Friday, February 28, 2014
As March approaches, I just wanted to take a moment to thank our February guests, some of whom will linger as they get some remaining thoughts off their desk, and also to welcome our band of visitors for March: Erik Gerding from Colorado (with a new book to promote!), Steven Morrison from U North Dakota, Mehrsa Baradaran from Georgia, and David Han from Pepperdine. Thank you all for being part of the conversation and community here!
New York Times v. Sullivan at 50
As the faculty advisor to the Alabama Law Review, I'm delighted to note that the Law Review today is hosting a symposium on the 50th anniversary of New York Times v. Sullivan. The editors did a wonderful job putting together a great list of speakers. We are welcoming Judge U.W. Clemon (ret.), who not incidentally was the first African-American federal district court judge in the state; Judge Robert Sack of the Second Circuit; and Professors Sonja West (Georgia), Mark Tushnet (Harvard), RonNell Andersen Jones (BYU), David Anderson (Texas), and Christopher Schmidt (Chicago-Kent). I'm especially happy that the Law Review, in selecting these speakers, has recognized that the Sullivan decision is more than one thing: it's a speech case, to be sure, and an important press case, and an important case in comparative constitutional law (sometimes accepted, sometimes rejected), but it is also fundamentally a civil rights case, an aspect of the decision that is sometimes omitted. I'm glad in particular that students in and from Alabama, where the case began, have made an effort both to commemmorate this important decision and to spotlight its crucial civil rights aspects. I'm looking forward to a great day and want to praise the students who put this together. If you happen to be down the road enjoying a late breakfast at Rama Jama's or an early lunch at Dreamland, y'all come.
This being a blog, I will also link to a recent piece of mine on institutional actors in New York Times v. Sullivan, which doubtless is flawed but attempts to (1) think about the press, the civil rights movement, and the courts as institutional actors in the case; (2) ask questions about the long-term status of Sullivan as a canonical constitutional case; and (3) offer a puckish point in a footnote about Professor McConnell's excellent recent discussion of Citizens United as a Press Clause case. That point links my interest in law and religion to my interest in freedom of the press, and I believe Prof. West's paper today will take up a similar topic. Given similar concerns about identifying "religion," "churches," and "the press," it may be that church-state scholars can and will have something to add to thinking and writing about the Press Clause.
Thursday, February 27, 2014
Blog Post as Community
I generally experience PrawfsBlawg and othe law prof blogs the old-fashioned way -- checking out the site by clicking on the link from my "favorites" bar. The disadvantage of reading blogs this way is that you're always drawn to what's on top; you may miss something interesting that's percolating below.
Prawfs is fortunate to have a couple of blog post "communities" that have developed here, thanks to Dan and Sarah. This one -- on law review placement activity -- has over 400 comments. This one, a clearinghouse for law school hiring market questions, has over 1500 comments. I imagine participants in these communities only visiting these posts -- or at least, visiting these posts separately from the rest of the blog -- and checking in on the latest news. Most participants are anonymous, although some have handles that make their comments recognizable within the collective. Even with the anonymity, there are conversations that take place across time. There are news and opinions -- points and counterpoints and counter-counterpoints. These posts are communities which spring up each year at a certain time, like Brigadoon, and then gradually disappear, only to come to life again the following year.
These communities remind me a bit of urbanbaby, the website where anonymous posters address a wide variety of issues related to childhood. No one knows who is talking to whom, but there are distinct personalities, strong views, and collective wisdom. You may not be able to trust any one poster, but if you get enough of the same reply, and it makes sense, you can probably run with the advice. I can't vouch for urbanbaby now, as I haven't visited in some time, and it's not in the zeitgeist like it was in the mid-aughts. (Here are some NYT and NYMag articles about it.) But as a young parent, I used to call it the oracle, because you could put in almost any question and get a set of thoughtful, clever, and, yes, snarky replies. I think it shows that under the right conditions, you can have a sizeable, anonymous, online community that shares information and feels like a place you want to visit.
And if you want to check out some AALS hiring market poetry, click here and scroll down.
Wednesday, February 26, 2014
"We the People" Petition
I’ve submitted a petition at the White House’s “We the People: Your Voice in Our Government” website. Here it is:
And here is why I submitted it and hope you will sign it:
Once in a while, a federal judge’s commission -- that big, official-looking piece of paper signed by the President that identifies the person appointed to a particular federal judgeship -- disappears. That should come as no surprise. It happens to documents of all sorts.
Missing judicial commissions are not a national crisis. Indeed, they do not appear to be a problem at all.
First of all, no one is going to lose their job over a lost commission, because it is not the possession of a commission that makes the judge. Remember Marbury v. Madison? Besides, in Marbury the Supreme Court said that a replacement commission is as valid as an original anyway.
Second, replacement commissions do get issued. Apparently they go missing often enough that the government has set up a system to handle them. And the system seems to be working just fine.
And that is the problem: it seems to work. But it is a secret system, so no one really knows. Practically speaking, this is not a big deal, and knowing about it is not likely to change much of anything. But the government should not keep secrets except when there is a darn good reason, and it is difficult (impossible?) to imagine a good reason to keep the replacement commissions process secret. So, the government should share this small and harmless thing with the governed.
Besides, it would be interesting to know how the government goes about deciding when a replacement commission should be issued, and how it deals with some of the interesting puzzles that must confront whoever is running the show. For example, what happens when a judge who was appointed by a now-dead President needs a replacement commission? How does the dead President’s signature get onto the replacement commission? Are judges allowed to have only one commission at a time, or are they allowed to have a spare, or one per office, or as many as they want? If a judge changes his or her name, does the judge receive a new commission? And so on.
I say a little bit more about this about midway through a short paper, but you don’t need to read it to understand why this petition is worth signing.
Should A Colleague Review a Colleague's Book (or a Journal Publish That Review)?
I appreciate that asking questions (especially in the titles of blog posts) generally is taken as signaling that the author thinks he knows the answer to the question perfectly well. In this case, to be quite clear, I'm actually asking a question, not making an accusation.
So: Should a professor publicly review a book by a departmental or, in the case of law schools, faculty colleague? Or is the potential or perceived conflict of interest substantial enough to make this a bad academic practice? Of course, I ask for a reason. The latest issue of the Texas Law Review, which I am glad still publishes book reviews at all, features a review that, unless I have my facts wrong, involves one colleague reviewing another's book. The review is quite laudatory; other reviews have been as well, so doubtless the plaudits are deserved. But I admit that seeing one member of a law school reviewing the work of another, especially in a prominent venue, did give me pause.
It's not clear to me that there are any well-known rules about this, at least in the legal academy. I can think offhand of other examples of this conduct, certainly; a few years ago, for instance, two little-known Yale Law School professors engaged in a dialogue about each other's books in the Yale Law Journal. I would admittedly consider the ethical norms and practices of other academic departments a better guide than the practices of law schools, let alone law reviews themselves--although I was surprised that the Texas Law Review didn't simply seek a review by a non-colleague. But I don't know what those norms are, beyond a quick glance at this interesting but non-authoritative piece. Perhaps some of our readers, especially those in the academy but outside law schools, can offer some guidance on what best practices elsewhere in the university are with respect to such matters.
The other side of corporate speech
There are reports that the NFL is monitoring Arizona's SB 1062, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year's Super Bowl, but the league stated that such a bill would be inconsistent with the league's (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. The fear among Arizona business and political leaders now is that the NFL may move the game if this bill becomes law (it has passed both houses and is waiting the governor's signature). And there is precedent for this--the league moved the 1993 Super Bowl from Arizona (theme warning!) when it failed to recognize Martin Luther King Day as a state holiday.
But isn't this corporate speech? Isn't the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn't this exactly what critics of the "corporations have First Amendment rights" meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights--the very groups most likely to be criticsl of Citizens United, are now quite pleased with, and supportive of, the NFL's stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?
This gets at what I always have regarded as an inconsistency in many anti-corporate-speech arguments. We like businesses that are socially conscious and that work towards the public good. But that must mean they have the same right to define (what they regard as) the public good as anyone else. It cannot simply be that entity speech is ok when it promotes LGBT rights, but not ok when it promotes something we do not support.
Update: Gov. Jan Brewer vetoed the bill.
AALS: is, not, and ought
Posts and comments about scholarship funding (and related other subjects) mention AALS from time-to-time. Perhaps it would be helpful to frame more precisely what the ass'n views as its role (speaking here just as one volunteer, not in any way for the organization):
The AALS is a voluntary association of law schools. It is not an accreditator and has nothing in the way of power over law schools or their faculties. Rather, it is an organization made up of law schools which have accepted the association's core values, abide by its membership bylaws and, for reasons best known the law schools themselves, believe that the association provides sufficient value to warrant joining. Where the on balance tradeoff augurs against continuing adherence to these core values, the institution should surrender membership, and there should be no penalty for its students, graduates, and alumni for doing so. "Is this association consistent with our institutional mission and valuable for us" should always be the question for the law school.
The AALS takes no global position on what a law school must be -- how it trains its students, how it configures its faculty, what it costs, what should the tradeoff be between teaching and scholarship, or other central issues that are driven, in the main, by the articulated mission of law school.To be sure, it takes positions on what ought to be the core values of this voluntary membership group. And it seeks to articulate and implement these values through a membership process to which schools aspiring to join and continue in good standing subscribe to.
Law schools will necessarily be in the position of making to make difficult tradeoffs and, under present circumstances especially, adjustments in their ways of doing business. Meaningful engagement with member schools obliges -- or I should say, should certainly oblige -- the AALS to be both understanding and constructive in the ways in which law schools make these hard choices.
Positioning itself as an advocate for the value of legal scholarship in the architecture of the member law school is important especially when law schools are under stress. Seeing and voicing the value to the profession and to public debates about the role, functions, and place of law in a civilized, diverse society is unequivocally a fundamental function of the association. And it ought never be bashful about such advocacy.
But whether and to what extent this is a fundamental function of the law schools themselves is ultimately a question of institutional mission. The AALS need not take any distinct position on that matter. Nor should it take distinct positions on precisely how member law schools perform these functions of supporting scholarship. Here, too, the AALS serves its member schools best when it organizes and disseminates good ideas and best practices. The difficult tradeoffs -- including the financial tradeoffs -- will necessarily be made by the schools themselves and their key stakeholders.
So what ought AALS to do in this respect? Be simultaneously an advocate for (inter alia) the important role of scholarship in the life and activities of member law schools and an advocate for diversity, imagination, and innovation in how member law schools constructively go about supporting scholarship in their institutions.
Funding legal scholarship
Present economic circumstances in law schools -- or, more to the point, economic circumstances of current and prospective law students which are shaping the predicaments of many law schools -- rightly raise the hard question of how, or even whether, most law schools should subsidize faculty scholarship. The "why" question is essential, and warrants continued attention.
For now, if I may, let me turn to the "how" question:
Matt Bodie's posts, and the many comments accompanying them, engage the question of whether internal subsidies can and ought to incentivize scholarship at the quantity and quality level that is appropriate to the mission and goals of the institution.
First, an observation about "theory," before turning to "practice": The model of law schools which aspire to be incubators of meaningful scholarship is one in which faculty compensation is tied squarely to the ability and willingness to engage in scholarship, regularly and reliably and over the course of an academic career. Deans and faculties do their job in good faith and in good conscience when they undertake to monitor equitably and comprehensively this engagement. Students' tuition supports scholarship in law schools just as it subsidizes scholarship by faculty in undergrad and other graduate settings. (This seems to go missing in the debate. Does the Columbia undegraduate truly think that their tuition is going primarily to the teaching work of their full-time, ladder rank faculty?). Accountability to students demands that the law school be responsible and relentless in ensuring that scholarship is a key part of the faculty member's work product. Different law schools will make different allocative choices to be sure; but it ultimately a gesture of defeat for any law dean to throw up her hands and say "scholarly productivity cannot be adequately measured nor adequately monitored, so I can't be bothered to do it."In practice, such oversight is uneven, to put it mildly. In this era in which tuition and debt pressures on students are enormous and must be taken seriously by all law schools, it is incumbent upon deans and faculties to tie these tuition-driven subsidies to real performance. This must happen pre and post-tenure. The AALS as a voluntary membership organization (not an accreditator) helps put some pressure on law schools to be dependable scholarly incubators, in addition to other core functions. The association can and should work with law schools and their deans and faculties to develop structures of incentives and measures of performance to assure stakeholders -- and especially the students from whom tuition is paid to support scholarly work -- that the law school expects and mandates such regular productivity from its full-time, tenure line faculty.
A fantasy world? I don't think so. And I certainly hope not. Many able deans have been focused in earnest on accountability, productivity, and transparency, that the efforts to measure faculty members' scholarly output and to expect work of high quality and quality has created environments in which faculty carry out their responsibilities diligently and with high morale. If faculty and students don't see this in their dean, then they should beat a path to his or her office to insist upon patterns of performance accountability. Students should see their tuition dollars going in part to subsidizing scholarship, not faculty lifestyles. Let me be even more explicit: Our responsible role as leaders of institutions under the stresses and strains of the modern law school economy demand greater scrutiny of faculty performance and high expectations of faculty scholarship. Otherwise, tuition subsidies of faculty scholarship are fundamentally indefensible.
Prof. Bodie's specific suggestions deserve more careful attention, and I will endeavor to do so in future posts. But this depiction of what deans can and must do is meant to get at a central point of the contemporary critique of law schools, a critique which must be taken seriously and responded to by responsible educational leaders. This point is: How can we truly defend the "why" of substantial subsidies to legal scholarship unless we are confident that the "how" is addressed, and is addressed in ways that ensure accountability, productivity, and transparency?
Tuesday, February 25, 2014
More personal jurisdiction from SCOTUS
SCOTUS today decided Walden v. Fiore, unanimously (per Justice Thomas) holding that a district court in Nevada lacked personal jurisdiction in a Bivens action against a Georgia police officer who wrongfully seized money from plaintiffs at the Atlanta airport. Adam Steinman a the Civ Pro/Fed Courts blog has some excerpts.
No major new doctirnal ground broken. It does reframe the effects test to focus on the defendant's contacts with the forum, not with the plaintiff, although recognizing that they may be intertwined. But injury in the forum, even if the defendant knew the injury would be suffered there (arguably the case here), is not sufficient absent some conduct by the defendant that implicated the forum (physical entry, phone calls, affect on reputation or property there, etc.). Otherwise, the plaintiff otherwise controls where she lives and where she feels the harm, a unilateral act of the plaintiff that is insufficient to establish jurisdiction--the plaintiffs here were harmed in Nevada because they chose to live in Nevada when they wanted their money. At best, an injury felt in a state can show that the defendant formed a contact with that state.
The Court drops a footnote (n.9 on p. 13) that it once again is not deciding anything about internet-based contacts. The targeting that the opinion seems to demand could be read to mean that broad enough wrongdoing (say, a fraud scam over the internet) will not create jurisdiction in the victim's home, because the defendant targeted the world, not just that plaintiff's state.
Like Daimler v. Bauman, decided last month, this is another good teaching case, in that it simplifies things and discusses the doctrine as a whole. It shows clearly that the effects test is not a unique separate test (as some lower courts had suggested), but another way that a defendant creates minimum contacts. So my syllabus just got revamped (again) when I teach P/J in April--Daimler instead of Good Year or Helicol and Walden instead of Calder and Clemens v. McNamee (a 5th Circuit decision).
When Should Originalism Fall Back on Precedent?
In a previous post, I suggested that originalism might benefit from recognizing a fallback rule of deference to judicial precedent. The idea would be to preserve a first-order commitment to the Constitution's original meaning, but to acknowledge that when the original meaning cannot confidently be discerned, the best approach is to fall back on precedent. Underlying this argument is a dedication to judicial constraint, doctrinal stability, and a view of constitutional law as transcending the personalities of individual judges.
Among the (many) questions raised by this fallback rule is when it kicks in. That is, how should a judge determine when to fall back? I find this question to be fascinating and complex, and I'm continuing to work through it. With apologies to Peter King, here's what I think I think.
The basic issue, as Gary Lawson explained in Proving the Law (86 Nw. U. L. Rev. 859), is defining the standard of proof for legal propositions. We see endless debates over this issue in the administrative-law context as judges and scholars talk about whether a statute is "clear" for purposes of the Chevron inquiry. In the realm of constitutional interpretation, there's a similar question about where to set the bar for establishing the determinacy of the Constitution's original meaning.
I'll leave these big questions to far better minds than mine. I'd just like to suggest that regardless of where one sets the bar for constitutional determinacy, deference to precedent can work as a fallback rule when that bar is not met. Of course, the universe of cases in which precedent is relevant will be affected by the applicable standard for determinacy. But the basic operation of the fallback rule doesn't change.
I'd also note that, in my (tentative) view, it's possible to argue that the bar for determinacy ought to vary depending on whether a case is one of first impression. We can imagine (I can, anyway) an originalist judge who raises the bar for determinacy when the result would be to overrule a line of judicial precedents. There's even some basis for believing that this sort of approach may have had currency around the time of the founding. I suppose one might counter that it's not the bar for determinacy that's moving, but rather whether judges choose to implement the Constitution's determinate meaning. That strikes me as a fair point, and one whose implications are worth considering. But either way, the upshot would be that it takes more and better evidence to unsettle something than to settle it.
A Post-Script on Samuel Sheinbein
I'm not sure how many of you remember this, but one of the more fascinating stories my co-authors (Jennifer Collins and Ethan Leib) and I relied upon in our 2009 book on criminal justice and family status had to do with Samuel Sheinbein. After he gruesomely murdered someone in Maryland, Sheinbein, with his father's assistance, escaped to Israel and avoided extradition. The Sheinbein parents thought they were doing their parental duty by trying to squire their son to a more compassionate jurisdiction. Sheinbein was charged and convicted in Israel and sentenced to 24 years in prison in Israel, with furloughs, which is probably a better outcome than he would have received in Maryland. (Though with the recent excuse of affluenza, who knows?)
For our purposes, we were primarily interested in Sheinbein's parents' involvement in assisting their son, since our Privilege or Punish: Criminal Justice and the Challenge of Family Ties focused on two questions: what role does and what role should family status play in the operation of the criminal justice system? Among other things, we discovered that about a dozen states around the country explicitly carve out exemptions for family members from laws that otherwise prohibit assisting fugitives and we argued that these exemptions were largely misguided and should be jettisoned. Here's a short version of what we argued on the Freakanomics Blog.
The Sheinbein parents' good intentions, certainly understandable if not justifiable, have had deadly consequences. For the latest news is that Samuel Sheinbein the killer is now dead. He was shot by special forces in a prison raid once he barricaded himself in a room within the prison; somehow, Sheinbein secured the firearm of a guard and seriously wounded three prison officials along the way. There's no definite lesson to be learned here from one anecdote--one might well imagine the Sheinbein saga ending with a story of redemption and rehabilitation. Here, however, it was intransigence and bloodshed. And so, when legislators are considering whether to be sympathetic to parents or children placed in difficult positions by their criminal family members, they would also do well to remember the Sheinbein story, a case where we see the cruelty and cost of misplaced compassion.
Scholarship funding: why and how
Earlier this month, Prof. Bodie helped us focus on an important set of issues regarding the structure of funding and incentives for legal scholarship. In his posts, and in the voluminous comments, he offers a number of descriptions and also prescriptions about how best to reshape the landscape within law schools.
As I enter this debate (as an experienced dean, in addition to a longtime academic), let me sharpen this discussion by revealing the three questions raised by Bodie and the commentators:
- Why should law schools be subsidizing scholarly production by their faculties?
- What is the optimal model for such subsidies, given the goals of: (1) increasing the production of scholarship within particular schools and within the academy more generally; (2) limiting the burdens on law students; and (3) administering a system in an efficient and fair way?
In short, the questions are about "why" and "how."
As to the "why," the issue continues to be chewed over in the media, the blogosphere, and occasionally in more extended articles and books (Brian Tamanaha's being perhaps the most important recent example).
My own summary of the reasons why we do it is not, to put it mildly, arrestingly novel, but merely summarizes what, to me, is the compelling cluster of reasons:
- As part of universities, we have an obligation to engage actively and purposively in the development and dissemination of knowledge -- knowledge about our profession, about the structure of institutions in which law is created and in which it performs functions of consequence in a democratic society, and about the content of legal rules, their implementation, and their desirability. No law decrees that any one law school, or any collection of law schools, need to be part of colleges or universities (and several aren't, of course). But the price you pay for being embedded in a university structure and culture is that your tenure-line faculty engage in the practice of scholarly work and production;
- Law professors have a comparative advantage in doing this scholarly work. This is true by virtue of their employment structure; it is true by virtue of their competency, as measured by colleagues who hire them, deans who evaluate and incentivize them and, to a large degree, by self-motivation and habit of mind. Full-time law professors are especially suited to engage in the work, research, and collective efforts required to do legal scholarship at a high level. This is so not because of innate qualities of brilliance or even temperament; it is so because that is what they are hired and required to do and, further, because they have the fertile environment of institutions filled with capable, ambitious colleagues and equally capable, ambitious law students;
- To be sure, at its worst, legal scholarship is banal, remote from considerations of both the bar and the academy, and is overwrought. The same can be said of bad judicial opinions, bad statutes, and bad work product in nearly every field. At its best, however, legal scholarship can and does help shape the law in constructive directions, can help shed illuminating light on difficult legal and policy puzzles, and can help advance important societal goals. Choose your favorite example. The work of environmental law scholars from the 70's and 80's helped transform modern environmental law; actual people benefited from these efforts. The work of constitutional lawyers helped propel the cause of marital equality in the past fifteen years. The work of libertarian legal scholars and political economists are helping shape the debate over eminent domain in the post-Kelo world. The list is a long one. The value of legal scholarship should be judged by its best practitioners, not its worst excesses.
So, let me just end the big picture take on the "why" question by raising, as a thought experiment, the question of what would law schools look like if you took the scholarly dimension out of this space entirely: It would be one in which both positive and normative explorations and insights would be carried out by lawyers and judges who would be doing this as essentially a hobby (or perhaps as a veiled effort to advocate vigorously on behalf of a client's interest). Scholarship of some sort would emerge, but not from the hands and brains of those who are hired, trained, and incentivized to undertake it at a high level. Further, scholarship involving law done by full-time academics would be left to those within our universities who are not in any important way teaching and training law students. Thus, the divide between the concerns of the legal profession and the preoccupations of academics would grow, not shrink. Let's be clear: Student tuition would still subsidize scholarship, but it would, instead, be principally the tuition of undergrads and grad students. Scholarship about law wouldn't go away; it would just be done by folks not law professors.
Why subsidize the production of legal scholarship? Because we believe this to be a public good (even though some of the scholarship is surely bad) and because we believe that the nexus between how we teach and train law students and how we understand, describe, and reform law should be tethered in meaningful ways to this teaching function.
Central questions remain about whether this goal should be universal, whether it is the business of outside accreditors, whether it must be modified in light of difficult employment circumstances and high student debt, and how best to fund it. But some agreement should be had, at least by the vast majority of stakeholders within and outside the legal academy, about why we ought to promote and fund scholarship in our law schools. If we can't agree on that, the rest of all this is jibber jabber.
Sport, non-sport, and judging
I have wanted to use Jordy's posts about judging and reputation to jump into other things, especially as the posts pertain to activities such as figure skating. And I want to tie this to my ongoing interest in defining what constitutes sport, for which I believe I have landed on a workable definition that focuses on whether a contest is decided by evaluating the intrinsic quality of an athletic skill (not sport) or the instrumental result of the performance of that skill (sport). The attempt to understandin judging may introduce some consequences into the distinction.
Sport is governed by what Mitchell Berman called the “competitive desideratum,” the desire that the “outcome of athletic contests . . . depend (insofar as possible) upon competitors’ relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase, develop, and reward.” The outcome of a sporting event should not be decided by anyone other than the players themselves. And it particularly should not be decided by an umpire or referee making pronouncements about the game's rules.. Of course, that is not entirely possible, since sports are governed by rules that must be applied and enforced by someone, with enforcement certainly influencing the outcome.The answer, I began arguing here, is that sports rules are analogous to rules of procedure, the framework rules in which a contest (athletic or judicial) is decided and resolved. These framework rules are not the focus of the contest and should not dictate the outcome. Instead, they regulate the competition, while the players control the outcome through their relative skills and the results of those skills. True, decisions about these framework rules--whether a pitch is a ball or strike or whether something is a foul-- affect how the competitors act and the contest must be resolved in light of those decisions. So we might say these rules "influence" the result. But the players still control the outcome of the game through their skills--whether the pitcher gets the batter out, whether the ball goes in the basket, etc.--without real input from the umpire/judge/referee.
And this is where the sport/non-sport distinction matters. For non-sports such as figure skating, we never get away from the judge and her ultimate opinion as to the intrinsic quality of the skater's performance of those skills. That opinion of the skaters' skills decides the outcome of the contest, not anything that follows from those skills. In other words, the rules of a non-sport are analogous to substantive law that courts (whether through jury or judge) use to decide a legal dispute. Non-sport possesses some of Berman's "competitive desideratum," but the skills cannot alone decide the outcome without a judicial ruling. Just as legal arguments and proof cannot alone decide the outcome of litigation without a judicial ruling.
Returning to Jordy's point about attorney reputation in the eyes of judges, the difference between sport and non-sport lies in how directly reputation affects the outcome. In a sport, to the extent reputation affects what gets called a strike for certain hitters or what gets called a foul for certain players, the influence is indirect, the outcome still controlled by whether the pitcher can get the batter out or whether the ball goes in the basket. In non-sport, to the extent reputation affects how the judges perceive the quality of a jump, spin, or skate, the influence directly dictates the end result of the competition. (In the litigation realm, this might parallel differences in how attorney reputation affects a judge's view of a particular attorney's discovery motion and how it affects the judge's ultimate findings of fact on the merits of the claim).
These are necessarily preliminary thoughts that I hope to perhaps flesh out in the future.
Banning home plate collisions: An exercise in statutory interpretation
Major League Baseball yesterday announced an experimental rule banning, or at least limiting, home-plate collisions. The rule is intended to protect players, as home-plate collisions are a common cause of concussions and other injuries to catchers. Whether it does or not provides an interesting exercise in statutory interpretation.New Rule 7.13 provides:
A runner attempting to score may not deviate from his direct pathway to the plate in order to initiate contact with the catcher (or other player covering home plate). If, in the judgment of the umpire, a runner attempting to score initiates contact with the catcher (or other player covering home plate) in such a manner, the umpire shall declare the runner out (even if the player covering home plate loses possession of the ball). In such circumstances, the umpire shall call the ball dead, and all other baserunners shall return to the last base touched at the time of the collision.
An interpretive comment adds:
The failure by the runner to make an effort to touch the plate, the runner's lowering of the shoulder, or the runner's pushing through with his hands, elbows or arms, would support a determination that the runner deviated from the pathway in order to initiate contact with the catcher in violation of Rule 7.13. If the runner slides into the plate in an appropriate manner, he shall not be adjudged to have violated Rule 7.13. A slide shall be deemed appropriate, in the case of a feet first slide, if the runner's buttocks and legs should hit the ground before contact with the catcher. In the case of a head first slide, a runner shall be deemed to have slid appropriately if his body should hit the ground before contact with the catcher.
Unless the catcher is in possession of the ball, the catcher cannot block the pathway of the runner as he is attempting to score. If, in the judgment of the umpire, the catcher without possession of the ball blocks the pathway of the runner, the umpire shall call or signal the runner safe. Notwithstanding the above, it shall not be considered a violation of this Rule 7.13 if the catcher blocks the pathway of the runner in order to field a throw, and the umpire determines that the catcher could not have fielded the ball without blocking the pathway of the runner and that contact with the runner was unavoidable.
The rule reportedly reflects a compromise between MLB, which had wanted a must-slide-can't-block rule that would have eliminated all collisions and thus done the most for player safety, and the MLBPA, which did not want to make such a major change so close to the season, fearing the players would not have time to adjust.
The basic rule prohibits a runner from deviating from the direct path home to initiate contact with the catcher (or whoever is covering the plate)--that is, from going out of his way to make contact rather than running directly for the plate. But the rule does not prohibit collisions where the runner runs directly into the catcher in trying to score. So, reading only the text, it is not clear the new rule eliminates most collisions, since most collisions come when runner, catcher, and ball all converge at the plate and running through the catcher is the most direct route to scoring. It thus is not clear that it provides the safety benefits it is intended to provide.
The solution may come in the interpretive comments and a more purposivist approach. An umpire may find that the runner deviated if the runner fails to make an effort to touch the plate, lowers his shoulder, or pushes with his hands, elbows, or arms. On the other hand, a runner does not violate the rule if he slides into the plate in an "appropriate manner," meaning his body hits the ground before making contact with the catcher. The upshot of the comments is to grant the umpires discretion to judge when the runner has "deviated" from the path, and thereby to apply the rule so as to further its purpose. The comment incentivizes runners to slide in most cases, since a proper slide per se will not violate the rule, while running through the catcher might be deemed deviating, subject to how the umpire exercises his discretion in viewing the play (whether the runner lowered his shoulder or raiseed his arms, etc.).
The rule seems unnecessarily complicated, given the player-safety goals involved. Especially since they simply could have modeled this rule after the rules that apply at the other three bases. But the sense seems to be that this is experimental, designed to be revisited during and after the upcoming seasons and to function as a first step to get players used to this new way of playing. Think of it as the legislature phasing-in new rules so as to also phase-in new, preferred behavior.
Monday, February 24, 2014
American legal scholarship and legal education misconceived
Duke's Ralf Michaels has undertaken to celebrate Germany superiority in legal scholarship. This is a peculiar venture, one that Rob Howse has skewered elsewhere on this blog, he focusing on the comparative aspects of the project. This seems to me a good enough skewering, although I would have to leave to the experts in the comparative law & German elements to speak knowledably about Michaels' perspectives on this subject.
Let me just say a few things about the depiction of contemporary American legal scholarship.
Here, says Michaels, "faith in legal doctrine as a sufficiently exact tool to deal with social issues has been destroyed." ???!!! I suppose one can say that everything is embedded in the meaning of "succiently exact." Here, as elsewhere, law in action is seen as a necessary supplement to law in books. Legal doctrine doesn't enforce itself; the social elements of doctrine in, at the very least, framing fundamentally matters of implementation and administration of public policy are well understood. This is not about the "here," after all. Max Weber understood this. So did William Blackstone. So, who does Michaels imagine believes that doctrine is sufficient or is exact?The notion that American legal scholarship does not include foci in earnest on doctrine, its content and shape, is naive. The work of the American Law Institute, on whose council I am proud and privileged to serve, illustrates powerfully the enduring contributions of essentially doctrinal work. And the connection between doctrinal exegesis and analysis and social advancement has been embedded in the work of the ALI for decades. Such work thrives in American law schools as well, as does interdisciplinary work of the highest order.
But here is where Michaels' essay takes a peculiar turn. Here is what he says by way of framing the current critique of American legal education:
"The consumer model of legal education requires, ultimately, that law students are taught nothing other than skills. Doctrine itself has only instrumental value for students, but importantly, “mere doctrine” has no scholarly value for academics. The consequence for scholarship may be dire: interdisciplinary scholarship may decline, but doctrinal scholarship cannot take its place because academic understanding of doctrine has been thoroughly discarded."
The dots Michaels wants to connect are these: American legal education is attacked because it is insufficiently skill-centered; law schools cannot advance skills-training under extant economic models; they have, as the only alternative, relentless interdisciplinary scholarship; attention to doctrine is impossible because it has been "descredited;" Germans have figured this out and thus the future of German law schools is comparatively rosy.
This narrative is highly problematic. Skills training is largely a product of American legal educators, especially clinicians, who have developed curricula and deployed resources to the salutary aim of improving the practical skills of (post-graduate) law students. To be sure, this development is resource intensive and is challenging in the current environment in which costs of legal education loom large. But the notion that this can be recast as a struggle between public and private modalities of financing education is seriously flawed. With the public subsidy of European law schools, where is the attention to the sort of skills training and public service initiatives within law schools that would, presumably, advance salutary public purposes?
Moreover, the notion that American law schools will move further away from "discreted" doctrine in order to maintain their death grip on interdisciplinarity as an educational luxury in trying times seems patently absurd. American law schools, highly imperfect and under serious strain, could be expected to adapt to currents of both legal pedagogy and legal scholarship, currents which see doctrine as a coherent and necessary element of advanced legal education and advancing professional competence. Interdisciplinary legal scholarship need not and will not be abandoned in this quest. Indeed, the building of bridges between law and other disciplines is a result (and not uniquely an American one) of an appreciation for the interconnectedness of academic explorations and the imperatives of solving society's central problems through combined, intersecting modalities of scholarship and knowledge. I would have thought that Ralf Michaels, surely a scholar understanding the German conributions to the origins of the modern University, would appreciate this especially.
"[T]he ABA report suggests that our culture of scholarship and education is untenable and must be, essentially, discarded. I hope they are wrong."
Two things wrong with this penultimate statement: First, the so-called "culture of scholarship and education" is here misunderstood. American law schools pursue scholarship in order to advance key purposes, including elucidating doctrine, bringing to bear insights and expertise from other disciplines in order to illuminate legal issues and ground public policy, and in order to advocate on behalf of central societal goals and initiatives. Moreover, the best evidence -- along with a century-plus worth of experience -- suggests that American legal education, for all its flaws, does an admirable job at these ambitious ends. Second, there is precious little reason to believe that Ralf Michaels "hope[s] they are wrong." His essay advocates for a contrast that does not exist and an appeal for German superiority that is misguided. Whatever the essay's merits as a depiction of contemporary German legal scholarship, is deeply flawed as it pertains to American legal scholarship and the nexus between such scholarship and trends in contemporary legal education in the U.S.
AALS should fund scholarship?
Earlier this month, Prof. Matt Bodie penned a collection of very interesting posts on legal scholarship and its funding model. I will have various things to say about his valuable, and controversial, ideas in the coming days. Let me start out by responding to a narrow point he made (mentioning me and Judy Areen by name in this post! We were blushing respectively from Chicago and Washington DC):
The AALS is funded principally by dues paid by member law schools and, secondarily, by receipts from meetings. (The meetings are, despite a chorus of complaints about high costs, essentially break-even propositions, but that is another topic for another day). The overall budget for the organization is, given the overall work, not a large one. And the financial pressures upon law schools counsel caution with respect to either changing the structure of dues or increasing dues annually. Indeed, the last three years has brought very modest increases of said dues, unlike the ABA.
Administering research grants through the AALS would, quite clearly, require a wealth transfer from law schools, many quite strapped, to the AALS. It is hard to defend such a choice under current conditions.
Moreover, it would be hard to fathom that the AALS would be a better steward of law schools' money for scholarship than the law schools themselves. The choices of how best to support and subsidize faculty's scholarly work are internal choices, driven the respective missions of the law schools. To be sure, AALS has, as one of its core values, legal scholarship. But the matter of how best to incentivize and promote such scholarship among member schools is properly a localized one.
This post, with due respect to Prof. Bodie, is an easy one, as the AALS grant idea is really a non-starter. He raises some harder and more complex issues elsewhere in the series. And I will join that debate in separate posts.
Judgment Calls and Reputation, Part Three: Attorneys
It has been fun reading some of the thoughtful reactions to my previous post on the influence of reputation on figure skating judges. Of course, judging at the Olympics is done anonymously now (not that it necessarily helps), but what if skaters could choose their judges, or at least know in advance the reputations of the judges? Would their routines or strategy change in light of that information?
I’m no skater. But I know from my days in law practice that knowing a judge's reputation (or even specific gossip on a judge) can make a big difference in litigation strategy. The reputation of individual judges or entire courts, or other lawyers’ war stories about specific encounters with a judge, can affect forum shopping, motion practice, or whether to request a bench or jury trial. My current research has focused on the influence of attorney gossip about judges, especially in the federal district courts, and I thought I would share a few highlights here.
I am talking about gossip in its broadest sense, meaning any secondhand information about the judge that is shared outside the judge’s presence and has an evaluative component. That can be the more-or-less juicy and salacious stuff we read on Above the Law, but much more frequently it is evaluative information about the judge’s professional capacities and abilities –“Judge Smith takes forever to rule on summary judgment” or “Judge Jones has no patience for unprepared lawyers.” Sometimes the gossip is tied to a specific event: “Judge White gave the clearest jury charge I have ever heard last week.” Sometimes it is timeless: “Judge Brown is a colossal jerk.”
In ordinary social settings, we all use gossip to help frame our impressions of other people. Think of being set up on a blind date, or preparing to meet a friend of a friend, or choosing a course taught by a certain professor. Gossip allows us to form coherent impressions of people that guide our interactions with them, or (on the flip side) encourage us to avoid them completely. Just as in social settings we do not flock to people whom we have heard are unpleasant, in litigation settings lawyers do not flock to judges whom they have heard are impatient, incompetent, or biased. Just as information about the governing law can influence forum shopping, so too can information about the judges tasked with applying that law.
Gossip can influence lawyers even if they already know a judge well. If I have an impression of Judge Jones as a terrific case manager, and then hear from a colleague that Jones let a straightforward case drag on for years, my impression of the judge will change, at least to some degree. Likewise, if a have a terrible first experience before Judge Smith, and later hear from a colleague that he has a terrific reputation, I may be forced to rethink whether my experience was typical. Perhaps Judge Smith just had a bad day, or perhaps I did something to provoke his ire.
But gossip also has obvious and significant drawbacks, as anyone who has ever been in seventh grade knows. The process of sharing gossip is rife with cognitive distortions. Those who share gossip tend to omit critical contextual details: a lawyer sharing a war story about his bad experience with Judge White, for example, will typically make himself the hero and Judge White the villain. Moreover, even if the lawyer tries to be objective, the storytelling process naturally will lead him to emphasize details important to the listener as the story is being told – what is called the shared reality effect. Listeners, too, distort the information they hear to fit their own preconceptions. Collectively, these effects (and others) create what has been termed the extremity effect, by which stories about people become simpler, sharper, and more polarized as they are shared more broadly.
Litigators naturally try to compensate for the extremity effect by seeking out gossip and reputational information on judges from the most trustworthy sources they can find. That primarily means seeking out lawyers who have directly and recently interacted with the judge. Recent interaction avoids the problem of stale information, and cuts down on the extremity effect. (Think of the children’s game of Telephone – the message is typically clearer the closer it gets to the source.) Lawyers will also compare their own direct experience with the judge to the gossip they receive. In this way, direct personal encounters with the judge and gossip about the judge serve as mutual checks on each other, permitting the lawyer to create the most complete and coherent impression of the judge that she can.
But at least in the federal district courts, the direct interaction that is so necessary to "good" gossip is in rapid decline. As I have described in detail here, courtroom time in the district courts has dropped every year since at least FY2008, and overall courtroom time nationally has dropped by nearly 10% in that time. Moreover, several trends in modern federal civil litigation – most notably the ongoing pressure to resolve cases at the earliest stage possible – are making it even less likely that lawyers will enjoy repeated, direct interactions with judges in the future. If these trends continue, most lawyers will need to rely more and more on gossip in order to supplement their meager levels of direct interaction, but the generally available gossip will be stale and extreme, and the gossip that does reflect recent interactions will be harder to come by. That is, the gossip that will be the most relied upon will also be the least reliable.
Judges and lawyers should be concerned about the decline in courtroom interaction. Lawyers need good information on judges, and judges should desire that the inevitable gossip shared about them is accurate. And while there are several possible remedies (including formal bar polls or public judicial performance evaluation programs), one remedy lies easily in the hands of district judges: schedule more hearings and trials. Information is more accurate, and rumors tend to die, when you go directly to the source. Here a bit of seventh grade wisdom could prove quite beneficial for the federal judiciary.
Brevity is . . . wit
In trying to make sure my students are practicing writing as a skill (along with the thinking and analysis that is a precursor to writing), while also trying to ensure an appropriate workload, I have settled on using short writing assignments. I assign quick, discrete questions inviting short, quick-hitting analysis of those questions (e.g., "Identify the problems with this pleading"). The benefit is that it forces them to perform legal analysis--identify and explain a rule and apply it--without room to ramble or BS or throw everything at the wall to see what sticks, which also makes them easier to evaluate and grade. I have a better sense of who gets it and who doesn't. I also think I am able to provide better feedback (written and oral), since the analysis necessarily is compact and concise. It also offers coverage--I can test on a lot of different areas, while avoiding the discomfort I always felt in relying exclusively (or even heavily) on multiple-choice (despite the obvious bar-exam benefits).
And, of course, it famously can be harder to write less than more, so there is a writing challenge to it. (As I think back to my days as a journalism undergraduate, the longest thing I wrote in my first two writing courses was at most 1000 words). Meanwhile, student are writing "full" papers (briefs, memos, etc.) in legal writing, so I know they are meeting a different type of writing requirement elsewhere.
There are a number of ways to do this. One colleague shared that in courses in which students write judicial opinions, the word limit is 2,358--the number of words in Justice Holmes' dissent in Abrams v. United States. As my colleague explains, if Justice Holmes only needed that many words to create what would become free speech doctrine, law students do not need more. I am going to adopt this for the opinions in my upper-level classes. As for other assignments, my in-semester essays run anywhere from 500-1000 words (depending on the class and the assignment). And I have moved to primarily short-answer in-class exams, consisting of 30-or-so questions, with a maximum of 110 words for each answer.
The goal in all of this is that students are writing, even if only a small amount at a time, and even if it does not precisely reflect the briefs they will write in practice. There still is educational benefit in this sort of writing.
Friday, February 21, 2014
George Anastaplo, RIP
I am late to the table in commenting on the death of George Anastaplo last week, but one of my colleagues insisted I could not claim to love the First Amendment and not post something about it here. Anastaplo had a storied academic career as a con law and political science scholar. But Anastaplo he lived it first, litigating his own First Amendment challenge to his denial of admission to the Illinois Bar. He lost 5-4, although Justice Black wrote a dissent (for himself, Chief Justice Warren and Justices Douglas and Brennan) defending the First Amendment and the role of lawyers in times of political conflict. On Black's instruction, the dissent was read at his funeral.
The Supreme Court's Second Thoughts About the First Amendment
The Supreme Court's pending docket includes several cases that implicate the freedom of speech. Among them are McCullen v. Coakley, which deals with speech outside of health care facilities where abortions are performed, and Harris v. Quinn, which has potential implications for public employee unionism.
An interesting aspect of these cases is the intersection of the First Amendment with principles of stare decisis. In both McCullen and Harris, there's a possibility that the Court will reconsider a high-profile precedent. The Court doesn't strictly need to reconsider the applicable precedents (which are Hill v. Colorado and Abood v. Detroit Board of Education, respectively) in order to reach a decision. But it's worth thinking about the role that stare decisis may play if the Court concludes that the precedents are flawed.
At the outset, it's important to keep in mind that the relevant precedents rejected claims of First Amendment violations. From the perspective of stare decisis, the question is this: When is it appropriate to retain a precedent that improperly (in the view of today's Court) truncates expressive liberty?
In theory, the Court leaves open the possibility of retaining precedents on grounds of stare decisis even if they are unduly limiting of expressive rights. But in practice, the Court has tended to describe infringements on the freedom of speech as deeply and fundamentally worrisome, which makes it more difficult to argue that a given precedent should be retained notwithstanding its cramped conception of expressive liberty. That creates a puzzle as to the role of stare decisis in First Amendment jurisprudence.
Whether or not it happens this Term, it'll be useful to hear more from the Court about how the value of speech interacts with the value of doctrinal stability in undertaking the stare decisis calculus.
Not a sport, redux
Jordan presaged it, although for different reasons: Judging in women's figure skating is once again a thing, as people question the scoring that gave a Russian skater a surprisingly easy Gold Medal on Thursday. The issue here is less about reputation than about good, old-fashioned home cooking. And a judge who was suspended previously for trying to fix a competition previously. And we may be back to concerns about anonymous judging--established to avoid collusion and bloc-voting, it also removes accountability.
Thursday, February 20, 2014
Show me plead on, plead off
At the end of the pleading portion of Civ Pro, I spend one lecture day walking through the pleading process and all the rules and issues, showing how the pieces (which I teach in discrete and independent segments, not necessarily in chronological order) fit together. A few years ago I started calling this "Miyagi Day," because it felt a lot like that scene where Mr. Miyagi shows Daniel-San how waxing and sanding and painting fit together. And the students, shockingly, seemed to know and appreciate the reference.
Tonight was Miyagi Day (or Night, whatever) and this is what I found when I walked into the room:
Wednesday, February 19, 2014
The myth of the trial penalty?
Every now and then, I like to spotlight some articles that unsettle the conventional wisdom, particularly in criminal law. Add this one to the file. Almost every teacher of criminal procedure is aware of the idea of the "trial penalty," which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain. The leverage prosecutors have in exploiting the trial penalty dynamic was described by my friend Rich Oppel in a front page NYT story he wrote a few years back.
Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it's true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there's a trial discount not a trial penalty. Fascinating stuff. Abrams offers some suggestions for what might explain this surprise: possibly a salience/availability bias on the part of the lawyers who remember the long penalties imposed after dramatic trials. Regardless of what explains the conventional wisdom, the competing claims should be ventilated in virtually every crim pro adjudication course.
Since this empirical stuff is far outside my bailiwick, I wonder if those who are in the know have a view about how Abrams' research intersects with the Anderson and Heaton study in the YLJ, which argued that public defenders get better results in murder cases than court appointed defense counsel, or Bellin's critique of that YLJ study here. Anderson and Heaton basically argue that public defenders get better results because they get their clients to plea bargain more frequently than court appointed counsel and that explains the outcome. As I recall dimly, that conclusion may have been true for the murder cases but the study didn't purport to make the claim that PDs were better across the board and maybe that's consistent with Abrams' views too. It would be odd (wouldn't it?) if comparatively fewer murder cases involve a trial penalty while the many other cases do not and in fact show a trial discount. Granted, these studies took place in different cities, etc., so I am also wondering if the various studies can be reconciled. Thoughts?
Will Germany always really best the US (and the world) in doctrinal legal scholarship?
Germany's Science Council (Wissenschaftsrat) has issued a report on the state of legal scholarship in the country. At first glance it is fairly interesting as an overview of the strengths and weaknesses of the discipline. The report has attracted, however, a rather unusual response at Verfassungsblog from a professor at Duke, Ralf Michaels, who seems to hold to theories of cultural determinism in legal education. According to Michaels, "German doctrinal scholarship will always be superior to that of other countries,.."
Always? I am not sure what to make of this. Is it an indirect insult, a polite (at least in Germany) way of saying that Germany will not ever be superior in Rechtsphilosophie or interdisciplinary scholarship? Even if one were to accept for a moment cultural determinism, and I do not, still one would have to wonder about the soundness of the assessment of the historical German legal culture-is the German public law tradition, and its strengths, to be reduced to doctrinal wizardry? Anyone with awareness of that tradition as it evolved from Hegel until the day Hitler came to power would, I think, have to say no.
It is not clear what Ralf Michaels thinks is wrong with American doctrinal scholarship-he only mentions that a lot of it is written by practitioners-whether this is empirically the case is questionable, but of course one finds an enormous amount of subtle and careful commentary on appellate and Supreme Court jurisprudence in a range of areas, from academics as well as practitioners. I have used German doctrinal tools like the Max Planck Encyclopedia of International Law, which is excellent, but also some of the US Restatements, which are of very high quality,too. I just can't imagine where Michaels gets the authority to assert with confidence the national or cultural stereotypes that he does (and I would add that I have learned a lot from reading recent German scholarship in public law and constitutional law theory by for example Armin von Bogdandy, Christoph Moellers, Christian Joerges, among others, which is of course not at all "doctrinal" at least not in the caricatural sense that Michaels suggests).
What is the real issue? All doctrinal scholarship, if illuminating, must make signifcant normative or evaluative judgments. I believe that can be shown. The question is what is the source of those judgments; is there an internal conception of the law itself as a normative order, or do we need to go "outside" and to what extent and to where, and how is that legitimate? On this as on many other matters, re-reading my much missed late colleague Ronnie Dworkin is very instructive.
Tuesday, February 18, 2014
(On the lighter side...) Diagram this!
What is the worst sentence in the history of American judicial opinions? I’m not talking about a sentence that you find substantively repugnant, or offensive, or even silly. Rather, I’m looking for sentences that are simply painful to read as matter of style or grammar. Bonus points if they are found in opinions that are routinely part of the law school curriculum. Two nominees can be found below.
The first comes from the Supreme Court’s 1851 opinion in Hotchkiss v. Greenwood, which I teach every year as part of the standard patent law canon on nonobviousness. (Hotchkiss elucidates the principle that to be patentable, an invention must display a level of ingenuity and skill beyond that expected of an ordinary practitioner in the art.) The case -- involving an improvement to a doorknob -- itself is rather unremarkable, but it does contain this spectacularly unwieldy sentence in Justice Nelson’s majority opinion:
The court refused to give the instruction, and charged the jury that, if knobs of the same form and for the same purposes as that claimed by the patentees, made of metal or other material, had been before known and used; and if the spindle and shank, in the form used by them, had been before known and used, and had been attached to the metallic knob by means of a cavity in the form of dovetail and infusion of melted metal, the same as the mode claimed by the patentees, in the attachment of the shank and spindle to their knob; and the knob of clay was simply the substitution of one material for another, the spindle and shank being the same as before in common use, and also the mode of connecting them by dovetail to the knob the same as before in common use, and no more ingenuity or skill required to construct the knob in this way than that possessed by an ordinary mechanic acquainted with the business, the patent was invalid, and the plaintiffs were not entitled to a verdict.
185 words, 14 commas, and two semicolons! Even adjusting for mid-nineteenth century styles, that’s a mouthful. But it pales in comparison to this gem from the Supreme Court’s decision in Cooley v. Board of Wardens (also from 1851), a classic case on the state exercise of police power:
This would be to affirm that the nature of the power is in any case, something different from the nature of the subject to which, in such case, the power extends, and that the nature of the power necessarily demands, in all cases, exclusive legislation by Congress, while the nature of one of the subjects of that power, not only does not require such exclusive legislation, but may be best provided for by many different systems enacted by the states, in conformity with the circumstances of the ports within their limits.
Shorter than the Hotchkiss sentence by more than half, but what havoc it wreaks with its 91 words!
So what other cases am I missing, Prawfs readers? Add them in the comments. And feel free to suggest nominees for the most elegant sentences in American judicial history as well.
JOTWELL: Tidmarsh on English civil justice reform
The new essay on JOTWELL's Courts Law is by Jay Tidmarsh (Notre Dame) discussing civil justice reform efforts in England, under the leadership of Lord Justice Jackson. (These efforts are notable, given recent concerns about the proposed FRCP discovery amendments and the direction they are taking on reform).
Monday, February 17, 2014
Law Schools Competing on Course Material Prices
Christine Hurt's post about the sales model of legal scholarship included a new approach for providing students with course materials:
The direct-to-student model for casebooks. I've been thinking about this since I discovered how much a new edition of the Torts book I use cost (gasp). So, currently, I can use my work time to write a casebook that is then sold to law students, including mine, who pay $200/ea, and I get $20/ea. For doing my job. (I know, others deviate from this model, including paying their own students back their royalties .) But why not just self-publish? I spend my summer coming up with my own materials (as many do for their own courses anyway) and make them free for my students online? All the cases are available on the internet, and so are all the statutes/Restatement sections/etc. The only thing missing is the commentary and the questions (which I usually skip). This could save students $1000/semester. I'm teaching a course for the first time this semester, BA II, and I put together my own materials -- cases, law review articles, public disclosure documents. It takes a lot of time, but it's not crazy. What about first-time professors? Well, I would be happy to share my materials. In fact, all the Torts professors here could combine forces. Just a thought.
I have written (here and here!) about moving to an open-source model for casebooks. But it hasn't happened yet. I think there are pretty clear reasons why: (1) casebooks provide value to professors by organizing and synthesizing complex material, and (2) professors and law schools do not have to pay the costs of those materials directly or personally.
Ian Ayers, in the op-ed cited by Christine, argued that schools should have a "textbook maintenance organization" that provides students with books as part of tuition. So I was thinking about revisiting this idea now, and adding a twist: schools could compete against each other on course material prices. Here's what one enterprising law school could do:
- Instead of having students buy their own books, have students pay the school a yearly "course materials fee," and then the school would provide them with all the books or other materials assigned for their courses.
- The school would then buy books for its students (and, in theory, negotiate a cheaper bulk rate) or pay its professors to produce their own materials for their classes.
This system would incentivize not only cheaper casebook prices, but it would also incentivize the production of course materials more specifically tailored to that set of students. So schools with a local employment base could, for example, teach the criminal law of that particular state using state-oriented materials. I think (almost) everyone wins here:
- Students would pay less overall, as the school would have an incentive to keeps its fee lower given the salience and openness of the fee. And they also might get course materials more directly targeted to their educational needs.
- Schools would get the money for course materials directly and then either pay the publishers lower prices (by negotiating) or pay their own profs to produce teaching materials.
- Profs who produce their own materials locally could get some compensation for the value they add.
- And even though it might not be "good" for them, it would incentivize casebook publishers to add more value for what they are selling, so profs continue to use them. (Ayres argues that publishers would sell more books, which is possible but seems unlikely to me.) Plus, the school would not cover supplemental materials and/or study aids, so publishers would still be able to get full value there.
Ayres argues for textbook maintenance organizations as an efficient and fair reform. But couldn't it also be grounds for competition? Schools would have to make clear that they were working hard to save their students money overall, rather than just hitting them with another fee. So one school could advertise: "Students at most schools can pay over $2000 in course materials per year. At X School of Law, we'll cover all your course materials for only $500."
The response to educational market change seems to be slow and sticky. But given the ever-increasing cost of casebooks, paired with the new incentives for schools to compete on price, some schools might find some success here if they are willing to be first-movers.
BTW: if you need more evidence about the crazy inflation of casebook prices, check out this line from Ayres's 2005 op-ed: "We're used to paying $25 for a hardcover novel, but my casebook on contracts now sells to students for $103 . . . ." The 2014 price is here.
Sunday, February 16, 2014
Nope, Mormons aren't successful because of their legacy of nineteenth-century wealth
Unless you live in a remote cabin without an internet connection you’ve heard that Amy Chua and Jeb Rubenfeld have authored a book, The Triple Package, that purports to explain the economic success of certain ethnic and religious groups – Cubans, Nigerians, Mormons, Jews, some Asian groups, south Asian Indians, and Iranians – in terms of a particular constellation of culturally ingrained outlooks that lead to successful striving. By and large respectable liberal opinion is outraged. The consensus is that Chua and Rubenfeld’s argument is silly and probably racist in some way.
I have no particular sympathy for The Triple Package. I haven’t read the book, but from what I’ve seen it strikes me as a pop-psychology gimmick rather than a serious social explanation. I am sympathetic to the idea that culture matters when it comes to economic outcomes, but I find it’s often invoked as a kind of deus ex machina. I have much stronger sympathies with thinkers like Douglas North, who give explanatory pride of place to institutions. So, I’ve no brief for Chua and Rubenfeld, even though my knees don’t jerk in synch with respectable liberal opinion.
I am, however, both a practicing Latter-day Saint and a student (of sorts) of Mormon history. Hence, what has been most interesting to me about The Triple Package has been the way that Mormonism has played out in the argument over the book’s thesis. Enter Daria Roithmayr. In a hostile review on Slate, she argues that the true explanation for differing economic outcomes across groups lies largely in their initial endowment of wealth, although she is willing to admit room for other factors at the margins. On the Mormons, she writes:
It’s not just that Mormons have developed a “pioneer spirit” or that they believe that they can receive divine revelations, as Triple Package would have us believe. It’s more that the first Mormons started with enough money to buy a great deal of land in Missouri and Illinois. They then migrated to Utah, where Brigham Young and his followers essentially stole land from the Shoshone and Ute tribes, refusing to pay what the tribes demanded, and petitioning for the government to remove them. Beyond thousands of acres of free land, early political control over Utah was helpful.
Hence, Mormon success, such as it is, is due mainly, according to Roithmayr, to the Mormons’ initial endowment of wealth. The problem with this claim is that it is wrong. Roithmayr’s review is not primarily about Mormons, of course, and within a 1600-word article historical nuance goes out the window. The problem with Roithmayr’s claim, however, is not that it lacks nuance. It’s that it is flat wrong.
Roithmayer invokes nineteenth-century Mormon history, which can be divided into two periods. From 1830 to 1847, the Mormons were centered in the eastern United States, first in New York, then Ohio, Missouri, and Illinois. The second period spans 1847-1890, when the Mormons moved en mass to the Great Basin, settled Utah and the surrounding territories, and fought a long battle with the federal government over polygamy that they eventually lost. So during these periods did the Mormons benefit from huge windfalls of wealth that set future Latter-day Saints on the road to economic success?
The early coverts to Mormonism tended to be very poor. Joseph Smith, the religion’s founder, came from an impoverished family of New Englanders trying desperately and ultimately unsuccessfully to make it in upstate New York. Their creditors got the family farm, to which they never had clear title. Most converts came from similar backgrounds. In Missouri the Mormons tried to create their own settlements by squatting on federal land, improving it, and then hoping to purchase it from the federal government when Congress passed one of its periodic pre-emption statutes. (Prior to the Homestead Act of 1862 the federal government demanded payment from those who wished to get title to government land.) When it became apparent that Congress was going to pass a pre-emption statute, non-Mormon elites in Missouri organized mob violence against the Mormons, who were driven from the state. Their improved land ended up in the hands of the leaders of the mob who in due course bought the land from the federal government.
In Illinois, the foundation for Mormon settlement was laid by a large purchase of land from a land speculator. This purchase was financed on credit by non-Mormon investors on the east coast that were betting (unsuccessfully as it turned out) on the long-term success of Mormons in Illinois. The initial speculator, however, did not have good title to much of the land that he “sold,” the Mormons were unable to repay the accrued debt, and Joseph Smith and the church were driven into bankruptcy. To be sure, some Mormons in outlying settlements were able to acquire property independently, but Mormon settlment in Illinois ultimately floated on sea of debt rather than resting on a foundation of wealth. In 1844, a non-Mormon mob murdered Joseph Smith, and thereafter violence against the Mormons increased. Eventually the bulk of the Mormons abandoned Illinois, in most cases selling what property they had in fire sales to finance the purchase of a few wagons. The failure of the Illinois period to produce a pool of Mormon wealth was exacerbated by the fact that after Smith’s murder the Mormon church splintered. Many Mormons remained in Illinois, ultimately leaving Mormonism altogether or founding various splinter sects, the largest of which is now called the Community of Christ. The Mormons that followed Brigham Young west were disproportionately English converts from the slums of Birmingham and were likely to be among the poorest Latter-day Saints.
But what about Utah? Didn’t the Mormons get all this wealth out there?
It is true that the Mormons, like all white American settlers, benefited at the expense of Native Americans. However, the land that they acquired in the Great Basin was extremely marginal. It’s a very arid region that is difficult to farm. Indeed, the Mormons were only able to farm it because their intensely cooperative approach to settlement allowed them to create extensive irrigation networks and provided risk pooling in a marginal setting. Even so, the early settlement of Utah was marked by extreme poverty on the part of the Mormons (something frequently remarked upon by non-Mormon visitors) and periodic brushes with starvation. If the value of land acquired in 1850 by one’s ancestors was a primary determinant of economic performance today the descendants of Mormon pioneers should be impoverished relative to those descended from settlers in Iowa or Kansas.
What about Mormon political power in Utah? Didn’t that translate into wealth in the nineteenth century?
Mormons tried to use their dominance of Utah territory to create a utopian religious commonwealth that they called Deseret or Zion. In the early stages of settlement this intense cooperative ethos benefited Mormons greatly. It allowed them to settle very marginal land and fend off starvation. However, for much the period it probably operated as an impediment to economic growth. The central goal of Brigham Young and his successors was economic self-sufficiency. As is generally the case, however, the push for autarky probably exacerbated poverty rather than alleviating it. The Mormons poured tremendous effort into ultimately doomed projects like growing cotton in the red-rock country of Southern Utah, introducing silk culture along the Wasatch Front, and trying to compete with the furniture manufacturing centers in the East after the coming of the railroad. To support these efforts, the church tried to cartelize the Mormon economy and pushed for boycotts of “Gentile” businesses. These efforts, coupled with polygamy, created chronic political and legal conflict in Utah, which tended to suppress investment and development.
In fairness to Roithmayr, I have spent nearly as many words in this blog post responding to a paragraph or two about Mormonism as she spent in her entire review of Chua and Rubenfeld’s book. Still, Mormon history is one of my interests, and I think Roithmayr gets it wrong, not just in terms of the nuances but in terms of the central claims that need to be true to support her argument. I know nothing about the economic history of Nigerian or Cuban immigrants, but to the extent that one wishes to explain current economic outcomes in terms of economic endowments a century or more previous, Mormons are not a good example. On this point, I suspect that Roithmayr’s argument is driven mainly by the assumptions of luck egalitarianism and critical race theory rather than a clear reading of Mormon economic history.
Saturday, February 15, 2014
Can Originalism Fall Back on Precedent?
In my previous post, I suggested that originalism and judicial precedent can work together when deference to precedent is understood as a principle of "constitutional construction." If the Constitution's linguistic meaning isn't clear enough to resolve a dispute, precedent can serve as a second-order preference. And this second-order preference is likely to be particularly attractive to those who give primacy to the stability and impersonality of constitutional law.
Treating precedent as a second-order preference also helps originalism respond to criticisms that the methodology is too indeterminate to be effective. Even if one believes that the analysis of original meaning is frequently inadequate to resolve constitutional disputes, the inquiry invariably will narrow the range of plausible choices, and deference to precedent can take it from there. If a judge who is faced with constitutional uncertainty falls back on precedent, the problem of indeterminacy is much more manageable. Whatever insights arise from the inquiry into original meaning are supplemented by prior judicial pronouncements.
The broader point is that in evaluating originalist theories of interpretation, I think it's necessary to view those theories in full context. Just as one couldn't properly assess the merits of, say, common-law constitutionalism without acknowledging both the role of precedent and the role of moral judgments, one can't fully evaluate originalist theories without asking what happens when the Constitution's original meaning leaves multiple options on the table.
While various commentators have offered elegant defenses of the distinction between constitutional interpretation and constitutional construction, not all originalists are on board. For example, John McGinnis and Michael Rappaport have developed a thoughtful argument that when the Constitution's text and history are unclear, judges should invoke interpretive assumptions that existed at the time of ratification. In other words, judges shouldn't engage in constitutional construction. Instead, they should seek to apply the "original interpretive rules."
The debate over the legitimacy of constitutional construction is a fascinating one, and I don't intend to engage it here. What I'd like to emphasize is that even the anti-construction position leaves room for second-order stare decisis. As Professors McGinnis and Rappaport suggest, and as is developed in the work of scholars such as Caleb Nelson, there appears to have been a founding-era assumption that constitutional indeterminacy could be resolved by the creation of judicial precedents, which would subsequently be entitled to deference. On that reading, second-order stare decisis rises to the level of an original interpretive method. The implication would be that when the Constitution's text and history leave doubt as to the proper resolution of a dispute, it is permissible (at least sometimes) for judges to defer to precedent.
On balance, it seems to me that second-order stare decisis has much to recommend it. Deference to precedent helps to constrain judicial discretion in situations of constitutional uncertainty. It contributes to legal stability and continuity. It works as a principle of constitutional construction, and maybe as an original interpretive method. And it's entirely compatible with retaining a first-order commitment to the Constitution's original meaning.
That last point deserves a bit more explanation. If you are drawn to originalism by an overarching commitment to judicial constraint and the rule of law, there's no problem with adopting a second-order preference for precedent -- which is, after all, a mechanism that's designed to promote those very values. But what if you're drawn to originalism for other reasons? In particular, what if you think fidelity to original meaning is implicit in the notion of popular sovereignty? Such a belief might imply that when the Constitution's original meaning is uncertain, the proper judicial response is to defer to political majorities rather than judicial precedent. Only when the people have spoken through the Constitution, the argument goes, is the invalidation of political action consistent with popular sovereignty.
This is a serious and fair objection to second-order stare decisis as a fallback rule. It strikes me as perfectly plausible that if one seeks to maximize popular sovereignty, one might well conclude that judges should defer to democratic action absent some clear constitutional prohibition. Yet while this argument is plausible, I think it equally legitimate for an originalist to conclude that (a) popular sovereignty requires fidelity to the written Constitution as the people's expression of their sovereign prerogative, but (b) the legal system can maintain a core of popular sovereignty even if judges respond to constitutional uncertainty by deferring to precedent.
Now, some originalists will reject second-order stare decisis because they're more inclined to protect democratic action than doctrinal stability. That's certainly a reasonable position. But it's not the only position that is consistent with the belief that fidelity to the Constitution's original meaning is grounded in popular sovereignty. An originalist, even one who views popular sovereignty as fundamental, may nevertheless accept second-order stare decisis in situations of constitutional uncertainty.
Friday, February 14, 2014
Coleman on the discovery amendments
Civ Pro profs are talking quite a bit about the proposed amendments to the Federal Rules of Civil Procedure, partly because the comment period is closing. At ACSBlog, Brooke Coleman (Seattle) argues against the amendments to the discovery rules. These amendments would lower the presumptive limits on discovery devices and make proportionality part of the initial inquiry into what information is discoverable (it currently is a basis for the producing party to oppose discovery). Brooke argues that these changes are motivated by concerns for out-of-control and disproportionate discovery that, in fact, are unsupported by empirical studies.
Funding Legal Research: Suggestions for Reform
I thought I'd wrap up my series on funding legal scholarship with some suggestions for reform. As I laid out yesterday, the principle behind these reforms is that legal academia should move from school- & salary-based funding to field- and grant-based funding. I don't mean to argue that we should move entirely to a new system, even if such a dramatic change were feasible. Instead, this is a set of new approaches to align the system more appropriately:
- Do not pay profs to produce scholarship if they don't produce scholarship. There's an inherent contradiction: law profs are hired and judged on their scholarship, but post-tenure they will not get fired for failing to write. The solution, I think, is that we can't expect all professors to write post-tenure, but we shouldn't pay them for writing that they are not doing. There are a variety of ways of restructuring salaries to tie scholarship dollars to actual production, some of which I discuss below. Ideally, a school would cut back all salaries to some baseline "competent teaching & service" level, and then build up from there (each year) for superior teaching, committee work, and scholarship. But rather than maintaining the fiction that all law profs produce scholarship, we should acknowledge that not all do and alter compensation accordingly. This change would free up funds to use for some of the reforms discussed below.
- Schools should provide specific pay and/or benefits for scholarly production. Right now, most schools likely tie some portion of yearly salary increases to scholarship. Two problems: these increases are locked in over time, and the amount of merit pay avaliable is often unrelated to the quality of scholarship produced. Moving towards a grant-based system would allow schools to reward specific production, but then not lock it in. If a school is pressed for funds, it could also restructure teaching and/or service packages so that productive scholars have reduced course or service loads to "compensate" for that productivity. But the reduced loads would be year-to-year, rather than offered to all faculty or to a permanently blessed set of faculty.
- Law reviews should pay authors for their works. I've always thought that it's a nice professional touch that law review authors provide their works for free. But I think the incentives would work better throughout the system if the reviews paid at least some small amount to the authors. Under the current system, the prestige is seen as enough -- in fact, I'm sure many profs would pay money to get in certain reviews. But schools should care not only about the production of their own scholars, but also about the quality of articles published in their review. If reviews paid, that would take off some of the pressure for individual schools to pay for placements.
- AALS should create a grant fund for scholarship. Dan Rodriguez and Judith Areen, I'm talking to you! An AALS fund which provided grants to schools and scholars for legal scholarship would provide a number of tangible benefits: it would incentivize scholarship with dollars, rather than just reputation; it would provide peer review at the beginning of the process, as well as connections and publicity for new projects; it would take some of the funding pressure off of individual schools; and it would give a concrete expression to AALS's mission to encourage the production of quality research. For those of you imagining an AALS secretariat with massive power to disburse funds to various schools, I'm thinking of starting small. So maybe start with 10 grants of $20,000 apiece? The grant money would go to the schools to fund a portion the professor's salary as well as any additional research expenses. It's too much to expect that most law profs can run out and be competitive for outside grants. But AALS can encourage this culture by starting a small grant-funding arm that provides seed money, at least, for some set of scholarly projects.
- AALS should advocate for more grant funding from interdisciplinary grant-funders. Individual legal scholars have a tougher road to hoe when applying to the NSF, NIH, or NEH, since they are not part of the traditional disciplines that get funding from these places. If AALS makes grant-funding a priority, it could work to make foundations and government agencies more receptive to law school applications. AALS could also host a grant-funding resource center for law profs looking to understand and utilize grants.
- The ABA should create a grant fund or funds for scholarship. Are legal professors spending too much time on Bulgarian evidentiary questions and not enough on common-law contract quandaries? The ABA could create a funding arm to provide grants for legal scholarship that deals more closely with doctrinal issues. Or ABA sections could each create small grant-funding programs for subject-specific scholarship. This may already be happening at some small level, in the form of awards or conference funding. But grant-funding would recognize a more tangible role for the bar in encouraging the production of legal scholarship.
I know there are solid arguments against many of these proposals. There's the scale issue: these reforms could range from being so small as to be meaningless, to so large as to be frightening in their power. The bigger the funder, the more power that funder would have to play politics or press an ideological or commercial agenda. At the very least, many of these reforms would impose a layer of bureaucracy on already busy folks. Our current model is pretty independent and flexible. I'm just saying we should trade some of that independence for some outside review and accountability.
Law schools will continue to care about the scholarship that their faculty produces and will compete on scholarly reputation. But I think legal academia as a whole has to think about incentivizing scholarship as a whole. And we could all fund legal scholarship more efficiently. I'd be interested in your thoughts about these proposals.
Needed Compromise In The Proposed Discovery Amendment War
The following was written by Suja Thomas (Illinois) on the proposed amendments to the discovery rules of the FRCP, which are a current topic of conversation among civ pro types
The discovery rules are hot. The Advisory Committee of the Civil Rules has proposed several changes to the rules, and lawyers representing plaintiffs and defendants are deeply divided over many of the changes. The changes may be a game changer. Over 700 comments have been submitted, more than twice as ever before, and many law professors have weighed in. Much of the commentary focuses on a proposed amendment to the scope of discovery in Rule 26(b)(1) under which parties can withhold discovery on the basis of lack of proportionality to the needs of a case.
The Advisory Committee is motivated to make change here because discovery is out of whack is some set of cases. However, a study by the Federal Judicial Center shows that discovery is disproportionate in at most 25% of the cases, and more likely, only 6-15% of the cases. A further indication of the extent of the problem is a report of actual discovery costs. Plaintiffs and defendants reported median discovery costs of respectively $15,000 and $20,000 and discovery costs of respectively $280,000 and $300,000 at the 95th percentile (costs equal to or higher than the costs in 95% of the cases). If discovery is working in most cases, a rule change for all cases seems doomed to create problems for already proportional cases. Because of natural lawyer behavior, lawyers vigorously defend their clients, and under the proposed rules, they will aggressively decide not to search or produce discovery on the basis of lack of proportionality even when such discovery would have been otherwise produced or searched in the past. In a recent article in the Wake Forest Law Review, I argued that atypical cases can make bad law, and similarly here, atypical cases can make bad rules where the rules must be applied to typical cases.
At the same time, the problem of disproportionate cases should be fixed. It may be best fixed by a switch away from transubstantivity to address only the cases where discovery is disproportionate, a new rule that could be similar to the Class Action Fairness Act, which provides a different rule for very large cases.
If the proposed change to Rule 26(b)(1) (adapted from Rule 26(b)(2)(C)(iii)) goes forward, there is concern that when a party withholds discovery on the basis of lack of proportionality, the requesting party will possess insufficient information to assess whether to challenge the withholding. In response, the Committee added a requirement borrowed from the interrogatory rule that the nonproducing party must state with specificity the grounds for objecting to a request. However, comparing withholding on the basis of lack of proportionality to objections to interrogatories is not quite the right comparison. Instead, the more appropriate comparison is privilege.
Under the current rule, parties need not produce relevant discovery that is privileged. The proposed rule adds lack of proportionality as the other basis on which to object to the production of relevant discovery. By analogy, then, similar information should be provided for discovery withheld on the basis of lack of proportionality as is provided for discovery withheld on privilege grounds. As much or more information is actually needed when discovery is withheld on the basis of lack of proportionality. Privilege is similar to a recipe. If two lawyers (with the same information about the case) assessed the same discovery, the lawyers would withhold the same discovery as privileged with very few exceptions. Lack of proportionality, on the other hand, is far from a recipe. If two lawyers assessed discovery for lack of proportionality, they likely will not produce or not search different discovery. In other words, proportionality is a much more vague concept than privilege. Add to this, a requesting party will rarely challenge privilege because of the recipe nature of privilege. However, because of the vague notion of proportionality, the requesting party will likely challenge assertions of lack of proportionality.
Rule 26(b)(5) requires particular information must be provided—what is often referred to as a privilege log—when relevant discovery is not produced on the basis of privilege. Similarly, in the analogous context where relevant discovery is not produced or searched on the basis of lack of proportionality, parties will need information to decide whether to challenge assertions of lack of proportionality. A proportionality log would provide such information. The type of information that would be provided on such a proportionality log includes where the party has not searched and why such searches would not be proportional to the needs of the case. While there would be some cost associated with such a log, this log would strike the right balance to permit the requesting party to assess the assertion of lack of proportionality, have discussions with the nonproducing party, and prevent unnecessary involvement of the court. If the amendments are going forward, it is time for a compromise.
Thursday, February 13, 2014
Judgment Calls and Reputation, Part Two: Trial Judges
My post last week explained how figure skating judges can be influenced by the reputations of the skaters before them. Trial judges are often just as aware of the reputations of those before them in the courtroom. Indeed, as Judge Marvin Aspen once told a group of litigators, “just like you [lawyers] tell war stories about [a] judge, we judges do the same thing. When a lawyer is involved in outrageous or unprofessional conduct before me, when I’m sitting around having lunch with my colleagues, we talk about it.”
So should we be concerned that the reputation of attorneys influences judicial decision making? Maybe.
Imagine that Attorney X has the reputation in the judicial lunchroom as an amiable and competent lawyer. Could that reputation alone help him in future cases? Certainly no judge worth her salt would openly decide a substantive matter based on her beliefs that the attorney was a nice guy, or even a skilled practitioner. But those impressions can still influence the judge’s general thinking. A judge may give a small, unconscious nod to the legal position of an attorney who is believed to be hard-working, well-prepared and likeable. Moreover, an attorney’s good reputation may influence a judge's perception of his client: at least one study (again, unfortunately, behind a subscription wall) found that initial impressions of people are colored by impressions of those with whom they are associated, suggesting that a judge may view a litigant with a likeable attorney in slightly better terms than one without.
So a good reputation for an attorney can’t hurt, and might help. But reputational success also presents an interesting twist: an attorney with a sterling reputation might actually want to avoid extended interaction with the judge, because even one slip-up could tarnish his image. Judgments about other people’s agreeableness and emotional stability in particular are said to have high maintenance rates – meaning that even one negative encounter can sully an otherwise positive impression. The likeable attorney who is in a bad mood in court one day will no longer be seen as so likeable, both by the judge before whom he appears and by anyone else whom the judge talks to about the incident.
Unfortunately for lawyers with bad reputations, changing one's reputation in the other direction doesn't come as easily. A lawyer who is seen as an incompetent jerk will need to prove his likeability and competence over and over again before his reputation is positively affected. In the meantime, his existing reputation at least slightly increases the risk that judges will view him and his clients unfavorably.
There are lessons in this general psychology for all users of the court system. For lawyers – especially new lawyers – the old maxim that first impressions matter has more than a kernel of truth. A lawyer who comes across from the outset as earnest, prepared, and respectful will have an easier time interacting with the court in future cases. For clients, a lawyer’s ethical and professional reputation can also matter to the outcome, at least on the margins. And for judges, who already spend considerable time trying to separate their personal impressions of witnesses, civil litigants, and criminal defendants from the factual testimony they present, yet another conscious effort at separation is needed – this time dividing the substantive merits of an issue from the personal characteristics of the presenting attorneys.
Funding Legal Scholarship: Moving from School & Salary Funding to Field & Grant Funding
The first post in this series on funding legal scholarship discussed the basic law school model: individual law schools fund scholarship. And to a large extent, law schools fund only their own faculty's scholarship. Yes, law schools do fund law reviews, which generally publish the work of outside scholars. But schools pay their own faculty's salaries, provide special financial incentives for research, and pay for research assistants and research travel. A professor's research is largely funded by her own institution.
A strength of this model is that it encourages schools to compete against each other based on academic reputation. Although the most prominent ranking system (USNWR) is not directly correlated with research productivity, school reputation is a strong factor, and all of the top-ranked schools enjoy strong scholarly profiles. Schools regularly compete against each other in the entry-level and lateral markets to nab the best scholars for their faculties. Critics of this system have to contend with the success of the elite schools, which place their graduates extremely well and are largely left out of the "scamlaw" discussions. In a world that rewards the school's graduates for the reputation of its faculty, it make sense for individual schools to use some portion of their funds to get the best scholars.However, the school-funded system also has significant weaknesses. Paying for scholarly productivity through salary is a messy mechanism. When profs can't get fired for a lack of scholarly productivity post-tenure, scholarship essentially becomes optional. And many (most?) schools do not have the significant disparities between faculty salaries that could tangibly reward significant distinctions in production. Moreover, if salaries cannot go down, then merit raises get locked in, and a professor is paid for past productivity long into the future.
Perhaps more problematically, school funding encourages an insularity to legal scholarship. The professor need really only please the dean in order to get the salary and other research funding that the school makes available. Even assuming that the dean looks to outside markers such as placements and citation counts, a professor need not engage with her colleagues at the beginning of a project. The stereotypical law scholar sits amid books and Westlaw, working in solitary seclusion on a piece. Workshops, the star footnote, SSRN, and even blogs all encourage a scholarly conversation. But collaboration or peer input is not built as concretely into the beginning part of the process as it is in other disciplines.
Morever, the inward focus can make professors look selfish when they are working or getting paid for scholarship. Since individual law profs control much of their own scholarly agenda, scholarship takes on an individualistic quality. Add in the fact that some kinds of scholarship (under the sales model) provide payments directly to the professor, and you can get the notion that a law school is just a bunch of independent contractors working under one roof. The professoriate has insulated itself -- perhaps to better protect against outside influences, but at a significant cost. That may be part of the reason why you get articles like this and Chief Justice comments like that.
Just to be clear, I am not talking here about making legal scholarship more relevant to the bar. I am talking about making law professors more accountable for writing good scholarship by changing the funding mechanisms for producing such scholarship. Right now, we often simply give profs money and hope they produce something. But if we changed our models, we might get better scholarship (using whatever metric you like) for less money.
My overall suggestion is to shift away from an individual-school, salary-based funding model to a field- and grant-funding model. The grant-funding model uses third parties (of some kind) to judge the value of a particular project, and these parties then offer funding for that project on an incremental basis. Such a system has the following advantages over the school-funded, salary-based system:
- It takes at least some of the funding responsibility off of individual schools, thereby making that school's students shoulder less of the expense.
- It provides for more accountability for scholarly output over time.
- It provides some form of peer review and peer connection for projects at the beginning stages, rather than simply at the end.
- It can be structured to encourage collaboration and interdisciplinarity.
The identity of these third-party funders is critical. I'm not talking primarily about NSF or NIH -- although increasing those grants would be helpful. I'm primarily talking about the field of law -- law schools, AALS, the ABA, and other institutional players -- creating mechanisms that specifically fund legal scholsrship. If the field believes that legal scholarship is important, than the field should create mechanisms for funding legal scholarship beyond the individual school model.
Tomorrow I'll address particular ideas for funding reforms. In the meantime, I'd be interested in your thoughts on the overall approach.
Fan speech, once again
I suppose I should wade back into the renewed interest in fan speech at sporting events, given two recent events at college basketball games: 1) Last week, Marcus Smart, a star player for Oklahoma State, was suspended for three games for shoving an adult fan at a game against Texas Tech, in response to something that the fan, a prominent heckler at games, yelled at him (the fan, Jeff Orr, apologized for his role and voluntarily agreed not to attend any more games this season); 2) Last night, an adult fan was ejected from a game at the University of Memphis, apparently at the request of the referee.
I do not know all the details, so I am not necessarily opining on either situation. But both have people thinking about fan speech, so I would weigh in with what I think are the general principles at work (And I know very well that I am not on the side of the angels in this).
1) At a game involving a public university (as both Texas Tech and Memphis are), the First Amendment is in play. Any efforts to punish fans for their speech is subject to First Amendment limits. This applies, I would argue, even in a privately owned arena that a government entity (such as a public university) is using for its official governmental functions.
2) The stands of a publcily owned/controlled basketball arena are a designated public forum for "cheering speech," which is a broad category consisting of just about everything will say (and shout) during a sporting event that is not inconsistent with that event. This includes taunts, insults, profanity, and even some racist and sexist comments against players, coaches, and refs, as well as all manner of social and political speech.
3) As a public forum, content-based regulations (as on a particular type of cheering) are subject to strict scrutiny, while content-neutral regulations (no signs) are subject to intermediate scrutiny. There also could be reasonable viewpoint-neutral restrictions on non-cheering speech, but the category of cheering speech is so broad, I don't know what that would reach.
4) Fans can be punished for the rare speech that crosses the line into fighting words, which has been narrowed to reach only up-close, targeted, face-to-face taunts. It is possible that Jeff Orr crossed that line, since the incident occurred in very close range--Smart had fallen out of bounds right below where Orr was sitting. And Smart says he heard Orr use a racial epithet, although Orr says he just called Smart a "piece of crap." I do not know if this was a close enough encounter to fall outside the First Amendment, regardless of what was said.
5) Labeling what Orr did "fighting words" does not justify what Smart did. Contrary to what some apparently have said on ESPN, one person using fighting words does not mean the listener has license to fight. It simply means that the speaker can be sanctioned.
6) I legitimately cannot imagine what the fan at the Memphis game said last night that would have gotten him ejected and still be consistent with the First Amendment. Everyone at a basketball game is yelling and screaming and that is accepted as part of the game. So the ejection must have been based on the content of his particular screaming--a content-based enforcement that the First Amendment does not permit.
Wednesday, February 12, 2014
Triple Package Doesn't Make the Grade
So I have just published a review of Triple Package (by Amy Chua and Jed Rubenfeld) for Slate here. Below I've posted a shorter and sweeter version of the review, for an audience who likely knows a bit more about Amy Chua and Jed Rubenfeld, given that they're both faculty at Yale Law School.
A few years ago, Chua authored The Battle Hymn of the Tiger Mother, a memoir in which she extolled the virtues of harsh disciplinary “Chinese” parenting. She's now become something of a brand, a polarizing figure loved or hated because of her views on the link between culture and success. Rubenfeld (Amy's husband and Yale Law School colleague) is a provocateur in his own right, having authored his controversial article on rape. But this book’s most distinctive feature is what has become Chua’s stock in trade: the claim that group cultures explain why those groups are winners.
Most folks in the academic community have dismissed this book with much eye-rolling, even as Amy and Jed are laughing all the way to the bank. To be fair, Triple Package is a trade book for a trade press, written in a lively style accessible to Chua’s earlier readers. Still, the authors push their academic bona fides on the talk-show circuit, and conservative media is touting the book as scholarly proof that culture explains persistent racial gaps in achievement. For those reasons, it seems important to treat the book as a serious argument and subject it to scrutiny.
Here is the book’s thesis: Some groups (Cubans, Nigerians, Mormons, Jews, some Asian groups, south Asian Indians, and Iranians) enjoy upward mobility in the US at higher rates because they possess the so-called triple package of cultural traits: impulse control, feelings of superiority and feelings of inferiority. By impulse control, Amy and Jed mean the ability to resist the temptation (to quit when the going gets rough, for example); superiority and inferiority appear to be a simultaneous belief in your group’s specialness (e.g., God’s chosen people) and deep-seated anxiety about inadequacy (for example, the kind that a Chinese mother might instill in her daughter by calling her garbage.)
The book makes a point of drawing comparisons between groups who are economically successful and those who aren’t. Being Latino is no impediment, the book argues, if Cubans can make it. Nor is being black, if Nigerians can do well (though in recent appearances, the authors downplay these comparisons.)
The big problem with the authors' thesis is that they ignore the more obvious explanation for differences in group success: history. In their zeal to make it all about culture, the authors either ignore or strongly discount the historical circumstances of a group’s first arrival, and the advantages enjoyed by that first wave. (I find their decision to minimize history a bit strange, given that many of their own sources favor this explanation.) Here are some of the early-wave stories that the authors ignored or minimized:
- Mormons started with enough money to buy a great deal of land in Missouri and Illinois. They then migrated to Utah, where Brigham Young and his followers essentially stole land from the Shoshone and Ute tribes, refusing to pay what the tribes demanded and petitioning for their removal. In addition to all that "free" land, control of territorial Utah government didn't hurt.
- The very first wave of Cubans--exclusively white and wealthy or upper middle-class—came in anticipation of Castro's revolution. They didn't come with $5 in their pocket to become vegetable pickers, as Triple Package suggests. They came bringing their art collections, portfolios and social connections with them. A $957 million resettlement program supplied by the US government was helpful for other first-wavers who came just after the revolution.
- Nigerians coming to the US do well in higher education because a great many of them are non-immigrant foreign students coming in expressly to enroll in institutions of higher education. They frequently get advanced degrees because their foreign student visas require that they be in school.
First-wave advantage is significant. As I have argued elsewhere, wealth and education for early waves generate significant advantage for group members and their children. Social networks among the elite and well educated help to distribute social assistance, job referrals, financial opportunities, information, and other kinds of goodies not available to people outside the group.
Triple Package's argument about culture really falls apart when we focus on the later-coming waves, who came with far less wealth. If group culture is the right explanation, then the later waves should look very much like the first waves at the same stage of development. But if history and structure are the right explanation, then their trajectories will look different. And that's precisely what we see.
- A third wave of poor undocumented Chinese immigrants has come to the US since the 1980s, and this wave has not folded into existing communities. This group’s trajectory looks nothing like the earlier waves, and their children are not getting into Stuyvesant High.
- The third wave of Cubans, the Marielitos who were disproportionately poor and black, assimilated into Cuban communities but remained on the fringes economically, earning far less than their white counterparts.
- The most recent Mormon converts are black (the church didn't accept black men as priests until 1978) and brown, haling from the US and various Latin American and African countries. This group's drop-out rate is high, and its metrics for success look nothing like the white Mormons on which the book focuses. (It's worth noting that according to the book's own source, the metrics for white Mormons are not particularly remarkable--they not any more likely to graduate college and are no more likely to earn over $100,000).
Acknowledging the fate of these later waves, Chua and Rubenfeld must now start slicing and dicing the groups into smaller categories. So now the culture argument explains just a restricted range of south Asians; white Cubans who came after the revolution, but not the black Cubans who came later; post-1950 white Mormons, but not the black or brown group members. At this point, the claim looks less like an argument about group culture and more a claim about cherry-picked sub-sub groups or even individuals at the right time period with the right traits.
Plus there's that pesky issue of race, which appears to divide those who make it from those who don't.
Serious sociologists (Harvard's William Julius Wilson, Yale's Elijah Anderson) think that culture plays a role in success but that structure and history play a much bigger role. To oversimplify the sociology view, history and structure drive the bus, and culture is one of several passengers. But Triple Package isn’t serious scholarship. As a provocative claim that plays to the Tiger Mother crowd, the book's narrative works. But as a substantive claim about persistent group differences, Triple Package just doesn’t make the grade.
Funding Legal Scholarship: The Sales Model
Under the traditional law school model, the individual schools fund legal research; under the grant-funding model, third-party non-profits and government agencies supply a big chunk of the resources. There's a third model that exists in law schools today, and that is the sales model. Under this model, scholars act as individual entrepreneurs selling their research to publishers for personal payment. Much of the action between profs and publishers is in teaching materials, which I do not count under the research rubric. However, I do count academic books and doctrinal treatises as research, and professors sell their IP interests in these works to publishers in exchange for advances and/or royalties.
These contracts are generally private, and I'd love to hear any additional information on this, but my understanding is that purely academic books do not offer much remuneration. In fact, the business model for academic presses has suffered a series of blows over the last twenty years. As a recent AAUP report states:
[T]he simple product-sales models of the twentieth century, devised when information was scarce and expensive, are clearly inappropriate for the twenty-first-century scholarly ecosystem. As the report details, new forms of openness, fees, subscriptions, products, and services are being combined to try to build sustainable business models to fund innovative digital scholarly publishing in diverse arenas.
So even though a law professor might "sell" her book to an academic press, the relatively low return to the prof means that that book has been funded, in large part, by the professor and/or the law school itself. However, treatises offer more remuneration, at least as a general matter. One advantage of doctrinal publications is the broader audience, which includes not only libraries and fellow academics, but also students and practitioners. Some treatises, like Bob Clark's Corporate Law, are notable for their longevity; other treatises prosper because of their breadth and their continual updates which keep the readers current. I know of no treatise-writer who does not have a regular "gig" as professor or practitioner, but the money incentivizing the production of treatises is more substantial. And it flows directly to the author, rather than the author's institution like a grant. The author may also build on the expertise signified by the treatise to land paid consulting opportunities or "of counsel" status at a law firm.
A big benefit of the sales model, like the grant-funding model, is that third parties provide funding and support for the research. But the sales model is more business-oriented; rather than spending their funds for the public good, publishers buy materials that (they believe) will make the most money. And professors get the money directly, rather than funnelled through their home institution. To that extent, it is more responsive to demand in a traditional capitilistic way, which may be good or bad depending on your outlook. The sales model of research is likely limited by the limited market for doctrinal, generalized legal research itself. But at least some percentage of the research going on out there will find funding from publishers who are willing to bet on a market for the material.
One question I have for our readers: why don't law schools use the "work-for-hire" doctrine on these publications? Not enough money at stake? Or do faculty contracts explicitly reserve copyright to faculty? If so, why do schools give this up?
Prof. Alan Brownstein on this Term's church-state cases
Those of us in the First Amendment area know well that Prof. Alan Brownstein (UC-Davis) is among the most thoughtful and insightful -- as well as the most decent and charitable -- scholars now working. He shared with me the following reflection on religious freedom and the different reactions to the church-state cases before the Court this year. As they say, "read the whole thing":
I have been working in the church-state area for 25 years but I don’t think I have ever felt quite as out of synch with my colleagues in the academy as I do this year. Two important church-state cases will be decided by the Supreme Court this term: the Town of Greece case dealing with the offering of state-sponsored prayers before town board meetings and the Hobby Lobby case involving a RFRA challenge to the Affordable Care Act’s contraceptive mandates.
I don’t suggest that either dispute is particularly easy to resolve. But I do think that both cases raise serious religious liberty issues. As a matter of law and a recognition of social reality, I think the plaintiffs in both cases raise serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, I think there are important parallels between the two cases. In particular, some of the arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case.
Apparently, very few church-state scholars and commentators, including many of my colleagues that I greatly admire and respect, share my perspective. Instead, commentary seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to what I am about to write), most liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs’ claims in Hobby Lobby and related cases. Conversely, most conservative commentators see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs’ claims in Town of Greece. Of course, there may be a good reason why I am odd man out. Maybe I’m just plain wrong to see parallels between these two cases. But I worry that political and cultural polarization is making it harder for all of us to see and appreciate the legitimate concerns of claimants who from one perspective or the other are on the wrong side of the culture war dividing line. And I think the protection of religious liberty is undermined if we only choose to protect it when nothing that we value personally is at stake.
Again, generally speaking, liberals especially value gender equity and see universal access to medical contraceptives as an important public health and woman’s rights concern. For liberals, protecting religious liberty in a situation which even risks the burdening or sacrifice of these interests is hard to do. Conservatives value government sponsored religious activities such as state sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as particularly costly. Put simply, if we expect other people to bear what they experience as real and significant costs to protect religious liberty, we have to be prepared to demonstrate that we are willing to accept costs to interests that we value as well. But In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little if any weight to the religious liberty interests of the Town of Greece claimants.
Let me give some specific examples. In vernacular terms, both liberals and conservatives raise an incredulous, “What can they possibly be complaining about” question in one case or the other. In Hobby Lobby, the suggestion seems to be that in the context of the case, there is no reason to think that the plaintiffs’ rights are abridged. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement decisions. Being in commerce and employing hundreds or thousands of people means that a lot is going to happen in your business that other people control. That the way the world is and how it has to be. In Town of Greece, the argument is that town board meetings necessarily involve exposure to a lot of expression from both board members and the public. If you attend the meeting, you will have to sit through a lot of speech that you find objectionable. That’s the way the system works. Learn to live with it.
I think the answer here to the “What can they possibly be complaining about” question in both cases is simply that religion is different. A commitment to religious liberty means that burdens relating to religion are evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct the owner or manager’s religion prohibits requires a different analysis than other regulatory burdens receive. Having to sit through a state sponsored prayer is different than having to sit through a discussion of the municipal budget. What is key here is that if religious liberty claims deserve attention in one of these contexts, regardless of the way things generally work, religious liberty claims deserve respect in both contexts.
Or consider more focused and sophisticated arguments. Some liberal commentators argue that the burden on religious liberty in cases like Hobby Lobby is too indeterminate to justify requiring the government to take any steps that might alleviate it. For example, an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may decline to continue to offer a health insurance plan to its employees. The employer will have to pay a penalty for doing so but that payment will probably be far less than the savings it incurs by ending employee health care benefits. True, there may be other costs associated with discontinuing employee health insurance coverage. But it is unclear whether and in what circumstances those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty.
It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have negative consequences on worker morale and the retention of employees. Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. I would characterize this argument as questioning whether a risk of adverse consequences constitutes a cognizable burden on religious liberty. The employer does not know what will happen if it protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer’s worry can hardly be characterized as mere speculation.
I think the claimants in Town of Greece identify very similar risk based burdens on their religious liberty in their coercion arguments. They worry that the town board members they will be petitioning for support or assistance will be alienated by the claimants’ refusal to stand, bow their heads, or otherwise participate in state sponsored prayers at the beginning of the board meeting. Of course, no one knows whether board members will be alienated or whether they will allow their feelings about claimants not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are there.
I think significant risk of adverse consequences, that is, reasonable grounds for worrying about adverse consequences, should be understood to burden protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on religious liberty deserve recognition and justify steps to alleviate them. In Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on religious liberty should be recognized and steps taken to alleviate them. I think the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases.
Another criticism of plaintiffs’ claims focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior or that support for such behavior may be attributed to them. These concerns transcend material support and emphasize the expressive dimension of being associated with unacceptable conduct. I think these concerns are captured in the Catholic idea of “scandal.” Liberals dismiss claims based on complicity as being too attenuated. Concerns about misperception are also deemed insignificant since they can be so easily remedied by the religious nonprofit publicly proclaiming its opposition to the conduct at issue.
A similar problem with misperception, indeed I suggest an arguably more powerful example of it, arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what I call a “we” prayer rather than an “I” prayer. The member of the clergy offering the prayer purported to be speaking to G-d in the name of the audience and the community. Sitting silently by, much less standing or bowing one’s head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. I consider this to be as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in my judgment, if either misperception argument deserves to be taken seriously, the misperception arguments in both cases deserve to be taken seriously.
Here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases but seem unconcerned about the claimants in Town of Greece. In the contraceptive mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government’s requirements. In Town of Greece, however, by publicly disassociating oneself from the offered prayers at the town board meeting, dissenters expose themselves to the risk of closed ears to their petitions and adverse decisions on matters before the board. The risk of adverse consequences is increased by their attempts to avoid misperception and misattribution.
I know, of course, that Town of Greece is a constitutional law case and the contraceptive mandate litigation primarily involves statutes and public policy. Thus, one might plausibly argue that town board prayers are constitutional, while also insisting that as a public policy matter they are a bad idea or at least have to be carefully structured in ways to minimize their coercive impact. I don’t see conservatives making this argument, however. They seem to ignore the burden on religious liberty both for constitutional and policy purposes.
I think there are other arguments to support my suggestion that people who take religious liberty seriously should be respectful of plaintiffs’ claims in both Town of Greece and Hobby Lobby (and related contraceptive mandate cases). But this blog post is long enough.
My key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case. But it does reflect a willingness to take such claims seriously even when we are uncomfortable in doing so.
Tuesday, February 11, 2014
Funding Legal Scholarship: The Grant-Funding Model
Under the traditional law school model, scholarship is an expense that the school shoulders as part of its mission. In many academic disciplines, however, research is a revenue generator. The primary way in which schools generate income from their research is through grant funding: a third party will agree to pay the school a certain amount of money in exchange for the production of a specified research project or agenda. So instead of the school paying for the research, the grant-funder pays the school to pay the professor for the research.
In those disciplines where grant-funding is substantial, it is common to refer to the school's or division's research portfolio by a dollar amount, signifying the amount of grant-funding in play at any given time. And no wonder -- the funding can be quite substantial. For example, this 2011 report on UT-Austin found that the faculty generated $161 million in tuition revenue and $397 million in external research funding. The report came in response to an earlier effort to quantify UT faculty productivity based primarily on two metrics: number of student hours taught and amount of grant funding brought in. As one might imagine, law faculty who taught small courses and were traditional yet productive legal scholars did particularly poorly on these metrics.The grant-funding model differs from the traditional legal scholarship model in several key respects. First, and most obviously, grant-funding is usually supplied by a non-profit or governmental agency that operates outside of the school. The NIH provides over $30 billion annually in medical research funding to over 300,000 researchers at more than 2,500 research institutions. (These numbers alone make one realize how relatively small the whole law school universe is.) A myriad of other grant funders exist, reaching out to a variety of different disciplines. But I think it's fair to say that there is no non-profit or governmental grant-funder that focuses primarily on legal research.
Grant-funding is not just different in terms of who provides the money; it's also different in how the money is provided. Here are a few of the salient differences between grant-funding and the traditional law school model:
- Grant funders provide money not as salary to a particular person, but as an allocation for a particular project. Of course, part of any grant includes salary or salary reimbursement, but the grant is directed toward a project, not a person.
- Grants are generally awarded through a peer-review process, in which the researchers and the project are scrutinized to determine if the research is deserving of the award.
- Grants are limited in time, and may or may not offer an opportunity to renew.
- Universities generally take a big chunk of the grant as overhead, and may or may not have restrictions on how this overhead is allocated.
- Although grants do not generally have financial penalities for failure to produce the research, they may be structured to require deliverables. Some funders use contracts or "cooperative research agreements" to maintain even more control over the research and the disbursement of funds.
How does grant-funding affect the salaries of researchers? It's hard to say as a general matter, but in those fields with significant grant-funding, researchers are expected to get grant funding. Faculty may even be expected to get almost their entire salary covered through grants. Tenure generally protects tenured researchers from being terminated for failing to obtain grants. However, grant success is a factor for tenure in many fields, and failure to get grants post-tenure may have a significant impact on salary. Grant-funding may also affect how much money a particular school is allocated from the university.
If legal education went to a grant-funding research model, faculty would be expected to look outside the school to find funding for their research. Funding would be based on projects, rather than people (at least nominally), and would pay for the professor's time spent on the scholarship as well as associated expenses. Funds would likely be disbursed based on a peer-review system, combined with whatever policy angle or political interest the funder brought to the project. However, even in the absence of third-party grant-funders, a school could also adopt a grant-funding model to deploy its own research funds. In fact, some schools use such a model for funding such as summer research grants.
My assumption is that grant-funding in legal academia is is relatively small but growing. As the academy becomes more interdisciplinary, it will be easier for professors to hop onto projects with other researchers in grant-funding fields. It may also be the case that foundations and government agencies are looking for more legally-related projects to fund. However, federal government funding is definitely getting squeezed, making overall grant-funding dollars scarcer. So it seems unlikley that significant grant-funding sources for legal research will soon spring up on their own.
I think legal education could use aspects of the grant-funding system to provide more incentives and support for legal research. These reforms will be discussed more on Thursday and Friday. In the meantime, I'd be interested in hearing if I've characterized the grant-funding system properly, and if I've missed any of the basic policy effects of that system.
Should Law Schools Fire Professors Who Do Not Write Post-Tenure?
My general understanding of the law school scene is that law schools hire people to produce legal scholarship, give tenure to folks who produce legal scholarship, gives raises (of varying degrees) for producing legal scholarship, but never fire post-tenure for failing to produce legal scholarship. And that this is true from the schools with the highest scholarly reputations on down. But Brian Tamanaha has challenged my thinking, in a comment to a post yesterday:
Tenured law professors have three core duties (as stated in bylaws and in ABA and AALS regs): scholarship, teaching, and service. We are paid to do all three. You are suggesting that we only have the latter two duties because schools don't fire professors who fail to write.
Holmes recognized the difference between a right or obligation and the chance someone will bring legal action to enforce it. You are using the low probability of the latter to claim that professors do not have an obligation to write--and therefore are not paid to write. Anything we do outside of teaching and service, by your reasoning, is just compensated "free time." This does not follow.
To see why, imagine what would happen if a law school threatened to fire "for cause" a tenured law professor who has not written in the last 5 to 10 years. You are right that this has seldom occurred in the past, but do not assume it is non-existent (rather than quietly settled to avoid embarrassment). And it is certainly possible in the future given current financial pressures. A law school in this situation would have a very strong case for legal termination. That is why your position is wrong.
Just to be clear (and not go through the entire thread) -- I actually agree with Brian that law profs have an obligation to produce scholarship. But is that obligation legally enforceable? Has any prof been fired for failing to write post-tenure? Or has any professor been pushed out the door *solely* for failing to write post-tenure? So -- good teacher, good institutional citizen, no scholarship, and threatened with termination? My sense is that this just doesn't happen. Am I wrong about this? And if not, why do we not see more of the enforcement that Brian suggests?
Precedent and Constitutional Construction
Last week I wrote a short post arguing that originalism is compatible with judicial precedent. That issue continues to be salient, in part due to a recent column by Cass Sunstein. Others have discussed Professor Sunstein's arguments, but I'd like to say a little more about how the relationship between originalism and precedent can work. I'll start by explaining the role of deference to precedent as a principle of "constitutional construction." In a follow-up post, I'll talk about the status of precedent for versions of originalism that reject the concept of constitutional construction.
Some originalists emphasize the difference between interpretation and construction. On that account, constitutional adjudication begins at the interpretation stage, which deals with the discernment of the Constitution's linguistic meaning. Yet for a variety of reasons -- including the lack of persuasive historical evidence on some matters and the Constitution's use of certain terms that are pretty vague -- interpretation will not always resolve a given constitutional dispute. In those situations, constitutional text and founding-era understandings will take some options off the table, but they will not yield a single result. Selecting among the remaining alternatives requires judges to engage in constitutional construction. In other words, the "construction zone" (as Larry Solum has aptly called it) begins where the Constitution's linguistic meaning leaves off.
Scholars such as Randy Barnett, Keith Whittington, and Jack Balkin have offered thoughtful proposals for how judges should handle the enterprise of constitutional construction. For example (and to oversimplify greatly), maybe judges who are operating in the construction zone should protect individual liberty, or defer to political majorities, or advance contemporary cultural and political values. I think another possibility is worth seriously considering: Maybe judges should respond to a lack of determinate original meaning by deferring (strongly) to judicial precedent. We might think of this as the "precedent principle" of constitutional construction.
The precedent principle reflects the belief that fidelity to precedent can generate significant benefits in terms of stability, predictability, constraint, and the impersonal operation of law. Further, selecting the precedent principle over competing approaches to constitutional construction implies that the benefits of fidelity to precedent tend to be more valuable than the benefits associated with, say, protecting individual liberty, deferring to political majorities, or advancing contemporary cultural norms. All of this is deeply controversial.
For now, I don't want to delve into the normative case for adopting the precedent principle as opposed to other principles of constitutional construction. I'm also going to put off discussing the possibility that something resembling the precedent principle may have a historical lineage through the concept of constitutional "liquidation" as described by scholars like Caleb Nelson. Instead, I just want to note how the precedent principle underscores the prospect of coherence between originalism and judicial precedent. You can be an ardent originalist and nevertheless conclude that the Constitution's text and history do not speak with sufficient clarity to resolve a particular dispute. And you can conclude that the best approach in such situations is to defer strongly to judicial precedent.
I haven't yet addressed cases in which the Constitution's original meaning is clear. In those cases, originalists (like all constitutional lawyers) need to make a choice between fidelity to the Constitution's original meaning and fidelity to its judicial gloss. As I stated briefly last week, and as I'll explain in a future post, I think it's perfectly coherent and plausible for many versions of originalism to abide by precedent even in some instances of conflict with the Constitution's original meaning. But before reaching that issue, I think it's useful to recognize how much room there is for originalism and precedent to work together through the mechanism of constitutional construction.
Monday, February 10, 2014
Many of you will be as stunned to find this out as I was last night but our dear friend and teacher Andy Taslitz from American (and previously Howard Law) passed away yesterday. We are one mensch more deprived. May his memory be a source of enduring blessing and inspiration.
Some good tidings from FSU
The Dean at FSU Law recently reported that an astounding 83% of our current students made cash gifts to our law school's fund raising drive, which, let's face it, is a pretty awesome expression of gratitude and good cheer about their law school experience. #theyaredrinkingkool-aid
Funding Legal Scholarship: The Traditional Law School Model
This is first in a series of posts about how we fund the production of legal scholarship. To begin, a definitional move is in order: what exactly is legal scholarship? For purposes of this series, I want to be broad. I'll include any published research on the theory, doctrine, or practice of law, whether it be an academic book, a hornbook, a law review article, or an interdisciplinary or other-disciplinary piece that focuses on law in some respect. Legal scholarship is original research that attempts to contribute to our understandings of legal doctrine, human behavior in the context of law, or other aspects of our legal system. I'd draw a line between the research itself and the promotion of the research, so lengthy docrinal bar journal articles can be scholarship, but op-eds and blog posts are not. I don't think amicus briefs are, either, although I suppose a "Brandeis brief" could be. Happy to discuss this definition in the comments. In addition, I should note that I am leaving out legal scholarship that is produced by students as well as practitioners, at least for today.
So how is legal scholarship funded? I think we can separate the creation of that scholarship -- the research and writing -- from the publication of it. To take publication first, law schools pay a fair amount of the publication costs of legal scholarship, since they fund law reviews. Law reviews do receive revenues from subscribers (generally other law schools) and from Westlaw, LexisNexis, and Hein Online for electronic rights. But my assumption is that most law reviews are not self-sustaining. Reviews also usually have some level of school-provided support staff, and publishers are paid by the review/school as well. However, law reviews do receive a lot of "free" labor. Students are generally not paid to either produce or publish legal scholarship, although many students receive school credit (which they pay for) and some receive bagels.
Outside of law reviews, legal scholarship is published in bar journals, which are funded by the affiliated bar, or by academic presses, which are likely closer to self-sustaining but also may receive university support. (Here's a recent AAUP report on the finances of academic presses.) The current X factor is whether "publishing" through SSRN and/or Bepress will ever become independently acceptable. As of now, these databases are repositories for papers that generally hope to be published, are in the process of being published, or are already published elsewhere. SSRN and Bepress are both private companies.
On the creation side, law schools pay their own professors to write scholarship. But this deserves a lengthier breakdown. Salary hinges on a professor fulfilling her job requirements, and those requirements are generally described as scholarship, teaching, and service. Most schools require a professor to write three or more articles to obtain tenure. However, after that, the scholarship "requirement" is enforced much more spottily. Some schools may attribute the bulk of any merit-based salary increases to scholarly production. However, my guess is that there is a wide range, both between the amount of merit raises awarded from year to year, and the percentage of those awards that are based solely on scholarship. At most schools (if not all?), professors cannot be fired post-tenure for failing to produce any scholarship. And given the salience of teaching and service, I would imagine that a very small percentage of post-tenure salary rides solely on the professor's production of scholarship.
Many schools also have direct grants for scholarship. For example, summer research grants, which pay professors between $5,000 and $20,000 to produce an article over the summer, are an apparently direct payment for scholarship. A couple of provisos, however: (1) some schools have only lax enforcement mechanisms to ensure that an article was actually produced and published; and (2) the grant is limited to one piece, so any article after the first does not receive specific funding. In addition to summer research stipends, some schools provide bonuses for high-ranking journal placements, but these are generally less than four figures.
Larry Cunningham has opined that a highly-placed law review article can be worth $100,000, as has Richard Neumann. But I have problems with their math. Cunningham argues that the award is not only worth the $12,500-$20,000 summer grant, but also the 1-3% raise that the professor receives for having written the article, which is then made a part of base pay for the rest of the person's career. Cunningham's math, however, not only assumes a relatively high summer grant, but also a high salary: $200,000 for a mid-career scholar, or $250,000 for a senior scholar. Maybe I am naive or in the dark, but those salaries seem pretty high for most law schools. Cunningham admits that a junior scholar getting $100,000 and a 2% raise would only get about $35,000 from salary increases over a lifetime. And Cunningham also has to assume: (1) there are no salary freezes in effect the year of publication, and (2) the 2% raise is solely attributable to that one article.
Richard Neumann's calculations seem even more problematic. He assumes a professor at a high-ranking school who spends 30-50% of her time producing one article per year. Thus, in his view, 30-50% of the person's salary and benefits go to that article. So if the prof produces three articles a year, they cost $33,333 apiece, and if she writes one article in five years, it's worth $500,000? You can see the difficulty. Since professors must teach and must perform committee assignments, but generally need not produce any scholarship post-tenure, their salary cannot be attributed to scholarship unless it is directly tied to such scholarship. I have a similar problem with Brian Tamanaha's claim that the reduction in teaching loads is an allocation of funds towards scholarship. That may be the intent, but if the school does not require faculty to write more, it's just an allocation of funds to freeing up faculty time.
The real X factor here is the lateral market. A productive professor can either secure a higher-paying salary from another school, or may be able to use a higher-paying offer to get a substantial raise at her current school. Again, internal school policies are so varied (even within the school!) that it's hard to know how much to attribute to scholarship. However, it is generally true that professors at higher-ranking schools are paid better, teach less, and produce more scholarship. Thus, higher-ranking schools attribute more of their salary to scholarship (past, present, and/or future).
Beyond paying professors to produce legal scholarship, schools also fund resources for the production of the scholarship. So schools pay their own students to act as research assistants, they pay for staff to facilitate professors' work (which includes scholarship), and they pay for libraries and data sets that are necessary to the research. Libraries also serve students and the public, but at least a substantial portion of their expenses are designed to facilitate research.
This overview of funding on the creation side is not complete. It leaves out (a) grant-funding for certain legal research projects and (b) royalities for academic books, hornbooks, and other compensated publication opportunities. These two models (grants and sales) will be discussed on Tuesday and Wednesday. But (a) is still relatively unusual in the legal academy, and even book-publishing professors do not receive a significant amount from (b), as non-teaching academic titles do not usually offer substantial royalties.
So how are we funding legal scholarship? As a general matter, schools are paying their own professors to research and write legal scholarship, they manage their own students in editing it, and they pay a publisher to publish it. Most law schools are funded primarily by student tuition, although state funds and alumni giving supplement to varying degrees. So students are funding at least a big chunk of legal scholarship. To the extent the federal government is funding legal education through IBR, it too is also a source of funding for scholarship.
Most of this overview will be familiar to the seasoned readers of PrawfsBlawg. And most will be familiar with the weaknesses of this model, particularly in a time of law school belt-tightening. From a management perspective, schools want to provide the best (or most market-desirable) education possible for the lowest cost. Many schools may look upon scholarship as a "luxury good" that the school can no longer afford, especially when compared with teaching and service. There are, though, two mitigating factors against this trend: (1) Prestige is still important (or perhaps more important) to the market desirability of the education being provided, and the higher-ranked schools have stronger scholarly reputations, almost uniformly. So a school that cuts its commitment to scholarship could see its reputation fall, which could decrease the desirability of its educational services. (2) Many schools use law reviews are important components of their education and curriculum, and cutting them would require replacing them with course offerings that may be just as or more expensive.
Despite these mitigating factors, however, there are a strong set of forces pushing schools to decrease their funding for their faculty's scholarly production:
- A smaller applicant pool, resulting in smaller class sizes;
- A need to offer scholarships to maintain a strong student body as to LSAT scores and GPAs;
- An increasing emphasis on course offerings emphasizing practice-readiness and skills training, often offered by non-research faculty; and
- A skepticism from members of the bench, bar, and academy about the value of legal scholarship.
So it seems like a good time to think about other options, other systems for scholarship funding. We'll turn to grant-funding tomorrow.
Skating, Judging, and the Role of Direct Observation
Howard raises an interesting question about how a skating judge’s direct observation of a figure skater’s routine might affect subsequent evaluations of that routine. A study of judges in a different sport -- this time baseball umpires -- may provide part of the answer. The study allowed umpires to observe videotaped pitchers throwing warmup pitches. Some of the pitchers were “control” pitchers, with 70% of pitches down the middle of the strike zone and 30% out of the strike zone. The other pitchers were “wild” pitchers, with the ratio of balls and strikes reversed. The umpires were then asked to call balls and strikes for several dozen more videotaped pitches by the pitcher they had observed, with most of the pitches deliberately being close calls.
The researchers hypothesized that the umpires would call fewer actual strikes correctly for the wild pitchers and fewer actual balls for the control pitchers. That is, they assumed that the umpires would take what they had observed into account and assume that a close call from a wild pitcher was more likely to be a ball and a close call from a control pitcher was more likely to be a strike. In fact, the umpires were influenced in the opposite direction: wild pitchers got more strike calls and control pitchers more balls.
This is only one study, but it suggests that after brief, direct observation, a judge or decision-maker builds a mental image of the athlete’s competence and skill, which in turn establishes expectations of future performance. Pitchers who set the “control” bar high in their warmups were expected to demonstrate similar control in a game situation, and close calls were evidently seen as a failure to perform to expectations. Similarly, pitchers who showed less control in warmups were expected to demonstrate less control in a game situation, and close calls were evidently seen as “close enough.”
If the same cognitive processing holds, Gracie Gold and Julia Lipnitskaia might have been better holding something back just a little during the team competition. And Ashley Wagner may have unintentionally helped her cause. The world will soon find out.
NB: The umpire study is not easily found online, but for those interested here is the cite: David W. Rainey et al., The Effects of a Pitcher’s Reputation on Umpires’ Calls of Balls and Strikes, 12 Journal of Sport Behavior 139 (1989).
Sunday, February 09, 2014
More on skating: What if they know your reputation and your routine?
I hope to have more to say on Jordy's post on figure-skating judging. In the meantime, this story on the move from the (new) team skating competition to the upcoming individual competitions later this week adds a new element to Jordy's point. The skaters will perform the same routines in the individual competitions that they did in the team competition. This means that not only do the judges have each skater's reputation in mind, but they already have seen exactly what each skater is going to do and likely have formed some opinion about how they do it.
So how will the combination of reputation and prior viewing affect judging? Because they already loved Russian Julia Lipnitskaia's routine (performed to music from Schindler's List and dancing as the girl in the red coat, as creepy as that may seem), will they be predisposed to loving it the second time? And because they found fault with American Ashley Wagner's jumps, will they be predisposed to find the same faults the second time?
Misunderstanding of fair use? Shrewd marketing move? Or both?
Women and Title VII
From Slate, a brief history of the inclusion of protection for women in Title VII of the Civil Rights Act of 1964. Sen. Howard Smith, a Virginia segregationist, introduced the provision 50 years ago Saturday (Feb. 8, 1964) as a poison pill.
The Lunchtime Law Quiz
The Green Bag attracts curses of riches. Among them are surpluses of legal oddments (interesting facts, jokes, anecdotes, etc.) and of Supreme Court bobbleheads. The streams of oddments flow steadily – from our readers, our collaborators, and our own research. The bobbleheads pop up sporadically. Once in a while an abandoned doll somehow makes its way back to us, or an owner (or a successor in interest) loses (or lacks) interest in the bobbleheads and returns them to us for placement in a loving home, or we find a misplaced box.
We have chronic problems with both of these surpluses: too few outlets for the huge supply of extra oddments and too many claimants for the small supply of extra bobbleheads.
And then along came Twitter. Soon we will begin releasing some of our pent-up oddments via our new Twitter-based “Lunchtime Law Quiz,” with some help from O’Melveny & Myers LLP. At the same time, by giving extra bobbleheads to winners of the quiz, we will relieve ourselves of the agony of deciding which among the many moving petitions for a free bobblehead we should grant. Two birds, one stone. But no end to the twittering. We are @GB2d.
Misusing and misunderstanding the language of law
I do not agree with everything in this Dahlia Lithwick piece on the Dylan Farrow/Woody Allen mess. But she makes a couple of good points about the unfortunate things that happen when the language of law gets abused in the court of public opinion (or, as she calls it, "litigation by hashtag").
First, she has a good takedown of this incoherent nonsense that Allen is not the only one who enjoys a presumption of innocence; Farrow does, too--a presumption of innocence of making false allegations against Allen. As I tell my students, presumptions are about burdens of proof; a presumption of innocence means that those attempting to prove non-innocence bear the burden of offering evidence (burden of production) of non-innocence and the burden of convincing the factfinder (burden of persuasion) of non-innocence. To accord a similar presumption of innocence to the accuser is to shift the burden of proof to the accused to offer evidence and convince the factfinder to the accused party that the accuser is untruthful. But you can't have it both ways. The reason for the presumption (and thus the assignment of the burdens) is because the party proving non-innocence is asking a government body (the court) to formally deprive the accused of life, liberty, or property. It is that threat of official governmental sanction that properly places the burden on the accuser.Of course, those who defend Allen via the shibboleth of "presumption of innocence" similarly misunderstand the concept. Farrow's accusations are evidence, and one could read her account and the other reports of her accusations and conclude that Allen did what she accuses him of doing. One can disbelieve her story or insist it is not enough (especially by throwing around a second shibboleth--"beyond a reasonable doubt"). But one cannot claim that her story is not evidence and thus at least an attempt at the burden of production.
Second, Lithwick criticizes the very idea of the "court of public opinion," because it is a court unbounded by any rules--and a court is defined by its rules. Those who speak of that court never identify what evidence is admissible (e.g., internet trolls calling Farrow a "bitch"?) , what the standards and thesholds are, what to do about lost evidence, what role cross-examination plays, and even who bears the burden of proof. Lithwick's point is that the court of public opinion is often nothing more than opinions (often uninformed) dressed up in "fancy talk" of burdens of proof" and "presumptions of innocence," none of which is helpful. I suppose the court of public opinion could place the burden on the accused. But then own that this is what you're doing.
Finally, a third point that Lithwick does not mention, but that has bothered me through much of this conversation. Everything is clouded by confusion about standards of proof and when and how they apply. One refrain is that Allen has never been convicted of anything and that no one has ever offered proof beyond a reasonable doubt. Because of that absence of a judicial finding B/R/D, either we just do not know what happened and never will (from those who cannot decide) or clearly he did nothing wrong (from Allen's defenders).
But there is a difference between whether someone did something wrong and whether someone should be criminally sanctioned by the state for doing something. The beyond-a-reasonable-doubt standard applies only to answer the latter question. But have other ways to determine whether someone did something wrong, notably civil proceedings, governed by a lower standard of proof, such as preponderance of evidence. Although we do not put people in jail when there is only a preponderance of evidence, we impose other sanctions that obviously are based in a conclusion that the accused did something wrong. And a civil judgment ordinarily is enough to conclude that someone did something wrong. (I wrote something similar following the jury verdict in the sexual harassment case against the Knicks and Isaiah Thomas in 2007).
In this case, there was a civil proceeding to determine custody of the minor children when Allen split with Farrow in 1993, a proceeding governed by the preponderance standard. In that proceeding, Allen was denied full custody and all visitation with Dylan (the court's order is here). There was no finding that Allen sexually abused Dylan, although the judge found that Allen's "behavior toward Dylan was grossly inappropriate and that measures must be taken to protect her." Thus, to the extent legal sanctions other than jail (e.g., custody and visitation) and non-legal sanctions (whether to ever watch a Woody Allen movie) can be imposed on a lesser standard of proof, it is at least arguable that we do have that. So to say Allen has never been found to have done anything wrong is incorrect--this becomes clear once we really understand what standards of proof are all about.