Wednesday, November 27, 2013
Clapper and Probabilistic Standing
Standing is a doctrine that probably turns a lot of people off -- it's subject to heavy criticism for being manipulable and, in fact, actually manipulated. But it's important, as is any doctrine that holds the keys to the courthouse door. The Court's decision several months ago in Clapper v. Amnesty International has been discussed heavily, in particular for its implications for judicial review of intelligence gathering programs. Steve Vladeck has recently posted a characteristically sharp take on this issue.
Clapper also matters for admin law. Writing for the 5-Justice majority, Justice Alito insisted that the plaintiffs (U.S. entities that wished to communicate with foreigners who might be subject to wiretapping under the law) had to show that their injury was "certainly impending" if they wished to claim that they were suffering "imminent injury" as Article III uses that term. But he conceded that in an earlier case (interestingly, where he wrote the opinion) imposed a seemingly more lenient standard for imminence, requiring only that the plaintiffs prove that they ran a "substantial risk" of suffering harm. In Clapper he was able to elide this inconsistency by concluding that in any event the plaintiffs there failed both of these standards.
All this matters to regulatory law because risk reduction is what a lot of regulation aims at. This is especially the case when agencies regulate by incentivizing third parties to act in ways that help the intended ultimate beneficiaries of the regulatory program. These styles of regulating -- which are not really new but have gained more notoriety in the last couple of decades -- raise the question whether plaintiff-regulatory beneficiaries would be able to show the requisite imminent injury if they complained that government was regulating poorly.
I think Clapper's analysis can accommodate such claims. I explain why in this brief essay. Briefly, the answer is, first, that Clapper recognized the competing, "substantial risk" test. It didn't reject it (which might have been awkward, given that Justice Alito wrote the earlier opinion as well as Clapper.) Just as important, Justice Kennedy remains the swing vote on many, probably most, standing questions. And over twenty years ago, in Lujan v. Defenders of Wildlife, he wrote a separate concurrence that stressed Congress's ability to create innovative rights and articulate causal chains that courts might not otherwise accept. As I explain in the essay, if we understand these new regulatory regimes as doing exactly what Justice Kennedy conceived of in Defenders, then there's every reason to expect, both as a matter of legal analysis and Supreme Court prediction, that the Court would accept such injury claims.
It's an oversimplication, to be sure. But the title of this post seems to me to be the answer to the question, "How many cases does it take to turn a fan of non-formalist balancing into an advocate of formalist categoricalism?" Those two cases are the contraceptive mandate cases, on which the Court has just granted cert.
The balancing-versus-categoricalism debate in constitutional rights adjudication, which often tracks the non-formalist-versus-formalist divide, is a longstanding debate. (See here for some background.) American constitutional doctrine has gone back and forth between the two. In more modern constitutional legal systems, however, the emphasis tends to be on balancing. It is aided in part by the different textual structure of those constitutions and their rights provisions, which contain both stand-alone rights guarantees (ie., "Everyone has the following fundamental freedoms: . . . freedom of conscience and religion. . .") and explicit balancing clauses (ie., "[The Constitution] guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."). It is also probably undergirded by faith in judges, by the relative homogeneity of those judges and their political views, and by the force of some charismatic judges along the way, notably Aharon Barak (who did not even have the benefit of that kind of textual clarity, or any actual constitutional text at all, to work with). Under this approach, the general legal tendency has been to define the right broadly, and do most of the work at the balancing stage. (Advocates of this approach also frequently favor a similarly broad approach to potential preliminary categorical barriers such as standing.)
Generalizations are just that and should be taken with a grain of salt. But I think it's still broadly true to observe that many legal liberals favor the modern style of constitutional adjudication, believe in judicial balancing, and are less inclined to support categoricalism or formalism as a means of constraining rights claims.
Until the contraceptive mandate cases (and Citizens United), that is. It would be possible to decide such cases by taking a broad approach to the categorical questions and finding that such a right exists, even for corporations, while holding against the corporate plaintiff on balancing grounds. But many of the initial responses to these cases seem to be more formalist and categorical in nature, rejecting a Barakian or Breyereseque balancing in favor of a more formalist up-front exclusion on who (or what) can claim a constitutional right to freedom of religion (or expression, in something like the Elane Photography case) at all. A lot of people suddenly seem fonder of formal categorical exclusions, and more leery of judicial balancing, than they used to!
I admit to some ambivalence here. Skepticism of the judicial capacity to balance rights against state interests is a good thing. Skepticism of Barak's passion for proportionality is a very good thing. And I am apparently not opposed to categorical approaches! But I think balancing emphatically has a role to play in rights adjudication, and I think these cases could be sensibly decided at the balancing level rather than engaging in categorical exclusions at the preliminary stage of the rights claim. For what it's worth, I tend to think that many entity plaintiffs challenging the mandate should lose at the burden or state interest stage of the analysis. I would rather have the decision occur at that stage than by denying the possibility of an entity claim altogether. But I'm still thinking about those issues. In the meantime, I'm interested in what the mandate cases and the reaction to them say at a higher level about fair-weather allegiance to balancing versus categoricalism or non-formalism versus formalism.
Two additional points. First, in response to a comment on FB on this issue, I'm thinking mostly about the Free Exercise (or, under RFRA, Free Exercisish) aspects of these cases, not the Establishment Clause aspects. The Establishment Clause presents its own questions, and it is not always as easy to situate thinking about the Establishment Clause on one side or the other of the categoricalism/balancing divide, in part because of underlying uncertainty about whether the Establishment Clause itself is a rights provision or a structural provision.
Second, there is also a similar reversal or tension on the formalist/judicial conservative side, although again this is a very rough cut. For reasons probably having to do with general priors than with a particular unified legal theory, many people who might be characterized as judicial or political conservatives, who are fonder of formalism and less fond of balancing, are also supporters of a robust regime of religious liberty. Given their fondness for formalism and skepticism about judicial balancing and judicially ordered exemptions, many of them have reconciled themselves over the last 20 years to the Supreme Court's formalist decision in Employment Division v. Smith. Yet they object to the broad application of civil and human rights statutes and provisions like the contraceptive mandate to religious entities. There may be some ways to address this without sacrificing formalism. One is to exploit the requirement that a law be genuinely neutral and generally applicable. Another, of recent vintage, has been to emphasize the quasi-jurisdictional idea that churches themselves are entitled to a broad scope of internal freedom. That worked in Hosanna-Tabor. But how broad should that categorical approach be? Should it really work when applied to for-profit corporations, for instance? (And why, incidentally, once we've gone down that road, shouldn't the formalists re-examine their general rejection of categorical Press Clause rights?) Doesn't it require courts to undertake the kinds of inquiries about "who is a church" that they think courts aren't generally qualified to engage in? Finally, I suppose a third possibility for people in this camp is to take a broad view that everyone, including all sorts of claimants, is ostensibly entitled to bring freedom of religion claims, while dealing with the mess at the balancing stage. Which perhaps puts them closer to the Barak/balancing camp than they would normally want to be; hence the tension on the other side of the debate.
Comments welcome, of course; as I said, this is a pretty rough cut and I don't think it's the whole story, although I do think looking at things this way reveals some pretty interesting methodological tensions. And see also this related article by Perry Dane.
Football and limiting rules
In breaking down and defending the infield fly rule, I rely on the concept of limiting rules--special rules designed to recalibrate cost-benefit disparities that appear if some plays are left to the game's ordinary rules. I identify four features that, when present, show the need for limiting rules. I also discuss situations in which the absence of one or more feature shows that a limiting rule is not necessary. In a work-in-progress (hopefully forthcoming), I apply this model to football, focusing on several plays from the last two Super Bowls to consider situations that do or do not call for limiting rules.
But on Slate's Hang Up and Listen Podcast (go to around the 51:00 mark), Josh Levin identifies a play that exposes another hole in the rules that might justify a limiting rule. A defensive team trailing in the final minutes commits a penalty on a play on which the offense had gotten a first down; the penalty stopped the clock, even though the clock would have continued to run without the penalty. In other words, it functionally gave the trailing defensive team a free timeout, forcing the offense to run more plays in order to run out the clock. This, Levin argues, incentivizes teams to intentionally take penalties to stop the clock and give themselves extra, an idea discussed on Football Commentary almost a decade ago. This arose with 2:14 remaining in last Thursday's Saints-Falcons game (the trailing Falcons committed defensive holding on a play) and arguably gave the Falcons a chance to get the ball back one final time (although they did not score) and still lost.
Warning: Another more-sport-than-law-post, so continue at your own risk.This seems like a game situation in which a limiting rule is warranted, as it is defined by all four features: 1) the play produces a significantly inequitable cost-benefit disparity, as the trailing defensive team can stop the clock and give itself more time to get the ball back, to the detriment of the leading offensive team, which receives no benefit from the play; 2) the defense entirely controls the play, as the offense can do nothing to stop an intentional penalty or the clock from stopping, even by declining the penalty; 3) the cost-benefit disparity arises because the defense intentionally commits a penalty, something teams do not want to do under ordinary rules and practices and something that rulemakers probably do not want them doing; and 4) the opportunity to gain those advantages incentivizes the defense to make this move regularly.
In fact, the NFL recognized this gap iand tried to stop it with a limiting rule. The problem seems to be that the limiting rule has not gone far enough.
This play sits at the intersection of three rules.
1) Under Rule 4-3-2(f), when the clock is stopped following a foul by either team, the clock starts as if no foul had occurred. So if the clock would have kept running but for the foul, the clock starts as soon as the ball is ready; if the clock would have stopped but for the foul, it starts on the next snap.
2) But Rule 4-3-2(f) contains three exceptions: The clock starts on the snap when the foul occurs in the last two minutes of the first half, last five minutes of the second half, and when a specific rule prescribes otherwise. R. 4-3-2(f)(1), (2), (3). 4-3-2(f)(2) covered the Saints-Falcons game.
3) Finally, there is a specific rule prescribing otherwise: Rule 4-7-1 prohibits teams from "conserving time" by committing certain acts, including "any other intentional foul that causes the clock to stop." R. 4-7-1(f). The penalty for this act is a 10-second run-off and the clock starts when the ball is ready.
Rule 4-7-1 is a limiting rule. It closes a gap in the rules by imposing the outcome that would have resulted on the play--clock runs, including the ten seconds it would have taken for the ball to be spotted--and putting us in the same place as if the had not been called. By imposing that outcome, the limiting rule eliminates any incentive to commit intentional penalties and thus to act in a way contrary to the game's expectation. The problem is that the limiting rule does not go far enough--it is limited to the final minute of each half, so it does not reach intentional fouls that occur with slightly more time remaining, even if those time-conservation incentives are as present. That seems to have been the case in the Saints-Falcons game. The rule also does not address unintentional fouls, meaning a trailing team might gain that significant cost-benefit advantage, even if only accidentally.
The answer is to expand the limiting rules. Perhaps Rule 4-7-1 should be extended to the final three minutes (at least of the second half), when a leading team is already in time-wasting mode and the trailing team is in time-conserving mode. The increasing sophistication with which NFL coaches understand and strategize those final minutes--discussed weekly on advanced metrics sites--suggests teams have an incentive to begin doing this earlier than the one-minute mark.
Better still, eliminate the exceptions in Rule 4-3-2(f) for the final five minutes of the game. Instead, the clock always should start for the next play as if no foul had occurred on the previous play; if the clock would have continued running, it should keep running (as would have happened in the Saints-Falcons game). Rule 4-7-1 then could perform the narrower function of disincentivizing intentional fouls by imposing an additional cost--a 10-second run-off-- for any intentional fouls committed to stop the clock. In either case, the trailing team would no longer receive (intentionally or unintentionally) the equivalent of a time-out by committing a penalty, thereby presumably removing the incentive to commit the intentional foul.
This is a fun question, because it illustrates how rules collide. Levin does say in his commentary that he spoke with people from the NFL and they did not see this as a big problem. My best guess on that is that R. 4-3-2(f)(1) and (2) probably were designed to create more excitement in close games, by allowing the clock to stop more, allowing for more plays, and, perhaps, more comebacks. That purpose has now run into possible gamesmanship in taking penalties, but the league may consider the balance between excitement and gamesmanship properly struck.
Tuesday, November 26, 2013
Corporate Sex Quotas – Key Questions for Debate
At this conference, Gender Quotas at the Global Level: Toward Parity Governance?, which I attended at EUI, most of the experts in attendance focused on parity governance as a regime within the public sphere – quota rules that require political parties balance candidates’ sex or even occasionally reserving seats for women in legislatures. The recent rush to institute corporate board quotas proves more compelling for me right now. Corporations overpower governmental action these days, and in that sense private sector sex equality may hold more potential to diminish the exclusion of women, non-traditionally gendered men, and other sexes from corporate power. Indeed, one of the reasons behind the Norwegian corporate board quota was a recognition that sex equality had succeeded in the public sector but not in the private.
If states choose to instill sex equality in the private sector, why boards? Boards appear to sit at the pinnacle of the corporation, and quotas there may foster equality lower in the hierarchy. The board certainly has symbolic power, but it only plays a secondary role in the decision-making process - it oversees corporate strategy rather than design it. One can also argue that the board is a good place for sex diversity precisely because it does not fundamentally alter corporate decision-making. Inserting women into this “oversight” role may play into increasingly common stereotypes of women as “responsible,” even “risk averse.” Despite the many studies that suggest women’s presence improves profitability, I remain skeptical given that my own research (involving interviews with male and female board members from boards of a quarter of the top French companies) that suggests that it’s newness that makes a difference, not femaleness.
These quotas raise compelling questions: 1) what are the costs to men of such quotas, and will those costs overwhelm benefits?; 2) are explicit sunset provisions a good idea and if so, how long should they last?; and 3) are quicker remedies (like the Norwegian quota’s five years) more effective to shift sex equality norms, or do softer remedies, like reporting requirements, work? and 4) If indeed newness matters, would term limits work?
More pleading/qualified immunity
The big news from SCOTUS today was the unexpected totally expected cert. grant on the constitutionality of the contraception mandate. But the Court also granted cert. in Wood v. Moss, which involves qualified immunity and pleading.
The case arises out of a street protest against President Bush, where police and Secret Service agents moved protesters several blocks away from where the President was having dinner, while allowing pro-Bush protesters to remain in place. Two months after Iqbal was decided, the Ninth Circuit found the complaint insufficient, a decision I argued illustrated the negative effects Iqbal was likely to have on civil rights litigation. The plaintiffs were given a chance to replead and a later Ninth Circuit panel held that the amended complaint sufficiently pled viewpoint discrimination.
That the Court took the case does not bode well, but I suppose I could be surprised.
§ 1983 and the 11th Amendment
I wrote last week about Tyler v. Commonewealth of Massachusetts, the lawsuit by a woman contesting a state court order forcing her to engage in family law matters with the convicted rapist who fathered her child. A federal district court dismissed the § 1983 action. One of the cited reasons was the Eleventh Amendment, a decision I said last week was wrong. Here is why.
It is true that the original complaint impermissibly named the Commonwealth of Massachusetts as defendant. But one overlooked aspect of this jurisprudence is that the inability to sue a state, at least on a constitutional violation, is a matter of the text of § 1983, not the Eleventh Amendment. SCOTUS has twice held that a state (or state agency) is not a "person" within the meaning of § 1983; the ordinary meaning of person does not include a sovereign and Congress did not provide any text or history to suggest differently. In fact, it seems clear that under either the prevailing congruence-and-proportionality analysis or Justice Scalia's "enforce means enforce" approach, § 1983 is valid § 5 legislation. There is perfect congruence-and-proportionality between § 1983 and the Fourteenth Amendment rights being enforced. And Scalia has acknowledged § 1983 as the main example of permissible legislation that creates a remedy for existing constitutional rights. So the reason the plaintiff could not sue the Commonwealth is that the Commonwealth is not a person subject to suit or liability under the applicable substantive law. This approach also has the benefit of making clear that this is all a defect in the merits of the claim--the plaintiff sued a defendant who is not subject to the duties or liabilities under that substantive law.
The other problem with the Court's analysis is more fundamentally wrong. The plaintiff moved to amend the complaint in response to the motion, seeking to substitute the justices of the Superior Court (the trial court) as defendant. And since the plaintiff sought an injunction preventing current and future enforcement of the state court orders, this seems like it would be permissible under Ex Parte Young as an action against a responsible officer seeking prospective relief from an ongoing violation.
Amazingly, however, the district court held that Young did not apply. Tyler was not seeking prospective relief because the "sentence complained of has been imposed and is now an historical fact." But this seems to misunderstand what it means for relief to be "prospective." Yes, the challenged order is already entered. But the plaintiff's argument is that the order is presently causing her constitutional harm and will continue to cause her constitutional harm in the future. The injunction she seeks is to halt future enforcement of that state-court judgment. If that is not prospective, I am not sure what is. Under the court's apparent definition, no relief is prospective--it would be just as easy for a court in an action challenging the constitutionality of a statute (the typical Ex Parte Young case) to say "the statute complained of has been enacted and is now an historical fact." The issue should not be the timing of the complained-of legal rule, but the effect of that rule and when the relief sought will take effect.
There are cases that distinguish "purely prospective" injunctions from other injunctions. But those are Younger cases; they hold that an action that seeks to enjoin future enforcement of a law without interfering with a pending prosecution are not barred by Younger. (Wooley v. Maynard is a good example). This has nothing to do with whether an injunctive is prospective for Ex Parte Young purposes.
Monday, November 25, 2013
GGRRRRRRR ... But In a Totally Heterosexual Way
An interesting piece from the Washington Monthly's College Blog about tryouts for Cornell's mascot, apparently known as the Big Red Bear, where one eager beaver bear applying for the position was reportedly told that the bear must act straight -- "act like a heterosexual man" and "only approach women." Apparently the good folks in Ithaca haven't gotten the message about, uh, bears (not to mention otters and, one I didn't know, wolves).
Anyhoo, I don't know whether to respond to this sort of thing by laughing, crying, or just beating my head against a wall. On the one hand it's the most innocent, trivial thing in the world: a silly mascot hamming it up on the sidelines. But before we dismiss it that quickly, let's think about this. Let's assume that the applicant for the position is gay -- heck, if I had more gumption in college I might have enjoyed being the Columbia mascot (thought our legendary football losing streak at the time would likely have put a damper on any victorious frolicking). This kind of message is certainly not a welcoming one to the applicant.
But more generally, I mean c'mon: the bear has to be het? He can flirt with females and that's fun/expected/inoffensive -- but guys are off limits? (We're assuming that the mascot itself is a male, which is probably true for most human-identified mascots, but hey, why can't Vikings or Mountaineers be women, at least when it's a woman's team on the field? As for animals, why not have female mascots, again, at least when women are playing the game and wearing the uniform?) Guys can't take good-natured sexual ribbing, but girls can? Frankly, it wouldn't surprise me if at least some college age guys would be cool with any flirting that would be sufficiently innocent as to be ok when applied to women.
Of course many may not be. And maybe that's the big problem here. Heterosexual flirting: OK, it's expected and nobody minds. Same-sex flirting: Asking for a bloody nose, even when the fliter is wearing a bear outfit. I dunno. I get the argument from statistics (most college students, like most humans, identify as straight). But to deny even the theoretical existence of a gay mascot seems like, well, denial. And if an administrator's answer is that they understand, but they don't want to create the conditions in which a real problem might arise from a victim of the attention who can't handle it, then maybe the answer is to tell the bear to keep his paws to himself.
VAPs and Fellowships: Open Thread, 2013-2014
As requested, here is this year's open thread in which comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow). (Here is last year's thread.)
(If someone wants to aggregate this information, email me, slawsky *at* law *dot* uci *dot* edu, and I will set you up with an embedded spreadsheet.)
Update: We have an aggregator! Below is the spreadsheet, which you can view and download here.
From the aggregator:
The column titles should be self-explanatory. Most columns are populated by dates, each of which may have a descriptor next to it indicating (method of notification) AND/OR [slots filled/total slots].
Dates correspond to the posting date or the date I (VAP Aggregator) received an email directly.
Reports on some programs leave outstanding questions based on the information provided. I have highlighted those in yellow in the hopes folks will provide additional info. (Committees, you are especially encouraged to correct me if I make a mistake.)
Some programs are not running this year (either via their webpage and/or reports). I have marked those rows in gray, but preserved them to help make the spreadsheet reusable next year. Additionally, once a program has completed hiring, I will mark those rows in (a lighter) gray.
Submit any questions/comments/corrections to vapaggregator (at) gmail (dot) com.
Originally published 11/25/13.
Sunday, November 24, 2013
Gender Quotas at the Global Level: Toward Parity Governance?
Just back from two phenomenal sessions at the stunning villas of the European University Institute in Florence: Gender Quotas at the Global Level: Towards Parity Governance? This was the first set of meetings I’ve attended that focused exclusively on quotas for sex inequality. The United States, which roundly rejects quotas from right and left (as I argued here) is increasingly an outlier on this front among developed and developing democracies. For political representation quotas, this is clearly true, with over eighty countries having quotas, and increasingly true for corporate board quotas, where Norway led the way with its forty percent floor for any sex. Several European countries have followed and the European Parliament endorsed them as our quota conversations were taking place this past week.
The session had two parts – first, a policy seminar in which experts from academia, management consulting, NGOs, the UN and the EU joined in a frank conversation about the opportunities and risks in such quotas. The second “executive training” part involved a series of two-hour sessions in which we instructors focused on our work to a broad range of consulting executives and doctoral students. I explored conclusions from my work in which I interviewed men and women board members from almost a third of the top French corporations. In my paper, Sex Regimes and Corporate Governance, which I presented earlier this fall at Utah and Hofstra, and will present at AALS, I argue that women’s presence will not shift corporate governance substantially – instead, the newness of women on boards matters more than their sex. Tomorrow, I will post a few remaining questions for debate among the Prawfs crowd.
Saturday, November 23, 2013
JFK and the CRA
Yesterday was the 50th anniversary of the assassination of John F. Kennedy (maybe you heard). Next summer will mark the 50th anniversary of passage of the Civil Rights Act of 1964. The proximity in time of the events is not necessarily coincidental, of course. One of the recurring narratives is that the assassination enabled the legislation. LBJ used the assassination and JFK's legacy to push Congress and the public to support sweeping legislation. And LBJ's legendary facility with Senate procedure, something Kennedy lacked, is often credited with enabling him to push the ultimate bill through in that house.
Many people are playing counter-factual history this weekend--what if Kennedy had not been assassinated (the subject of a book by journalist Jeff Greenfield)? So for everyone familiar with the 1964 Act and its passage, the legislative politics and procedure, and the history of the era--Would some version of comprehensive civil rights legislation (touching on voting, employment, education, and public accommodations) have passed had JFK remained president after Nov. 22, 1963?
Friday, November 22, 2013
Making Law Sex Positive
It has been a good decade for sexual freedom. The Supreme Court issued opinions protecting the rights of gay individuals to engage in sexual relationships and striking down a ban on the federal recognition of same-sex marriages. Two gay teen characters were portrayed as having a positive sexual relationship (leading to a marriage proposal) on network television. Sexual practices formerly viewed as perverse, such as role playing and sado-masochism, seem almost provincial now that there is a copy of Fifty Shades of Grey on every great-aunt’s bookshelf.
But, in an op-ed published in the Washington Post this weekend, I argue that even among this legal and pop culture sexual revolution, much of our law remains curiously silent, squeamish, or disapproving on the topic of sexual pleasure itself. Indeed, several areas of the law rely on the counterintuitive assumption that sexual pleasure has negligible or negative value and that we sacrifice nothing of importance when we curtail it. This phenomenon extends even to legal realms that regulate behaviors central to the experience of sexual pleasure.
The assumption that sexual pleasure has negligible or negative value is simply unfounded, and unfounded assumptions create bad laws and policies. Legal regulation generally sacrifices our freedom to engage in certain activities because the activities result in harm or because regulation generates benefits. Devaluing sexual pleasure distorts this calculus. In truth, sexual pleasure is actually a very good thing, simply because it is pleasurable.
Truly progressive legal reform would recognize the inherent value of sexual pleasure. This would have significant implications for several areas of law, ranging from obscenity to rape law. The op-ed out this weekend is part of a larger project challenging the sex-negativity of law and envisioning how simply valuing sexual pleasure in itself would require us to rethink different areas of law.
Obscenity law, for example, relies on the assumption that offensive speech that is intended merely to arouse is entitled to less constitutional protection than any other type of offensive speech. The Miller test allows states to freely ban any material that depicts sexual activity “in a patently offensive way” and “appeals to the prurient interests.” The First Amendment only protects this material if it has some serious literary, artistic, political, or scientific value to redeem it. In contrast, states may not ban other types of offensive material unless they can show it is likely to cause some harm. If sexual pleasure in itself is valuable, then we can’t justify banning offensive prurient material more freely simply because its primary purpose is to arouse people. Instead, we have to think more carefully about how (and whether) states should be able to regulate any offensive materials.
Recognizing sexual pleasure would also require state courts and legislatures rethink the criminalization of sado-masochistic sexual activities (or “BDSM”). BDSM has become so prevalent in popular culture that it seems almost quaint. But even some consensual spanking can lead to an assault or battery charge in most states. In contrast, the law permits violent sports, cosmetic surgery, tattooing, and skin piercing, in large part because courts and legislatures accept their value. We can’t justify this distinction if we acknowledge that sexual pleasure has as much value as the pleasure derived from a boxing match or cheek implants.
Recognizing the value of sexual pleasure doesn’t mean we have to value it above everything else. We regulate the things that bring people pleasure all the time. We value the pleasure we experience from music, but I may not kidnap Beyoncé and force her to join me on a song-filled road trip, no matter how magical the experience would be for me. Sexual pleasure is no different—we can acknowledge it is important and still regulate it.
But valuing sexual pleasure does require us to regulate more honestly. It allows a more complete and well-reasoned discussion of what we choose to regulate, what we fail to regulate, and our justifications for those choices.
The op-ed “The Joyless Law of Sex,” is available here. “Sex-Positive Law” will appear in the 87th volume for the NYU Law Review in April.
Interesting Somin Post on Federalism and Rights
An interesting post--I think it's by Ilya Somin [see update below], although it appears at Concurring Opinions, which would be unusual for him--on the Elane Photography case. Its basic point, to put it rather briefly and bluntly, is "New Mexico: Love it or leave it." As he writes:
If Huguenin wants to turn a profit in the economic atmosphere the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.
I appreciate the strong argument that our interpretation of constitutional rights should be influenced by conditions of federalism. For reasons that have been well stated elsewhere, as in this article, I don't think "voting with your feet" is an adequate substitute for or response to the side-constraints on law provided by individual constitutional rights. But I'm grateful for his willingness to make this argument.
[Update: I am told the author is actually Richard Storrow, although given the author's strong emphasis on voting with your feet as a remedy in rights cases, I still think my confusion was understandable.]
Rooker and Younger
In August, I wrote about Young v. Commonwealth, a § 1983 lawsuit by a teen-age girl who had a child as a result of a rape; the criminal court in Massachusetts ordered the convicted rapist (who was sentenced to 16 years probation) to initiate proceedings in state family court regarding paying child support and other matters, prompting the man to also seek visitation. The girl objected to that order because she did not want the man involved in her, or the child's, lives; she attempted to appeal the criminal court order to the Massachusetts SJC, but was found not to have state-law standing. She then ran to federal court. I pointed out a number of problems with the case and even used the complaint to illustrate some concepts and doctrines in Civil Rights.
Two weeks ago, District Judge Stearns of the District of Massachusetts dismissed the complaint, seemingly with prejudice (H/T: One of my alert students). The court dismissed for three reasons: 1) the suit is barred by the Eleventh Amendment because it named the Commonwealth as defendant and the attempt to instead name the state judges under Ex Parte Young is still barred because the suit does not seek prospective relief, but relief from a prior judgment (this last point is beyond wrong, although I leave that for another day); 2) it is barred by Burford Abstention, which requires federal abstention in deference to a unified state regulatory regime, which includes family courts); and 3) it is barred by Younger abstention, because the § 1983 action interferes with an ongoing state proceeding.
In my earlier post, I suggested that the real basis for dismissal should be Rooker-Feldman, which is also what I suggested to my students in class. The court's reliance on Younger instead of Rooker-Feldman reflects what may be a common, but unfortunate, confusion between the doctrines.Younger and Rooker-Feldman share similar underlying comity concerns--allowing state institutions, mainly as courts, to function according to their own processes and preventing federal district courts from hearing cases that interfere with or override those proceedings. And both doctrines rest on the premise that constitutional errors in state proceedings should be corrected by seeking appellate review in the state system and, if necessary, SCOTUS review of the final state-court judgment.
The difference is (or should be) the target of the federal suit. In the typical Younger case, the state is seeking to enforce its substantive law in a state proceeding and the state defendant asks a federal court to enjoin that enforcement effort, and thus to enjoin the ongoing state proceeding, because the underlying substantive law is defective (usually constitutionally, but also as a matter of federal statutory law). The federal defendant is usually the executive officer or agency who initiated the enforcement efforts. Younger prevents that end-run, forcing the party to defend in the state enforcement proceeding, present its constitutional challenge to the underlying law there, and appeal any adverse result. And if Scott Dodson is right about the case pending before SCOTUS, Younger's scope is going to be explicitly more confined to such coercive proceedings. By contrast, Rooker-Feldman applies where the constitutional injury to the would-be federal plaintiff is caused by an adverse judgment or order already issued in any type of ongoing state proceeding, where the federal injunction would functionally review and reverse that order.
The problem is that many courts (and presumably defendants, which is where this begins) immediately turn to Younger anytime the injunction touches a pending state proceeding, without stopping to consider the nature of the state proceeding, the source of the alleged constitutional injury, or the target of the sought federal injunction. Those features should mark the line between Younger and Rooker-Feldman. The Tyler court is not alone in this conflation. In SKS Assocs. v. Dart, the Seventh Circuit held that Younger barred a federal action to enjoin a General Order issued by the chief judge of the state court and applicable to all pending eviction actions in state court. The court similarly went straight for Younger, even though the challenge was to the constitutionality of the order issued (functionally) in a pending state case and not to the underlying applicable law. The court did acknowledge that this was not the typical Younger case because SKS was not a defendant in the state proceedings, but nevertheless insisted that Younger comity demanded abstention.
The Tyler court also seems to have missed the point of the lawsuit, which may add to the confusion. The court saw it as an effort to enjoin the family proceedings (which have not yet produced any final order), meaning there was no specific order to point to as the source of injury. But the complaint actually asks the court to enjoin the underlying criminal court order that sent the perpetrator to family court in the first instance, as order already issued and final. So, once again, the target of the federal action matters.
The further irony is that less than a decade ago, lower courts were overusing RF, having conflated it with claim preclusion. SCOTUS halted that with two decisions (Saudi Basic and Lance). Now the courts seem to be running away from RF's core application.
At some level, of course, it does not make a practical difference. A federal district court cannot hear Tyler's § 1983 action and Tyler's recourse lies in appellate review of state proceedings, with possible certiorari to SCOTUS. But there is nothing wrong with a little doctrinal consistency and accuracy.
Thursday, November 21, 2013
Event on Reining in Mandatory Minimums
My friends at the NYU Center on the Administration of Criminal Law are co-hosting this interesting event tonight in case you have time and inclination.
Reining in Mandatory Minimums: Perspectives from both sides of the “V”
Date: Thursday, November 21, 2013
Time: 5:45 – 7:45 p.m.
Location: Greenberg Lounge, Vanderbilt Hall, New York University School of Law, 40 Washington Square South (between McDougal and Sullivan Street), New York, NY
The Honorable John Gleeson, U.S. District Judge, EDNY
Marshall L. Miller, Esq., Chief, Criminal Division, U.S. Attorney's Office, EDNY
David E. Patton, Esq., Executive Director and Attorney-In-Chief, Federal Defenders of NY
Julie Stewart, President, Families Against Mandatory Minimums
Jonathan J. Wroblewski Esq., Director, Office of Policy & Litigation, U.S. Department of Justice & Ex Officio Member United States Sentencing Commission
On August 12, 2013, Attorney General Holder released a memorandum entitled “Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Drug Cases.” The memorandum acknowledges that mandatory minimums and recidivist enhancements often result in “unduly harsh sentences” and in many cases “do not promote public safety, deterrence, and rehabilitation.” Our program will discuss how this recent federal policy change has affected the on-the-ground practice of attorneys on both sides of the bar. The panelists will also discuss what this executive action means for the future of mandatory minimums and sentencing reform. At a time where incarceration rates are soaring and budgets are tight, this program will be a unique opportunity for legal practitioners, policymakers, and members of the public to engage in a dialogue about fair and effective sentencing in the criminal justice system.
All attendees must register online. https://www.federalbarcouncil.org/vg/custom/form/emailregistration.aspx?meeting=CL0414R
CLE Credit Information
This program will provide 2.0 transitional/non-transitional CLE credits in Areas of Professional Practice. There is no charge to attend this program.
The Federal Bar Council is certified by the New York State Continuing LegalEducation Board as an Accredited Provider of Legal Education in New York State.
To indulge your sudden interest in dental schools . . .
There's this 2009 Slate piece. Some interesting facts:
- "In the early 1980s, U.S. dental schools produced about 5,750 new graduates per year. In 2007, with a population that's nearly one-third larger, there were about 4,700."
- "In 1980, the United States had 60 dental schools; today there are 58, and class sizes are smaller."
- "Unlike medical schools, where students do their clinical training in teaching hospitals that bear the costs of such practical education, dental students get their training in clinics run—and paid for—by the universities."
- "Currently, about 600-800 more dentists enter the profession than retire from it each year, but starting around 2014, as the baby-boomer dentists who graduated in larger classes start to retire, the number of practicing dentists will decline while the U.S. population continues to grow."
Then there's this response in the Awl, which points out:
What has happened over the last sixty years? From 1950 to 2009, the population of the U.S. almost exactly doubled. So did, quite nearly, the number of people enrolled in dental school.
What happened to dentists' income? As of 2004, their "average net income has increased 117% since 1990," according to the American Dental Education Association.
So actually we have the same ratio of dentists to Americans now that we had in 1950. Except they just make a heck of a lot more money now.
This brief story discusses an article from the Journal of Dental Education describing a shortage of qualified dental faculty. However, commenters Red Stripe and Sea Dentist complain that schools are looking for the wrong qualifications.
Finally, go here if you are looking for dental student angst. Some of the arguments and counterarguments may seem familiar.
Just in time for Thanksgiving, your horn of plenty of accomplice liability runneth over. Several very interesting pieces on the subject have popped up recently by seasoned and junior scholars. In this post I want to highlight the work of my friend Jim Stewart (UBC), who specializes in comparative criminal law and writes about corporate pillage in Africa (a conducive place to think about problems of accomplice liability).
Here is a succinct and very useful piece on complicity. I especially like Jim's methodological approach, one which seems to pair naturally with a comparative perspective. Rather than constructing a top-down account of the best understanding of complicity, Jim identifies several recurring problems or themes in the area and discusses various solutions that have been offered by different jurisdictions. It is an approach which, Jim says, "exposes blind spots in the various schools of thought about accomplice liability." One particular section I thought provocative was the discussion of the relationship of complicity and justification (pp. 10-11). Jim argues for using the affirmative defense of justifcation to obviate the need to decide between a purpose or knowledge mens rea requirement (he relies on a British case involving the sale of contraceptives by doctors to minors, who were then implicated in charges of statutory rape). The choice of evils defense is a familiar repository for the problems of moral nuance, but I'm not sure the law of complicity ought to be let off the hook this way. At any rate, read the piece, and also take a look at Jim's newest piece on corporate criminal responsibility (h/t Larry S.).
Also, here is Jim's extremely well-written and powerful editorial last week about corporate pillage in Africa--wrongdoing which, of course, presents the problem of corporate complicity in stark terms.
Wednesday, November 20, 2013
JOTWELL: Erbsen on Kaplow on multistage adjudication
The new essay on JOTWELL's Courts Law comes from Allan Erbsen (Minnesota), reviewing Louis Kaplow's Multistage Adjudication (Harv. L. Rev.). This is a terrific piece discussing critical differences in in how distinct procedural devices function at different stages of litigation; Allan situates that in the greater concerns about gatekeeping and the interdependence of categories. Both the article and Allan's review are worth a look.
Podcast on Town of Greece v. Galloway
My colleague, Mark Movsesian, and I have recorded a podcast discussing Town of Greece v. Galloway, the legislative prayer case recently argued at the Supreme Court, in the Center for Law and Religion's first in a planned series of podcasts on law and religion cases and issues.
We tried to be fairly complete in our discussion of the case, and I hope that this podcast might be particularly useful for students and others interested in an introduction to the issue of legislative prayer and in some fairly detailed analysis of and commentary about the oral argument.
Stay in Texas clinic litigation remains in place
By a 5-4 vote (divided along predictable lines), SCOTUS let stand the Fifth Circuit stay of the district court injunction prohibiting enforcement of the restrictions on reproduction health clinics. The law remains in effect and enforceable, and clinics must comply with the law, pending resolution of the appeal. The Fifth Circuit has expedited briefing and set oral argument for January. The main order was unsigned. Justice Scalia (to whom the original application was directed) wrote an opinion concurring in the denial of the application, joined by Justices Thomas and Alito. Justice Breyer wrote a dissent for four.
The dissent focused, properly I believe, on preserving the status quo and properly balancing the harms. By enjoining enforcement of the law, the district court changed the status quo from what it would have been were the laws in effect and returned to the status quo before the law was enacted. The stay thus disrupts that status quo by putting the state laws into immediate effect, thereby forcing many clinics (advocates insist as many as 1/3 of the clinics in the state) to close and many women to have to travel hundreds of miles to obtain reproductive health services. And many of those clinics may be unable to reopen even if the district court is ultimately affirmed. The balance of harms is thus between the state being unable to enforce its laws for a few months against the permanent harm to women unable to exercise their constitutional rights without undue burden (which the district court found was imposed by these laws).
The dissent also found no public interest considerations that warranted a stay. Justice Scalia responded by insisting that "[m]any citizens of Texas, whose elected representatives voted for the law, surely feel otherwise." But this goes to the related point about harm to the state if it is barred from enforcing its laws and linking (as the Fifth Circuit and Justice Scalia both did) the public interest to harm to the state--it proves too much. The state always has an interest in enforcing its duly enacted laws and the public in the enforcement of the laws duly enacted in its name. If those two truly predominate and always run together, then injunctions should always be stayed pending appeal to preserve that interest in enforcing the law until any law is finally determined to be unconstitutional.
But not every negative injunction is stayed pending appeal; I would imagine that most aren't (this might be a nice empirical question to explore). And, if we focus on maintaining a status quo, most shouldn't be. Which suggests that what is really going on is a tip of the hand on the merits--that five-justice majority is convinced the Texas law is constitutionally valid and sees no reason to delay enforcement. And so we have a pretty good sense of what will happen if/when the case comes back to SCOTUS for full merits consideration.
Tuesday, November 19, 2013
Button, Button, Who's Got the Button (in the Gilded Town)?
So where do you find a button for sale in the middle of the biggest city in the nation? OK, Mood doesn't count -- and after all, my husband and I live on the Upper West Side, which, for you non-New Yorkers, is miles from the Garment District. So, when hubby finally decided last Saturday that his winter coat was really not optimized for use when every single one of its buttons was broken, we set off on our quest. It couldn't take long, could it? After all, this is the Greatest City in the World. You can find anything here.
We started with our dry cleaner; back in California they always had buttons they'd sew on for you. No dice here, though he did offer to sew them on if we brought them to him. A bit of a surprise, but no big deal. Next, the spousal unit insisted on going back to where he bought the coat, a mid-range clothing chain named after a derogatory term for a democratically-challenged Central American Republic nation. I could have told him they wouldn't stoop to selling replacement parts for their own products, but he insisted, and so we dutifully trooped in and then out, predictably empty-handed. But never fear. We're on the Upper West Side. Surely there'd be a fabric store. A notions store. A five and dime. Some man on the street.
Nothin, for block after block. Plenty of cute little sewing kits (well, a few) but no actual buttons. After thirty minutes or so, my eagle eye saw a sign from a second floor window for a yarn shop -- that would do it, for sure. And indeed it did -- if your idea of buttons were little stones that would serve as delightful decorations on a sweater. Not exactly the thing. Up and down Broadway we walked, for what seemed like miles (though not as far as the Garment District). Finally, my eye darted down a side street and I saw what looked like a neon sign of a spool of thread. And there it was -- the dingiest tailor shop I had ever seen in my life, with so much junk in the front window I thought at first it was, in fact, a junk shop. It wasn't -- he was a tailor all right. And most importantly, he had the buttons we needed.
OK, so what's the point?
New York City is a really awesome place to live. The cultural amenities are staggering, the food choices are overwhelming, Central Park is stunning, and you don't need a car. And it's safe safe safe -- certainly a lot safer than when I was a college student here so many years ago. But still ... No buttons? It's times like last Saturday when I'm made most aware of how things have changed, at least in this city, maybe in all areas that have "improved" so much over the last twenty years, and maybe more generally. Is it a good thing that dumpy little tailor shops have been forced out of the neighborhood by rising rents? Honestly, most days of the week I'm happy with the results. But what does it mean that it's hard to find a button in some neighborhoods? Maybe clothes have become so relatively cheap that people in our neighborhood (and places like it across the country) just throw something out when it loses an ostensibly easily-replaceable piece. Goodness knows there are enough Banana Repu mid-range clothing stores around to supply that type of demand. And I'm not so myopic as to forget that there's some at least arguable benefit in this for nations that earn money producing the stuff we throw away so readily. But maybe throwaway culture has its price. Or maybe this is just romantic slumming. I dunno. All I know is that I'm glad there's still a watch repair place down the street. But of course there is that Swat chain watch dealer down on 72nd.
Reassignment: A guest-post from Prof. Toby Heytens (UVa)
Reassignment (and the Scheindlin Controversy)
Reactions to the Second Circuit’s recent removal of Judge Shira Scheindlin from the litigation involving New York City’s stop-and-frisk policy have been swift and fierce. Commentators have decried the court of appeals’ actions as "preposterous," "extraordinary ," or even "unheard of," particularly because the Second Circuit “took this action on its own, without even a request from the city.”
The Second Circuit’s decision to remove Judge Scheindlin may well have been unwise and it certainly was clumsily executed. But it was not unique. To the contrary, as I discovered while researching my forthcoming article Reassignment, federal appellate courts have been ordering reassignment of federal trial judges for more than 50 years and they have done it more than 600 times. Although the line can grow fuzzy in individual cases (as, indeed, it did in this one), reassignment is distinct from recusal. Courts of appeals can and do order reassignment without concluding that the standards for recusal have been met. In fact, some of the cases in my data set expressly state that recusal is unwarranted and even more go to great lengths to disclaim any intention of challenging the removed trial judge’s impartiality. It also seems well established that, unlike recusal, reassignment may be raised for the first time on appeal and that it may, as it was in the Scheindlin case, be ordered by an appellate court on its own motion.
The Scheindlin case is unusual in certain respects, most notably its high public profile. But it is quite typical in other ways. The Second Circuit is a relatively frequent user of reassignment among its sister circuits; in fact, my article begins with a 1996 example in which the Second Circuit removed Judge Jack Weinstein from a criminal cases involving the then-mandatory Federal Sentencing Guidelines.
Perhaps not surprisingly, reassignment seems to be deeply unpopular among trial judges and their supporters, who understandably view appellate-court ordered reassignment as disrespectful of and unavoidably personal to the trial judge who is ordered off a case, often with no chance to respond. Some trial judges have ignored “suggestions” that they remove themselves from cases, filed unsuccessful petitions for a writ of mandamus with the Supreme Court seeking to overturn reassignment orders, vocally dissented when sitting by designation on appellate court panels that ordered reassignment, or even written or pointedly cited articles decrying the practice.
At least part of the problem with reassignment may lie in how it generally is practiced. As I explain, the Seventh Circuit has ordered by far the largest number of reassignments in both absolute and relative terms, all without appearing to generate the kind of controversy that has accompanied the other circuit’s use of reassignment. One of the reasons for the lack of uproar in the Upper Midwest, I suggest, may be that the Seventh Circuit has normalized reassignment by promulgating a local rule that makes reassignment presumptive in certain cases and permits the court of appeals to order reassignment in other cases without providing case-specific reasons. Each of these steps, I argue, helps reduce the stigma associated with reassignment by presenting it as an expected part of the appellate process for certain cases rather than a sanction reserved for exceptional ones. I also urge courts of appeals judges who are about to order reassignment to consider the timeless advice of Thumper’s father (and my grandmother): “If you can’t say something nice, don’t say nothin’ at all.”
Saturday, November 16, 2013
Cutting the Sticker Price
Following up (indirectly) on Matt's post yesterday about the future of law schools, it's worth noting the news (via Brian Leiter's blog) of a big tuition reduction at Ohio Northern. Of course, many -- probably most -- schools substantially discount tuition for many of their students via merit scholarships, so a lot of students already are paying less than the full sticker price. That's not to say across-the-board tuition reductions are meaningless. Indeed, to the extent those scholarships are largely funded (as most law school expenses are) by tuition, the current structure amounts to some students subsidizing the legal education of their classmates. Some might find that troubling, others might not (at least if there's transaparency about the amount of scholarship money that's being doled out, how it's being distributed, and where those funds are coming from). It will be interesting to see if ONU's move gets matched, by whom, and what those schools end up doing with regard to scholarships.
"It was 20 years ago today . . ." (Happy Birthday to RFRA)
My friend and colleage Tom Berg has a post -- the title of which I have ripped off here -- noting that today is the 20th anniversary of the signing into law of RFRA. Here is the post:
On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA), which requires that the federal government meet the demanding test of showing a compelling interest before it imposes a substantial burden on sincere religious exercise. A recent event at the Newseum in Washington DC commemorated the anniversary and assessed the future of religious freedom in America. A lot has happened in 20 years. A number of states passed their own versions of RFRA; Congress, responding to a Supreme Court decision, applied the same compelling-interest test to state and local zoning laws and prison regulations; and most recently the statute moved to center stage in providing corporations and individuals with legal arguments for exemption from the HHS contraception mandate. But in the throes of the HHS fight and other culture-wars issues, it is worth remembering what President Clinton said about religious freedom as he signed the legislation:
... We are a people of faith. We have been so secure in that faith that we have enshrined in our Constitution protection for people who profess no faith. And good for us for doing so. That is what the first amendment is all about. But let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another’s faiths, fight to the death to preserve the rights of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.
A few remarks about that quote. The President noted in his remarks the overwhelming consensus behind RFRA back in 1993: a 97-3 vote in the Senate, a simple voice vote in the House; the lead co-sponsors were Ted Kennedy and Orrin Hatch. That consensus has greatly shrunk in recent years, mostly because of the polarizing culture-wars issues that have led many people to treat "religion" as a largely conservative phenomenon, a threat to liberal and progressive values. (See here and here for criticisms of that framing of the issue, presenting reasons why in our polarized society, so-called progressives and so-called conservatives should protect each others' claims of conscience against government interference even though they disagree with each other so sharply.)
Notice the implications of President Clinton's remarks for these matters. First, RFRA protects people of all religious views, all of whom may at point be restricted in their faith by one of the many laws in our complex society. Let's recover the sense of "fight[ing] to the death for the rights of [all] American[s]," whatever their faith, to practice their convictions without disproportionate or unnecessary burdens. Second, President Clinton emphasized that religious freedom does not mean freedom in the catacombs. Religious groups and individuals should be able to follow their values without unnecessary legal restriction not just in houses of worship, but in civil society--in schools, charitable activities, and the workplace--and to bring those values "to the table of American discourse."
In 1993 virtually every member of Congress agreed with those remarks and with the legislation. In 2013, that consensus has shrunk. But we can hope, and make prudent and ecumenical arguments to try to ensure, that enough Americans still agree with it to preserve a solid future for religious freedom.
(HT: for the post title, to Paul McCartney; for the link to the Newseum event, to Kim Colby of the Christian Legal Society; for the booklet on RFRA that includes Clinton's signing statement, the Baptist Joint Committee on Religious Liberty)
I should confess, I suppose, that -- unlike Tom (and most other supporters of RFRA) -- I think (nervously) that Smith is probably right, i.e., that the First Amendment probably does not authorize judicially created exemptions from generally applicable, non-discriminatory laws that implicate religiously motivated conduct. (More here on that.) All the more reason, it seems to me, to welcome RFRA-type legislation at both the state and national levels.
Friday, November 15, 2013
Paul Campos and the Future of Law Schools
Paul Campos comes to the conclusion that even though 80-85 percent of law schools (in his rough estimation) are losing money, very few will close because there is plenty of room for cutting expenses. Based on my own sense of things, I think he's right. But I don't agree with his assessment that the rise in law school expenses has been "a spectacularly successful exercise in rent-seeking." His initial example for this rent-seeking is the drop in student-to-teacher ratio over the last 33 years. But is this drop really a bad thing? Isn't it better to have smaller classes? When you are looking for schools for your kids, do you say: this elementary school has *huge* classes -- terrific!
Not to rehash these issues for the ump-teenth time, but I wish reformers like Campos would at least acknowledge some of the benefits of the current (but likely passing) model for legal education, such as smaller classes, more clinical opportunities, and more extra-educational services. Sure, that's expensive, but is trying to provide a better product rent-seeking? Not to say that there aren't examples of rent-seeking, such as higher salaries and cushy benefits. But smaller student-teacher ratios mean you are hiring more teachers, not more expensive ones, and tenure existed in the 1980s, too.
Campos doesn't come out and say this, but apparently he wants to return to the days when law schools had largely big-lecture Socratic classes, a couple of clinics, and students teaching legal research and writing. If so, I wish he'd say it. I think there's a good argument for the old method: a "VW Bug" version of legal education may make more sense for more people than a Cadillac one. (The nice cars do have Corinthian leather!) But once he came out with something concrete, people would have grounds for criticizing his approach.
As a famous Vulcan once said, "As a matter of cosmic history, it has always been easier to destroy than to create." I wish Paul Campos would help us start rebuilding.
Book Club on "Talent Wants to Be Free"
Boy, it's pretty dead around here today. So why not go over to Concurring Opinions and check out the online symposium on Orly's book? Almost all of the participants have weighed in, and there are too many posts from Orly to count, so head on over and check out this most excellent discussion.
Wednesday, November 13, 2013
STILL (Stuff That I Like Lots)
With apologies to that other site . . . .
I recently had the pleasure of looking again at Dov Fox's (USD) upcoming article on "Interest Creep." In the article Dov talks about how government recitations of an interest justifying a particular infringement on a right tend to expand (hence, "creep") in ways that courts and scholars have largely failed to unpack. Dov does a really nice job of explaining this phenomenon in the context of reproductive rights litigation (not just, or even primarily, abortion rights). It's a really interesting examination of an issue that tends to fly under the radar. I hope to say more about it later in the month, but for now let me just say, it's something that I like -- lots.
Joseph Paul Franklin Does Not Deserve to Die
I have encountered Nazis three times in my life, and I could do without them. The first was when members of the American Nazi Party used my driveway in Ann Arbor to prepare for a parade. More recently, some lunatic sent me a Linkedin request wearing an SS uniform. The third was racist serial killer Joseph Paul Franklin, who shot Vernon Jordan and Larry Flynt, and killed a number of African Americans, Jewish people, and interracial couples in a spree lasting several years across several states. I worked on his prosecution in Cincinnati for killing two African American youths, Darrell Lane and Dante Evans Brown, in 1980. (There were interesting legal issues; he confessed a female prosecutor who befriended him through a long email correspondence; she did not Mirandize him when she visited him in prison. There was an interesting non-legal issue, too. A student working with me had an affair with the married Prosecuting Attorney, who was also a university trustee.) Franklin is set to be executed later this month in Missouri for killing a person at a synagogue.
In some ways, it couldn't happen to a nicer guy. But. For all of Franklin's evil and dangerousness, his execution is unjust. Admittedly, I oppose capital punishment generally, but even if I didn't, his case would still be problematic. Franklin was made a monster by brutally abusive parents. (Malcolm Gladwell tells part of the story in The New Yorker) The man's brains are scrambled. He is blind in one eye, and my recollection from the file is that his parents did it in a beating that got out of hand. Whether as a question of punishment, protection of the public, or both, he should never again see the street. But a person this badly damaged cannot be held responsible in the same way as people who freely choose to do wrong.
Tuesday, November 12, 2013
Teaching procedure from bad procedure
Last week, I wrote about the § 1983 action by a man allegedly subjected to multiple invasive searches and medical procedures--including a colonoscopy, enemas, and digital penetration--in a futile, seemingly unsupported search for drugs. Michelle Meyer at The Faculty Lounger reports on two additional incidents, one involving the Hidalgo County Sheriff's Office (the same department, and the same K-9, as in the first suit) and one involving federal border agents.
Michelle also reports that a Scribd user is collecting all the documents in the first lawsuit, including the complaint and the four answers (by the county and its officers, by the city and its officers, by the deputy DA, and by the two different doctors). Given the attention this issue is getting and the outrage the cases have generated, these seem like they would lend themselves as sample pleadings for Civ Pro. Unfortunately, they are not great pleadings. The complaint is ok; it illustrates how to plead detail to get around Twiqbal and shows how different claims go towards different defendants; but there are problems/omissions in the jurisdiction statement and in the framing of the claims. The multiude of answers shows how each defendant or group of defendants must answer separately. But they all are a mess, particularly in being drafted so it is impossible to match paragraphs between the pleadings.
The question is how much we want to teach by negative implication--"here is an example of a bad pleading, don't do it this way."
Monday, November 11, 2013
Human Capital Law and Innovation Policy
This is a thrilling week for Talent Wants to Be Free. As Matt alerted our readers earlier this month, Concurring Opinions is holding a weeklong symposium about the book. I hope you all jump in on the conversation and I am cross-posting my initial post here and there to jumpstart the exchange.
I am incredibly honored and grateful to all the participants of the symposium and especially to Deven Desai for putting it all together. It’s only Monday morning, the first official day of the symposium, and there are already a half a dozen fantastic posts up, all of which offer so much food for thought and so much to respond to. Wow! Before posting responses to the various themes and comments raised in the reviews, I wanted to write a more general introductory post to describe the path, motivation, and goals of writing the book.
Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids and Free Riding comes at a moment in time in which important developments in markets and research have coincided, pushing us to rethink innovation policy and our approaches to human capital. First, the talent wars are fiercer than ever and the mindset of talent control is rising. The stats about the rise of restrictions over human capital across industries and professions are dramatic. Talent poaching is global, acquisition marathons increasingly focus on the people and their skills and potential for innovation as much as they look at the existing intellectual property of the company. And corporate espionage is the subject of heated international debates. Second, as a result of critical mass of new empirical studies coming out of business schools, law, psychology, economics, geography, we know so much more today compared to just a few years ago about what supports and what hinders innovation. The theories and insights I develop in the book attempt to bring together my behavioral research and economic analysis of employment law, including my experimental studies about the effects of non-competes on motivation, my theoretical and collaborative experimental studies about employee loyalty and institutional incentives, and my scholarship about the changing world of work, along with theories about endogenous growth and agglomeration economies by leading economists, such as Paul Romer and Michael Porter, and new empieircal field studies by management scholars such as Mark Garmaise, Olav Sorenson, Sampsa Samila, Matt Marx, and Lee Fleming. Third, as several of the posts point out, these are exciting times because legislatures and courts are actually interested in thinking seriously about innovation policy and have become more receptive to new evidence about the potential for better reforms.
As someone who teaches and writes in the fields of employment law, I wrote the book in the hopes that we can move beyond what I viewed as a stale conversation that framed these issues of non-competes, worker mobility, trade secrets and ownership over ideas as labor versus business; protectionism versus free markets (as is often the case with other key areas of my research such as whistleblowing and discrimination). A primary goal was to shift the debate to include questions about how human capital law affects competitiveness and growth more generally. Writing about work policy, my first and foremost goal is to understand the nature of work in its many evolving iterations. Often in these debates we get sidetracked. While we have an active ongoing debate about the right scope of intellectual property, under the radar human capital controls have been expanding, largely without serious public conversation. My hope has been to encourage broad and sophisticated exchanges between legal scholars, policymakers, business leaders, investors, and innovators.
And still, there is so much more to do! The participants of the symposium are pushing me forward with next steps. The exchanges this week will certainly help crystalize a lot of the questions that were beyond the scope of the single book and several new projects are already underway. I will mention in closing a couple of other colleagues who have written about the book elsewhere and hope they too will join in the conversation. These include a thoughtful review by Raizel Liebler on The Learned FanGirl, a Q&A with CO’s Dan Solove, and other advance reviews here. Once again, let me say how grateful and appreciative I am to all the participants. Nothing is more rewarding.
Counter speech, hecklers, and heckler's vetoes
This story (from Slate and Inside Higher Ed) [link fixed] discusses recent events at Brown University, in which students repeatedly interrupted a speech by NYPD Commissioner Ray Kelly (architect of the city's stop-and-frisk policy), ultimately causing the speech to be canceled. The author pairs this with a 2001 incident, in which students trashed 4000 copies of the student newspaper containing an editorial advertisement questioning the wisdom of slavery reparations. Both Kelly (or it least his policies) and the ad were alleged to be racist. The University president has criticized the Kelly protesters and spoken of the need to allow all voices to be heard. The legal director of the Foundation for Individual Rights in Education ("FIRE") (an organization whose views about campus speech I largely share) expressed concern over the pervasiveness of such "heckler's vetos."
The incident illustrates something I wrote about here, about three distinct forms that counter-speech (whether actual or symbolic) may take. One involves counter-speakers in the same location as the original speaker, attempting to drown him out. While those counter-speakers are certainly hecklers, heckling is itself a form of protected free-speech activity, at least so long as the hecklers are lawfully entitled to the space in which they are heckling. While this perhaps is not the ideal path to rational discourse, both the speaker and the heckling counter-speaker attempting to drown him out are doing what the First Amendment contemplates and protects.
A cinematic illustration of this idea after the jump:
But I hesitate to call what happened with Kelly censorship or a heckler's veto, at least without knowing more about what happened there. A heckler's veto presumes government involvement in stopping the original speaker on behalf of the hecklers or in furtherance of the hecklers' preferences; it does not include heckling counter-speakers who succeed in drowning out the original voices. It is the difference between Brown officials canceling Kelly's speech (whether to keep the peace or to satisfy the hecklers) and Kelly giving up because he could not get a word in edgewise.
Again, drowning out a speaker or burning publications with whom you disagree is not the best approach to public discourse and dialgoue, especially on a university campus, where all ideas should be aired. It is to say, however, that, no, Brown University does not have a problem with free speech; its students are acting entirely consistent with one vision of free speech and the First Amendment.
Sunday, November 10, 2013
Cert. Petition Filed in Elane PhotographyCourtesy Scotusblog. This is the case where a New Mexico photographer opposed to same-sex marriage refused to serve as the photographer at a same-sex commitment ceremony. The couple sued under the state's public accommodations law, and eventually won at the state supreme court. It's an interesting case presenting rights to resist compelled expression against equality access to public accommodations, including private businesses. If the Court grants the petition it will quite likely result in an important First Amendment opinion.
Friday, November 08, 2013
Saving the Neighborhood: A Cool Conference in Warm Tucson, January 31, 2014A wonderful new book on restrictive covenants by Richard R.W. Brooks and Carol Rose will be the subject of a day-long conference in Tucson on January 31, 2014. The book, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms, will be discussed by panelists including law professors Robert W. Gordon, Risa Goluboff, Lani Guinier, Gerald Torres and Jack Chin, and economist Price V. Fishback. Register here. Average Tucson temperatures here.
Job Announcement: Distinguished Visiting Professorship at UKy College of LawJAMES AND MARY LASSITER ENDOWED DISTINGUISHED VISITING PROFESSOR
Great jobs for green lawyers in the new green ganja legal world(?)
The statement/question in the title of this post serves as a reiteration of one reason I developed a new law school seminar titled "Marijuana Law, Policy & Reform" and as my reaction to this new Bloomberg article headlined "Pot-Smoking Quadriplegic’s Firing Shows Haze Over Rules." Here are a few excerpts from this article:
The marijuana that Brandon Coats smokes under a doctor’s supervision helps calm muscle spasms stemming from a car accident that left him a quadriplegic. It also cost him his job. Coats, 34, was fired as a customer service representative at satellite TV provider Dish Network Corp. after failing a random drug test, even though Coats lives in Colorado where marijuana is legal for medical use. A state appeals court in April upheld the company’s right to fire him based on the federal prohibition on pot.
“I wasn’t doing anything wrong,” Coats said. “I had a doctor’s permission to do something I need to help me get on with my life.”
Coats’ ordeal shows how workplace rules on drug use have yet to catch up to changing attitudes and laws. Employers have retained War-on-Drugs-era policies, in part because of conflicts between state and federal statutes. And commonly used drug tests are unable to differentiate between someone who is under the influence of pot on the job, or has merely used it in off hours.
“Employers ought to reconsider their drug testing policies in states where medical marijuana is legal,” Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, said in an interview. “Why discriminate against marijuana users? They’re not different than beer drinkers.”
Medical marijuana is legal in 20 states and the District of Columbia, yet illegal under federal law. Colorado and Washington allow recreational use of pot, and this week, Portland, Maine, and three cities in Michigan voted to back legalization. Meanwhile courts in Colorado, Washington, Oregon and California have held that laws permitting the limited use of pot don’t prevent employers from enforcing drug-free workplace rules....
Washington-based Costco Wholesale Corp., for example, continues to screen potential workers for drugs and conducts random employee tests on “reasonable suspicion,” according to Pat Callans, vice president of human resources at the retailer.
Others say the contradiction between state and federal law is sowing confusion, according to Kellis Borek, director of labor and employer relations for Washington Employers, a Seattle-based group that advises firms on human resources issues. “I’m seeing employers grapple with the concern about losing good people because they participated in legal, off duty activity,” Borek said in an interview....
Borek’s group is developing advice for companies seeking to amend drug policies to reflect changes in state laws. One option is to allow someone in a safety-sensitive job, such as driving a truck or fork lift, to go on job-protected leave or move to a different position until they stop using medical marijuana.
This article highlights that applications of labor laws are sure to be a big a source of dispute and uncertainty as marijuana law reforms continue to make marijuana use legal at the local level in various setting. That reality, of course, means that labor lawyers are going to be needed to help both employers and employees "grapple" with new and difficult state and federal labor law challenges.
In addition to the need for labor lawyers, tax and business-transactions lawyers will become more and more in demand as state-level medical and recreation marijuana reforms create new needs for new businesses to sort through new tax laws and business-planning challenges posed by operating a state-permitted marijuana business.
My post title here suggests that green (i.e., young/junior) lawyers may have a uniquely important role to play in this emerging new industry. I suspect and fear that many law firms and many veteran lawyers will be, for various sound reasons, very cautious and concerned about representing any persons actively involved in state marijuana business. Moreover, because marijuana reform movements seem often to be a "young man's game" in many ways, junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena.
But I have a question mark at the end of this post because I wonder if I may be unwise to urge my students and other junior lawyers to consider seriously seeking to be involved in helping those at the forefront of the new green ganja industries. Is there still so much stigma and concern with this drug that a lawyer's career plans and possibilities might become permanently damaged or distorted by representing even legal pot dealers?
Cross-posted at Marijuana Law, Policy and Reform
Thursday, November 07, 2013
Supreme Court Fellows Program
Each year, the Supreme Court Fellows Commission selects four talented individuals to engage for one year in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission. The program provides fellows with practical exposure to judicial administration, policy development, and education. Through hands-on participation, fellows gain unique insight into the challenges of federal court management.
The Supreme Court Fellows Program has traditionally provided opportunities for mid-career professionals drawn from the fields of law and political science. This year, the Supreme Court Fellows Program will also offer those opportunities to recent law school graduates and doctoral degree recipients with exceptional records of achievement. We are especially interested in applicants who are completing a judicial clerkship and are interested in broadening their understanding of the judicial system through exposure to federal court administration. The fellowship experience will be especially valuable to people who are interested in pursuing an academic career or a career in public service. We have designed four different fellowship options to provide a range of career development experiences.
The Program, which provides four fellows annually with practical exposure to judicial administration, policy development, and education, has been updated this year to target recent law school graduates and doctoral degree recipients with exceptional records of achievement—especially those who are serving or recently completed a judicial clerkship. Fellows will receive compensation equivalent to the GS-12/1 grade and step of the government pay scale (currently $74,872) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary.
The Commission’s hope is that the updated Fellowship will be particularly valuable to junior scholars in the process of entering full-time teaching and research. In each of the four placements, the Fellow will be expected to produce a publishable paper and will have unique access to federal judges and to officers and staff of the federal judiciary in connection with the research project. We envision this program will be used in connection with, or in lieu of, law school fellowships and graduate study to prepare a compelling record of scholarship in preparation for full-time academic positions.
ENDA, Marriage, and March of History
The Senate today voted in favor of the Employment Non-Discrimination Act (ENDA) by a 64-32 vote. The news reports are focusing -- quite rightly, I think -- on the sea change this vote (including the margin) reflects about Americans' attitudes toward gay rights, regardless of what happens to the bill in the House. Today's vote has caused me to think about my earlier views about the long-term strategy of gay rights advocates, especially with regard to marriage.
I had always thought that ENDA should have been a higher priority than marriage for the gay rights movement -- not necessarily because of the intrinsic importance of employment non-discrimination (although I'm very sympathetic to that argument), but for tactical reasons. In particular, I thought that employment was an easier sell than marriage, given the religious-emotional-expressive implications of marriage equality claims, and, by contrast, the intuitive sense that a person shouldn't lose her job because she possesses a characteristic that, whatever else Americans might think about it, they generally think is irrelevant to most employment issues. In turn, I had always believed that enactment of ENDA would set the table for an eventual litigation and legislative strategy on marriage: it would both signal to courts that the country was coming to embrace sexual orientation equality and convince state and federal legislators that pro-gay rights votes were not electorally radioactive.
Today's vote provides a good opportunity to reassess. I still think employment discrimination is an easier sell than marriage: if the Senate voted today on a constitutional amendment outlawing marriage discrimination I can't believe the vote would be 64-32. But it seems clear that the success of gay rights marriage litigation has had its own pro-equality effects on the legislative process. The early backlash after Massachusetts' 2003 decision -- especially the 2004 referenda banning same-sex marriage in a number of states -- appears to have crested. In the very early aftermath of Windsor it seems like same-sex marriage is advancing with relatively little of the drama of the first states, and is doing so for the most part through the legislative process. Presumably, the process will take a while -- and it may well slow down after the current tier of blue states act. It will quite possibly require a Supreme Court decision to complete the process. But the trend seems hard to deny.It will be fascinating for historians to examine the role played by marriage litigation in advancing the gay rights agenda more generally. It would be a little sour of me to say that the movement simply got lucky when the early backlash did not last. Indeed, it may well be that the example of gays and lesbians litigating (with significant success) their claim to equal state recognition of their life unions makes all the other subjects of gay rights advocacy (military service, employment, etc.) seem easy and obvious by comparison. I'm not sure how confident the marriage-first folks were that it was going to play out this way. I assume -- I hope! -- that they gave it some thought. But in the wake of the Senate vote today it seems hard to deny that the marriage-first strategy has had at least some role in advancing the broader gay rights agenda.
An exchange among law-and-religion scholars about exemptions and marriage
It is, obviously, a "hot topic" whether and to what extent religious institutions and believers should be accommodated through exemptions from antidiscrimination laws (and regulation more generally). This question runs through, for example, the conversation about the so-called "ministerial exception" and also and increasingly comes up (see, for example, this paper by Doug Laycock and Tom Berg) in the context of drafting legislation regarding the legal recognition of same-sex marriage.
A few days ago, over at the Volokh Conspiracy, a group of prominent scholars (Dale Carpenter, Andy Koppelman, Doug Ne'aime, Chip Lupu, and Bill Marshall) put up a post addressing the then-pending same-sex-marriage law in Illinois and arguing that "recognizing same-sex marriage creates no distinct legal conflict justifying resolution in a same-sex marriage bill" and that "even if one thought that same-sex marriage might newly erode religious freedom through anti-discrimination law, the amendment proposed by the religious-liberty scholars is far too broad."
Today, two other groups (Tom Berg, Doug Laycock, Michael Perry, Carl Esbeck, Ed Gaffney, Chris Lund, Robin Fretwell Wilson, Bruce Ledewitz, and me) put up this response at Mirror of Justice, explaining the need for accommodation and defending the proposal at issue. Both posts, in addition, contain links to longer letters that were submitted to legislatures. The response concludes with this:
Carpenter describes his group as scholars "who support both protecting religious liberty and recognizing the marriages of same-sex couples." To reiterate, our two groups of scholars also include supporters of same-sex marriage (as well as a variety of views on that issue). We too are seeking to give room to both equality and liberty, which should complement rather than be at war with each other. We are seeking a "live and let live" solution for same-sex couples and religious traditionalists—but "live and let live" requires more than highly uncertain protection for religious liberty under pre-existing laws. Just as same-sex couples seek to live out their identity not only in private but through the social institution of marriage, religious believers seek to live out their identity not only in churches but in their faith-based service activities and their daily lives. Minimizing the exemptions in a same-sex marriage bill marginalizes those believers and will result in continuing, unnecessary conflicts that may well harden resistance to marriage recognition among a significant number of people. But same-sex marriage with strong exemptions allows both sides to live out their deepest commitments.
I think it is fair to say that, while the disagreements are substantial and important, real and significant respect and friendship exist among all the signers of both letters.
JOTWELL: Leong on Schwartz on indemnifying policeNancy Leong (Denver, visiting at UCLA) has the new essay on JOTWELL's Courts Law, reviewing Joanna Schwartz's Police Indemnification (forthcoming NYU L. Rev.), which undertakes an empirical exploration of municipal indemnification practices in § 1983 litigation.
Wednesday, November 06, 2013
Stanford's (interesting and important) religious-liberty clinic
Brian Leiter comments, here, on a piece that ran in the New York Times a while back about Stanford's new religious-liberty clinic. While I disagree with Brian regarding his characterization of the Becket Fund for Religious Liberty's and the Templeton Foundation's support for the clinic as "dubious" or "right wing," and also disagree with his view that our practice of (sometimes) accommodating religious believers through exemptions from otherwise generally applicable laws is immoral, I think he is quite right to push back hard on the idea that clinic is justified as some kind of special favor to conservatives, or Republicans, or whatever. Brian writes:
Most surprising of all is how Lawrence Marshall, director of clinical legal education at Stanford, describes it:
"The 47 percent of the people who voted for Mitt Romney deserve a curriculum as well,” said Lawrence C. Marshall, the associate dean for clinical legal education at Stanford Law School. “My mission has been to make clinical education as central to legal education as it is to medical education. Just as we are concerned about diversity in gender, race and ethnicity, we ought to be committed to ideological diversity.”
So the academic rationale for this clinic is that Romney voters need a law school clinic, on the bizarre assumption, I guess, that the only people seeking religiously based exemptions from laws are Republicans.
Yes, Prof. Marshall is right to remind those who profess commitments to diversity that ideological diversity matters too. But, it is wrong -- it is not fair to the clinic's faculty, students, supporters, and clients -- to frame and defend it as a consolation prize to the "47 percent who voted for Mitt Romney." Many (I hope!) among that 47 percent are happily to engage in experiential learning that involves service to the poor and to immigrants, say, just as (I hope!) many among those who voted for President Obama see the importance of (sometimes) accommodating religious minorities who are burdened by duly enacted generally applicable laws.
Tuesday, November 05, 2013
The History of the Law School Crisis: "Great Men" or Societal Factors?
Paul Campos had this to say in a recent post about the crisis:
Almost exactly two years ago, in the fall of 2011, Brian Tamanaha took
part in a forum at the National Law Journal regarding whether law
schools were in crisis. Tamanaha noted sardonically, and correctly, that
“law schools are doing just fine, thank you.”
* * *
Since then, in part because of Tamanaha’s work, the situation has changed drastically.
It's the "in part" I want to talk about. The law school crisis seems to present a very interesting case study for the Carlyle-Spencer debate about the drivers of history. Is the substantial decline in applicants due to anti-legal-education prophets such as Tamanaha, Campos, Henderson, McEntee, and Tokaz? Or did applicants respond to the change in market conditions based on a myriad of market signals, ranging from the New York Times to law blogs to their undergrad classmates to their Aunt Getrude who's a lawyer and knows it's really bad out there? Without key players, would the decline in applications have been as swift and deep?
This is more than an exercise in historical theory. It may give us insight on how to respond to market changes in the future, and what institutions are necessary to convey certain kinds of market information. Do markets self-correct? Are they dependent on a critical mass of information providers to establish the baseline dynamics? Are they prone to lag initially? Is there a tipping point? Are they then prone to over-correction? And what is the moral responsibility for market players? Do you have to keep dancing while the music is playing? Or framed more positively, should market players respond to the market? Or should they form their own independent assessments about the market itself, and respond to those instead?
A lot of questions -- your thoughts would be appreciated.
Exams: The Good, The Bad, and Well, You KnowI'm delighted to be back for another blogging stint; as always, thanks to Dan and the other Prawfs bosses for creating and maintaining this community. It's early November -- which I know because my exam-writing alarm clock is starting to ring in my head. So I'll begin my stint here on Prawfs by asking a question I've asked before: as a teacher or a student, what have been the best and worst exams you've written or taken, and why? I don't mean, of course, which exam you performed best on. I'd just like to invite people to share stories of exams they thought were particularly well-crafted or the reverse, and why. This is the perfect time to share these stories, since the alarm clock is probably starting to ring for every law prof out there. So let us know: what worked, what didn't, and why?
You can't make this stuff up, § 1983 edition
So: Would the officers even try asserting qualified immunity, on the ground that there is no case law establishing this conduct as unconstitutional? Is it safe to say these guys are plainly incompetent? Absent case law, is this analogous to Judge Posner's hypothetical about selling foster children into slavery? And what of the doctors? Did they act under color of law? And under what test?
Monday, November 04, 2013
A response to Prof. Stone: The justices' "revealing" hiring practices
In this piece, Prof. Geof Stone proposes that a "difference between conservative and liberal justices" is that
"the conservative Justices are determined to spend their time with pre-cleared conservative law clerks. . . . Whereas the more liberal justices were clearly interested in exposing themselves to a range of different viewpoints and having the positions challenged, the conservative justices went way out of their way to ensure that their law clerks were already in sync with their judicial ideology."
In support, Geof points to and characterizes as "revealing" the fact that "[o]f the 20 law clerks appointed this Term by the five conservative Justices . . . or an astonishing 90 percent -- clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices . . . clerked last year for a Democratic-appointed judge."
Let's put aside questions about whether the Republican appointees for whom the "liberal" justices' clerks worked were or are "conservatives" and about how representative this Term's hiring is of the justices' practices over time. And, let's take it as given that almost any and every justice, at least sometimes, takes into account whether a clerkship applicant's worldview, outlook, philosophy, etc., "fits" well with his or her own. Still: Each of the clerks that Geof is talking about, regardless of the party of the President who appointed the Court of Appeals judge for whom he or she clerked, had a resume, a work history, several recommendations, a publication history, a variety of life experiences, etc., and so is not reducible to his or her judge's partisan affiliation.
In order to say with any confidence that "conservative" justices are hiring who they hire in order to avoid encountering a variety of views (or, for that matter, that the liberal justices were doing what they do in order to encounter such views), or even whether such isolation is a by-product of what they are doing, it seems we would need to know a lot more about these clerks -- as, presumably, the justice who hired them did -- than the party of the President who appointed his or her judge. Who knows? Maybe the numbers to which Geof points simply suggests that Republican-appointed "feeder" judges are more willing to hire "liberal" clerks (and to support their applications to the justices) than Democratic-appointed judges are willing to hire and support "conservatives"? Again, it seems we need to know more before we can confidently make the ideological cocooning charge.
(In keeping with the saying that "data" is the plural of "anecdote," here is some more data: One of my co-clerks for Chief Justice Rehnquist was a brilliant and engaging center-left graduate of the University of Chicago who clerked for a Republican appointee and who had been strongly recommended by a "conservative" professor. For one of his co-clerks, he was stuck with me, a "conservative" who had done anti-death penalty work, whose recommenders were "liberal" academics, and who had been blessed with the chance to clerk for a truly great judge, appointed by President Carter.)
Geof makes some other points, about credentialling and patronage, that raise interesting but (I think) different questions.
The rhetoric of qualified immunity
I think SCOTUS has given up on qualified immunity. Today the Court in one eight-page per curiam order in Stanton v. Sims granted cert, reversed, and remanded a case in which the Ninth Circuit had denied qualified immunity, where an officer kicked open a fence to enter private property without a warrant, purportedly in "hot pursuit" of a misdemeanor suspect. And all without resolving whether there was a violation, so lower courts have no new guidance on the question.
What is noteworthy is the Court's new rhetorical move. In Ashcroft v. Al-Kidd, the Court had explained that qualified immunity "protects ‘all but the plainly incompetent or those who knowingly violate the law.'" The Court today repeated the phrase "plainly incompetent" five times in the opinion; in doing so, it seems to be suggesting that a court that denies qualified immunity is, per se, labeling that officer as "plainly incomepetent." If lower courts and defendants seize on that, qualified immunity will become even harder to overcome (and dismissal easier to obtain), because no plaintiff wants to be seen as labeling the officer incompetent and no court wants to sign onto calling police officers names or questioning their integrity and ability.
Sunday, November 03, 2013
NYT v. Sullivan Anniversary Symposium at U. of Georgia
The University of Georgia Law Review is hosting an impressive and impressively well organized symposium honoring the fiftieth anniversary of the Supreme Court's decision in New York Times v. Sullivan. Justice John Paul Stevens is the keynote speaker, and David Savage of the LA Times will be giving a lunchtime talk. The panels of speakers discussing press issues old and new include Justice Steven's former clerk Sonja West, RonNell Andersen Jones, William Lee, Amy Gajda, Amy Kristin Sanders, Lili Levi, Paul Horwitz, and Rodney Smolla, and Hillel Levin will be moderating at least one of the panels.
I will be participating on the "new media" panel, discussing my paper-in-progress, "The Press and Constitutional Self-Help, Then and Now," a synopsis of which is below.
Once upon a time, the U.S. Supreme Court routinely decided press cases, but that period of time came to an end about twenty years ago. The Court’s disinclination to decide press cases kicked in just as the Internet began eroding the press’ traditional role as gatekeeper and translator of news and information and threatening the financial viability of traditional media. As we near the fiftieth anniversary of New York Times v. Sullivan, it is striking how few landmark press cases have been decided since the Internet, and now social media, have entered the scene.
The Supreme Court decided the vast majority of its landmark press cases between 1964 and 1984, in what we media lawyers might now look back on as the “Golden Age” of press cases. These cases contain some of the Court’s loftiest rhetoric about the special role the press plays in our democracy. Yet these same cases recognize only negative press freedoms; they protect only freedom from government intrusions such as prior restraints or compelled publication but refuse to interpret the First Amendment to provide the press with “special” access to governmental information or institutions not available to other citizens or special exemptions from generally applicable laws that interfere with newsgathering. The Court’s refusal to recognize affirmative press rights during this period arguably suggests that the Court was merely paying lip service to the notion that the press plays a special role in democracy, for it seems intuitive that a “special role” should come with “special rights.”
I contend, however, that the Supreme Court that decided the press cases of the Golden Age was committed to a special constitutional role for the press but envisioned the press (or, more aptly, the media) as a true Fourth Estate—an unofficial branch of government capable of checking the other three by using its own powerful resources to safeguard its ability to play its special role. The Court assumed that, in most instances, the media could use its own political and economic power to gain access to government information, protect confidential source relationships, and fight overreaching by the executive or legislative branches. In other words, the Court assumed that the media could engage in “constitutional self-help” to play their role. But this theory of constitutional self-help depends on a number of assumptions about the media that were largely true in the 1970s but may not be today. Media that are economically and politically powerful, popular with the public, and united in pursuit of common goals may indeed be able to fight off threats to their ability to play a special role in our democracy, especially when government officials depend on the media to carry government messages to the public. In light of recent developments, however, it is fair to question the ability of new media to use constitutional self-help to access government information or protect confidential sources, for reasons I will explore further in my talk (and my paper). Fundamental shifts in the balance of power between today’s Fourth Estate and the three official branches may signal a need to reexamine the assumptions underlying the press cases of the Golden Age.
When I lived in places with actual seasons, I was the rare person who liked "falling back." I love late fall and early winter in the north and midwest, and the extra hour of darkness was part of that. One fall, I actually missed the time change completely--I woke up, went on a long bike ride, then spent the day writing and watching football; it was only when "60 Minutes" did not come on as expected that I happened to glance out my window at a billboard that contained a clock and realized I had been off by an hour the entire day.
Personal stories aside, I did not realize how much controversy in law, policy, health, safety, economics, and life in general is bound up with Daylight Savings and the back-and-forth with Standard Time. Economist Allison Schrager has floated a proposal that is gaining some media attention--eliminate DST and move the continental U.S. to two time zones one hour apart, with the line on Texas's western border and running up through Kansas, Nebraska, and the Dakotas.
Saturday, November 02, 2013
Stays and appellate benchslaps
In staying the injunction pending appeal in the New York stop-and-frisk, the Second Circuit also ordered that the district judge, Shira Scheindlin, be removed from the case for running "afoul" of the judicial code of conduct. The court then remanded the case to the district court to 1) be reassigned to a different judge so 2) that new judge to implement the stay and "otherwise await further action by the Court of Appeals on the merits of the ongoing appeals,." But the case remains in the court of appeals, and subject to its jurisdiction, in all other respects.
In a listserv discussion, Aaron Caplan (Loyola-LA) questioned the necessity of this limited remand. FRCP 62 makes clear that the power of district judges to stay proceedings pending appeal does not limit the power of the court of appeals to stay proceedings and to issue orders preserving the status quo. So why the remand at this point? Why did the Second Circuit not simply order the stay, decide the merits, and remand to a new district judge only if and when remand is necessary once the Second Circuit decides the appeal. One answer may be that this ensures formal procedural regularity--under FRAP 8, the expectation is that a stay will be sought and entered in the district court in the first instance. So the remand order ensures that there is a stay in the trial court.
A second, and more likely, explanation is implicit in Emily Bazelon's article on the case, which describes this as the court of appeals reaching to call out Judge Scheindlin. Remanding now maximizes the appellate benchslap, drawing particular attention to her removal from the case. The removal would not carry the same force as a criticism of Scheindlin if it came at the end of the appeal, particularly if the court affirms the injunction (which remains possible). If the goal was to publicly bring the judge to heel, this was the way to do it.
Note how the Second Circuit's view of the relation between the court of appeals and the district court on stays contrasts with the Fifth Circuit's approach in the Texas abortion case. The court of appeals issued the stay even though the state never requested a stay in the district court, as required by FRAP 8(a)(1). The rule allows for a first request in the court of appeals if a motion in the district court would be "impracticable." Of course, the court did not explain why a motion in the district court was impracticable; it simply asserted that the plaintiffs did not push this point and that the challenged law was due to take effect the day after the final judgment and injunction issued from the trial court. I'm not sure what any of that has to do with the practicality of seeking a stay there.
Friday, November 01, 2013
Maybe I missed it but i haven't seen too much interest in our corner of the world about this interesting piece from the Nation (I know, I don't often link to it!). Anyway, curious for people's reactions about what are the optimal level of disclosures for legal academics. I realize Larry Lessig's got a disclosures page. Should we all have one of those if we ever make a dime off outside income? Would it include a requirement to disclose even ghost-writing briefs for law firms, etc? Or are we worried only about the corruption of our public identity, and not the private sale of what little talents we have to offer?
Injunctions and stays
Earlier this week, a district judge held that several provisions of the restrictive reproductive health regulations enacted by Texas last summer (over the famous Wendy Davis filibuster) were unconstitutional and enjoined their enforcement. On Thursday, the Fifth Circuit stayed the injunction pending resolution of the appeal. This means the laws are enforceable. It also means a number of clinics are not going to be able to operate beginning tomorrow morning.
Putting aside my views of the constitutionality and wisdom of these laws, the stay surprises me. The idea behind staying an injunction is to preserve the status quo and to avoid permanent or long-lasting effects that may be inconsistent with the ultimate state of the law once the litigation is fully resolve. Ultimately, we want to avoid a mess, whatever the outcome of the constitutional challenge. Under that consideration, a stay seems inappropriate here. Several clinics are going to have to close, cease performing abortions, or make physical or operational changes, all at some cost. If the district court is ultimately affirmed, these losses would have been incurred because of an ultimately invalid law. And even if the district court is ultimately affirmed, some clincis, having had to close or to incur these additional costs, may be unable to recover. This seems pretty messy. The court of appeals addressed this concern in a sentence, saying any such concerns were overcome by the likelihood that the state would succeed on the merits and that the laws are constitutional) But the uncertainty of the constitutional question, combined with the cost and messiness that comes with allowing the law to be enforced, should weigh against the stay and in favor of letting the injunction remain until the case is resolved.
Contrast this with the Prop 8 litigation, where everyone knew the initial district court injunction would (and should) be stayed pending appeal. If that injunction had taken immediate effect, people would have been able to marry, even before the question of Prop 8's constitutionality was conclusively resolved. And had the district court been reversed, we would have had a bunch of couples the state was forced to marry, although its law was not ultimately unconstitutional. Here, the mess goes the other way--not staying the injunction would have created confusion.
Update I: I suppose I should add something on the Second Circuit's stay of the injunction in the New York stop-and-frisk case. This also seems like an inappropriate case for a stay. The status quo should be that people are not subject to potentially unconstitutional searches (as already determined by a district court) until their constitutionality is resolved.