same method naturally could be applied to different genealogical disputes to help illustrate the divergent views of scholars. By using a common visual vernacular, scholars could usefully compare their competing pictures of contested doctrines.
Well, this wraps up this installment. It is also the last post in which I'll elaborate on the theory behind the mapping software and method. In my final couple of posts, I'll take a more practical tact and describe the future of the project as I see it. I'll also give some concrete details on how interested folks can become involved. Of course, I remain very open to suggestion and always appreciate Reader feedback. Thanks for your time!
Underwriting Credit Cards & Overwriting Congress
Here is an example of what lawmakers probably should not do: block stay-at-home spouses (which include more women than men, but a substantial number of each) from the credit card market. This would be inconsistent with the laws—including many family law principles—that treat spouses as a single economic unit. Yet, it happened. Not in 1911, but in 2011, and without much media attention.
In the wake of the economic meltdown, President Obama signed the Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act) on May 22, 2009, which aimed to increase the transparency of the credit card industry and to protect college students from predatory lending. While stay-at-home parents were not targeted by the Act, Title III focused on credit card consumers under the age of 21.
To carry out the CARD Act and its amendments, Congress assigned power (through the Truth in Lending Act's Regulation Z) to the Federal Reserve Board to issue such rules as it considered necessary. The Federal Reserve Board promulgated the "ability to pay" rule, which required credit card issuers to consider only a person's independent income, and not the household's income, when underwriting credit cards. However, in addition to keeping credit cards away from young adults—the target of the CARD Act—this "ability to pay" rule did the same for a larger group of people: non-income earning spouses that included stay-at-home parents and homemakers. Except in community property states, where spouses co-own martial assets, a stay-at-home spouse could not open a credit card without the signature of the income-earning spouse.
This “ability to pay” rule problematically conflicted with the law’s historical treatment of spouses as a single economic unit. Furthermore, stay-at-home parents have never proven to be a credit risk; on the contrary, they are the ones usually responsible for running the household's finances.
There was also the issue of congressional intent. The principal authors of the CARD Act, Congresswomen Maloney and Slaughter, had confirmed that the intent of the legislation was to ensure that underage consumers could not apply for credit cards on their parents' income, not to prevent stay-at-home spouses from using household income to apply for credit.
I have argued in a recent St. John’s Law Review article that a new rule on the issue should have an age limitation or explicit exemption for spouses. The recently created CFPB did eventually offer a similar solution this summer. The Bureau’s amendment to the existing regulations allows credit card issues to consider third-party income if the applicant is over 21 years old and has a reasonable expectation of access to the income. This tightens credit for a population that is the most vulnerable credit consumer according to the studies-those under 21, not stay-at-home parents. Such an approach achieves the happy balance between the soundness of the credit market and fair access to it by non-income earning spouses, but it is surprising that for two years this century, many stay-at-home spouses could not open their own credit cards.
Wednesday, September 18, 2013
Determining the Scope of your Proposal
I have been describing some of the steps I went through in seeking outside funding to continue a research project. In previous posts I described the nature of the funding cycle in law schools and how soft money may be important and where to find sources of funding. Today I will begin to write about the project itself. I am not going to frame this as a “how to” or “do this” post. Instead I am going to describe what I did and make a few observations along the way.
First, I chose environs that I had a significant familiarity with for my study, rather than choosing the most convenient location to study. The area I proposed to study in my grant proposal was an area I had observed for the previous two years on a near regular basis -- the Los Angeles Plaza. Over the past two years, I logged more than eighty hours of observation in the Plaza, thinking about the Space and the different ways constituents used the space. At the end of the day, you are asking for money to study a problem you find interesting. Choosing a problem, a territory, or location you are familiar with will enable you to describe how the project better explains or better resolves problems on the ground. This is partially related to the question I raised in the last post of whether the funding or the project comes first.
Second, I formulated a thesis for what I thought I was looking for and why it was important. This was possibly the most difficult thing for me in thinking through the problems of space and property at the Plaza. And I knew this was a problem that I had not quite nailed down in my previous two years of thinking about the space. Fortunately, a couple of colleagues kept asking me “where is the law” in your research. That question, “where is the law,” kept me searching this area for the question I wanted to ask. In short, over that two year period, I kept returning to the plaza because my instincts told me there is a problem, a relationship, or a legal dynamic that is interesting and that will further property understandings. Forcing myself to formulate a thesis, helped me isolate what my real thesis would be.
Third, I spent time replicating the kind of research I want to undertake under the grant. For me, this was twelve days this summer hanging out around homeless persons, talking to constituents, and observing the Plaza for extended periods of time. Over the twelve days, I logged more than sixty hours of observation time on the Plaza. This time was spent doing the things that I would ultimately propose to do in the research. But it was also spent building and strengthening relationships in the area that would further the work I wanted to do. Both the ability to substantiate the relationships and the work plan are important features of the proposal that are best described by actually having boots on the ground, so to speak. Importantly this period of time helped me not only confirm some of my thesis, reframe other parts of the thesis, narrow the subject and create a narrowly tailored proposal.
Fourth, I read as many similar studies as I could find. For me, I knew homelessness was going to be a primary component for my understanding of the Plaza space. So I took with me on my extended investigation David Snow and Leon Anderson’s work Down on their Luck. Snow and Anderson spent several months studying the homeless population in Austin Texas. Their typologies remain one of the most important ways for understanding how homeless persons understand themselves. Being able to think about my thesis in a framework that took account of Snow and Anderson’s work helped me identify more questions while on the ground that were vital to my proposal.
Fifth, I forced myself, before writing the proposal to write a version of the project summary. For NSF, the project summary is a one page document that describes briefly the project merits, the intellectual merits and the broader impacts of the study, in the verbiage of the National Science Foundation. I would say that in my process, putting together the initial summary was the most important part of defining what I thought I could accomplish and why the research was important. Although the summary changed from the initial draft, undertaking this step was important for framing the project’s ultimate scope.
Lastly, I would recommend reading before, during and after several methodological books relating to the type of study you are wanting to engage. Methods approach receives much more attention in other disciplines than it does in law and there are a number of questions that will permeate even the theoretical pieces of your work by focusing on how you undertake your work. Grounding yourself in the methods literature while engaging in the work, and then thinking about it afterwards, will give you a deeper appreciation for how your research is carried out. One book I found very helpful was Analyzing Social Settings by John Lofland, David Anderson, Leon Snow, and Lyn Lofland.
Au Revoir, Will Contests
Here’s an amazing fact for those of us in trusts & estates: in France, there are almost no will contests brought on the grounds of a lack of capacity, fraud, or undue influence. In the United States, on the other hand, 3% and 5% of all wills executed will be contested, most commonly, on undue influence grounds. Why the difference?
Two answers may be 1) the forced share of the estate that children receive in France and 2) the role of the notaire: a neutral, specialized type of attorney with authority from the French state to draft wills and be responsible for those wills.
Although some commentators have advocated for the importation of these two aspects of French wills law to the American system, importation would be difficult given the structure of American law. Wills law in the states favors giving forced shares to surviving spouses (through the elective share), not to children (through the forced share; an exception is Louisiana due to its civil law). As for notaires, they are completely foreign to the American legal system.
However, there are other aspects of French wills law that could be more readily imported to reduce the number of will contests.
For example, the neutral intervention of the legal system during the lifetime of the testator through the notaire can be recreated in the United States by antemortem probate. Only Arkansas, North Dakota, and Ohio currently permit such antemortem probate statutes, which authorize a person to initiate, during life, an adversarial proceeding determining the validity of the will. The proceeding allows judicial evaluation of the testator’s capacity, intent, and freedom from undue influence or fraud during the testator’s lifetime, which has the obvious benefit of the presence of the testator at the proceedings.
Another easily adoptable aspect of the French system is a registry for wills. The registry would consist of a centralized location to deposit wills upon their execution to ensure that they do not disappear or encounter tampering. Officials registering the wills could check the wills to ensure their compliance with statutory formalities before their registration. For example, officials could check for the testator’s signature and the requisite number of witnesses.
Will contests are expensive in terms of judicial resources and the depletion of the estate, so it is important to safeguard against them to the extent possible. Of course, it may be difficult to eliminate them entirely in the United States given that they are often driven by high emotion, as implied by the fact that small estates are as contested as significant ones.
Has the Moment in the Sun Finally Arrived for Section 2 of the Fourteenth Amendment?
I blogged not long ago about my argument that the Fifteenth Amendment impliedly repealed Section 2 of the Fourteenth Amendment. Section 2 imposes a penalty of reduced representation for states denying the right to vote, at least potentially implying that states have the right to do it. Meanwhile, the Fifteenth Amendment prohibits states from denying the right to vote on the basis of race. It seems to me that Section 2 and the Fifteenth Amendment are basically inconsistent. Since Section 2 has never been applied in spite of decades of race-based disenfranchisement, some explanation for its somnescence is called for.
Franita Tolson responded in a comment that "[u]nlike the Fifteenth Amendment, section 2 is not limited to abridgments of the right to vote based on race, which is a powerful source of authority to address facially neutral abridgments of the right to vote." Similarly, in their fascinating Yale Law Journal article Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments, Richard Re and Christopher Re likewise argue that Section 2 is not limited to race. My argument fails if Section 2 applies in any case where the Fifteenth Amendment does not, so if they are right, I am not. These scholars do have the plain language of the text in their favor:
The relevant language states:
But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
True, Section 2 nowhere mentions race. True, considered in isolation from the circumstances of its enactment, Section 2 seems to contemplate universal adult male suffrage, it seems to have decided (by prohibiting) almost all of the voting issues Americans have fought about since: poll taxes, literacy tests, registration requirements, voter ID, long lines at polls, etc. If the right to vote is "in any way abridged" for any reason other than those expressly listed, the state loses House seats and electors.
In my paper, I concluded that the fact that the Constitution was often euphemistic about slavery--including in the very apportionment provision which Section 2 replaced, which referred to 3/5ths of "all other persons"--left room for Section 2 to be understood as applicable only to African Americans. It also struck me that amendments often repealed the text they replaced by implication, rather than expressly, again, including in the very apportionment provision which Section 2 replaced.
Section 2 seemed to be a Solomonic threat, meant to induce action rather than to be carried out. It would work well if a state prohibited categories of people from voting by statute. But, if discriminatory governments, none of which were accused of lacking creativity in their efforts to disenfranchise African Americans before or after passage of the Fourteenth Amendment, used tricks and as-applied discrimination, of the non-voting African American males, it would be very hard to figure out how many were denied the right to vote, and how many simply failed to vote. This problem would be much compounded if Section 2 applied to things like denial of the right to vote for failure to pay poll taxes or to have ID. When it was clear that Section 2 did not induce compliance, Congress and the states immediately moved to Plan B, the Fifteenth Amendment.
But I admit the possibility that I am wrong, and that the Constitution since 1868 has provided for punishment of states refusing to implement universal adult (male?) suffrage. The Supreme Court has held that apportionment claims under Section 2 are justiciable, so there is apparently nothing standing in the way of a test case. Given that serious scholars claim that Section 2 is a valid and existing part of the Constitution, I hope the ACLU, NAACP LDF and other groups interested in protecting voting rights will litigate it.
Monday, September 16, 2013
San Diego Hiring
Following Dan and Howard's posts about hiring aims of FSU and FIU, I thought I'd add something about our hiring process here at University of San Diego. Last year we were very fortunate to hire six extraordinary colleagues. This year, we are still on the market for some more great candidates, entry and lateral. We are always looking for unique opportunities in any and every field, but we also have in mind specific fields in which our search will be even more focused: environmental law, IP (bio emphasis), international law, immigration law.
Lateral candidates - self and other nominations - are most welcome and appreciated.
The committee is: Larry Alexander (larry at sandiego dot edu), Laurie Claus, Mary Jo Wiggins, Ted Sichelman, and myself (lobel at...). Any suggestions
Faculty Hiring: FIU College of LawFlorida International University College of Law seeks applicants for entry-level and lateral appointments for tenure-track faculty positions beginning in the 2014-15 academic year. Particular areas of curricular interest include Torts and Environmental Law.
Lateral candidates should show a demonstrated record of scholarly achievement and teaching excellence. Entry-level candidates should show significant potential for future development as scholars and a commitment to excellence in teaching.
About FIU College of Law: As a vital part of Miami's only public research university, FIU College of Law is a dynamic urban law school with approximately 502 students. The College of Law currently has 42 full-time faculty members. The FIU College of Law is housed in a state-of-the-art building in the heart of the main university campus. Over the past three years, the FIU on-campus community has been enriched through the addition of a new medical school and the construction of the Frost Art Museum. For more information on the College of Law, please visit our website at law.fiu.edu
The FIU community and the College of Law are strongly committed to the pursuit of excellence and the goal of ensuring opportunities within the legal profession for individuals who represent different groups as defined by race, ethnicity, gender, sexual orientation, socioeconomic background, age, disability, national origin, and religion.
Application Procedure: Interested applicants should send a cover letter and c.v. to Professor Hannibal Travis, Chair, Faculty Appointments Committee, FIU College of Law, Modesto Maidique Campus, RDB Hall, Miami, FL 33199. Applicants also may submit materials electronically to email@example.com.
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How Does the Outer World Interact with the Ivory Tower?
Amidst thinking about the costs and pressures of legal education and law schools, we can benefit from looking more broadly at the relationship between universities and industry. A new study published in Research Policy The spillover theory reversed: The impact of regional economies on the commercialization of university science reminds us that spillovers – the positive externalities from institutional activity - are multi-directional. Mostly, the literature has focused on importance of universities in regional innovation and economic growth, including the creation of technology clusters and industrial spinoffs. This new paper looks at the effects in the opposite direction: how regional environments impact a university's success. Specifically, the study argues that university scientists are likely to develop pervasive networks of contacts with industry scientists when they work at a university embedded within a regional economy that encourages collaboration. Using social network analysis to examine the quality of social ties linking industry and university scientists in California, the study concludes that technology is more likely to flow from university to a regional innovation when the "plumbing" - the strategies and attitudes in the industry - is in place.
For law schools too, we know that geographies are sticky. We know that many of our students want to stay in the area and we encourage them to develop professional ties with the local community during law school. When times are easy, geography may matter less, but during downcycles, the importance of a community that is engaged with the law school is huge. We also are reminded of what we all intuitively know well - that national rankings (even when done well) are not the only important piece of the puzzle. The local positioning of a law school, relative to other law schools in the region, matters.
SCOTUS Maps in the Classroom
This is the fourth post in a series about visualizing Supreme Court doctrine. In today's entry, I want to briefly demonstrate one way folks could use doctrinal maps in their classrooms. I'll work through a short example that should be very familiar to Civ Pro prawfs and 1Ls around the nation -- the change in FRCP 8 pleading standards brought about by the Supreme Court's decisions in Twombly and Iqbal.
Below is a snapshot of the map I made last night to help structure my own Rule 8 discussion in Civ Pro class this week. After the jump, I'll explain how I use the map -- and also demonstrate the SCOTUS Mapper software's "slideshow" function that permits you to walk your students through the visual complexity one step at a time.
One challenge I experience in teaching Rule 8 is communicating to students why Twombly and then Iqbal created such a brouhaha and why that matters. I want them to appreciate that although Twombly made a bold statement about rejecting settled language from Conley, courts and commentators weren't exactly sure how to interpret it. Was the Court announcing a sea change in pleading by talking about "plausibility"? Or was Twombly really just about limiting discovery in massive anti-trust cases?
To help explain the questions of doctrinal interpretation involved, I use a map. Rather than do any extensive independent research, I simply plotted out the basic doctrinal story as told by the casebook the students have -- the 6th edition of Richard Marcus et al's Civil Procedure: A Modern Approach. The lead cases in the casebook are Swierkiewicz, Twombly, and Iqbal. Notes discuss Conley, Leatherman, Erickson and Skinner. Besides charting these opinions, I also made sure to map the COA authority Justice Souter cited in Twombly to support his conclusion that Conley's "no set of facts" language had "earned its retirement."
The map helps students digest the cases they have read in preparation for class. It quickly distinguishes between opinions rejecting the propriety of dismissing a complaint on a 12(b)(6) motion [in green] from those affirming dismissal [in yellow]. It also illustrates the lines of tension and change in the doctrine -- using solid arrows to represent positive citations to precedent and dotted arrows to represent opinions that overruled or limited precedent. Thus, the picture is of Twombly overruling Conley and positively relying on three COA cases (O'Brien, Car Carriers, and Ascon Properties) [in red] that had previously sought to limit Conley's broad langague.
While I like this visualization (of course I do!), I nonetheless recognize that it is initially complex -- especially for a 1L audience. Luckily, the Mapper software has a feature that allows you to create custom "slideshows." This is a feature somewhat like PowerPoint that allows you to reveal citations in whatever order you chose. You start with an empty screen and then each click reveals one or more citations. This allows the whole picture to unfold as slowly as you like. To get a sense of what this looks like, check out this 30 second video.
In class, I start with the empty map projected up on a screen. We discuss Swierkiewicz and then I advance the first part of the map. Then we move away from the map and analyze Twombly. When the conversation gets to Justice Souter's authority for his Conley move, I return to the map and advance the slides that represent that move. Eventually, I note how the question of what Twombly meant was disputed. I click to reveal Erickson on the map and point to the X axis to how that per curiam case was decided just two weeks after Twombly. It seemed to indicate that Twombly changed little. Then we move to Iqbal.
Via the map, students immediately notice the irony of the fact that Souter wrote Twombly but dissented in Iqbal. We discuss why that is and what it means. The map also helps emphasize the idea that Justices Kennedy and Souter dispute what Twombly really meant and how it applied. Finally, just to show that the dust still hasn't settled, I click on the final slide that shows how Justice Ginsburg's decision in Skinner didn't even cite Iqbal or Twombly, relying instead on the Swierkiewicz line.
Now, I ask the forgiveness of non-Civ-Pro Readers for this extensive discussion of particular cases. Hopefully though, the basic idea comes through. The sequential presentation can help visualize any line of Supreme Court cases in a casebook. This is can be helpful, in my view, when there line is unsettled and interpretative debates remain. I invite Readers to consider whether they have any lines like this in the courses they teach..
That's it for this installment. More to come, so stay tuned!
Longer Sentences and Prison Growth, Part 1
Over several future posts, I am going to argue that despite all the academic, political, and media attention they receive, long prison sentences are not driving prison growth. Sentences are not that long, and time served has been fairly stable over the years. It is a counter-intuitive and contrarian position to be sure, but I think I have the data on my side.
I want to start, though, with a very simple argument for why we should be skeptical of the longer-sentences-are-central-to-prison-growth argument. And it is one that requires almost no real statistical digging at all.
It’s this graph:
This at least suggests, with some strength, that any sort of lengthening was short-run in duration, and thus that increases in time served in prison--regardless of whatever the legislatures have done to the sentencing--is not at the heart of prison growth. And I think this is generally the right way think about prison growth.
But I don’t want to oversell this point. In fact, let me undermine it a bit right out of the gate. I decided recently to run a simulation. I assumed that a state used one release schedule for all prisoners and then made a permanent one-time change to that schedule, and plotted the admissions and releases trends for this hypothetical jurisdiction.
Specifically, I initially assumed that all inmates were released over 6 years: of all the inmates admitted to prison in year t, 40% are released in t, 20% in t+1, 15% in t+2, 15% in t+3, 5% in t+4, and 5% in t+5. I then assumed that the state toughened sentencing laws so that it took 11 years for all inmates to be released: of those admitted in t, 35% are released in t, 15% in t+1, 12.5% in t+2 and t+3, 5% each in t+4,t+5, and t+6, and 2.5% each in t+7 through t+11.
In other words, under the first sentencing regime, the median time served in prison is 1 year and the mean 2.4 years, while under the second regime the median is exactly 1 again and the mean 3.375.
Then, to make my simulated admissions data track the actual admissions data more closely, I assume that admissions increase every year by 100 (from an initial value of 1000) for the first 13 years, by 200 for the next 7 years, and then again by 100 for the rest of the years. This is to capture the admissions increase that appears in the real data from the mid-1980s to 1990.
Here are the simulated results:
What immediately stands out, of course, is that this simulation seems to produce a bulge similar to the one we see in the real data in the 1990s. So close-tracking/bulge/close-tracking can arise in the presence of toughening sentencing lengths.
In other words, the real data is not a slam-dunk argument for the fact that tougher sentencing laws are not behind prison growth.
But I have three major caveats to my caveat:
- In the simulation, even though the admissions and releases lines return to tracking each other closely in the end, as a result of the tougher sentencing regime the gap between them has grown. We don’t see that in the real data, where the gap actually narrows in the mid-2000s.
- I have other approaches using other data that all seem to substantiate the idea that tougher sentences are not driving prison growth. I’ll being working through all these in future posts.
- The simulation may suggest that tougher sentencing has contributed more to prison growth than I sometimes give it credit, but that does not necessarily imply that it has been more important than admissions.
All of which is to say the following: I don’t think tougher sentences are driving prison growth. And I think I have the data to back up that claim in the main. But I also want to fight off epistemic closure and confirmation bias, and to keep an open mind to the possibility that sentence lengths are playing a bigger role than I sometimes acknowledge.1
So, it seems pretty clear to me that we overstate the importance of longer sentences. Even more, I feel that the data appear to strongly support the claim that admissions increases are doing most if not close to all the heavy lifting. But the complete story will almost surely be a (fair?) bit more confusing and convoluted.
1I think it is too easy, when one finds oneself sincerely convinced of a contrarian position, to oversimplify it (“your argument that time served matters is completely wrong. It is just admissions!”) and then defend it to the death. That’s what gets people’s attention. “The conventional wisdom isn’t entirely right, though often it does have its merits” just doesn’t excite people at all.
I don’t want to do either, despite the fact that refusing to fanatically defend an extreme position must violate some part of the Law of Blogging.
Sunday, September 15, 2013
Predictors of Bar Passage
Saturday, September 14, 2013
I’d like to highlight this interesting AALS 2014 panel on the privacy, if any, that parents owe their children on Facebook. I look forward to hearing the presentations on the Saturday morning of the conference. Personally, I’m just glad Facebook didn’t exist when I was a kid.
Friday, September 13, 2013
Two completely random itemsFirst, a question for our Jewish readers: Where will you be tomorrow evening after the shofar has blown--at "break fast" or at "break the fast"? And when did the latter become a thing?
Second, in Gore Vidal's memoir, he tells that when Tennessee Williams was confronted with the fact that he claimed to be younger than the age on his birth certificate, Williams responded "“I do not choose to count as a part of my life the three years I spent selling shoes." Which was, of course, done as an employee of the International Shoe Company of St. Louis, MO. I wonder if Williams only got to carry around the left shoe in every pair.
The Funding or the Project -- Where to find funds
My apologies for being lax in posting. Shortly after my first post, I was struck with tonsillitis and have been recovering since. In my last post, I wrote about the differences between soft funding and the role of symbolic funding. Today, I want to focus on a question of which type of funding to consider. The funding you pursue is going to be dependent on a number of factors.
The first questions you ask will actually lead you to more inert, fundamental questions. One such question is “does the funding dictate the direction of the research or do you pursue funds that support the research you want to do?” My recommendation is pursue the funding that supports your research, but let’s be honest -- all grants have specific audiences for which it looks for research to influence. National Science Foundation, for example, is interested in research that informs not only academic research but public policy. NSF is perhaps the most open in terms of research agenda, but there is still an agenda that you should keep in mind. Framing your grant proposal to the right audience matters for its successful application. Finding a balance between the research you are pursuing and the research that funding seeks may be more complicated in areas that are tied to ideological research.
Another question is timing. Many grants operate under cycles. For example, the NSF has two review periods -- August and January submissions. The review period is about five months, so the earliest that grant funding could commence is six months from the submission. That is assuming that IRB approval has been obtained and other institutional barriers are cleared. Some grants don’t operate on time cycles, but rather ask the researcher to submit proposals for funding. These proposals are one to three pages in length and spell out briefly the research, its goals and aims, its methods, and its budget summary. From these proposals, the grant foundation will decide whether to invite a more detailed proposal.
My funding trajectory may be slightly unique. I had the NSF on my radar for several years, thanks to my former University Sponsored Research Officer who made it her goal to get me funded (even if that was not my primary goal). From her perspective (and she was probably correct), my research was perfectly positioned between law and social methods, making it a prime candidate for several funding opportunities. Concurrently, I was serving on the University’s IRB committee, which exposed me to a variety of researchers in different departments that were talking about funding opportunities. Just being around those conversations on a regular basis made me aware of different opportunities that may be available and places where one becomes aware of opportunities.
I am listing below some social science resources that may be helpful in pursuing grant funds.
Do any studies explore increased (or decreased) violent crime or unemployment (or other undisputed social ills) in medicial marijuana states?
Perhaps to the chagrin and annoyance to students in my "Marijuana Law, Policy & Reform" seminar, I keep pushing our class discussion to try to figure out and precisely specify what could be considered undisputed and undisputable harms from any drug legalization regime --- especially if one views simply increased drug use alone, even by young people, to be a social good or at least not clearly a social harm. (This prior post raised some of these issues and ideas.) The question in the title of this post is prompted in part by our most recent class discussion, where a rough consensus emerged that increases in violent crime and/or unemployment might be undisputed metrics of a failed social policy.
Thus the question in the title of this post, which also builds a bit off a prior post which asked "Two decades into experimentation, what is really known about medical marijuana practices?". Specifically, I am wondering if anyone has yet tried (or if it really would even be feasable) to develop effective and sophisticated empirical studies to explore if there have been any statistically significant changes in violent crime rates or unemployement rates in states that have legalized medical marijuana.
As a relative agnostic (with libertarian leanings) on lots of marijuana reform issues, I believe I would be moved significantly by serious data showing (or even just suggesting) causal links between medical marijuana legalization and violent crime rates or unemployment rates. Of course, like research on incarceration and crime rates, the results of any such empirical study linking medical marijuana to an increase or decrease in social ills could be disputable and would be disputed by partisan advocates in the reform policy debate. But for those without a predetermined perspective on various marijuana law, policy and reform issues (which likely describes a majority of Americans), even tentative or partial data showing the positive or negative impact of medicial marijuana and violent crime or other undisputed social harms could and would likely "move the needle" considerably.
This post is intended not only to inquire as to whether anyone is aware of any modern studies exploring these issues in states with medical marijuana laws, but also to ponder whether there are other clear empirical metrics of undisputed social ills that ought to be a central part of the medicial marijuana reform discussion and debate.
Cross-posted at Marijuana Law, Policy and Reform
Recent related posts:
- Are there undisputed benefits from prohibition regimes and/or undisputed harms from legalization/regulation regimes?
- Two decades into experimentation, what is really known about medical marijuana practices?
Delahunty on Tocqueville and Religion
Professor Robert Delahunty has been posting about Alexis de Tocqueville and religion over at CLR Forum for the last several weeks. I have aggregated the series below for those with an interest in Tocqueville's thought about religion.
- Tocqueville's Faith
- Tocqueville and Machiavellianism
- Tocqueville and the Limits of the Political Imagination
- Tocqueville on the Naturalness of Religious Belief
- Tocqueville on Materialism
- Tocqueville on Protestantism and Natural Religion: Part I
- Tocqueville on Protestantism and Natural Religion: Part II
- Tocqueville on Unitarianism
- Tocqueville on Pantheism: Part I
- Tocqueville on Pantheism: Part II
- Tocqueville's America and Ours
- Tocqueville and Habermas
- Tocqueville and Gobineau
The Lost Brown v. Board of Education of Immigration Law
Have you ever had one of those co-authors who held up a project for years by sitting on a draft? Yeah, my co-authors have too. In 2001, I started a project with two students which has just now been published in the North Carolina Law Review as part of a wonderful symposium hosted by Al Brophy. The paper explores Lee Kum Hoy v. Murff, 355 U.S. 169 (1957), in which the Supreme Court granted certiorari to evaluate the constitutionality of a policy of the Immigration and Naturalization Service of blood-testing all Chinese, and only Chinese, applicants for admission to the United States as foreign-born children of U.S. citizens. (This was before DNA testing was invented; the A-B-O blood grouping of the children was compared to that of the claimed parents). The Second Circuit upheld the policy over a dissent by Jerome Frank.
The Court ultimately remanded the case on other grounds, without reaching the merits. However, based on the briefing, the papers of the justices, and not least the political context, it appears that five justices were prepared to hold the policy unconstitutional. This would have been remarkable, because in cases like Chae Chan Ping v. United States, and Fong Yue Ting v. United States, the Court held that the federal government could freely discriminate on the basis of race in the area of immigration--and to this day courts seem to say that these old cases remain good law. Accordingly, for the Court to apply Bolling v. Sharpe to the immigration context would have been remarkable. But for the Court to grant certiorari in the middle of massive resistance to Brown and uphold racial discrimination in any context would have been a significant self-inflicted wound.
Thursday, September 12, 2013
Visualizing SCOTUS Doctrine III - Network Analysis Compared
In the first two posts of this series, I discussed the basics of the SCOTUS Mapping Project and its method of looking to dissents to uncover the competing traditions at play in the Court's contested doctrines. In today's installment, I explore how this project compares with other scholarly and technological approaches to analysis of legal citation networks. I hope both to put the project in context and to give Readers potentially interested in in making maps a sense of the process involved.
Let's start with a little background. Prawfs fans may or may not be familiar with the fairly large and robust literature on legal "network analysis." (For a good survey article see here; for an influential example see here). A basic premise of this literature is that we can better understand the importance and influence of precedents (including, but not limited to Supreme Court precedents) by analyzing the patterns of their subsequent citation in networks of interrelated opinions. People who write in this field often create sophisticated mathematical models and generate alogorithms to be executed by computers parsing large volumes of case data.
I'll stress right off the bat that the SCOTUS Mapping Project is not an algorithm-driven or computer-automated undertaking. Rather, the Mapper software enables users to visualize doctrine after they conduct thier own close readings of cases. At the same time, the project derives inspiration from network analysis -- I thus fully expect human cartographers using the Mapper software to look for citation patterns just as computers are trained to do in network analysis.
The difference is quantity versus quality. While computers can quickly sift through reams of text to identify co-occuring words and phrases across thousands of cases, people can make deeper conceptual and thematic connections between opinions based on synthesized understanding. People can both interpret text and read "between the lines" of opinions in ways that computers, at least for now, cannot. Visualizations engineered by network analyses will not produce the same perspective as visualizations created using the Mapper software and method.
The best way to illustrate this difference is via a concrete example. Consider then the Supreme Court's doctrine regarding stare decisis. This is the Court's "precedent about precedent" -- pronouncements about when the Court may (or may not) overrule its own prior decisions. How might we visualize the most critical Court opinions in this area? First, let's take a glimpse an image produced using applied network analysis -- courtesty of the geniuses over at Ravel Law.
Figure 1 (Full size image)
I created this image by visiting Ravel Law's brilliant website and typing in "stare decisis." The software found 6678 cases with this phrase and displayed the top 75 most relevant. This relevance was presumably calculated based (in part) on the number of subsequent citations to found cases by other cases in the network. I then moved my cursor over the earliest cases in the network, which also happened to be one of the largest bubbles (meaning most cited), and it highlighted 1932's Burnet v. Coronado Oil & Gas Co. The software automatically highlighted other cases that cited Burnet. Then I took a screen shot.
The power and speed of the Ravel visualization is profound. It takes mere seconds to produce. It is dynamic (changes depending on where you put your cursor) and hyper-linked to the the cases themselves. I am a huge fan and insist my 1L students learn to use the site. Yet I regard Ravel more as a tool for legal research than one for doctrinal mapping. Its network analyses efficiently guide human users to oft-cited cases. However, the visualization does not reveal the character of the cites -- whether they signal agreement or diagreement, extension of prior case's reasoning or sharp and damning distinction. To recognize these kinds of doctrinal fault lines, a human reader is still required. And to visualize these fault lines, the Mapper has advantages.
Map 7 (Full size image)
Map 7 represents the Court's "precedent about precedent" in an different way. Note first that 1932's Burnet also has a prominent place in the visualization. However, from this map it becomes immediately apparent that it is Justice Brandeis' dissent from that case that is important. Furthermore, the legend reveals that Brandeis' Burnet opinion adovcated overruling a challenged precedent -- as do all the opinions in red. On the other hand, the blue opinions represent cases that advocated affirming prior precedent. The map thus suggests the existence of competing schools about how to approach stare decisis and charts the debate up through the recent clash in 2010's Citizens United.
As I've said in prior posts, I do not seek in this forum to engage in substantive discussion about particular doctrines. (For those interested in my take on "precdent about precedent", see here and here too). Rather, the point is to suggest that, as a matter of form, the scheme behind Map 7 permits users to draw a picture of the lines of agreement and disagreement in doctrine that cannot be represented in a conventional network analysis.
Of course, the automated nature of network analysis also has advantages. The biggest one is time. While the Ravel image took me seconds to generate, Map 7 took many hours. To uncover the competing lines, I first examined the stare decisis debate between the majority and dissenting opinions in Citizens United. Then, I pulled all the opinions those competing opinions cited and examined them. I repeated this process back over 100 years. Meanwhile, I noted all the opinion authors, tallied the votes their opinions received, and coded all the opinions by whether they were arguments for or against overruling. I read and re-read closely in order to ascertain which opinions actually fit together and which were opposed.
Throughout this process, I used the Mapper to help me organize my understanding of the connections between cases. I edited and re-edited maps and tried different looks. This is key. Mapping is an iterative process. Map 7 obviously has far fewer data points represented than does the Ravel visualization. Yet this is the result of a deliberate attempt to distill the relevant doctrine down to its essentials. Indeed, the value of editing can be seen by taking a peek at my "unedited" map of this same territory.
Map 7.a (Full size image)
To my eyes, the map above is far too busy to be useful. While it represents more of the Court's stare decisis opinions, it does not capture the essential doctrinal dialectic as sharply as Map 7. This brings me to a final observation. The Maps are not the Territory. Doctrinal maps do not purport to depict the whole of any given doctrine so much as sketch its essential competing lines. The point is not to provide exhaustive detail of the terrain but rather to produce a useful guide to the key landmarks and contested boundaries.
In the end, doctrinal mapping involves far more editorial decision-making than network analysis. This is not a bad thing. Legal advocacy, scholarship and teaching all implicate editorial choices. So does judicial opinion writing. Making arguments is what we do as lawyers. Maps just provide a way to make the argument about doctrine and communicate it efficiently to an audience.
That's it for this time. In my next post, I hope to discuss ways doctrinal maps might be used in the law school classroom. I'll also provide some more details on the stipends available for folks who may have interest in creating their own maps and contributing to the project library. As always, comments, questions, or critique is welcome. Thanks for listening and stay tuned!
Wednesday, September 11, 2013
"Better Call Saul"I am sure it will get so much law wrong, but I am totally in the bag for Better Call Saul, a planned prequal to Breaking Bad that focuses on the show's hilariously sleazy criminal-defense/PI attorney.
Grandparents' Rights Test Case
My friend Steven Morrison at North Dakota School of Law has sent me two interesting articles, here and here, about a grandparents’ rights cases heating up in North Dakota this week, complete with protests at the courthouse. In essence, a couple is fighting a judge’s order permitting their 16-year-old child’s grandparents generous visitation rights. This brings to mind the 2000 United States Supreme Court case of Troxel v. Granville, which struck down a Washington statute that allowed any third party to sue for visitation as a violation of parents’ 14th Amendment right to make decisions concerning the care, custody, and control of their children.
Troxel struck down the Washington statute on grounds of over-breadth, but the Court refused to define the precise scope of the parental constitutional right. While it was clear that visitation statutes had to be narrower in scope (such as being limited to grandparent visitation if in the best interest of the child), it was unclear at which point such a statute would infringe on parents' constitutional rights.
Perhaps this will be the case to push the U.S. Supreme Court to define the contours of parents’ constitutional rights in the grandparents' visitation context; it will be interesting to watch.
Tuesday, September 10, 2013
Updated FSU Law Hiring Info
This announcement below gently updates previous information we have shared.
The Florida State University College of Law seeks to hire several tenure-track faculty in the coming year. While all highly qualified candidates are encouraged to apply, the Appointments Committee would particularly welcome applications from senior lateral faculty, and especially in the areas of Trusts and Estates, Health Law, and Environmental Law. Named professorships are available for highly accomplished lateral faculty. Interested individuals should send a cover letter and CV to Professor Wayne Logan, Appointments Committee Chair, at firstname.lastname@example.org. FSU is an Equal Opportunity/Access/Affirmative Action Employer and encourages applications from women and members of minority groups.
Violent Media, Violent Crime, Old Data, and Self-Selection
Though I realize that the following article is over two weeks old, or a lifetime in BlogTime, I wanted to address a recent provocative op-ed in the New York Times about the alleged link between exposure to violent media and violent behavior. It is a great example of seemingly-compelling but actually low-quality work that so dominates popularized, non-technical discussions of complicated empirical issues. It’s worth spending a few minutes pointing out its flaws and thinking about how to identify the warning signs of bad pop-empiricism.
The article’s basic point is one that likely aligns with intuitions many of us have:
There is now consensus that exposure to media violence is linked to actual violent behavior — a link found by many scholars to be on par with the correlation of exposure to secondhand smoke and the risk of lung cancer.
It makes sense, instinctively, that watching something violent would stir up violent feelings, if not actions, in the viewer. But a lot of red flags quickly appear.Take the article’s lead piece of evidence: a meta-analysis of 217 studies published between 1957 and 1990 (from an article published in 1994). Kudos to the authors for citing a meta-analysis, not just a handful of cherry-picked studies that accord with their prior beliefs… but. Two big problems:
1. Meta-analytic techniques have improved greatly over the past twenty or so years, so as a meta-analysis a study from 1994 is quite dated.
2. More significantly, empirical work in general has improved by leaps and bounds since 1990, so all the studies in this meta-analysis are likely of lesser methodological quality. Garbage in, garbage out. Empirical work is not like wine: it doesn’t improve with age. With few exceptions, I’m generally wary of any study that is more than ten or twenty years old. Either its been superseded, or you can find a more-recent study that validates its findings. So a meta-analysis of outdated studies, no matter how methodologically skillful, will be outdated itself.
And it's not like there are no other options. It took me about one minute on Google Scholar to find a recent meta-analysis of video games that was consistent with their claim. Although that same search turned up at least two reviews suggesting that the 1994 study was an outlier. See also this review, which notes on page 43 that the 1994 study is widely cited likely because it gives the most extreme results, and that subsequent reviews have had a hard time linking media exposure to aggression, much less to violent crime.
More disturbingly, the authors appear to try to mask the staleness of the study on which they rely. Consider the argument they make:
There is now consensus that exposure to media violence is linked to actual violent behavior — a link found by many scholars to be on par with the correlation of exposure to secondhand smoke and the risk of lung cancer. In a meta-analysis of 217 studies published between 1957 and 1990 , the psychologists George Comstock and Haejung Paik found….
The emphasis is mine. The first time I read it, I honestly thought that the meta-analysis was likely from the late-2000s or early 2010s. That’s what “now” means to me. When I tried to find the article and came across the 1994 paper by Comstock and Paik, I was sure I had found an earlier collaboration between them. The age of the paper is further hidden by the fact that the op-ed provides a link not the article itself (which is admittedly hidden behind a paywall), but to a 2008 article that cites the meta-analysis, and one that buries the date on that paper at end-note 86 on a separate page.
Maybe I’m putting too much weight on the word “now,” but it suspicious to me.
So perhaps I take back some of my kudos. They appear to have cherry-picked their meta-analysis. I’m not alleging any sort of bad faith here—confirmation bias is a hell of a drug. But that doesn’t make the results any more reliable.
They also stretch the findings of other studies to the breaking point. Consider the following argument they make:
The question of causation, however, remains contested. What’s missing are studies on whether watching violent media directly leads to committing extreme violence….
Of course, the absence of evidence of a causative link is not evidence of its absence. Indeed, in 2005, The Lancet published a comprehensive review of the literature on media violence to date. The bottom line: The weight of the studies supports the position that exposure to media violence leads to aggression, desensitization toward violence and lack of sympathy for victims of violence, particularly in children.
The first paragraph is all about the hypothesized link between media violence and actual violence. The Lancet results they cite? “Aggression,” yes. But none of the rest of the factors relate to violent behavior. In fact, what is the true bottom line of the Lancet article? The very last sentence is the following:
However, there is only weak evidence from correlation studies linking media violence directly to crime.
Ouch. No experimental evidence, and only weak correlational evidence.
And the weakness of the correlational evidence is doubly harmful to their basic argument. First, it’s weak, which is bad for them. Second, correlational evidence should overstate the magnitude of the effect, so what we have is a weak overestimate.
Why should it overestimate the effect? Self-selection. Media exposure may lead to violence, but violent tendencies should lead to watching more violent media (it does, and I’m about to discuss one of my favorite papers to show that).1 These self-reinforcing effects mean that the correlation between exposure and conduct will be greater than the causal effect of exposure on conduct. That the correlation is weak thus bodes ill for size of the causal link.
Also, note the weasel-move: “Of course, the absence of evidence of a causative link is not evidence of its absence.” True. Also equally true? “Of course, the absence of evidence could indicate that there is no causative link.” This is all too common a tactic in empirical writing: “we have no evidence, but let’s assume….” It isn’t necessarily wrong, but it should be viewed with great skepticism.
But let’s get back to that selection-effect problem. A paper in Quarterly Journal of Economics once demonstrated that violent crime drops noticeably on days when violent movies have larger attendances. The basic causal claim: violent people go to the movies rather than someplace to drink. So between 6 pm and midnight they are “incapacitated” in the theater, and from midnight to 6 am (when the drop in violence is even greater) they are not out doing stupid drunken things. And there is no evidence of any sort of post-attendance blip even as late as three weeks after the spike in attendance.
In other words, the selection effect appears to be quite strong, at least in older people.
It also means that if you want to fight violent crime, you should start a Kickstarter to fund a reboot of the Saw series.
So where does that leave us? First, to be clear, there may be other public health reasons to oppose violence in media. The same Lancet review that found little evidence linking violent media to crime did note studies linking it to short-run psychological costs like fear, nightmares, etc. These are real costs, and nothing to scoff at.
But this op-ed is a great example of trying to force the data to support a point it doesn’t really support. The authors used an outdated, extreme-valued meta-analysis despite other, newer, easily-found reviews (all of them publicly available2) reaching differing conclusions. The authors blurred violent behavior and other problematic behavioral and emotional outcomes in ways that ultimately appear to misrepresent what papers were arguing. And they never honestly confronted the self-selection problem, which in this case is quite huge.
So, you say, I’ve spent a lot of words tearing down a New York Times op-ed piece. Why?
Well, partly because it just feels good. Seeing bad translational work (from the academic literature to the public) is always upsetting. Doubly so when the authors run a consultancy aimed at translating empirical academic literature for non-technical audiences.
But, less solipsistically, I think there are some good lessons here for non-empirical readers to use when reading these sorts of translational studies:
1. Are the authors relying on meta-analyses or systematic reviews rather than individual studies? Mixed marks here: they do at first, but then turn to newer, individual studies.
2. Are the studies new? Empirical work is a fast-changing field. Philosophers may cite people from the 400s (both AD and BC), but empirical work before, say, 2000 or so, is troubling. A meta-analysis from 1994 including studies from 1957? Two strikes.
3. If there are no experimental or quasi-experimental results, do the authors really engage with the problems of self-selection? Is their discussion convincing, or do they just try to hand-wave it away? Low marks here as well.
All in all, a poor showing. Perhaps in part because the authors aimed too high. They wanted to tie media violence to violent criminal behavior, and the evidence base simply isn’t there for them. Had they tried to argue that media violence can have real, at-least-short-run more-general public health implications, they would have had much more empirical support.
Of course, the flaws with their reasoning here doesn’t actually mean that the authors’ argument is actually wrong: maybe exposure to media violence really does lead to more violence. But this essay doesn’t prove it, and its numerous gaping holes all suggest that it is seriously overstating the problem.
Which itself has real social costs, since in a world of limited resources and attention, we can only attack so many causes of violent behavior. Do we really want legislatures, policymakers, or even media executives to waste time focusing on a factor that could be insignificant, at least without more compelling evidence?3
1 Or there is a common correlation: distant parenting leads to both more exposure to violent media and more violent dispositions independently of the media exposure. That’s the problem with the 2013 Pediatric study the authors cite. It relies on parental self-reports to try to control for this possible spurious correlation. That’s not convincing.
2 I visited all the links here from home, not from work, so unless Optimum Cable has a deal with Lancet and other academic journals, all of this is publicly available.
3 Of course, the argument for parents is slightly different. Obviously, there’s no evidence that media violence leads to better behavior, and none of the flaws with the papers these authors cite suggest the true answer is “watch more gunplay!” So having parents restrict what their kids see—like I do with my kids—appears to have no real direct cost besides the hassle of monitoring them, and could have some potential upside.
Understanding Civil Rights Litigation
I am happy to announce publication of Understanding Civil Rights Litigation with LexisNexis.
My main motivation for writing the book was to provide a supplement for my Civil Rights course, which I teach through open-source materials and, like Robin, believed the students can use some bit of help putting together the raw cases and information. The book also works as an assigned or recommended course supplement for any Civil Rights or Fed Courts casebook, or as a student study guide. And it includes relevant constitutional and statutory provisions and problem sets for use in classroom discussions.
Now available from Lexis, through your favorite Lexis rep, and in supermarket checkout lines near you.
Monday, September 09, 2013
There was a story that dominated the media earlier this summer: that mothers are the primary breadwinners in 40% of American households according to the Pew Research Center. This invoked, in many minds, the picture of an almost equal participation of moms and dads in the workforce and at home. After digging into the numbers, however, I found that nothing could be further from the truth.
The trick, it turns out, is to read Pew’s findings in conjunction with the birth data. While mothers are the primary breadwinners in 40% of households, the same percentage of births are to unmarried mothers. Although the two populations do not perfectly overlap—not every female breadwinner is a single mother—they do to a surprisingly significant extent: 8.6 million (63%) of women breadwinners in the United States are single mothers. A further analysis of the numbers reveals the startling fact that 25% of all breadwinners in the United States are single mothers earning a median income of $23,000 per year.
In other words, we are seeing a dramatic increase in women who are both the single parent and the primary breadwinner at relatively low wages. This would be a different story if the numbers showed that 40% of married households had a female breadwinner. But in married households with children today, only 15% have women primary earners. This is just a slight increase from the year 1960, when 11% of households had breadwinner moms and when, by the way, the rate of births to unmarried women stood at 5.3%.
The Problems with the Explanations of Prison Growth (Again)
First, I’d like to thank Dan for allowing me to continue posting here at Prawfs. I had hoped to spend this summer posting here about all the flaws in the standard story about the causes of mass incarceration. Unfortunately, an exhausting but—at least for now—generally positive journey through the world of neonatal medicine got in the way. But with time now to start blogging again, I thought I’d pick up where I left off. Since it’s been a while since my last post, though, and since the start of the school year likely means people who did not read Prawfs over the summer (are there such people?!) are joining in, I thought a short recap could be a good place to start.
My overarching point is this: the “Standard Story” of prison growth given by academics, policymakers, and the press alike, is basically broken, giving lots of attention to factors that don’t matter that much, and overlooking (if not actively downplaying) the ones that do.My first argument is simply that it is not the War on Drugs. Too few people are arrested for drug use and, outside the federal system, too few of our prisoners—only about 17% of state prisoners and 21% of all (state and federal) inmates—are serving time for drug charges. In fact, drug offenders make up such a small share of state prisoners that they do not even explain the racial imbalance in prison populations.
That’s not to say that the War on Drugs is irrelevant. First of all, it is not easy to even define what a “drug crime” is. But more important, the War on Drugs may have important indirect effects. Perhaps the disruption of the low-level drug arrest or brief stint in jail or, less frequently, prison, contributes to later, more-serious offending. Or perhaps the drug arrest or conviction encourages prosecutors to go after subsequent, more-serious offending more aggressively, or leads judges to impose tougher sentences for those crimes, or parole boards to be less forgiving. But these indirect effects are quite hard to detect in the data that we have (not necessarily because they are unimportant, but because we don’t gather the sorts of data that could reveal them).
So if it isn’t the War on Drugs, what is it? To answer that, we need to start with a Leslie Knopp-like obsession with the particulars of local government finance. Our “criminal justice system” is not a system at all, but a swirling mush of local, county, state, and federal actors, all with differing constituencies and incentives. This opens the door to lots of moral hazard problems. Bill Stuntz, for example, has convincingly argued that (state) legislators are free to pass tough sentencing laws since they can blame (county) prosecutors for actually using them. And prosecutors are indirectly encouraged to send people to prison rather than jail or probation since the first is paid out of state funds and the last two out of the county budget: prison is tougher on crime and cheaper for the DAs constituents.
Perhaps not surprisingly, my own work has thus shown that prosecutors are the primary engine of prison growth, at least since crime began its decline in the early 1990s. Between 1990 and 2008, crime fell, arrests fell, the probability that a felony case resulted in a prison admission has been flat, and (perhaps most surprising, and an issue I will be addressing in several future posts) time served has not increased. But felony filings by prosecutors have soared. Between 1994 and 2008, the probability that an arrest resulted in a felony case rose from 37% to 57%.
We are living in a time of low crime and high prosecutorial aggressiveness. Prison populations continue to rise even as violent and property crime decline and plateau.
Unfortunately, we are also living in a time where the conventional wisdom seems to wholly buy into a Standard Story that is simply unsupported by the data. This is perhaps the cleanest example of the Standard Story as it is usually trotted out, and this is why it is so incorrect.
So that’s the story to date, with all the essential self-promoting links to my previous posts and my own papers. Next up? Convincing you that longer sentences really are not driving prison growth upward. This is perhaps the toughest part of my attack on the Standard Story. I’m not alone in making this argument—Patrick Langan, back when he ran the Bureau of Justice Statistics, published an article in Science in 1990 on prison growth in which he argued that there was no evidence that changes in sentence length played any role in prison growth—but it is definitely the minority position. But then if the conventional wisdom were always correct we wouldn’t need statistics at all.
CFP: Feminist Legal Theory CRN at the Law and Society Association Annual Meeting-Due Sept 18th
Sunday, September 08, 2013
Bartrum Reviews "The Tragedy of Religious Freedom"
Ian Bartrum (UNLV) has posted a very generous review of The Tragedy of Religious Freedom (forthcoming in the Journal of Church and State). I wish I could say that I disagreed with the sharp and smart criticisms of the book in Ian's review; but actually, I found myself quite in agreement with them. Still, I hope you will forgive me for quoting from a not-so-critical section:
DeGirolami's is a thoughtful and sophisticated meditation on the protean relationship between law and faith in a society committed to religious freedom. His intellectual and cultural influences are broad and rewarding; his style is rich and accessible; and his critique of both theoretical foundationalism and skepticism is profound and compelling. The Tragedy of Religious Freedom is an important book that will undoubtedly influence and enrich this discussion for years to come.