Monday, March 31, 2014
Up until now, I’ve generally taken a very deliberate approach to writing. At the outset, I’d take an extended period of time to do exhaustive research and formulate my ideas. I’d then painstakingly outline my argument step-by-step, reformulating arguments and conducting additional research as necessary. Only after I’ve completed this extensive planning and gestation period would I start the actual writing. And as I write, my tendency has been to write and polish each section as much as possible on the first pass before moving on to the next. Thus, by the time I finish my first run of actual writing, I’d have a paper that was close to fully formed; although issues will of course always pop up during the editing and review process, I’d try to nip them in the bud as much as possible the first time around.
Recently, though, I’ve started experimenting with free-writing a bit more. That is, starting with just a basic idea and a small bit of preliminary research, I’d write very quickly through large swaths of an argument, laying things out in rough and abbreviated form, with the idea that this very rough cut would help me work through my ideas and focus my subsequent research. This has of course felt radically different from my usual approach, as it very much emphasizes intuition and spontaneity in crafting arguments without getting bogged down (at the early stages) with lots of foundation-building and sanity checks.
There are certainly potential benefits and drawbacks to each approach. The more deliberate approach ensures that one is on strong footing at each step of the process, thus limiting the risk that time will be spent writing an argument or a section that simply does not work, repeats the existing literature, and so forth. At the same time, it's time-consuming at the front end, and extensive research early in the process can sometimes dampen creative thought. The free-writing approach, on the other hand, potentially allows for more “out-of-the-box” thinking at the early stages of the writing process. But it can be highly inefficient, as subsequent research and reflection might reveal serious flaws or other issues that require going back to the drawing board.
Of course, everyone works differently, and I imagine that many adopt different writing approaches based on a variety of circumstances (deadlines, the nature of the piece, the extent to which one is familiar with the literature in a given area, and so forth). But I’d be interested in hearing about people’s approaches to writing. Is there a particular approach that you tend to adopt, all things being equal? Has your approach generally remained static throughout, or has it changed over time? And if your approach tends to vary, what sorts of factors influence the approach you take?
Video and public gatherings
Much is being written about the "riot" in Tucson near the University of Arizona campus on Saturday evening following the school's overtime loss in the Elite Eight of the NCAA Tournament. The police department is defending its actions, although there are murmurings about coming lawsuits and a thorough internal investigation. However it plays out, the event illustrates a couple of problems involving public gatherings and the role of video.
First, according to one eyewitness (the owner of one bar), students were not destroying property or acting in a violent or "unruly" manner. Nevertheless, the police "declared" it an unlawful assembly and issued a dispersal order; the violence (people throwing beer bottles began after that order, once police began trying to clear the streets. So the question (which I have not heard asked or answered) is why this was an unlawful assembly or why it was necessary for people to disperse when, according to that bar owner, they were "more were hanging out in the street rather than trying to cause problems." Tim Zick (William & Mary) has written extensively on the collapse of public spaces under the First Amendment, as public gatherings become heavily regulated and, in this case it seems, presumptively unlawful, to be met with massive displays of force and immediate dispersal. This is not to excuse violent responses to the move-along order, as much as to question the need for, and propriety of, the order in the first instance.Second, people are talking about this video, in which a riot-gear-clad officer body-checks a woman over a bench (go to the :21 mark).
The video does not provide context, although the person who shot the video says the woman was walking to her car and talking on her cell when the officer ran over to her. It is hard to watch this without thinking about qualified immunity (is there Ninth Circuit case law about body-checking people talking on the phone?), the likelihood that this officer is going to have a job for much longer, and whether the plaintiff should get summary judgment under Scott v. Harris, because anything the officer can say to explain his actions will be "blatantly contradicted by the record" (i.e., this video). On the other hand, this case actually shows why video, while helpful, does not obviate the need for a factfinder; at the very least, there can be a dispute as to what the video shows and means and as to possible non-video explanations and reconciling any such conflicts is why we have factfinders.
Finally, this should render hollow the arguments against a public right to video record police conduct. This seems like exactly the situation in which we want people to be able to "check" police and the type of conduct that we want to expose with the more real and affecting (albeit not conclusive) evidence that video provides. The argument that police will behave differently if people with cameras are watching is incoherent, since this behavior is exactly what we hope officers will refrain from doing--and if the chance that they are being recorded provides that deterrence, great (it likely is more effective deterrence than § 1983 liability). And allowing people to record in no way "interferes" with this officer's work, other than by potentially exposing his misconduct.
My month as a guest blogger has come to an end. Thanks to all who read my posts and made comments. This was my first time guest blogging, and hopefully not my last; it has been an interesting way to get out some of my ideas and generate discussion, and I quite enjoyed the process. If you ever see me around the conference circuit, I'd be happy to meet you in person.
Two Good Readings
The first is short but I couldn't resist. It comes from a speech Gov. Chris Christie gave this weekend at the Republican Jewish Coalition. In that speech, Christie said, "In New Jersey, nobody has to wonder whether I am for them or against them." Granted, the speech was about pandering on Israel, not about Bridgegate, but still--as they used to say on Archer, phrasing!
The second is slightly more serious. Through Arts & Letters Daily, there is a nice compliation of tributes to Daniel Kahneman at Edge.org. The contributions are mostly interesting, but for the writers among us I wanted to offer this quote from Jason Zweig, a journalist and one-time collaborator of Kahneman's who offers a difficult but bracing lesson he learned from Kahneman:
To most people, rewriting is an act of cosmetology: You nip, you tuck, you slather on lipstick. To Danny, rewriting is an act of war: If something needs to be rewritten then it needs to be destroyed. The enemy in that war is yourself.
After decades of trying, I still hadn't learned how to be a writer until I worked with Danny.
I no longer try to fix what I've just written if it doesn't work. I try to destroy it instead— and start all over as if I had never written a word.
Danny taught me that you can never create something worth reading unless you are committed to the total destruction of everything that isn't. He taught me to have no sunk costs.
Sunday, March 30, 2014
Thoughts on Ackerman on Dignity
Bruce Ackerman has a lovely op-ed in the Times today titled "Dignity is a Constitutional Principle." He writes, anent the recent same-sex marriage cases and future ones, that "the [Supreme Court] should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution." Relating things to his general We the People project of the last couple of decades--and congratulations to Ackerman for the recent publication of the third book in that project, We the People, Volume 3: The Civil Rights Revolution--he argues that the contemporary Court should look back not just to its earlier decisions but to the congressional debate over civil rights legislation in the 60s, in which various figures "articulat[ed] fundamental principles that Americans should consider in defining the terms of constitutional equality." He concludes:
This constitutional legacy should also shape our understanding of future civil rights struggles. Consider the situation of undocumented immigrants as they seek to attend school, get a job or drive to the supermarket. They face pervasive humiliation in sphere after sphere of social life. Does this not amount to a systematic denial of the “equal protection of the laws” guaranteed by the Constitution to all persons “within the jurisdiction” of the United States? . . . . As we search for guidance on the great constitutional issues of our own time, the place to begin is with the words of Humphrey as he explained why Americans could no longer “justify what we have done to debase humanity.” He argued that we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’ ”
Beautifully written, to be sure. Yet, even if we concede that dignity is a constitutional principle, it leaves me with some questions. 1) Assuming for purposes of argument that dignity is a constitutional principle, is it a freestanding principle? (I don't take Ackerman to be arguing that in this op-ed.) 2) Assuming that dignity is not a freestanding principle but one that helps courts limn "the terms of constitutional equality" or of other constitutional provisions, does that say anything about how we should use it? Given its sponginess and, at best, only semi-textual quality, couldn't the recommended interpretive rule here be that courts should use dignity as a constitutional principle as sparingly and conservatively as possible? 3) Must dignity as a constitutional principle be subject to judicial application at all? Couldn't it be a meaningful but nonjusticiable constitutional principle--one that courts might afford some judicial margin of appreciation when used by legislatures but not treat as a principle that is independently enforceable by courts? 4) How well and clearly did (or do) dignity's champions actually "articulat[e]" the "fundamental principles" of dignity as a constitutional concept? (See, for instance, this paper by Neomi Rao.) 5) Does Ackerman intend what he says about "undocumented immigrants" to have any judicial purchase, or is he arguing only that it ought to guide We the People as citizens and representatives in our political decisions? He might be right about the latter suggestion without that implying anything about the former suggestion. We might agree that "pervasive humiliation in sphere after sphere of social life" is a constitutionally inflected issue that demands legislative redress, without believing that the courts are well-suited or even entitled to remedy it through reference to dignity as a constitutional principle, freestanding or otherwise--that, for example, the denial of drivers' licenses to "illegal aliens" is an indignity but not a judicially enforceable violation of the Constitution.
Read the whole thing, as they say, and decide for yourself.
Saturday, March 29, 2014
Without digging into the underlying issue, I found curious the headline of this post by Robert George on Mirror of Justice, although I rather admired it for talking in terms of the Bible rather than natural law. The headline is: "World Vision reverses course and returns to the biblical view of marriage." World Vision is a Christan charity group that engages in mission-oriented hiring, and the issue was its board's brief decision that individuals in same-sex marriages who were also believing Christians would be eligible for employment by the United States branch of the charity. It has since reversed that decision.
What I don't see in these stories, or in George's post, is any indication that World Vision had ever altered its views on same-sex marriage; World Vision's president made clear at the time of the brief policy change that it had not, in fact, changed its views on that issue. More centrally, I do not see any explanation on George's part about why the "biblical view of marriage" requires an entity not to employ any individuals who depart in this particular respect from the biblical view as he understands it. Note, although I think it's only partly relevant, that as far as I can tell the policy applies to all employees of the organization, not just people serving in particular capacities. Far be it from me as a non-Christian to presume to interpret the Christian scriptures. But if George believes that the organization, despite stating that it had not changed its views on same-sex marriage, departed from it once it declared that it would not deny employment to mail clerks or janitors in same-sex marriages, I wish he would cite some scripture to that effect. (I would also be personally curious to know whether he thinks this is what a biblically grounded Catholic doctrine, in particular, requires of employers, no matter the nature of the employment.)
While he is at it, it would be nice if he offered some view on whether those groups that urged individuals to cease offering financial support to the charity, which engages in worldwide relief efforts, until it returned to its prior policy were also departing from biblical views. The leader of one such group, once the policy was reversed, asked its followers "who hastily canceled their sponsorship of children in World Vision programs to immediately reinstate that support in order to ensure continuity of care for the poor children whom Christ loves." If "continuity of care" for "poor children" was put at issue by halting donations, as the statement implies, that suggests that doing so was not merely symbolic or easily substituted by donations to other groups. So was halting one's donations at some risk to the well-being of the suffering not itself un-biblical? Have such donors now "returned to the biblical view of charity?"
Friday, March 28, 2014
What is/should be a law student?
Some (a lot? most?) of the criticism of law professors and law schools comes from current or ex law students who feel cheated or duped. While some of this criticism is valid, much of it ignores the fact that professors and schools exist in a larger system, in which all parties are complicit in the system's failures. Actual and potential law students are arguably the most powerful parties in this system: they can bring it down by refusing to enter it, and they can change it by voting with their feet and dollars. For example, if they want an inexpensive education, they can go to their own state's school--or even to my institution, the University of North Dakota, which is an absolute bargain even for out-of-staters and provides a great education. If all they want is a steady paycheck, even in times of recession, the New York Times just the other day recommended a pretty lucrative and stable career in plumbing. And no, I'm not insulting plumbers--when the apocalypse comes, they'll be more immediately valuable than most attorneys.
I still think the law is a great, important, and fun career--if you're willing to work hard and are 100% sure it's what you want to do. With that in mind, I want to pose the question: what is/should be a law student? Students are consumers, of course, but not traditional ones, since the more they work the more they get their money's worth. Law school is, perhaps, like a buffet restaurant. You pay an entrance fee and in exchange you don't get any benefit, but you get the opportunity to enjoy a lot of different benefits. No one forces you to eat at any one buffet--before you choose one, you may want to see if it has any health code violations and if previous diners were satisfied with their meal. And once you decide and put down your money, it's up to you to select from the buffet. No one is going to spoon feed you (or just teach you the "black letter law" in a year and send you on your way). No one is going to force you to go back for seconds (or seek out professors outside of class for discussions, mentorship, advice on jobs, etc.). Heck, the restaurant will let you just drink water (or just attend class and call it a day). Is it the restaurant's fault if you choose not to eat?
Sometimes it is. If the restaurant (law school) guarantees a full belly (a misleading post-graduate job placement rate), that's a problem. Just as often, however, actual law students get out of school what they put into it. And few law schools falsely advertise their wares, but potential students buy into a myth they heard from other, unreliable sources. So what is/should be a law student? How about this for starters:
- A well informed, intelligent agent who can make informed choices prior to entering law school regarding debt load, job prospects, and the like
- A student who is actively engaged in class work, extracurricular activities, networking, skills building, etc. A student, in short, who takes ownership of her education and uses the school, the faculty, and their resources to self-direct her career
Weekend Reading: Commonweal on Legislative Religious Accommodations
Here's a newly published piece in Commonweal, coming out in the print issue next week and available outside the paywall online, about the recent debates over legislative accommodations for religion. Here's the introduction:
After Arizona Governor Jan Brewer vetoed a bill last month that amended that state’s Religious Freedom Restoration Act, onlookers on both sides of the culture wars may have breathed a sigh—of relief or of frustration, depending on which side they were on. I hope they enjoyed it, because the break’s over.
The Arizona controversy wasn’t the first and it won’t be the last. Similar bills are in various stages of development in Mississippi, Georgia, Oklahoma, and elsewhere. Brewer’s veto, with its implication that the national and state Republican establishments and business interests would oppose such legislation if it aroused too much negative attention, may tamp down the fires in some states. Elsewhere, it will only stoke them. There are some serious issues here, they are not going away, and they are rarely described accurately. In other words, we are getting yet another master class on how to hold a culture war in America. Here’s a short explanation of the issues and a few lessons for combatants and onlookers alike.
Two lawyers walk into a bar . . .
Slate is running a multi-part series on humor, co-authored by a journalist and a professor at Colorado who has developed and is testing a new theory of what makes something funny. In the latest entry, they write that lawyer jokes are unique to the United States. One explanation: "No other country is so rooted in the sanctity of law—and in no other country are those who practice it so reviled."
Wednesday, March 26, 2014
Financial War Games?
In my new article Regulation by Hypothetical, I propose that one way to strengthen Dodd-Frank mandated stress testing and living wills (which I call regulation by hypothetical), is to engage in financial war games. You see, the problem with stress tests is that they test a firm’s balance sheet against financial stress at a static point in time to determine whether that balance sheet can withstand certain recessionary forces. But this misses a crucial point: Corporations are people, my friend.
Like Greek tragedies, when crises in financial firms are brought to light, they are often stories of individual hubris. For example, the failure of Lehman brothers was at least as much about Dick Fuld’s mismanagement of the firm as about the failure of the subprime market. Similarly, Bear Stearns suffered at the hands of a disengaged Jim Cayne. Bank of America’s ill-advised purchase of Merrill Lynch has been explained as a Southern outsider’s (Ken Lewis’s) desire to “play with the big boys on Wall Street.” Michael Lewis describes AIG’s irresponsible and market-creating purchases of CDOs from Wall St. as an arrogant and uninformed wager by Joseph Cassano, who has since been labeled “The Man Who Crashed the World.” Going back to previous disasters, the failure of Enron was about “The Smartest Guys in the Room”—Kenneth Lay and Jeffery Skilling’s dishonesty and conceit.
Stress tests and living wills (and the entire risk-management complex) leave this human decision-making out of their models.For example, in the event of a sudden stock market rise or fall, will a fund manager sell, buy, short, or hedge in a particular market? And will they use the opportunity to double down on risk, hoping for a big reward, or accept modest losses in order to prevent what might well be a greater loss to come? Stress tests and living wills are not designed to answer these questions; nor do they pretend to. The Fed states that the models “do not make explicit behavioral assumptions about the possible actions of a BHC’s creditors and counterparties…”
Despite my concerns in the article about regulation by hypothetical generally, how can regulators take account of the risks and problems that involve individual decision-makers if regulators press forward with regulation by hypothetical? Financial war games might be useful. Of course, the more involved and complex the simulation, the higher the cost and the higher the informational value. For example, before the Navy Seals operation that captured Osama Bin-Laden in Pakistan, the Seals practiced the maneuver many times in the United States. The military tried to the best of its ability to replicate the Pakistani compound housing Bin-Laden and cast various players in a realistic simulation to determine ex-ante potential problems they would face during the actual attack. The war gaming proved useful training for the troops. However, the one major hitch in the operation—one helicopter being grounded because of a centripetal air suction—occurred because, when reconstructing the compound in the US, the military surrounded it with a chain-link fence instead of walls, which created different landing conditions for the helicopters. Had they created an exact replica, even that problem could have been avoided.
While financial war games would not require the amount of expensive weaponry and human power that true war gaming requires, creating realistic simulations would be more costly than merely running computer models. Even so, given the dangers that failed financial institutions would pose to the world economy, conducting some high-stakes simulations may well be worth the cost. Indeed, conducting a financial war game is not without precedent. In March of 2009, the Pentagon hosted a two-day financial war game event at the Warfare Analysis Laboratory in Laurel, MD, a facility that is used for conducting military war games. However, the focus of the war games was on national security and not on financial stability. The military was concerned about global financial problems because of their “real world consequences, including failed states.” Bankers and Hedge Fund managers, among others, were invited to the pentagon to role-play a financial disaster. Paul Bracken, a Yale business school professor, who attended the sessions, stated that “The purpose of the game is not really to predict the future, but to discover the issues you need to be thinking about.”
What would financial war gaming look like? Borrowing from the Pentagon’s playbook, regulators would invite experts in the field to assume a role in the financial sector, the regulator would model a financial stressor or firm failure, and each party would react to protect their own interests. The data would be aggregated to get an accurate understanding of the vulnerabilities of the system as a whole and each individual firm. The players could be representatives from the actual firms or industry experts who could vicariously play their roles. Both choices have advantages and flaws. An insider likely knows and reflects firm culture. But the insider might try to game the game. For example, in the event of counter-party failure, a firm might engage in opportunistic behavior that would accelerate a counterparty’s failure or cause damage to other firms. But the insider might not display this sort of behavior in a low-stakes simulation because of public- or regulatory perception concerns. On the other hand, an expert who is not a repeat player in the markets and has no reputational concerns would take actions that actually reflect those made in real crises. Yet the downside of outside experts is that their inability to mimic or portray the culture of a firm that affects how decisions are really made.
So while I make the case in my article that regulation by hypothetical is fundamentally flawed, I think financial war games would provide better information about firm-specific and systemic vulnerabilities and how they might be dealt with in the event of a crisis.
Wood: So many ways for the plaintiff to lose
The Court heard argument today in Wood v. Moss, a "bit-of-everything" case that I have written about previously both on Prawfs and as an early illustrator of Iqbal's dangers. There are all sorts of issues and reasons flying around the case, and while I do not see anyway the plaintiffs will win, I cannot tell why they're going to lose.
Justice Scalia seemed to be itching to hold that the First Amendment cannot be enforced through Bivens. Or, at least, not against Secret Service agents charged with protecting the President. Or, at least, subjective viewpoint-discriminatory intent is irrelevant if there also is a subjective security rationale (i.e., applying Whren to the First Amendment). The government wants to skip the merits and simply conclude that the right against viewpoint discrimination at a presidential appearance was not clearly established.
The pleading discussion came largely in the Respondent's argument. He and the Chief had an interesting exchange about how to read Iqbal--Respondent's attorney hit on the "plausibility is not probability" language, while the Chief hit on the "obvious alternative explanation" language. Lower courts have not done much with that language, at least not rhetorically, but the Chief may be trying to revive it. Respondent tried to read that as one of degree-only if the alternative is so clearly obvious and right that it renders the pled explanation implausible (which, of course, is not the case here). There is also a nice exchange about how discovery can or will work here and (implicitly) whether or not the district court can control it, including whether there are secrecy concerns with disclosing practices and policies regarding how the President is protected.
Justice Kennedy summed the case up best--"it seems to me that if this complaint doesn't survive, nothing will." Indeed. And that is the problem.
"Lost Classroom, Lost Community"
I am delighted to report that the latest book by Prof. Nicole Stelle Garnett (and her co-author, my friend and colleague Prof. Margaret Brinig) is out (and available for purchase!) The book is "Lost Classroom, Lost Community: Catholic Schools' Importance in Urban America, and it's published by the University of Chicago Press. Here's a blurb from the Press:
In the past two decades in the United States, more than 1,600 Catholic elementary and secondary schools have closed, and more than 4,500 charter schools—public schools that are often privately operated and freed from certain regulations—have opened, many in urban areas. With a particular emphasis on Catholic school closures, Lost Classroom, Lost Communityexamines the implications of these dramatic shifts in the urban educational landscape.
More than just educational institutions, Catholic schools promote the development of social capital—the social networks and mutual trust that form the foundation of safe and cohesive communities. Drawing on data from the Project on Human Development in Chicago Neighborhoods and crime reports collected at the police beat or census tract level in Chicago, Philadelphia, and Los Angeles, Margaret F. Brinig and Nicole Stelle Garnett demonstrate that the loss of Catholic schools triggers disorder, crime, and an overall decline in community cohesiveness, and suggest that new charter schools fail to fill the gaps left behind.
This book shows that the closing of Catholic schools harms the very communities they were created to bring together and serve, and it will have vital implications for both education and policing policy debates.
Congrats to Nicole!
Mixing Things Up in Class
As I approach the end of my first full year of teaching doctrinal classes, I’ve started to think about things I’d like to adjust the next time around. One of the items on my list is including more interactive exercises that break up the standard routine of doctrinal 1L classes. My sense is that regardless of how interesting the material may be, the repeated grind of “read the cases, prepare for class, answer questions when called on, and maybe participate in broader class discussion” often starts to wear on students after a while.
This year, in each of my classes, I took a full class period somewhere towards the middle of the semester and I did an interactive exercise. The exercise took the form of a highly informal group oral argument, for which I gave students a set of facts, assigned them a closed set of cases, and had them craft arguments based on the case law (both outside of class and in small groups within class). I’d encourage them to think not only about the best way to frame the case law for their side, but also the best way to frame the facts.
Pedagogically, I like this exercise not only because it presents the material in a different way, but also because it reminds students of all of the strategy and decisionmaking that went into the cases they’re reading in their classes. All they see are neatly packaged, antiseptic appellate opinions—but getting to that point involved a lot of strategic decisions by lawyers as to how to frame the case law, how to characterize the facts, and so forth. It also helps them to see that in reading appellate opinions, what they’re usually getting is the winner’s version of the facts and of the law, rather than facts and law as measured by some undisputed objective standard.
I’ve gotten a strong positive response from my students, who have enjoyed these exercises. My current sense is that I’d like to add maybe one or two similarly interactive exercises throughout the semester, but I’d like to do so without repeating the same format of the exercise described above. So I’d love to hear about people’s experiences with different types of interactive exercises in doctrinal classes. What sorts of exercises have you used? Did you find them effective? And any thoughts as to what makes these sorts of exercises “work” and the best ways to design them?
Dorf on Ideological Polarization and Reversal in Hobby Lobby
Mike Dorf has an interesting column at Verdict arguing that the oral argument in Hobby Lobby suggests that the arguments over religious freedom have become more ideologically charged and, in various ways, display a reversal in views between liberals and conservatives. I certainly agree, as I wrote yesterday, that these issues have become more charged than they have been for some time. And although I might not characterize the whole thing the way he does, I do find much to agree with in what he writes. In particular, I agree with him that the case, or at least the underlying issues it hints at, present a fairly stark conflict between the basic values of liberty and equality. (I also have a piece coming out on this in Commonweal next week; I'll link to it when it becomes available.) Each side may at times exaggerate this conflict, and at other times may argue that, depending on a particular definition of those terms or of the facts, the "correct" outcome presents no true conflict between liberty and equality. (For instance, because there is "no mandate.") But there is a conflict, and although we can and should attempt to manage it in practice, it is real and ultimately cannot be perfectly resolved. I do have a couple of points I would add to what he says.
First, Mike focuses correctly on the culture war aspects of the case, but his description is perhaps a little lopsided. He writes: "The culture war of the last couple of decades shattered the bipartisan alliance that gave rise to RFRA. In the ensuing years, the right has increasingly sought to portray Christian religious traditionalists as a beleaguered minority." He is certainly right that the RFRA alliance seems to have shattered, at least on this issue and perhaps more generally. (Again, see my post yesterday, and a post by Tom Berg at Mirror of Justice, on a striking recent letter arguing that, in large part for "expressive" or symbolic reasons, any state RFRA legislation right now is a bad idea, even if the same legislation would have been fine twenty years ago.) I probably share the druthers of the left more than on the right, at least on most issues. But I think Mike's description emphasizes the right as a culture-war actor too much and doesn't really give equal time to the left's role in the culture war. On Facebook, every time I say something of the sort, I get comments about "false equivalency." So let me note that I am not making an equivalency claim, false or otherwise. I'm simply saying that a culture war typically involves two actors and that he, or we, might attempt to consider how conservatives or religious traditionalists would describe the same period of time. "Liberals who were willing to enact RFRA to protect minority religions from direct interference have started to balk at the idea of a religious right that goes that far," Mike writes. From the other side, we might say that religious conservatives have started to balk at an egalitarian left that not only has been successful in changing the culture, but increasingly views religious claims as dangerous or inconsequential, is increasingly pervasive in enacting those cultural changes into law, and increasingly rejects any separation between public and private on these issues.
Mike also writes that "Hobby Lobby involves the ACA, a law that conservatives have fought at every turn, in every possible venue." Fair enough! But my reading of the exemption debate over the contraceptive mandate, although much more optimistic and perhaps generous than that of some of my religious friends, is that a dynamic of refusing to compromise on the ACA, and particularly on its contraceptive provisions, was also at work on the left, for various principled and political (both electoral and interest-group related) reasons. The exemptions granted could have been more generous, and certainly started off very narrow, but they faced West Wing resistance every step of the way. (See, e.g., this story.) There are, again, political and ideological dynamics at work on both sides here.
Finally, Mike writes that the conservative/religious "culture war" view has "manifest[ed] itself in ever more extreme claims." He might think more about the dynamics that lead to this. Some of it is partisan, to be sure. Some of it has to do with the doctrinal shape of the prevailing law, which encourages categorical claims rather than balancing and thus raises the stakes on each issue. Some of it may have to do with the (real or perceived) increasing reach and potence of civil rights laws and their pervasive reach into various areas of life. And much of it may have to do with the particular public interest litigation groups involved in various cases. I could well see the ADF or the Thomas More Law Center making extravagant and questionable legal claims and finding some plaintiff to sign on to them, while a more "moderate" litigation group might not bring similar suits. Of course we see similar dynamics at work on the other side. Witness, for example, the debate that occurred for some time between "establishment" and independent gay rights groups and litigators about when and how to pursue various claims. Witness, as well, the Solomon Amendment litigation, in which a number of groups--supported by countless law professors!--made claims that the Court unanimously rejected as extreme. (Interestingly, those scholars afterwards more or less consigned the whole case and the arguments they had made about it to the memory hole and never mentioned it again, despite the obvious tensions it presented with arguments they had made in other cases.) We saw a similar willingness of many groups to make arguments in the Hosanna-Tabor case that were again overwhelmingly rejected and criticized by a unanimous Supreme Court. This is just a start; there are many interesting questions about what constitutes an "extreme claims" and why, on either side, such claims might end up becoming more common. For now I'll just say that it's an interesting issue and that Mike might consider these additional possibilities.
Tuesday, March 25, 2014
A Tale of Two Cities
In February, I was at a conference in Los Angeles. I pulled an illegal u-turn and received a ticket for $35. But wait! With "fees", the price went up to $248. The couple sitting next to me at lunch just afterward had EACH just received tickets for jaywalking, for $250 per. Given that the fees are calculated based on the amount of the underlying fine, I can only imagine what their pricetag came to.
Compare this to last year, when I was teaching my sentencing seminar in North Dakota. We were discussing deterrance and I mentioned the fact that I don't speed when I travel from Grand Forks to Fargo because I don't want to pay a fine. Then my students informed me that the fine would total $10. You heard me right: Reason # 374 that North Dakota, and not some other state, is the way life should be.
These two responses to minor traffic infractions highlight the complex nature of sentencing that we must contend with. A few thoughts:
- Fines may be viewed as a good money earner, but they can also disincentivize people from visiting or living in a jurisdiction (I'll think twice before stepping into Los Angeles again), thus reducing the tax base and causing the jurisdiction to actually lose money.
- Minor penalties, like a fine, might deter certain activity, but more serious sentences for more serious crimes may not.
- Fines and excessive sentences can delegitimize the law enforcement endeavor--ok, a ticket for a u-turn is one thing, but for jaywalking???
- Fines may not deter, as in the North Dakota case (of course, the speed limit between Grand Forks and Fargo is 75 MPH, and I'm frankly afraid to go any faster than exactly 78 MPH).
- Fines and sentences may be deeply embedded in social systems. It's possible that Los Angeles has a system of driving and walking--and the relationship between the two--that (somewhat) necessitates and justifies the tickets we received.
- Sometimes, law enforcement systems just go so far off the rails that they cease to reflect any reason. Eric Holder, what are you going to do for my ticket?
Clearing brush on standing and merits
While SCOTUS has successfully disentangled jurisdiction and merits over the past several years, it has not done much with standing and its unfortunate conflation with merits. Tuesday's decision in Lexmark int'l v. Static Control Components perhaps marks a first step toward drawing sharper distinctions. The issue in the case was whether Static Control could bring a false advertising claim under the Lanham Act against Lexmark, even though the companies are not competitors.
The parties and the lower courts framed this in terms of the "zone of interests" test for prudential standing. The Court unanimously rejected that framing (as well as the closely related "statutory standing"), saying it has nothing to do with subject matter jurisdiction or standing. Zone of interests goes to whether the plaintiff falls within the class of people whom Congress authorized to sue through the statutory cause of action. This is a pure merits inquiry, akin to whether a plaintiff is an "employee" under Title VII. The focus is on the pleading (citing Iqbal) and whether the plaintiff has sufficiently alleged a claim that falls within the scope of the congressionally created cause of action.
Moreover, in footnote 3, the Court potentially cast doubt on all "prudential standing" as an "inapt" label. Prudential standing has historically consisted of three doctrines: Zone of Interest; No Third-Party Standing; and No Generalized Grievances. This case establishes the first as a merits inqury. In FN 3, the Court said that recent cases have treated the third as a matter of the Article III case-or-controversy requirement rather than as prudential. As for the second, the Court noted that some cases suggesting it is "closely related" to whether the plaintiff has a right of action, although most cases have not framed it that way. It expressly left that question for another day, although the tenor of this opinion and this footnote suggest a reluctance to keep this category alive. In other words, something is either a true Article III inquiry or a merits inquiry, with no fuzzy middle ground.
As an admitted adherent to the William Fletcher "it's all merits improperly constitutionalized" view of standing, this is a move in the right direction.
The Good and Bad of Hobby Lobby
As oral argument gets underway in the contraceptive mandate cases, the blockbuster RFRA case of the decade, here are a couple of quick thoughts about one or two good and bad things about these cases from the decidedly narrow perspective of the law and religion scholarly community.
Bad: What has struck me more than anything else about these cases and the argument around them has been the highly aggressive "framing" of the case, its import, and the issues it raises. I am describing general tendencies as I have seen them, and there are always exceptions. But it seems to me that there has been a tremendous effort to frame the case as categorically "easy" one way or the other. Hobby Lobby might win, or at least get some traction, if the argument were that the exemptions already contained in the ACA were sufficient to make the failure to grant an additional accommodation discriminatory according to a decision like Lukumi Babalu Aye. Or it might lose if the question were whether there is a substantial burden here, particularly given the arguable separation between the corporation and its owners, or whether, even if there is a substantial burden, the government nonetheless has a compelling interest in enforcing the mandate.
These issues have certainly been discussed. But much more of the discussion has been about making categorical arguments. That is certainly true on the defendants' side, where there have been arguments that there is no mandate at all, or that corporations are categorically excluded from invoking RFRA (or, sometimes, that they have no Free Exercise rights, although see my last post), among other attempts to say that the plaintiffs don't lose at the balancing stage but lose early, categorically, and absolutely. I think it is perhaps less clear as a strategy on the plaintiffs' side, but even here I think that for many defenders of the plaintiffs' claims there has been an effort to focus on those aspects of the case that advocates believe the plaintiffs should win categorically, and some elision of the more difficult issues, such as where and how to draw the line (if anywhere) between different kinds of entity claimants or how to effect the balancing if there is a viable claim.
The framing has been still more aggressive, on both sides, at the level of discussion of the stakes of the case. It is a normal strategy of advocates to emphasize slippery slope problems where that will help their case, and to emphasize the law's tendency to impose some common sense and live with slippery slopes where that will help. In this case, both sides have eschewed arguing about how we might draw some lines in this area, and instead have taken an almost apocalyptic view of what the "logic" of the other side's arguments will lead to, as if inexorable, unstoppable logic and nothing more drives the development of cases and lines of precedent. So, on the one side, a victory for Hobby Lobby will lead to the destruction of civil rights laws in general and to the obliteration of the rule of law. And on the other, the logic of those who defend the mandate will lead to the complete undoing of religious freedom.
These framing efforts have been aided and abetted, by serious people on both sides, by fighting so much of the battle in the public sphere and not just in briefs and scholarly articles. On sites like Slate or columns like Linda Greenhouse's, or on corresponding conservative sites, there has been a constant pounding drumbeat on this case, and it's in the nature of those kinds of public debate that the rhetoric is heated and often outstrips the nuances, and ignores the possible saving constructions or reasonable limits that often figure in the actual decision of a case. In this the public commentators and the more serious academic types have, it seems to me, worked hand in glove. I consider that an unfortunate development.
One friend (with whom I respectfully disagree about the case itself, for what it's worth) has suggested to me that this is a product of the seeming success of the heavy ref-working in the NFIB case. That case offered to the legal and legal academic communities a template for the way that contentious legal issues will be played out in the press and elsewhere from now on. That's a fair lesson to take from that experience but, in my view, a deeply unfortunate one, especially for those legal academics who get involved in playing the public framing game. There are high stakes in this case even after the rhetoric is stripped away. But I see the job of legal academics and experts on a particular issue as being to explore and explain the nuances of cases, to show what the stakes are and what problems will be raised by deciding a case on particular principles, but also to explain why it is unlikely that any given case will turn on nothing more than principle and logic and how courts might, however clumsily or incoherently, soften the blows of particular legal principles. Certainly it's not their job to raise the stakes, or indulge the commentariat in its heated rhetoric, for purposes of encouraging a particular result.
Again, this is obviously a particular and personal perspective on the public discussion of the Hobby Lobby case. But I have been very disappointed by and worried about the nature of that discussion, and many academics' role in it.
Good: Until recently, my general view of the law and religion community in the United States, which is a fairly small group, has been that there is too much consensus. We mostly all get along very well (although some of this depends on how you define that scholarly community). We certainly don't all agree! On the whole, though, I thought we tended to agree on so much that at times we didn't fully appreciate or explore some fundamental issues and differences in this field. We took very different views on how to interpret the Religion Clauses, but most of us took religion itself seriously and thought religious liberty a good in itself.
I think that consensus, if I was right to see one there, has substantially dissolved in the past two years, quickly and startingly. It is illustrated in some ways by the letter referenced in this link, signed by several friends whose work I respect, which argues that whatever law and religion scholars and others might have thought about RFRA twenty years ago, we should question state RFRAs altogether today, partly because of their substance and partly because they will be "seen . . . as a shield against enforcement of civil rights laws (current and future)." (emphasis added) It is striking to me, although not necessarily unreasonable, that a group of scholars could now oppose state RFRAs that they might once have supported as much because of their purported "expressive meaning" as because of their substance. More generally, there has been a stark division in the law and religion ranks of late, one driven substantially by the standard conflicts between liberty and equality, and one that has played out in a dramatic and heated fashion with very little apparent middle ground.
As a middle-ground type myself, I am saddened by this development. But it may be that this loss of consensus will be good for law and religion scholars, insofar as it forces us to state our premises more clearly and defend them against more vigorous attack. I do worry that this will tend to make the issues seem more polarized than they actually are, and lead scholars in the field to ignore the messy real-world compromises, and the inevitable if questionable splitting of the difference on matters of principle, that actually take place on the ground in church-state relations and in contests between liberty and equality more generally. But it may lead to more clarity in the field, even if some of that clarity is ultimately directed at defining more precisely the areas in which there are unbridgeable differences between us. Whether any of that will benefit anyone outside the community of law and religion scholars is, of course, a separate question.
What is Missing From This Slate Piece?
On the day before oral arguments in the contraceptive mandate cases, Slate has published a piece on the history of corporate personhood by Naomi Lamoreaux and William Novak. It's interesting and provocative, although I find it odd that the piece basically jumps over the decades of debate and discussion over this issue in England, Germany, and the US between 1870 and 1940 or so. But there's something still odder about the article, and this one I just can't figure. One phrase never mentioned in the piece is "Religious Freedom Restoration Act." Another is "Dictionary Act." And I read the piece quickly, although more than once, and if the words "statute" or "statutory" appear anywhere, they were used so glancingly as to escape my attention. I cannot understand why, on the eve of a major RFRA case, Slate has published a piece that purports to be about the case but never so much as mentions--indeed, if anything carefully omits to mention--the statute or the fact that it is a statutory case. [UPDATE: Link, and gratuitous swipe at Slate for its dismal site design and lack of a search function, added.]
Monday, March 24, 2014
A bit more on professors' writing
A propos of my last post regarding what professors should write or are writing, I'd like to remind readers of the Getting Scholarship Into Court Project, started by Jack Chin, Margy Love, and Andrew Ferguson. It has been successful in placing precis of academic articles in The Champion, the magazine of the National Association of Criminal Defense Lawyers. I don't know if any area of law other than criminal has such a project, but it is a great incentive to write articles that bridge the academic-practice divide, and to recognize that many of them already do.
Of Course Justice Ginsburg is Replaceable
I didn't think I would write again on this topic; I thought it was pretty played out. But it appears, somewhat inexplicably, that Erwin Chemerinsky has put it back in the news with a recent op-ed. Garrett Epps and Dahlia Lithwick have filed dissents.
I chose the title for this post, so I'm responsible for it. I don't assume Lithwick chose her headline--"Ruth Bader Ginsburg is Irreplaceable"--so I don't hold her responsible for it. Still, my title is certainly a response to that one. Granted that we are all each one of us special, and that Ginsburg is extraordinarily smart, a leading figure, of great historical importance, and so on. And Lithwick, citing Epps, has a point when she argues that Ginsburg's seniority itself, with the opinion-writing assignment power that goes with it, is a factor in itself apart from her own gifts. Nevertheless, no one is irreplaceable. What is true is that every Justice and every Court necessarily involves unique personal and relational factors. But every Justice can be replaced and, inevitably, will be replaced. The only question is one of timing, and there is nothing unreasonable or insulting about suggesting that, if you care about things like liberal outcomes or care more about the outcomes and their effects on average Americans and less about honoring particular justices as individuals, the balance of factors favors retirement now rather than later. I'm not sure I take that view, but then I'm not a crusader for liberal outcomes on the Court or much given to talking about the effect of the Court's decision on women, minorities, and Americans in general. The people who are inclined to talk in those terms are the ones insisting she should not retire, and that seems irrational to me. Certainly the fact that she more than earned her seat, or that she would be unhappy without it, are hardly important factors for the rest of us to consider. If there is one area where elite Americans of all stripes come together, it is in their membership in the cult of personality. ("I am fascinated by this woman warrior with the body of a sparrow and the heart of a lion," Epps writes. Rich sentence, but a little too Gladiator for my simple democratic tastes.) On this issue I agree with much of what Isaac Chotiner has to say in this New Republic piece. (I must add that the New Republic may actually be outdoing Slate as the worst-designed web site in its sector of the Internet. I feel almost obliged to apologize for linking to it.)
I should add that both Epps and Lithwick make some interesting and valid points. In particular, I find it difficult to figure out why Chemerinsky bothered writing at all. If insisting ten times that someone should retire doesn't work, it's pretty unlikely that things will change the eleventh time. Epps is not wrong to wonder whether the drumbeat isn't "bad manners and bad psychology," although the latter is much more important than the former. (Other points are much more debatable. I won't bother to list them all. But when Lithwick writes that "many" believe John Paul Stevens retired from the bench "too early"--at 90!--I think she is being generous in her use of the word "many.")
I thought the most interesting, and telling, statement was in this passage from Lithwick:
It strikes me as interesting that regular court-watchers tend to be affronted by suggestions that it’s time for Ginsburg to go, just as political scientists are astonished that it isn’t. Maybe Linda Greenhouse, Epps, Bazelon, and others are considered by the Ginsburg’s-got-to-go crowd as simply captive to the same “justices aren’t political” brainwashing as Ginsburg, but maybe they just see Ginsburg through a different lens.
Perhaps that is precisely where the difference lies, between the political scientists and attitudinalists and the more personality-oriented and deferential "court-watchers." I think reason favors the political scientists on this one, and that much is implied by that word "affronted," which suggests that the whole issue is personal rather than strategic and, to be blunt, focuses more on the legal celebrities than on the people whose lives their votes affect. Lithwick writes of "the fears of all of us who have watched the court slowly erode abortion, employee, environmental, and voting rights in the past decade." I happen to share those views, more or less, on a political level, although I consider my feelings on the matter mostly irrelevant to my work as a legal academic, at least when I am doing my job right. But if those are her fears, then it hardly seems flawed to me, as it apparently does to Lithwick, to say that "counting to four, or five, is more important than the justice herself." To the contrary, it obviously is. The attitudinalists may not take everything into account, but on balance they're right.
Sunday, March 23, 2014
Students take on the New Yorker cartoon
I presented that New Yorker cartoon (the one Paul wrote about here) to my Civ Pro students; you can see some of their entries by paging through the course blog. Some of them are pretty good and even incorporate Civ Pro concepts, although they read the cartoon as depicting lawyers playing ping pong.
Purely Historical Tests
A few terms back, in United States v. Stevens, the Supreme Court faced the question of whether depictions of animal cruelty constituted unprotected “low-value” speech that the government can freely regulate (like obscenity, fraud, true threats, etc.). The government argued that identifying low-value categories of speech rests on “a categorical balancing of the value of the speech against its societal costs.” The Court, however, rejected this approach as “startling and dangerous,” adopting a purely historical approach to identifying low-value speech categories. The Court later clarified that novel categories of speech can't be deemed low-value unless there exists a “long (if heretofore unrecognized) tradition of proscription” of such speech.
As I’ve written before, I don’t like this test. Calling it a “historical” test gives it a veneer of neutrality, but in practice, it’s so manipulable that it effectively acts as cover for what are, in essence, value-driven judgments. Unless the Court wants to freeze the development of the law completely (which doesn’t seem to be the case here), historical tests necessarily work by analogy. And making analogies inherently requires value-driven judgments: what are the essential characteristics of a historically recognized category of “low-value” speech that makes it unprotected? At what level of generality will one define the historical category of unprotected speech? At what level of generality will one define the “novel” category of speech to which the historical category will be compared?
More broadly, my instinct is that--except in obvious cases--any purely historical analysis works primarily to hide the ball when courts are in fact making broad normative judgments. This is, I think, obviously true within the Court’s substantive due process jurisprudence, where fundamental rights must be “deeply rooted in this Nation’s history and tradition,” but the game is effectively won or lost based on how broadly or narrowly the court decides to define the right in question.
But this is just an instinct, and I’m interested in getting more data points on this. Are there other discrete doctrinal contexts where courts purport to resolve issues based solely on history or tradition? (Off the top of my head, the only other one I can think of is Seventh Amendment civil jury trial analysis.). And am I simply being too reductive and cynical here? Are there good reasons to adopt these sorts of purely historical tests?
Saturday, March 22, 2014
What does/should a law professor write?
My recent post, "What is/should be a law professor?", garnered a decent amount of posts; not surprisingly, as it opened the door to professor-bashing, which is in vogue these days. A major, if not the main, criticism was that law professors write academic esoteria that has nothing to do with their teaching, about which they do not care. Anyone who has both taught and done scholarship either knows this is a false dichotomy, or, imho, hasn't thought creatively about the synergies between teaching and scholarship.
However, having just gone through the spring law review submissions season, replete with offers, expedited requests, and rejections, all toward the realpolitik goal of a top 20 placement, it is clear that something is amiss. A recent poster to "What is/should be a law professor?", AnnOnY, lamented that s/he had a lot of practice experience, and had drafted bar journal articles, CLE manuscripts, practice-oriented articles, and "briefs on very sophisticated and intricate legal issues at the trial and appellate levels." When s/he went on the teaching job market, s/he received few interviews.
Add to this a few of my own experiences: I have used my current and past appellate briefs as teaching tools, and the ideas contained therein to inform my scholarship; one of my low-ranking law review articles has been cited in two SCOTUS cert petitions and was the basis for another scholar calling me a criminal law theorist on par with Joel Feinberg (if only...); and a practice-oriented article in The Champion has been used in public defender training materials around the country.
Based on all this, I'd like to posit that (1) traditional scholarship can be, and often (usually?) is valuable to teaching; (2) low-ranked scholarship can be valuable both academically, pedagogically, and practically; and (3) non-traditional writings, like those of AnnOny, can inform one's teaching and can advance the law (which is the purpose of traditional scholarship). I'd like, therefore, to ask: what does/should a law professor write? And perhaps more pointedly, what writing should a promotion and tenure committee count? And how should it count it?
Wednesday, March 19, 2014
Abu Ghayth Takes the Stand
In a rare move in terrorism (and all criminal) cases, Sulaiman Abu Ghayth took the stand today. We therefore don't have to rely on the government's version of events, which is often strained and unreliable when it comes to conspiracy charges in times of national crisis.
Abu Ghayth testified that just after 9/11, bin Laden summoned him to ask his advice. The very next day, Abu Ghayth began to make propaganda videos and give speeches "based on talking points from Bin Laden." Cross examination will be fascinating, and the government will certainly elicit from Abu Ghayth that he had a "personal agreement . . . [to] do anything he could within his capabilities as a religious scholar and experienced orator to assist” Bin Laden and Al Qaeda.
I have argued that the First Amendment right of assembly should protect even criminal conspiracies when they pose no likelihood of imminent lawless action. This could, in theory, protect Abu Ghayth from criminal charges. On the other hand, Abu Ghayth's case represents the point at which my argument breaks down. If Abu Ghayth was willing to do "anything he could" to help Al Qaeda, why should the government not be able to indict? On the other hand, Abu Ghayth limited this "anything" to religious activity and speech, so should he have any First Amendment protection?
One reason that Abu Ghayth's case troubles me less than many other membership crime cases is that the facts are emerging from the defendant himself, not from the government. But this is legally irrelevant: when one wants to support a group by otherwise protected advocatory speech alone, should that person be able to do so? I have documented many cases where the normative (and perhaps constitutional) answer is "yes." But asked in light of Abu Ghayth's case, the normative answer is "no"; what of the constitutional answer?
I have from Professor Suzanna Sherry of Vanderbilt this unusual and interesting call for papers for her new journal, New Voices:
“I’ve just started a new journal, and I need your submissions of your students’ top-quality work. New Voices will publish only student papers submitted by professors – you submit it with an explanation of why readers should be interested, and if we’re persuaded we edit and publish it along with your explanation as a preface. I’m attaching the first issue, which includes a description of the journal and information on how to submit your students’ papers. The deadline for the next issue is coming up soon, so if you taught a seminar or sponsored an independent project any time in the past year or so, pick out the best paper(s) and send it/them to me right away! And spread the word. --Suzanna PS: The first issue is also available here.”
Think it was his law clerks?
This Fair Labor Standards Act case turned in part on the length of time it takes workers in a poultry processing plant to don and doff protective clothing. Judge Posner conducted an experiment, described on pp. 9-10 of the majority opinion--he purchased identical equipment and video-recorded "three members of the court's staff" taking the clothing on and off.
I guess a Posner clerkship really is a different type of clerkship.
A new justiciability puzzle
The Enforce the Law Act was introduced in the House earlier this month; it purports to allow one or both houses of Congress to sue the President or other executive officers for failing to enforce the laws. The focus is on executive-branch non-enforcement policies, rather than individual enforcement decisions. And it does not include policies of failing to defend laws is court (e.g., what happened with DOMA).
Assuming the bill solves the legislative standing problem (because a clear statement granting legislative standing is enough to solve the Article III issue), any action seeking an injunction compelling the executive to enforce the laws would seem to be barred by the Political Question Doctrine. Is there anyway to avoid that hurdle?
JOTWELL: Coleman on Reinert on meritless litigation
The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Alex Reinert's Screening Out Innovation: The Merits of Meritless Litigation (forthcoming in Indiana L.J.), which critiques a host of doctrines for not distinguishing meritless claims from frivolous claims. On a separate note, Reinert's article is terrific and I have tried to get my students to grasp that basic distinction, at least rhetorically.
Tuesday, March 18, 2014
Cartoon Caption Contest Contest
This week's cartoon caption contest in The New Yorker features the following cartoon:
As far as I can tell, what we have here is a nine-member court watching a ping-pong match between two players also wearing judicial robes. I have been puzzling over this one. Is this a routine nine-member court watching two more judges from some other court, a somewhat unusual eleven-member court, a poorly thought out cartoon, or something else? Your suggestions are welcome--to me if not The New Yorker.
Banks and the Social Contract
“Banks ought to consider it as a principle object to promote beneficial public purposes…. A bank is not a mere matter of private property, but a political machine of the greatest importance to the State.” -Alexander Hamilton, 1781, letters to George Washington about the advisability of forming a bank.
“My own judgment is that a bank is a public-utility institution and cannot be treated as a private affair, for the simple reason that the public is invited, under the safeguards of the government, to deposit its money with the bank, and the public has a right to have its interests safeguarded through organized authorities. The logic is beyond escape. All banks in the United States, public and private, should be treated as public-utility institutions, where they receive deposits.” --Louis Brandeis, 1914, “Other People’s Money”
“The presence of that public safety net implies unique public responsibilities on the part of banks and would further seem to imply that if we are no longer willing or able to segregate essential banking functions into an identifiable class of institutions, then the public safety net should be made universally available to any institution that provides a banking function, or it should be eliminated altogether.”--Gerald Corrigan, Former New York Fed Chair, 1983, “Are Banks Special?”
“Make more loans? We’re not going to change our business model or our credit policies to accommodate the needs of the public sector.”--John C. Hope III, the chairman of Whitney National Bank in New Orleans and recipient of $300 million in TARP funds, 2009, as reported here.
In 2008, Henry Paulson sold TARP to Congress and the public as a way to relieve average Americans’ mortgage debts through modifications and other direct relief. Congress passed the Act, and Henry Paulson immediately took advantage of the broad discretion given to him under TARP to inject billions of dollars directly into the country’s largest banks by purchasing preferred shares. Paulson reasoned that this was necessary to allow these banks to start lending again. However, the deal struck with the banks neither required or incentivized them to lend more. Once the banks had money in hand, it became apparent that they had no intention of using the funds to increase credit.
There was voiced outrage over this diversion of funds from the public to the banks so Treasury rolled out HAMP in March 2009. HAMP, a $50 million TARP carve-out, was intended to go directly to struggling homeowners. Incredibly, these funds also ended up going directly to banks. When Geithner was asked about HAMP’s failures to help mortgage borrowers (as reported by Neil Barofsky’s Bailout) his response was one of most telling exchanges of the financial crisis: “We estimate that [the banks] can handle ten million foreclosures, over time . . . . This program will help foam the runway for them.” When asked about the one program that was specifically targeted to help the American public, the Treasury Secretary responded that it would make banks more profitable. This one comment probably best reveals the misunderstanding that has pervaded American banking policy for the past 30 years.
The misunderstanding is about the nature of the relationship between banks and the government. The Treasury and other federal regulators have been operating under the assumption that the government’s paramount objective is assuring bank profitability. To be sure, regulators should work to secure a successful banking industry, but bank profitability is a means to an end and not an end itself. The proper end is ensuring that the nation’s banks do what the public needs them to do and not the other way around.
The public needs a safe and reliable banking system, without which the economy cannot reach optimal performance. Banks also need government support, without which their customers don’t trust them (trust is the currency of banks). So banks and the government are engaged in a partnership or agreement—a Social Contract. The basic agreement consists of a government promise that it will protect banks from runs, liquidity shortages and investor irrationality and a promise made by banks that they will operate safely, play their essential role in financing the expansion of the economy, and serve the needs of their customers and local communities. This arrangement has been effective for much of U.S. history and is still intact with regard to most U.S. banks, but has fallen apart with the largest and most powerful banks, those that have been called “Too Big To Fail.” These banks make up less than one percent of the banks in the country, but control the majority of the country’s banking assets and wield a disproportionate amount of political power.
It is these banks that were most involved in unsafe practices and these banks to which the various bailout measures were directed. These large banks are the banks in which the U.S. government is most invested, and yet these are the ones least invested in the public welfare of the country. The social contract must be re-asserted.
After the Crisis, President Obama told Wall Street firms that he is standing “between [them] and the pitchforks.” It is likely that the government will continue to protect banks during the next crisis too so long as large and systemically dominant firms still exist. Both sides need to recognize this inevitable relationship. At the same time, the government must reassert and clarify the essential nature of this relationship and demand the reciprocity on which this social contract is premised. In particular, the government must make clear that in exchange for this necessary and continued support, the government will require banks to fulfill obligations for the benefit of society.
In general, social contract theory posits that individuals consent to surrender some natural liberty in exchange for protection or other benefit conferred by society. Here, banks gain needed protections from the government in exhange for operating safely and increasing access to credit for businesses and individuals. One example of the skewed social contract is in the deterioration of safety and soundness regulation in the last two decades. Another is in access to credit: 40% of the population is unbanked and must look outside the regulated (and protected) banking industry to get the credit and services they need to survive from day-to-day. In fact, the federal government’s investment in the banking sector is the greatest it has ever been while at the same time the number of people that are shut out of the banking sector has also never been greater.
The new experiential-learning requirement
I gather, from Brian Leiter and Paul Caron that the ABA Council of the Section on Legal Education has voted to (among other things) require six (not fifteen) credits of experiential learning of all students. Mary Lynch calls this a "small step" but a step in "the right direction." (My own view, for what it's worth, is closer to Brian's.) Here (thanks to Prof. Lynch) is the language of the relevant new standard:
“one or more experiential course(s) totaling at least six credit hours. An experiential course must be a simulation course, a law clinic, or a field placement. To satisfy this requirement, a course must be primarily experiential in nature and must:
(i) integrate doctrine, theory, skills, and legal ethics, and engage students in
performance of one or more of the professional skills identified in Standard
(ii) develop the concepts underlying the professional skills being taught;
(iii) provide multiple opportunities for performance; and
(iv) provide opportunities for self-evaluation.”
Whatever we think of the merits of this new requirement, it appears that most law schools will have to make some changes -- in some cases, adding and staffing new experiential courses and in others, perhaps, simply changing their graduation requirements -- to comply with it.
Are there new, creative, "outside the box" things that schools and faculties might try? The standard is not entirely open-ended, of course: An experiential course must be "a simulation course, a law clinic, or a field placement." Still, this would seem to leave enough room to create offerings that depart from, even as they build on, the experiential offerings and models with which we're most familiar: direct-service clinics, simulated negotiations, mock-trial and moot-court courses, externships in local (or not-local) prosecutors' and public defenders' offices, etc. Brian has reminded readers that "no law school in the United States is actually equipped to offering 'experiential' learning adequate to the full range of careers lawyers pursue" so it would seem that coming into compliance, in a way that actually helps our students and does not simply protect schools' accreditation, could be a challenge. What do you think most law schools will do, given the new requirement? What could they -- we -- do?
Monday, March 17, 2014
The 1L Canon
From time to time, I like to remind my 1L students that they’re becoming part of a distinct professional community, with shared experiences and a common culture. For instance, the general stresses and struggles that students encounter throughout their 1L year have been similarly experienced by countless generations of lawyers. The 1L experience thus becomes a common cultural touchpoint that they’ll share with any other lawyer they meet.
So occasionally during my 1L Torts class, I’ll tell my students something like: “This is one of those classic 1L cases that anyone who’s been to law school in the last 30 years will remember. If you ever need to make small talk with a random lawyer and all else fails, you can always chat about this case.” I say this in reference to at least two cases during the semester: Palsgraf (of course) and Vosburg v. Putney (the famous “eggshell skull” case).
This made me think about other cases that might be included within the “1L canon”—that is, 1L cases that are both so memorable and commonly taught that they become part of the shared cultural background of anyone (or nearly anyone) who’s gone through law school. Just to be clear, I’m not talking about cases that are ubiquitous merely because they stand for significant propositions; everyone presumably reads Erie and International Shoe as a 1L, but I don’t imagine that many people have striking memories of covering these cases in law school. I’m talking about commonly read cases that stand out as memorable for some reason. This may be because of colorful facts (like the exploding package in Palsgraf), but it can be for other reasons as well; for example, I’d guess that many of us harbor some not-so-fond memories of struggling through Pennoyer as newly minted 1Ls.
Another way of framing the question: if you tell a random lawyer sitting next to you on a plane that you teach Civil Procedure (or Torts, Contracts, etc.), what case(s) would they most likely bring up? Palsgraf and Pennoyer seem to me obvious inclusions; I’d throw Vosburg in there too, although I’m not sure how ubiquitous it is. Any other nominees for cases within the “1L canon”?
Sunday, March 16, 2014
What is/should be a law professor?
As I mentioned in my introductory blog post, I want to wade into the morass of the law schools-today discussion. The theses, from most negative to most positive, are that (1) law schools are a scam akin to a ponzi scheme, intentionally created by greedy institutions; (2) law schools have recklessly fed off of the often unrealistic aspirations of law students, and with the recession have been revealed for what they are; (3) law schools have negligently failed to keep up with the times, and now offer a staid structure of education that doesn't correllate well with student needs; (4) law schools are essentially the same as they always were, in terms of offering value to students; and (5) law schools are doing great, and the legal market is poised for an incredible comeback.
Instead of focusing on macro-economic market forces and whether law schools as institutions are deserving of praise or blame, what can individual law professors do now, to begin/continue a sort of grassroots evolution of law schools? In general, we can revisit our core requirements--teaching, scholarship, and service--and ask what they really entail or what they should entail. I imagine that most of us do this, but bringing this converstation out into the open can do a few things: it can show people what professors actually do, and the value they bring to their students, schools, and communities; it can remind us that we are more than writers of esoteria who visit with students for an hour or two a day in class; and it can inspire law professors to do new things.
So, I have identified, from my own work in the past couple of years, categories of work that may not neatly fit into the teaching-scholarship-service triumverate:
- drafting amicus briefs in appellate cases
- counsel of record in cert petitions before SCOTUS
- CJA appellate work (involving students in representation)
- service on statewide committees to oppose certain legislative measures
- drafting op-eds regarding statewide issues
- serving on university committee involving privacy issues in drone research
- substantive work as member of NACDL committees
- consulting with groups and interviews with media on legal issues
So the questions I'd like to pose are these: in more detail than "teaching/scholarship/service", what do law professors do, and what should they be doing? Instead of offering praise or blame--and there's plenty of each to go around, I suppose--how can we contribute to make our institutions, students, and communities better off?
Saturday, March 15, 2014
Where are they now, St. Patrick's Day Edition
(or Winning by losing and losing by winning)
In 1995, SCOTUS unanimously held that the private organizers of Boston's St. Patrick's Day Parade (a group called the Allied Veterans' War Council) had a First Amendment right to exclude LGBTQ groups from the parade. That decision laid some important free-speech groundwork, particularly in the idea that speech need not have a particularized message to enjoy constitutional protection (citing to works such as Pollock, Schoenberg, and Carroll's Jabberwocky). Although the gay-rights position lost, many advocates appreciated the opinion for (arguably for the first time) speaking in generally positive (or at least not harshly negative) terms about homosexuality.
Fast forward two decades. That same organization, armed with a First Amendment right to exclude, still runs the parade. But it is facing increasing political and economic pressure to allow some LGBTQ groups into the parade. The group had been negotiating to allow in the LGBT Veterans for Equality, although those stalled last week, with AVWC accusing a gay rights group of creating an ersatz veterans' group as a "Trojan Horse" to sneak into the parade. Now numerous corporate sponsors of the parade--including Gillette and Boston Beer Co. (makers of Sam Adams)--have withdrawn as parade sponsors.
So the AVWC has its constitutional rights. But so do other people and entities and they are exercising them in a very different direction and in support of very different ideas than they were in 1995. And so that hard-won constitutional victory may end up somewhat empty.
Friday, March 14, 2014
Who will create an astute marijuana litigation and legal practice blog?
Regular Prawfs readers know that I have done some blogging here about marijuana laws, policies and reform because I see so many interesting general legal issues intersecting with the drug war generally and criminal justice approaches to marijuana specifically. Indeed, I felt compelled to start a new blog, Marijuana Law, Policy and Reform, in part because I was interested in writing about broad issues of public policy implicated by modern marijuana reform efforts: as I have said in my marijuana seminar course description, "contemporary state-level reforms of marijuana laws have raised significant new constitutional, legal, political and practical issues; policy concerns relating to states' rights, local government law, race, gender, public health, crime, political economy, and bioethics intersect with modern marijuana law reform."
Now, as the title of this post suggests and largely thanks to some terrific guest blogging by Alex Kreit over at MLP&R, I think the time may be right for an enterprising lawyer and/or law firm to start a blog focused particularly on marijuana-related litigation and emerging legal practice issues surrounding this new industry. I say this based in part on these four new recent posts over at MLP&R which highlight the array of diverse issues and courts now dealing with dynamic marijuana-related litigation:
In this Prawfs post a few months ago, I speculated that green (i.e., young/junior) lawyers may have a uniquely important role to play in the emerging marijuana "green rush" industry: not only may veteran lawyers be cautious and concerned about representing persons actively involved in state marijuana business, but marijuana reform often seems a "young man's game" for which junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena. Now I am thinking, based in part on the posts above, that an especially effective way for a young lawyer or law firm to make a name in this arena (and to learn a whole lot) would be to start blogging astutely about the emerging challenges and opportunities that surround marijuana litigation and legal practice.
Big Mountain Jesus saved . . . for now
I visited the University of Montana School of Law in beautiful Missoula earlier this week, to talk with students and give a public presentation on religious freedom and the Constitution. (Thanks to Anthony Johnstone for the hospitality!). Since I was out there anyway, I decided to do some (ahem) field work, and visit "Big Mountain Jesus," up at Whitefish Mountain Resort (which happened to have recently been gifted with more than two feet of fresh snow). Here is a picture:
The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.
In 2010, The Madison, Wisconsin-based Freedom From Religion Foundation would demand that the Forest Service not renew the permit. While initially agreeing, public outcry led the service to reconsider.
In February 2012, FFRF sued to have Big Mountain Jesus removed from the government owned property.
"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."
He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."
Thursday, March 13, 2014
What Makes Lawyers Happy? A Study
My colleague and guru, Larry Krieger, has this very cool new paper up on SSRN (co-written with K. Sheldon), and in the space of a couple weeks, it's already received an avalanche of downloads. Here's the abstract. Smart law review editors should want to get their paws on this since it will be cited a zillion times.
"Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained."
Wednesday, March 12, 2014
"The Silver Bullets Are Coming"
A forthcoming piece of mine focuses on what I call First Amendment “audience analysis”—that is, courts’ determinations of how audiences process speech. When the government seeks to regulate speech based on its content, it generally does so on an assumption that listeners will process the speech in a manner that produces social harm. And because the chain of causation for such speech-based harm runs through the filter of an audience, courts must constantly make judgments regarding the audience’s reception of such speech. A few scenarios that I think touch on some of the fundamental questions underlying this issue (the first two are actual cases, the third a variation of the famous Skokie case):
- An FBI agent, after conducting a criminal investigation based on a man’s complaint, concludes that the record does not support a prosecution (a decision that the man protests). Three months later, the man leaves the following voicemail for the agent, which frightens the agent and leads to an indictment for threatening a federal officer: "Hope things are well, hope you had an enjoyable Easter and all the other holidays since I’ve spoken with you last. I want you to look something up. It’s known as misprision. Just think of it in terms of misprision of a felony. Hope all is well. The silver bullets are coming. I’ll talk to you. Enjoy the intriguing unraveling of what I said to you."
- Randi sues the publisher of a nonfiction book for libel, based solely on the following sentence: “Maria was eager for news from Randi about a junkie they both knew who was doing time in prison.” She argues that the passage "falsely accuses her of criminality or associations with criminals."
- A neo-Nazi organization holds a rally in a town full of Holocaust survivors. One of the speakers, after praising the policies of the Third Reich, looks out into the crowd and expresses the organization’s desire to “finish the job the Nazis started.” The speaker is charged under a criminal statute prohibiting true threats.
For present purposes, let's set aside any additional doctrinal issues, such as questions of intent or the constitutional value of the speech in question. I'm interested in the basic question of how courts, in determining the extent to which speakers should be held responsible for the harmful consequences of their speech, ought to evaluate the ways in which audiences process speech. Should the guiding principle be how an idealized, “rational” audience should process the speech? Or merely a best-guess prediction as to how the actual targeted audience would likely process the speech--even if this may be "irrational” in an abstract sense? And how much weight should be attached to the fact that, say, the FBI agent or Holocaust survivors actually understood the statements to be a threat? What do people think?
Tuesday, March 11, 2014
Green Bag In Arlington
From page 125 of the forthcoming Winter 2014 issue of the Green Bag, news that would be too dull to justify comment were it not for a melodramatic earlier post:
In our last issue we reported, with regret, a parting of the ways with the George Mason University School of Law. But now, like Liz and Dick, we are happily reunited. Details of this reconciliation, like the details of the parting that preceded it, are not important. Have conditions changed in ways that make it easier for the Green Bag and George Mason to cooperate? Yes. Are those changes likely to affect our readers? No. Are we happy to be back? Yes.
Two other things, however, must be said. First, we are grateful for the kind words and generous offers of support we received from many friends. We have expressed our appreciation piecemeal and sometimes too hurriedly in recent weeks. We now repeat it more correctly: Thank you very much . . . .
Second, “it is an ill wind that blows nobody good.” Commonwealth v. Fourteen Hogs, Serg. & Rawle 393, 397 (Pa. 1823) (We do not know who coined that classic line, but we like the caption that goes with this version, and the ruling: escaping and trespassing hogs should be captured, not slaughtered.). In any event, some of the correspondence triggered by the recent foofaraw has in turn triggered new projects and new collaborations. The results of some of these should reach you, faithful reader, this year. Others will have to percolate a while longer. All-in-all, we think the recent turbulence has been good for the Green Bag, inspiring us to be both more serious and more fun. We – and, we hope, you – will be better-off and happier for it.
Teaching While Woman
I was fairly naïve my first few semesters teaching and thought that I would just be myself in the classroom and I would earn the class’s respect (or "R-S-P-E-C-T"). I’m naturally averse to hierarchy and formality and wanted to run a democratic classroom. I didn’t want to impose draconian rules or shame my students into submission—I worked hard to know the materials and offer it in a way that they would learn it—without having to force them to pay attention by forbidding laptops or cold-calling. The result: my first few semesters were disasters. It turns out that they didn’t automatically see me as an authority and a few loud talkers began to dominate my “democratic” classroom. There was also rampant disrespect and eye rolling. I called on a student once who wouldn’t take the lollipop out of his mouth to answer my questions, which he did in a very dismissive way. (I should mention that my 1L classes were predominantly male at BYU).
I knew things weren’t going well so I asked for advice. It turns out this was happening to a lot of my young, female colleagues. This may also happen to some men, but I just didn’t talk to any who could relate. So below is a short list of advice I received and ideas I came up with. The main thing is that I had to get more confident and some of that came naturally, but there are also ways to fake it till you make it.
Before you trust my opinion, rest assured that things have changed a lot. My classroom is under control and my classes are rated well. I even get comments such as this: “Baradaran is the teacher I am most scared of/need to be most prepared for, etc.” Now, this may reveal an overcorrection, but it’s better than total anarchy and disregard.
- You have to assert that you are the alpha dog right away. This advice came from a young Harvard Business School professor who was also a woman of color. Let me elaborate. Within the first two weeks of each class, without exception so far, there will be one or two challengers to your authority. The challengers will say something like this (usually with an aggressive tone and stance): “You say ____, but doesn’t the case actually say ____?” “I don’t agree with that, isn’t ____a better explanation?” The class will go silent as they recognize this as a small insurgency. You must shut this down. You must do it quickly, painfully, and effectively. But here’s the catch: you have to do it with a smile on your face. You cannot appear threatened or defensive. You need not spare the feelings of the aggressor, but need to convince the class that you are the one who knocks. You only have to do it a few times at most. And then the rest of the class goes smoothly. Even the challenger who was forced into submission comes around and ends up respecting and even liking you.
- Don’t underestimate the importance of body language. A more senior colleague came to one of my earlier classes and she said that when I lectured, I stood away from the podium and used my hands, but when I was asked questions, I stood behind the podium, appearing to retreat. Now, I make sure to spread my arms, put them on my hips, and stand tall. If I am ever challenged, I force myself to assume a power stance. Seems hokey, but it works!
- Be strict. I hate being strict. I’m a permissive parent who was raised by permissive parents. (While my husband has been out of town, I overheard my 6-yr old tell a friend: "my mom is not good at consequences.") But in the classroom, I can’t tolerate tardiness, unpreparedness, etc. I need to be good at consequences. I think this applies to everyone, but it took me a while to learn this lesson.
- Be Kind. Not just because there’s a double standard that women in positions of power must also be likeable. But because you can’t get people to respect you if you don’t respect them. My 1Ls come to class nervous and afraid and I try to be careful with them. I generally stay focused during the lecture, but stay around after class to answer questions and make an effort to know my students and help them out when I can. As opposed to the above, this is not something you can fake. You must actually care about your students or they will see through you.
Let me also say what I do not do: Some of the advice I got was to dress in dark colors and pant suits with minimal jewelry, etc. Essentially, try to tamper down the femininity. I have not and will not do that—the truth is that the J.Crew catalogue is my sirens song and I feel and look silly in pantsuits. I dress professionally and appropriately, but I sometimes wear bright colors or patterns, dresses and jewelry.
I was also told to leave my family life and personal interests out of class. I don’t do that. I inherited a lot of notes from colleagues filled with sports hypos. I changed all those to things I know—dealings with my kids, celebrities I’m interested in, other trivialities that are no more trivial than sports, but where I feel like I’m not faking.
These are just a few things I have learned in the last four years. I’m still new at this so I would love to hear any advice you all have for me or others just starting out.
Monday, March 10, 2014
Letter on cameras in SCOTUS
Yesterday (intentionally timed to the fiftieth anniversary of New York Times v. Sullivan), the Coalition for Court Transparency, a coalition of media and public interest organizations, sent a letter urging Chief Justice Roberts to open SCOTUS proceedings to video. The letter addresses all the familiar arguments for and against video, as well as offering a preliminary step of same-day audio before moving to same-day video.
Northwestern Conference on Best Law Teaching Methods
Northwestern Law and the Institute for Law Teaching and Learning are proud to present: What the Best Law Teachers Do: Educators in Action, June 25-27, 2014, in Chicago, Illinois.
What the Best Law Teachers Do: Education in Action is a two-and-a-half day conference that will provide a forum to hear the insights and teaching techniques of one-dozen remarkable law educators from among those interviewed in Harvard Press’s newly-released book. Our educators will share their insights and teaching techniques over the course of two full days. For more information, to register for the conference and to make reservations our exquisite accommodations, please visit our website.
Deadline Reminder for CrimProf Conference at Rutgers Newark July, 2014
Folks, just a reminder for those who are interested, the deadline for this conference that Carissa Hessick (Utah) and I are organizing is today-ish.
Here's the text of an email that we sent out to the CrimProf list-serv. Not everyone who is interested in this conference subscribes to that list-serv, so I'm reproducing the body of it here. If you know crim profs or aspiring ones, please feel free to send them the link to this post and then have them get in touch with Carissa and me ASAP. Thanks!
Dear Fellow CrimProfs:
Because of some changes to the Law & Society rules that we found, um, inhospitable, Danny & I have, in consultation with others, decided to move the LSA Shadow Conference to its own time and venue. Hence, what would have been the 5th Annual CrimProf Shadow Conference at LSA will now be known simply as the 5th Annual CrimProf Conference. We might move it back to LSA in the future if conditions improve, but for now we will go it alone.
Our friends at Rutgers-Newark have kindly agreed to host. The conference will begin on Sunday, July 20th with the chance to socialize in the evening, but the panels will begin in earnest on Monday morning the 21st of July and depending on the level of participation, we will end on Tuesday, July 22nd or Wednesday July 23rd. Participants will be responsible for their own travel and lodging costs (discounted hotel information is included below), and we will also ask attendees to pay a $50 registration fee to help cover the costs of snacks and lunches so that we can break some bread together. More info after the jump.
As in past years, we will have a substantial number of paper panels for WORKS in PROGRESS. Unlike LSA, we will probably do 3 papers per panel, instead of 4. Panelists will be required to read and share comments with the other panelists. And, in contrast to our LSA experience, we will ask panelists to share their drafts a week in advance with the other attendees, by posting their notes/drafts in a password-secured website, so that more people can offer more informed comments at the panels.
Finally, we also hope to include some slightly different formats---such as a couple of sessions for folks to help shape book manuscripts or discuss completed books, or teaching issues and other topics that may be of interest to the broader community. If you have an idea for a non-traditional paper panel, please let us know ASAP.
Participants may include tenured or tenure track professors of law at any accredited law school. VAPs and Fellows are welcome to present too, space permitting. For all who are interested in attending, please email me & Danny no later than Monday March 10. Our email addresses are: carissa.hessick at law.utah.edu and markel at law.fsu.edu
To reduce any likelihood of administrative error on our part, your email should have a subject heading that states "Proposal for 5th Annual CrimProf Conference," and the body of your email should include:
(a) The title and abstract for the paper you wish to present, or information about another type of session in which you are interested in participating;
(b) Whether you are willing to serve as chair or discussant for another panel; and
(c) Any date restrictions you have. We cannot promise to accommodate date restrictions, but we will do our best. Needless to say, if you flake on us and thereby blow up a panel without a completely compelling excuse, we will remember! :-)
We hope that many and more of you will be able to join us. And we hope that this conference will be the herald of many more summer crim gatherings in the future.
Carissa & Danny
Discounted Hotel Information:
Hilton Hotel = $149 per night
Contact person for the Hilton is Lucile Cox, her direct number is 973-645-2050
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo
Robert Treat Best Western = $99 per night
Contact person for the Robert Treat, Mercedes, she can be reached at 973-622-1000
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo
Guests should refer to Group#5529 when they reserve the room.
Sunday, March 09, 2014
When an Undue Burden?
Recently passed legislation in Texas is effectively closing 44 of 50 abortion clinics in that large and populous state. Meanwhile, in my home state of North Dakota--large, but not very populous--where one abortion clinic operates in the far southeast corner of the state, parties have just settled a lawsuit regarding a state admitting privileges law when a local hospital agreed to give such privileges. Despite the divergent outcomes in each of these two states, isn't the ultimate result the same: people who don't reside near a state's clinic(s) may be unduly burdened when attempting to exercise their constitutional right to an abortion.
Imagine if a Texas or North Dakota law required gun stores to follow clearly unnecessary regulations that forced the closure of most of them, and another law prohibited the mailing of firearms. No doubt people would claim a Second Amendment violation if they had to
- travel hours to buy a gun;
- wait for 24 hours;
- receive information about the alternatives to buying a gun, such as installing home security systems or buying a guard dog; and
- receive information about how guns inevitably result in the death of whole, human lives.
Would this be a Second Amendment violation (not to mention a First Amendment violation as to the last point, something courts in the abortion context have rejected)? If so, should the anti-abortion laws in Texas and North Dakota be unconstitutional as well? What if potential gun purchasers and women seeking an abortion, who live near their state's border with another, more libertarian, state, can travel five minutes across state lines to exercise their constitutional rights? Would this mean that these people lack standing to sue for their state's complete prohibition on gun sales and abortions, because they can exercise their rights? Put another way, may tiny Rhode Island prohibit gun sales and abortions but Texas may not?
The inconsistent answer depends upon whether we engage in a formalist-legal analysis or a factual analysis. Under a formalist-legal analysis, the answer is clearly no, because states may not prohibit that which is a federal constitutional right. It doesn't matter whether Rhode Islanders can easily travel across state borders to exercise their rights. Under a factual analysis, however, the answer is yes. Someone in portions of Texas who wants to obtain an abortion will formally-legally have the right to an abortion in one of the six remaining abortion clinics, but because of distance, cost, etc. will effectively not have that right. Thus, Texas' laws should be struck down because they create an undue burden. Someone in Rhode Island who wants an abortion, however, can (in theory) easily travel to Connecticut or Massachusetts. Factually, she has much less of a burden than someone in parts of Texas.
But this cannot be. There must be a formalist-legal and factual analysis, which courts ostensibly engage in. But thus far, courts have been unwilling to recognize that geographical distance to an abortion clinic might pose an undue burden. Perhaps if the same law were leveled at gun sales, courts would rule differently. While choice is popular among legislatures and courts, apparently it's only the choice to possess an object that can kill. For these institutions, perhaps being pro-choice does, in fact, mean being anti-life.
FSU Law Review Exclusive Review
The Florida State University Law Review will be conducting exclusive spring article reviews over the next few weeks. Any article submitted to this exclusive review between now and March 15th will be evaluated by March 22d. By submitting the article you agree to accept an offer for publication should one be extended. You are not required to withdrawal your article from consideration by other journals, but you may not accept an offer from another journal unless we have notified you with a decision not to publish your piece. Any articles accepted through this review will be published in our fourth issue, which is slated for publication in summer of 2015.
If you have an article you would like to submit, please e-mail Jordane Learn a copy of the article and your CV at FSUarticleselection@gmail.com with the subject line "Exclusive Spring Article Review." We look forward to reading your submissions.
Saturday, March 08, 2014
Gambling v. PEDs and the Baseball Hall of Fame
Warning: Another sports-and-law post, this focusing on the internal rules of baseball as a business
Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. TThe excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic that surrounds PEDs.
But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.
Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.
Coulda Been Contenders
Do people have favorite cases/issues for which SCOTUS did not grant cert, but who think that if it had, the resulting opinion might have been impactful, important, or otherwise interesting? Mine is Epton v. New York, 390 U.S. 29 (1968), in which the Court denied cert from the petitioner's conviction for conspiracy to riot, advocating criminal anarchy, and conspiring to engage in such advocacy. The overt acts alleged consisted of speeches and the preparation of leaflets, all of which, according to a dissenting Justice Douglas, would normally be protected by the First Amendment.
As I have argued, conspiracy entails a First Amendment work-around: direct speech prohibitions are generally unconstitutional, but conspiracy charges can effectively quash speech rights. Epton might have responded, answering the "important question," as Justice Douglas put it, "Whether the overt act required to convict a defendant for conspiracy must be shown to be constitutionally unprotected." Id. at 31.
Friday, March 07, 2014
The problem with PowerPoint
Editing Cases for Class
This is my first year teaching on the tenure track, as well as my first year teaching doctrinal courses; to a certain extent, I’m still feeling things out as far as how I’d like to run and organize my classes. This semester, I’m teaching a class on Speech Torts. As you might imagine, the coverage of the course is fairly idiosyncratic, which posed some problems in picking out a casebook: no casebook would hit all (or even most) of the material I wanted to cover in the course, and a significant portion of any casebook I could pick would go unused.
So I decided to put together my own case materials. I’ve largely found the extra investment of time worth it, since I can tailor the course exactly the way I’d like it (while, of course, saving my students from having to shell out $200 for a lightly used casebook).
This has raised the issue of how (and, I suppose, if) to edit cases. My instinct has been to edit on the heavier side so cases are lean and focused on the points I want to emphasize, which leads to more focused classroom discussions and allows me to cover more material. On the other hand, there’s a lot of potential benefit in giving unedited (or very lightly edited) cases to students. Many will go through law school with only limited experience in dealing with cases “in the wild,” and being able to organize multiple issues, plow through complicated procedural histories, and generally separate the wheat from the chaff are all valuable legal skills.
So a question for those of you who regularly edit cases for your classes (and those who have put together casebooks): what is your general case-editing philosophy? I realize that a lot of this will be tied to the specific case and material being covered, but all else being equal, do you tend to edit lightly (or not at all), or do you tend to apply a heavy hand?