Wednesday, April 30, 2014
This is kind of funny. It is a dramatization of a deposition in which the attorney and deponent go round and round over the definition of "photocopier." It is taken verbatim from the transcript, although there is likely some dramatic license with tone and delivery. The Times is making this a regular opinion feature and they are soliciting transcripts for future videos.
This also may be fun and useful as a Civ Pro teaching device, to illustrate something about depositions.
Of (Courtney) Love and Malice
Today Seattle Police released a note found on Kurt Cobain at his death excoriating wife Courtney Love. Based on her subsequent behavior, Love cannot have been an easy person to be married to. I've been researching Love lately for an article on social media libel that I'm writing with RonNell Andersen Jones. Love is not only the first person in the US to be sued for Twitter libel; she's also Twibel's only repeat player thus far. According to news reports, Love has been sued for Twitter libel twice , and recently she was sued for Pinterest libel as well.
Love's Twitter libel trial raises interesting issues, one of which is how courts and juries should determine the existence of "actual malice" in libel cases involving tweets or Facebook posts by "non-media" defendants. As you probably recall, the US Supreme Court has held that the First Amendment requires public figures and public officials to prove actual malice--i.e., knowledge or reckless disregard of falsity--before they can recover for defamation. And even private figure defamation plaintiffs involved in matters of public concern must prove actual malice if they wish to receive presumed or punitive damages. However, US Supreme Court jurisprudence elucidating the concept of actual malice predominantly involves “media defendants”—members of the institutional press—and the Court’s examples of actual malice reflect the investigative practices of the institutional press. Thus, the Court has stated that in order for a plaintiff to establish actual malice, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." [St. Amant v. Thompson] Actual malice, for example, exists if a defendant invents a story, bases it on ‘an unverified anonymous telephone call,” publishes statements “so inherently improbable that only a reckless man would have put them in circulation,” or publishes despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports." Id.
These examples have little resonance for “publishers” in a social media context, many of whom, like Love, post information spontaneously with little verification other than perhaps a perusal of other social media sources. The typical social media libel defendant is less likely than her traditional media counterpart to rely on informants strategically placed within government or corporate hierarchies or to carefully analyze primary sources before publishing. Moreover, the typical social media defendants has no fact-checker, editor, or legal counsel and is less likely than institutional media publishers to have special training in gauging the credibility of sources or to profess to follow a code of ethics that prizes accuracy over speed.
The issue Courtney Love's libel trial appears to have raised is whether it constitutes reckless disregard of falsity if a defendant irrationally believes her defamatory accusation to be true. I say "appears," because one can only glean the issue from media accounts of Love's libel trial--the first full jury trial for Twitter libel in the US. The jury found that Love lacked actual malice when she tweeted in 2010 that her former attorney had been "bought off." Specifically, Love tweeted: “I was f—— devestated when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote[sic].” Holmes sued Love in California state court for $8 million, arguing that the tweet accused Holmes of bribery. Love contended that her tweet was merely hyperbole. News accounts of the jury verdict in Love’s favor, however, indicate that the jury found that Love did not post her tweet with “actual malice." The jury deliberated for three hours at the end of the seven-day trial before concluding that the plaintiff had not proved by clear and convincing evidence that Love knew her statements were false or doubted their truth.
The Love case doesn't set any precedents, but it raises interesting issues for future cases. According to court documents and news accounts, Love consulted a psychiatrist for an “addiction” to social media. Certainly Love’s actions in the series of defamation cases she has generated do not seem entirely rational, but there is no “insanity defense” to a libel claim. Yet the determination of whether a defendant had “actual malice” is a subjective one, meaning that it is relevant whether the defendant suffered from a mental illness that caused her to have irrational, or even delusional, beliefs about the truth of a statement she posted on social media. It seems problematic, however, for the law to give no recourse to the victims of mentally disordered defamers pursuing social media vendettas based on fantasies they have concocted. As a practical matter, this problem is likely to be solved by the skepticism of juries, who will rarely accept a defendant’s argument that she truly believed her delusional and defamatory statements. Or at least I hope so.
And in case you wondered . . . Love's first social media libel case involved her postings on Twitter, MySpace and Etsy calling a fashion designer known as the "Boudoir Queen" a "nasty lying hosebag thief" and alleging that the Queen dealt cocaine, lost custody of her child, and committed assault and burglary. Love apparently settled that case for $430,000. Love's third social media libel case involves further statements about the Queen that Love made on the Howard Stern show and posted on Pinterest. Some people, it seems, are slow learners.
Posted by Lyrissa Lidsky on April 30, 2014 at 06:30 PM in Blogging, Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (7)
Corporate Privacy Problems Start at the Top
Following up on my post from earlier in the week, in my new project, Corporate Privacy Problems Start at the Top, I argue that the privacy preferences of key corporate executives can play an important role in determining the privacy practices of a corporation.
If courts or congress or the SEC clarify that corporate executives must give up their privacy and disclose to shareholders any personal information about themselves that shareholders might consider relevant, then we would expect to see a sorting effect in which individuals who care about privacy will choose other career paths and options. This will tend to result in overrepresentation among corporate executives who come from the side of the privacy spectrum that does not value privacy. This sorting effect likely already exists, although in a weaker form, even with the current ambiguity regarding the ability of corporate executives to maintain their privacy.
In his research, privacy scholar Alan Westin found that individuals on the "privacy unconcerned" side of the privacy preferences spectrum, not only did not care about their own privacy, but actually did not understand what the privacy fuss was all about. If Westin is right, then corporate leaders drawn from that portion of the privacy spectrum are likely to be unable to accurately understand the extent to which employees and consumers value privacy. This is particularly an issue when a particular corporate decision is not itself about privacy, but has privacy implications that the corporate executive may not even recognize.
Even without Westin's conclusion, we might expect that individuals who have traded their own privacy in order to pursue their financial and corporate leadership dreams, would want to validate that decision by expecting that others (employees, consumers) would also be willing to trade their privacy to obtain things such as employment or the corporate product. Either way, if the corporate decisionmakers care less about privacy they are less likely to place a high value on privacy in the running of the corporation.
This understanding is consistent with management scholar H. Jeff Smith's landmark 1994 study of corporate privacy preferences in which he found that corporate executives almost entirely ignored privacy decisions, leaving them to midlevel managers. It is also, however, consistent with Kenneth Bamberger and Deirdre K. Mulligan's subsequent study, "Privacy on the Books and on the Ground", 63 Stan. L. Rev 247 (2010)" in which they studied the practices of corporations who are considered industry leaders in privacy. One of the main characteristics they found among those corporate privacy leaders is the rise of the "chief privacy officer" positions. For various reasons, CPO's are more likely to be individuals who themselves value privacy. Furthermore, because their entire role is dedicated to spotting potential privacy issues even when a corporate decision does not seem to be about privacy, the rise of CPO's means that there is someone in the corporate suite who can bring the privacy issues to the table, in the way that the other corporate executives may not be able to do. This suggests that CPO's can be even more important as a matter of good corporate governance than previously recognized in order to overcome the lack of privacy priorities by the rest of the corporate suite.
Tuesday, April 29, 2014
Sterling, Silver, and statutory interpretation
For those of you who like using sports rules to illustrate statutory interpretation, NBA Commissioner Adam Silver's lowering of the hammer on Clippers owner Donald Sterling is a gold mine (forgive the precious metal puns). And it may be that, while Silver is being lauded for his moral and ethical stand, his legal footing is a bit shakier.
Silver on Tuesday imposed three punishments: 1) A lifetime ban from all involvement with the Clippers or the league; 2) a $ 2.5 million fine; and 3) a call for the owners to vote to terminate Sterling's ownership. The NBA had previously kept its governing documents secret; at the time of Silver's press conference, no one outside the league knew the precise bases for these punishments (when asked, Silver said he would "leave that to the lawyers"). The league finally released its Constitution and By-Laws (H/T: Deadspin), although they still have not announced the precise bases for these decisions, so we are guessing as to exactly what Silver relied on and why. We may only know if Sterling challenges his punishments (presumably through a breach of contract action). Either way, you probably could get a nice legal analysis exam out of this.
The lifetime ban is most likely pursuant to Article 35A(d), which empowers the commissioner to "suspend for a definite or indefinite period . . . any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association." The fine seems to be pursuant to Article 24(l), which gives the commissioner catch-all authority to make decisions "as in his judgment shall be in the best interests of the Assocaition" when a situation is not otherwise covered; the maximum fine under that provision is $ 2.5 million. Finally, the call for termination of Sterling's membership triggers Articles 13, 14, and 14A. Article 13 enumerates ten bases for termination; the only one that might fit is (a), where an owner "Willfully violate[s] any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association," which brings us back to Article 35A(d)'s conduct prejudicial or detrimental or Article 24(l)'s "best interests." The power to terminate rests with the NBA's Board of Governors, comprised of the other 29 owners, and requires a 3/4 supermajority.
First, it is interesting that Silver apparently split the source for the first two punishments. The suspension seems to have been under Article 35A(d) for conduct prejudicial or detrimental to the NBA. But 35A(d) (already used as the basis for the suspension) also allows for a maximum $1m fine in addition to the suspension. Clearly Silver did not rely on Article 35A for the fine, however, since he imposed a fine 1 1/2 times larger than 35A(d)'s limit. Instead, the fine must have been under the Article 24(l) catch-all, given the amount. Why did he do it this way? Presumably to impose the larger fine under 24(l).
But there is a good argument that resort to the catch-all is inappropriate here. Article 24(l) expressly applies only "[w]here a situation arises which is not covered in the Constitution and By-Laws." This situation is covered by another part of the Constitution--Article 35A(d), already used for the suspension. In other words, since Silver found that Sterling violated Article 35A(d) (in suspending him), that also should have been the basis for the fine. Silver thus was wrong to resort to the catch-all. Further complicating matters is Article 35A(c), providing for fines (again, maximum $ 1 m) specifically for statements prejudicial or detrimental to the best interests of the team, league, or basketball. That also seems to cover this situation--Sterling obviously said things contrary to the best interests of the NBA--again making resort to Article 24(l) inappropriate.
Second, and related: Why did Silver rely on Article 35A(d) for conduct prejudicial or detrimental rather than Article 35A(c) for a statement prejudicial or detrimental? Presumably because (c) does not allow for suspension, while (d) does. But Sterling is unquestionably being punished for statements, not conduct (whatever his racist views, he was not punished for acting on his views or operating his team in a way that implemented those views). While a provision prohibiting conduct could, standing alone, also reach statements, that argument does not work when there are distinct provisions, one regulating conduct and one regulating speech. Did the NBA Constitution intentionally set-up a situation in which conduct could be the basis for a suspension but statements only for a fine? If so, perhaps this means the suspension is improper.
Note that my analysis presumes a certain exclusivity--Article 24(l) by its terms cannot be in play if a different provision is; Article 35A(d) cannot be used to regulate statements because 35A(c) already does. Perhaps Silver would argue--and an arbiter would accept--that all of the provisions together allow for this range of punishments. But that is an odd form of statutory interpretation and would render many provisions of the NBA Constitution superfluous.
Third, expect some controversy when the owners attempt to terminate Sterling's ownership. The league would be basing termination on a willful violation of either of three broad, non-specific provisions (either "conduct prejudicial or detrimental," statements prejudicial or detrimental, or conduct judged not in the "best interests'); either seems a very generic basis for this ultimate sanction. (For a legal comparison, think of SCOTUS' efforts to make 18 U.S.C. § 241 work for catch-all Due Process violations in the face of vagueness concerns). The other nine bases for termination are fairly specific, going to gambling and fixing games (forever the cardinal sin) and extreme mismanagement of the franchise, although none is in play here. Perhaps Sterling could argue that either 35A(d) or 24(l) is not a specific enough rule in the Constitution & By-Laws as to be willfully violated as to form a basis for termination under 13(a). Failing that, termination of ownership, if the owners must the necessary supermajority (and I imagine they will, both to show support for Silver's leadership and to keep the players happy), appears proper and within league rules. Of course, under Article 14(j), owners waive any review of this decision (and a similar one in the franchise agreement), so it may not matter (unless, as David Hoffman suggests, the enforceability of this waiver-of-recourse clause is dubious).
[Update: A thought that just rolled around: One might read "willfully" in Article 13(a) to require specific intent (again, what the Court has done with § 241 to avoid vagueness concerns). That is, requiring a finding that Sterling not only specifically intended to make those statements (he did), but specifically intended to make them so as to be prejudicial or detrimental to the league. If that is what willfully does, termination of ownership may become tougher. Otherwise, any little violation of any rule could become a basis for termination.]
Finally, it will be interesting to see how the owners approach termination of ownership. Typically, terminating a franchise transfers control to the league, under Article 14A(c). But the media seems to be talking in terms of the owners giving Sterling an opportunity to sell the team outright to some outside owner. While not specifically provided for, that might be a potential negotiated resolution.
"Shadows" and "Innocence," copyright and performance
Earlier, I wrote about the Ninth Circuit’s recent Garcia decision, which is turning out to be the copyright Ishtar* of 2014. One take on what is so rank about the opinion is that it flouts a basic copyright principle that performances (separately from the works they are based on) are not copyrightable.
But earlier this month, just after Garcia was decided, the District of Nevada issued a far less remarked-on opinion entering summary judgment in favor of Teller (the silent, shorter member of the famed Penn & Teller duo), who argued that a YouTube video by Dutch magician Gerard Dogge infringed Teller’s copyright in his illusion “Shadows.”
At first glance, it’s hard to tell these cases apart. If Garcia was wrongly decided because (in large part) it erroneously held that performances are copyrightable, then shouldn’t Teller have lost as well? The answer is no, but it requires a closer look at the circumstances of these deceptively different cases. And the value of taking that closer look is to parse out more carefully what does, and does not, work about the “performance is not copyrightable” aphorism. More below the fold.
It’s worthwhile to give a quick sense of the infringement in Teller. Teller’s “Shadows” is a very elegant and affecting illusion that begins with a rose on a stand with a light in front of it causing a shadow of the rose to be projected onto a screen behind it. Teller then appears, and cuts away the petals of the rose’s shadow, and when he does so, each corresponding petal on the actual rose falls as well. In Dogge’s video, he performs a virtually identical illusion with nearly identical set dressing and materials (indeed, the name of his illusion is “The Rose and Her Shadow”), though there are some slight variations (Teller uses a rose in a vase, while Dogge’s is in a bottle; Teller’s and Dogge’s performances end with different performative flourishes).
That said, the way to reconcile Garcia’s wrongness with Teller’s (relative) okayness lies in the nature of the latter’s asserted copyright interest. Teller registered his work, “Shadows,” as a dramatic work (actually, "dramatic pantomime" in the registration certificate) with the Copyright Office in 1983 (though he had been performing the illusion since 1976). The registration comprises a detailed description of “Shadows” to the minutest detail. By contrast, Garcia’s purported copyright in “Innocence of Muslims” derived solely from whatever originality her performance added to the underlying words written by the screenwriter.
Moreover, Teller’s registration of “Shadows” also clarifies and simplifies his authorship status with respect to the work. He is solely listed as the dramatic work’s author, because he is—the entirety of “Shadows” is the product of his creative mind alone. Again by contrast, Garcia’s authorship status with respect to “Innocence” is a wreck. She is at best one of many joint authors of the work, though her relative contribution to the final product is vanishingly slim.
Still, these two cases raise a puzzle: Is performance copyrightable or isn’t it? I don’t think we need to get too Clintonian about this (i.e., no need to default to “it depends on what ‘performance’ means” hair-splitting). Teller didn’t hold that performances are generally copyrightable. It held that Dogge’s YouTube video amounted to an unauthorized public performance of Teller’s copyrighted dramatic work.
If you want to get really technical about it, Teller’s claim was not that Dogge’s video was substantially similar to Teller’s performance of “Shadows” (indeed, there are many different performances of “Shadows,” though they are all nearly identical), but rather that it was similar to the dramatic work “Shadows” that was embodied in the copy Teller filed with the Copyright Office back in ’83. A performance is something that you can do with a work, just as you can reproduce or adapt or distribute copies of it, it’s not the work itself, and only works are copyrightable.
Throughout this post, I’ve been saying that Teller seems basically right. The reason I’m equivocal lies in one part of the opinion that went largely unremarked. The court remarked that the defendant’s work was substantially similar to Teller’s in part because “both performances are based on the incredibly unique concept of a performer cutting parts of a rose’s shadow, thereby cutting the corresponding parts of a real rose.”
Putting aside the court’s problematic usage of “performance” and “performer”, what raises a red flag about this passage is the court’s suggestion that Teller’s copyright extends past his specific expression of the particular dramatic work articulated in the deposit copy he included with his copyright registration, and applies generally to the “concept” embodied in his dramatic work.
This phrasing seems to flout copyright’s good old idea/expression dichotomy, though as with all idea/expression issues, the distinction is a hard one to draw. I’m OK with the outcome in Teller because Dogge’s video mimicked Teller’s work down in detail with only a few exceptions. But one could imagine variation on “Shadows” that are not as slavish in their copying. Consider a variant where a garrulous magician cut the petals from the projected shadow of a sunflower, causing the real thing to fall. Or more abstractly, imagine a version where a talkative illusionist came out and cut the limbs off of the projected shadow of the human effigy of some great historical villain (Hitler, Stalin, Donald Sterling), causing the limbs on the actual figure to fall off. I think the latter two would be far enough from Teller’s work to be allowable, even though they are based on the “incredibly unique concept” that animates “Shadows.”
Finally, if Teller is (mostly) rightly decided, does that mean that magic tricks are copyrightable, contra the major premise of Jacob Loshin’s really cool article on informal means of protecting illusions in the magician community? No way. What Teller owned was the copyright in a dramatic work that happened to contain a magic trick. The underlying idea that animates the specific expression of the performance remains, in my opinion if not the D-Nev’s, fair game.
*This 1987 movie, featuring Warren Beatty and Dustin Hoffman lost in the Sahara Desert, was generally considered unspeakably awful and became a legendary Hollywood bomb. This tends to be my go-to reference for Hollywood disasters because, unlike Waterworld or Cutthroat Island or Heaven’s Gate, I actually saw Ishtar in the theater when I was a kid. God knows why. Maybe it was some form of punishment.
Registering for Organ Donation--How Much Does It Matter?
All of those efforts to persuade people to authorize postmortem organ donation seem to be paying off. Whether one gives consent when renewing a driver's license or by signing up at Donate Life America, the results are impressive. In 2012, 45 percent of American adults were included in state organ donation registries, and 40 percent of organ donations after death came from these "designated donors." That's a more than doubling of the 19 percent rate of designated donors among posthumous organ donors in 2007.
But the increase in donor designation has not translated into a meaningful increase in organ transplantation. There were 22,053 transplants from 8,085 deceased donors in 2007 and 22,187 transplants from 8,143 deceased donors in 2012.
Why hasn't donor designation translated into more organs? Is it because organ procurement organizations would have obtained consent from family members anyway for individuals who registered for donation? A survey of organ procurement organizations suggests strong agreement between registered donors and their families. Or maybe family wishes matter more than the decedent's wishes despite legal rules that recognize the priority of the decedent's wishes. Or perhaps other factors are hiding the effect of donor designation. Maybe it's too soon to see an effect from donor designation. It will be interesting to see how the data play out over the next few years.
[cross-posted at HealthLawProfs and orentlicher.tumblr.com]
Marriage, religion, and good (and bad) arguments
A § 1983 action was filed Monday in the Western District of North Carolina, challenging North Carolina's prohibition on marriage equality. What is interesting here is that the plaintiffs include the General Synod of the United Church of Christ and a number of clergy of different faiths; they argue that state law violates Free Exercise by prohibiting them, under penalty of criminal prosecution, from performing religious same-sex marriage ceremonies that their religious teaching approves.
Proponents of marriage equality have responded to religious objections by emphasizing the difference between secular and religious marriage--that requiring the state to recognize same-sex marriages (under the Fourteenth Amendment) does not obligate religious institutions to recognize or solemnize those marriages, to the extent it would contradict that religion's teaching. The plaintiffs here allege the opposite--that North Carolina, in prohibiting same-sex secular marriages, is prohibiting religious institutions from recognizing or solemnizing same-sex marriages where it is consistent with that religion's teaching.
While state legislatures enact a lot of blatantly unconstitutional laws, a law imposing criminal sanctions on clergy performing a sacrament seems way beyond the pale. But is that really what is going on here?Paragraphs 91a and 91b of the Complaint quote the relevant statutory provisions, which refer to any "minister, officer, or other person authorized to solemnize a marriage under the laws of this State" performing a marriage for a couple that does not present a valid marriage license (presumably a different provision prohibits issuance of a marriage license to a same-sex couple). It seems to me the appropriate reading of that language is that it only prohibits ministers and others from performing a marriage ceremony that requires a license from the state--in other words, a secular marriage that would be recognized by and binding in the state. But that does not extend to purely religious marriages--I do not need a marriage license from the state to obtain a Jewish marriage, only a ketubah. In addition, the language "minister, officer, or other person" includes clergy as well as non-clergy who perform only secular marriages (judges, notary publics). This suggests that the prohibition is on performing secular marriages, not religious ones, since secular marriages are the only things the people listed in the statute have in common. On this reading, there is no First Amendment problem, because state law does not, in fact, prohibit clergy from engaging in any purely religious ceremonies or otherwise prohibit anyone from practicing their religion.
Alternatively, perhaps the church and clergy plaintiffs are arguing that the state is unconstitutionally depriving these religious ceremonies of legal effect, meaning the state must recognize any marriage performed by clergy whose religion would recognize that marriage. But that seems such an obvious Establishment problem. And ¶ 106 states the claim as clergy being "prohibited under threat of criminal prosecution from performing any such religious ceremonies" and congregants being "prohibited from becoming married in the tradition of their respective faiths," all suggesting that it is only the religious element being challenged here.
So why raise this claim? Well, it allowed at least one commentator to seize on the case and rail about religious hypocrisy, so there is a political and rhetorical benefit. But when there are (in my, and every lower court's, opinions) so many good arguments to make as to why these laws violate the Fourteenth Amendment, why reach out for a bad one based on an unrealistic statutory reading?
Update: The point of this post was to consider the constitutional validity of one particular claim in this lawsuit. It was not to have a debate about theology and whether SSM is consistent with the will of god, a debate I am not competentto have here. There are many internet fora for such discussions; this post is not one of them. Please refrain from posting comments arguing such issues. I will continue removing them, which gets old quickly. At some point I simply will have to close comments, which I hate to do, since there are many relevant points to be made on the actual subject of the post.
Dogs Walking on Their Hind Legs? On Judicial Critique of Constitutional Theory
I've gotten interested over the last few years in the separation between constitutional theory and constitutional adjudication. That separation is a hearty perennial--it is a feature of the broader difference between speculative and practical reason, but in Anglo-American law it takes on certain distinctive characteristics that reflect the character of judicial office as contrasted with other offices, roles, or duties. And it is an old division, stretching back centuries and manifesting itself in many different ways, but with connecting threads through the ages. Justice Story once noted it in characteristically vivid terms in the course of firing a kind of anti-Jeffersonian broadside:
[T]he most unexceptionable source of collateral interpretation is from the practical exposition of the government itself in its various departments upon particular questions discussed, and settled upon their single merits. These approach the nearest in their own nature to judicial expositions, and have the same general recommendation, that belongs to the latter. They are decided upon solemn argument, pro re nata, upon a doubt raised, upon a lis mota, upon a deep sense of their importance and difficulty, in the face of the nation, with a view to present action, in the midst of jealous interests, and by men capable of urging, or repelling the grounds of argument, from their exquisite genius, their comprehensive learning, or their deep meditation upon the absorbing topic. How light, compared with these means of instruction, are the private lucubrations of the closet, or the retired speculations of ingenious minds, intent on theory, or general views, and unused to encounter a practical difficulty at every step!
In this new paper that Kevin Walsh and I have written together to be published in the Notre Dame Law Review, we focus on the ways in which two prominent judges--Richard Posner and J. Harvie Wilkinson III--write extrajudicially about constitutional theory. We then compare those writings against a selection of their decisions in three areas of constitutional law: the Second Amendment, partial-birth abortion, and the Establishment Clause. The purpose of the comparison is to assess the impact of the constitutional theories of these judge-scholars on their own constitutional jurisprudence but also (and more importantly) to understand better precisely what it is that these judge-scholars are doing when they write about constitutional theory. We conclude that (1) there are agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role; (2) judicial pragmatism and judicial restraint (the judges' respective favored theories) exert limited influence on their own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence; and (3) judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.
Judge Posner (adapting rather liberally from Samuel Johnson's aphorism) once wrote that a judge writing about constitutional law "is like a dog walking on his hind legs: the wonder is not that it is done well, but that it is done at all." Yet we see it somewhat differently. When judges write extrajudicially about constitutional law, they are not dogs walking on their hind legs. They walk on all fours in developing their own accounts of the good judge at work in constitutional cases. And the insights derived from these accounts illuminate the need for further reflection on the nature of judicial role and judicial duty within the American constitutional system.
For some further reflections on the issue of judicial disposition or character related to the paper, see this post on Justice Frankfurter and judicial restraint, this post about the place of judicial disposition, and this post about the move from theory to disposition in the description of the good judge. Comments on the paper are welcome.
Monday, April 28, 2014
Over at his blog, Stephen Bainbridge posted today about a Stanford Business School short case study arguing that a CEO divorce might impact a corporation and its shareholders, and therefore shareholders should take into account the personal lives of CEOs when making investment decisions. He concludes in his post that the corporation's directors likely do not have any legal obligation to affirmatively monitor the CEO's personal life, including his/her marriage. https://www.professorbainbridge.com/professorbainbridgecom/2014/04/the-impact-of-ceo-divorce-on-shareholders-and-the-fiduciary-duty-of-directors.html
While I agree with that conclusion regarding duty to monitor, as I have written about previously, it is a more ambiguous question under the current law whether a corporation that is actively aware of a situation in the personal life of the executive has any obligation to disclose that information to the shareholders.
In my scholarship, I have focused on a closely related question: not whether corporations do have to disclose personal information about its executives to its shareholders, but rather should corporations have to disclose such information to their shareholders?
On the one hand, the Stanford case study is probably correct that a CEO divorce (or other difficult situation including family death, or health situations) might impact a corporation and its shareholders. This general conclusion is not new, as finance scholars at NYU empirical studies studied data from Denmark and found statistically significant drops in company profitability following the death of a CEO's child or parent (although not after the death of a mother-in-law).
That is not the complete story, however, in deciding the normative question. In addition to the shareholders' interest in obtaining potentially relevant (one might arguably say material) information about the CEO, there is also a competing interest by the executive in being able to keep personal information about such deeply personal matters as health information, family deaths, and marital troubles to themselves and their circle of loved ones.
How do we balance these two competing interests? In my 2013 Florida State Law Review article "Disclosing Corporate Disclosure Obligations" I argue that the best way to balance and value these competing interests is to amend the existing corporate disclosure requirements to allow corporations and executives to negotiate and contract up front what the corporation's disclosure policy will be with regard to the personal information of that executive. The corporation will then disclose that disclosure policy to the shareholders. More details about the proposal are of course available in the full version of the paper available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2267414##
In my next post later this week, I will talk about the next portion of the project, where I consider if there might be reasons that we want executives to be able to hold on to some level of privacy because executive privacy might tell us something about how corporations then treat the privacy of their employees and consumes.
Susan B. Anthony, Meet William H. Rehnquist
How much chilling of political speech does the Constitution permit, when a politician allegedly stretches the truth to make a point? That is one way to think about the meaning behind the words of the actual, drier questions presented in Susan B. Anthony List v. Driehaus.
Would the questions, or the answers, be any different if the speech were judicial, with a Justice doing the stretching? I have a little article out suggesting that sometimes such a truth-elastic statement -- even one made to a major media outlet by the Chief Justice of the United States on behalf of the entire Supreme Court -- can be quite appropriate, and even kind of funny.
Drawing a line between criminal truthiness and the other kind is not going to be easy for the Justices.
People everywhere are looking for ways to protest the racist comments allegedly made by Los Angeles Clippers owner Donald Sterling. Clippers players used a silent pre-game protest, leaving their warm-up jackets on the floor at halfcourt and warming up with their shirts inside-out (hiding the "Clippers" logo). Two Golden State fans got creative with posters. And Los Angeles Dodgers outfielder Matt Kemp, who was mentioned in the telephone conversation between Sterling and his girlfriend as someone who was OK to bring to games because he is of mixed race and ethnicity, used Michael Jackson's "Black or White" as the music when he came to the plate in Sunday's game. And some companies are now withdrawing from sponsorship deals with the Clippers.
It has become commonplace to protest high-level business people by economically targeting the businesses with which they are associated, by refusing to invest, work at, or shop at these companies. These include attempted or limited boycotts--see Chick-Fil-A or, going back further, Domino's Pizza--or threatened targeting with the hope of inciting change--see the ouster of RadiumOne's CEO following his guilty plea on misdemeanor domestic violence charges or Mozilla firing the CEO who supported Prop 8). Whether such efforts are effective, they have come to be seen as a strong means of political expression if not change.
For all that I have argued for the intimate connection between sport and free expression, however, it is ironic that those expressive weapons cannot work with respect to professional sports.
The first problem is the collective nature of leagues such as the NBA. Donald Sterling benefits from everything that happens as to every team in the league, not just what happens to the Clippers. He benefitted from Warriors fans who attended the game in Oakland on Sunday, since visiting teams receive a percentage of gate. He benefitted from every basketball fan of every team who watched any playoff game on television, because teams share revenue earned from the league's massive broadcast deals--that includes not only the Clippers-Warriors game, but all three games played yesterday. It is not enough to target the Clippers, in other words; it would take a massive fan movement against the NBA as a whole.
A second problem is the emotional connection and loyalty that fans feel to their teams. Clippers fans do not want to entirely abandon the team, because they want to see "their" team succeed. And that is not fungible--I can get a chicken sandwich from a lot of places, but I cannot just shift my team loyalties overnight. Moreover, fan loyalty runs to the players who represent them on the court, not to the owner in the background. And it still is about the league as a whole, not one team. Fans of the Warriors are not going to abandon their loyalties to their players and teams, and their desire to celebrate a championship, because the owner of the opposing team is a racist. Nor are the fans of the other playoff teams not currently playing the Clippers, who similarly want their teams to win and do not care about the racist owner of a team other than their beloved franchise. Even fans without another rooting interest are in a bind; the easy move is to root against the Clippers so Sterling does not enjoy a championship and to stop watching games. But that means rooting against the players who also want that success, which somehow seems unfair.
A third problem is that the players are unable to vote with their feet by seeking employment elsewhere, at least not right now. They want to win a championship right now--it is bound up in who they are and what they do, and the opportunity does not come around very often. To walk away from that opportunity in protest hurts them more than it hurts Sterling (who still profits from being part of the NBA money-printing aparatus). It is why Clippers players reportedly only briefly considered, then rejected, forfeiting Sunday's game. Again, it would take league-wide action--every team refusing to play until the NBA takes action against Sterling. And while the NBAPA is trying to get involved in the matter, I see no way that such a collective walkout is in the offing (not to mention whether it is even legal under the NLRA)--again, players must jump at the opportunity to win a championship, because it may not come around again.
Update: I forgot the most important point in all of this, so I'll add it here: The most obvious way for Clippers fans to express their anti-Sterling viewpoints without having to stop supporting their team is to show up with signs and clothes and chants doing just that. This doesn't change the team's ownership or anything, but it is the best outlet for fan expression. But this raises an important issue: Will the Clippers and/or the NBA try to control what fans say about Sterling or how they say it? On one hand, I believe Staples Center (where the Clippers play) is privately owned, so the First Amendment is not in play and fans are at the mercy of the arena's owners. Most pro teams are look to stop speech criticial of ownership when they can. On the other hand, both would take an overwhelming PR hit for censoring anti-Sterling speech at this point, so they might actually allow fans to get away with more than they ordinarily would in a situation that had not so boiled over.
Affirmative Action and Top Ten Percent Policies
With the Supreme Court’s blow to affirmative action last week, state universities may increasingly turn to the Texas model of automatic acceptance for applicants at the top of their high school class rank. When colleges draw from the top five or ten percent at all high schools, they may be able to recruit an entering class that mirrors the ethnic and racial diversity of high school graduates. While top class rank policies raise a number of concerns and their impact on diversity is mixed, there is a potentially more important benefit from a tweak of the policies.
Suppose that instead of looking just at GPA, admissions offices looked at a range of measures, including test scores, artistic talent, and athletic skills, and admitted the top students from each high school. Suppose further that all selective colleges—public and private—employed a top ten (or one) percent admissions policy. By whatever measures admissions offices used to rank applicants, the colleges would admit the top applicants from all high schools (of a minimum size).
Parents would recognize that their children would do better in the application process by attending Urban High than by attending Suburban or Private High. Instead of concentrating their children in the highest performing schools, parents of means would have a strong incentive to spread their children across the full range of schools.
There would be two important effects for cities. First, their property tax bases would grow, as more families chose to live in the cities than in the suburbs. Cities would be in a better position to invest in infrastructure and finance public services. Second, school quality would improve. Once their children were attending one of the lower performing schools, parents would push for improvements in the quality of the school, whether by seeking more public dollars or by raising more supplemental funding. The upper and middle socioeconomic classes might still focus their attention on the schools that their children attend, but the number of such schools would have increased. The gap in quality between the top schools and the bottom schools should narrow, and school quality should become more uniformly high. Rural areas also should benefit from top ten policies.
Would parents really send their children to lower performing schools to take advantage of high class rank admissions policies? They already have in Texas.
After that state’s ten percent policy was adopted, a number of parents moved their children to schools with lower levels of achievement by the student body. The effects would be even greater if Ivy League and other elite universities followed the Texas model. The ten percent policy also has had a substantial impact on property values as families have moved into neighborhoods with lower-performing schools. Because parents adjust their choices of schools in response to high class rank policies, academic standards at selective universities needn't suffer (except perhaps in the short-term).
We've known for a long time that we do better by the disadvantaged when we link their fortunes to the fortunes of the advantaged in society. Top class rank policies can provide that linkage. And they can do so without having to pass any laws. (For more discussion of this idea, see here).
[cross-posted at orentlicher.tumblr.com]
"Hell on earth" and "jackbooted authoritarianism"
Sparked in part by this Robert George post--which, I must say, refers to a very serious underlying problem--I was inspired to revisit this book review (of a book by Gertrude Himmelfarb) by Richard Posner, which I think is one of his better and more enjoyable book reviews. (That's saying a lot; book reviews, which I tend generally to love, are a genre in which he does some of his best work.)
While I'm on this inspiration kick, I would add that Ted Cruz's rather astonishing line the other day describing the Bundy standoff as a product of the Obama administration's employment of the "jackboot of authoritarianism" reminded me of one of my favorite passages from Tom Wolfe, quoted at length in this ancient post from the Volokh Conspiracy. Here's part of it:
Support [for Wolfe's view that fascism wasn't coming to America] came from a quarter I hadn't counted on. It was [Gunter] Grass, speaking in English.
"For the past hour, I have my eyes fixed on the doors here," he said. "You talk about fascism and police repression. In Germany when I was a student, they come through those doors long ago. Here they must be very slow."
Grass was enjoying himself for the first time all evening. He was not simply saying, "You really don't have so much to worry about." He was indulging his sense of the absurd. He was saying: "You American intellectuals — you want so desperately to feel besieged and persecuted!"
He sounded like Jean-François Revel, a French socialist writer who talks about one of the great unexplained phenomena of modern astronomy: namely, that the dark night of fascism is always descending in the United States and yet lands only in Europe.
Not very nice, Günter! Not very nice, Jean-François! A bit supercilious, wouldn't you say! . . .
Sunday, April 27, 2014
Journal of Law, volume 4, number 1
(mostly available here)
Recognition and Volition: Remembering the Retirement of Justice Gabriel Duvall, by Ross E. Davies
Introducing New Voices, by Suzanna Sherry
Whose Majority Is It Anyway? Elite Signaling and Future Public Preferences, by Will Marks
The People or the Court: Who Reigns Supreme, How, and Why?, by Matthew P. Downer
The Case for Judicial Review of Direct Democracy, by Elise Hofer
Introduction, by Anna Ivey
A roadmap for legal attacks on the employer mandate delay, ACA Death Spiral, Feb. 12, 2014, by Seth J. Chandler
Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman, PrawfsBlawg, Oct. 21, 2013, by Gabriel J. Chin
The Supreme Court Issues a 5-4 Decision on Where to Order Lunch, McSweeney’s Internet Tendency, Mar. 29, 2012, by Eric Hague
Happy New Year and farewell, Hercules and the Umpire, Jan. 1, 2014, by Richard G. Kopf
A Lawyer and Partner, and Also Bankrupt . . . for reasons that have nothing to do with being a non-equity partner . . ., Credit Slips, Jan. 24, 2014, by Adam J. Levitin
Stephen Glass, situational forces, and the Fundamental Attribution Error, Legal Ethics Forum, Feb. 4, 2014, by W. Bradley Wendel
Why I have spent so much time arguing about fan speech and stadiums as public forums--because it allows expression such as this. But I wonder two things: 1) Did ABC show this or did the NBAorder them not to? 2) Would the Warriors/the arena have taken the signs were the wave of public opinion not running so overwhelmingly against Sterling?
On animal rights
Sunday's New York Times Magazine reports on efforts by the Nonhuman Animal Rights Project and attorney Steven Wise to establish rights for certain breeds of autonomous animals (chimps, orcas, dolphins, etc.), using state habeas petitions in New York. It's an interesting read; Richard Epstein is interviewed for the competing position.
Saturday, April 26, 2014
The truth about justiciability
JUSTICE GINSBURG: Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness.
MR. CARVIN: In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context. No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.
You have to admire the honesty. The Sixth Circuit, which analyzed this as a ripeness case (and held that the action was not ripe), similarly acknowledged that the ripeness prong of likelihood of harm overlap with the standing prong of real, immediate, non-speculative injury-in-fact. It always has been difficult to explain the distinction between standing and ripeness (mootness tends to more clearly be its own thing). And that has become worse over the past several years, as SCOTUS has ratched up the injury-in-fact requirement in its standing cases. In a pre-enforcement constitutional challenge, whether a plaintiff has suffered an injury for standing purposes necessarily includes whether the plaintiff faces a likely risk of immediate harm, which long had been the bailiwick of ripeness.
Perhaps the Court will take this as a chance to clarify, although I doubt it. It seems so obvious that the case is justiciable, and the justices all so obviously believe the Ohio law--which prohibits knowingly false statements made in support or opposition to a candidate for office--is unconstitutional. The Court is going to be racing to reverse and send the case back to give SBA its chance to argue the merits in federal court. I doubt the fine details of standing v. ripeness are going to be the central concern.
Update: Alert reader Sam Bray (UCLA) reminds me about footnote 8 in Medimune, Inc. v. Genetech, Inc., where the Court said that standing and ripeness "boil down to the same question."
Friday, April 25, 2014
Movsesian on "Religion's Social Goods"
Over at First Things, Prof. Mark Movsesian has a post called "Religion's Social Goods," which is a response to the "growing number of legal scholars [who] question whether a justification exists for protecting religion as its own category." (You know who you are!) Mark offers, as an argument (that he thinks can and should appeal to nonbelievers) for treating religion-as-such as "special", the following:
Here’s one such argument. Religion, especially communal religion, provides important benefits for everyone in the liberal state—even the non-religious. Religion encourages people to associate with and feel responsible for others, to engage with them in common endeavors. Religion promotes altruism and neighborliness, and mitigates social isolation. Religion counteracts the tendencies to apathy and self-centeredness that liberalism seems inevitably to create.
In my view, what Mark says here about "religion" is, generally speaking, true and it provides, in many cases, a good reason for accommodating, supporting, and respecting the practice of "religion." At the same time (as Mark acknowledges), "religion" does not always do these things and other forms of commitment and association can provide these goods (sometimes, even if we think not as often) as "religious" ones. So, from the perspective of those who are asking "is religion special?", it might seem that Mark has provided a reason not so much for treating "religion" as special as for treating commitments and associations and activities as special if, when, and to the extent that they provide these "important benefits." And, increasingly (as Mark notes), many think the harms that "religion" is said (accurately or not) to cause weigh pretty heavily against the benefits that it (often, even generally) provides.
Again, I agree that religious (and other) associations often provide these benefits. I also think, though, that the justifiability (and, in our legal order, the requirement) of treating "religion" as "special" probably has as much to do with certain things that I take to be true (but that not everybody does) about human persons and human dignity and the limits on (legitimate) political authority.
By the way . . . if you are interested in law-and-religion, the Center for Law and Religion Forum which Mark and several of his St. John's colleagues run is an invaluable resource. "Follow [them] on Twitter!", etc., etc.
"More 'Vitiating Paradoxes': A Reply to Steven D. Smith--and Smith"
As I've said here many, many times, I'm a big fan of Steven D. Smith and of his work on law and religion. I don't always agree with it, but I frequently do and I always find it bracing. His latest book, The Rise and Decline of American Religious Freedom, is well worth reading. A lecture he gave on the subject of the book, drawn substantially from the last chapter of the book, will be published shortly by the Pepperdine Law Review. I have one of several replies that will accompany the lecture. It's somewhat awkwardly titled More "Vitiating Paradoxes": A Reply to Steven D. Smith--and Smith, and it's now available on SSRN. Comments are welcome, of course, and I believe Steve will have a response to the replies. Here's the abstract:
This is a reply to Steven D. Smith's Brandeis Lecture, "The Last Chapter?" That lecture is substantially drawn from the concluding pages of his fine recent book, The Rise and Decline of American Religious Freedom. In the lecture and the book, Smith explores what he calls some "vitiating paradoxes" of some of the key concepts that undergird the conventional account of American religious freedom, and argues that those paradoxes may render religious freedom especially vulnerable in an age of increasing liberal egalitarianism. He also offers a competing account of religious freedom, one that involves both a "soft constitutionalism" approach to the Establishment Clause and a revival of some form of "freedom of the church."
My reply is basically an internal account, supportive in some respects and critical in others. One of the main contributions that Smith has made to law and religion scholarship over the years is his skillful deployment of critical tools to reveal flaws in the underpinnings of Religion Clause law and theory. He is, I suggest, the charter member of the law and religion branch of a rather small but valuable school: Conservative Critical Legal Studies. In this reply, I take his critical views on board and wonder where, if anywhere, the "potentially vitiating paradoxes" that he identifies in the conventional account of religious freedom end; I also apply Smith's critical framework to the competing account of American religious freedom that he offers. In particular, I question his recommendation of some form of "soft constitutionalism" limited essentially to the Establishment Clause; explore the difficulties involved in what I suggest is a growing reconciliation, including among conservatives, to the Supreme Court's decision in Employment Division v. Smith; and ask whether we might not view arguments for "freedom of the church" as a kind of salvaging device for those who favor a "soft" or jurisdictional reading of the Establishment Clause, and who have come around on Employment Division v. Smith, while still seeking to preserve some measure of church autonomy.
I should add that my observations about "freedom of the church" as a salvaging device are not meant as an indictment or a charge that it is intentionally being offered for that purpose. (Nor would I assume that some of the recent arguments against it, or against legal doctrines related to it, are offered insincerely or strategically.) I have written repeatedly* and quite supportively about freedom of the church and/or institutional religious freedom. But, as I've written elsewhere, I also think it's a valuable exercise for its friends, and not just its adversaries, to take a critical look at the concept, even (or especially) if they ultimately support it. Similarly, as new (or very old, depending on your perspective) doctrines and arguments emerge in a field, I think it's important to examine how they fit in with the web of existing outcomes and existing or changing doctrines. It's here, I think, that my "salvaging device" argument comes into play. But this can be a more or less organic development rather than a step in some grand, secret plan. With that caveat in mind, enjoy.
* (Need I add that this book would make a splendid belated Administrative Professionals Day gift?)
Thursday, April 24, 2014
Web series: "Approach the Bench"
Approach the Bench is a new web series from Above Average, starring Bob Balaban as a judge holding a sidebar with the attorneys. The first episode involves discussion of whether actor Danny Aiello is one of the jurors. (Balaban is on a legal role--he recently played Melville Nimmer in a bad movie about the Supreme Court in 1971).
Lamberth in Cobell Part 4: Pulling the Judge
Now for the long-promised installment of this series on the Indian Trust case discussing the D.C. Circuit’s decision, upon the government’s urging in the wake of Judge Lamberth's unique July 12, 2005 opinion, to reassign the case. Cobell was reassigned to Judge James Robertson (now retired) who scheduled a trial on the remedy less than a year after taking over the case.
First, let’s review the grounds for reassignment. The government argued that the string of reversals of Judge Lamberth's orders (discussed previously here) established a "pattern" of Judge Lamberth's "failure to follow [the D.C. Circuit’s] guidance.” The government also argued that the July 12, 2005 opinion was, “in its extended vitriol . . . unlike any other judicial opinion that we have ever seen,” that the tone and content of the opinion were such that Judge Lamberth had compromised the appearance of his own neutrality, and that the opinion thereby undermined the “appearance of justice” (the government's formulation of one of the circuit-law bases for reassigning a case).
The reversals -- several though they were -- were insufficient by themselves to justify reassignment; according to the court of appeals: “a legal ruling may not itself serve as the basis for a motion to disqualify.” The court also made clear that Judge Lamberth's generally harsh condemnations of the Interior Department throughout the opinion were insufficient, alone, to justify reassignment: "Although the July 12 opinion contains harsh--even incendiary--language, much of that language represents nothing more than the views of an experienced judge who, having presided over this exceptionally contentious case for almost a decade, has become 'exceedingly ill disposed towards [a] defendant' that has flagrantly and repeatedly breached its fiduciary obligations. We ourselves have referred to Interior's 'malfeasance,' 'recalcitrance,' 'unconscionable delay,' 'intransigen[ce],' and 'hopelessly inept management.'" The circuit panel thus rejected the government's argument that the district court’s "extraordinary pronouncements" of mismanagement, negligence, and so forth “have no legal or factual basis.” Indeed, it explained that "Interior's deplorable record deserves condemnation in the strongest terms. Words like 'ignominious' and 'incompeten[t]' (the district court's) and 'malfeasance' and 'recalcitrance' (ours) are fair and well-supported by the record."
I discuss the apparently decisive factor after the jump.What seems to have been critical was the court of appeals’ conclusion that "although no one, not even the government, doubts that racism ran rampant at Interior a century ago," the July 12, 2005 opinion “extends beyond historical racism and all but accuses current Interior officials of racism." This, combined with the string of reversals and other passages from this and other of Judge Lamberth's opinions, the court concluded, "could contribute to a reasonable observer's belief that Interior stands no chance of prevailing whatever the merits of its position." This is the passage on which the court of appeals' conclusion about the accusation of racism primarily relies:
[T]he original General Allotment Act that created the trust was passed in 1887, at a time when the government was engaged in an 'effort to eradicate Indian culture' that was fueled, in part, by 'a greed for the land holdings of the tribes[.]' But regardless of the motivations of the originators of the trust, one would expect, or at least hope, that the modern Interior department and its modern administrators would manage it in a way that reflects our modern understandings of how the government should treat people. Alas, our 'modern' Interior department has time and again demonstrated that it is a dinosaur--the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and anglocentrism we thought we had left behind." (emphasis mine).
Now, the real question: Can this episode have done any good? As a purely hypothetical exercise,* assume that you are “an experienced judge who, having presided over [an] exceptionally contentious case for almost a decade, has become 'exceedingly ill disposed towards [a] defendant' that has flagrantly and repeatedly breached its fiduciary obligations.” Imagine that, after years of experience and mountains of evidence, you conclude that only Congress can actually fix the Indian trust and resolve the litigation. And, finally, assume that Congress, so far, has taken only superficial, politically convenient but ultimately ineffectual actions. Under these circumstances, might you not come to believe that all you could do to advance the case toward an actual resolution is raise its profile to increase public pressure on Congress? The very public removal of a judge for a very public thrashing of a federal agency in very strong language might accomplish that -- aside from a Supreme Court decision, I know of little else originating in the federal courts that could. We all make calculations. What would you do under these conditions?
The next thing to consider is whether this incident played any significant causal role in the comparatively speedy resolution of the case following reassignment. I'll suggest in the next post that the reassignment may have been just the shake-up needed to get Cobell unstuck and moving into the endgame.
*I am emphatically not suggesting, directly or indirectly, that Judge Lamberth issued his July 12, 2005 opinion in Cobell for any reason other than believing that the factual assertions were supported by the record and that the legal conclusions were warranted by the relevant law. I offer this simply as a thought experiment -- we sometimes ascribe this kind of strategic thinking to judges and justices to explain unusual decisions (e.g., Chief Justice Roberts joining the Tax Clause opinion in Sebelius). Would we assess this move differently if it had been made for strategic reasons? Should judges in some cases play a long game?
Entry Level Hiring: The 2014 Report - Final (?) Call for Information
This is, I think, the final call for information for the 2014 Entry Level Hiring Report. I currently plan to close reporting on Thursday, May 1. If, however, you know that there is ongoing hiring (last year, for example, I was told that some schools were working on hiring until mid-May), please let me know, and I will extend that date. Absent any such information, though, I will close the report next Thursday, May 1.
If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 1, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.
Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.
As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
(Comments are closed on this post in order to drive comments to the original post.)
The American Presidency and the Need for Reform
If electing a single executive from one party compromises principles of representation, promotes partisan conflict, and encourages poor decision making, we should give serious consideration to ways in which executive power in the United States could be shared across party lines. With shared power, almost all Americans would have a voice in the policy making of the executive branch, solving the representation problem. And with broad representation of the public, partisan conflict could be defused. Moreover, with perspectives from both sides of the aisle on the table, wiser decisions should emerge from the Oval Office.
Shared power may seem problematic, but as David Fontana has observed, it has become much more common around the world for losing parties to be given “winners powers.” Under the interim South African constitution, for example, the losing party was given seats in the cabinet, an approach that Fontana recommends for the United States.
Switzerland may provide the best example of shared executive power. In Switzerland, the executive power lies in the Federal Council, which has seven department heads who possess equal decision-making authority. Decisions are made by consensus, with resort to a majority vote only in exceptional cases. For more than fifty years, the seven councilors have come from the major political parties (currently five) that represent roughly 80 percent of the country’s voters, and the councilors work cooperatively.
After their 19th century civil war, the Swiss concluded that the best way to bridge social divides was to ensure that all citizens have a voice in their government. And with its broad sharing of power, the Swiss government has been able to avoid the kind of political conflict that we experience—and that Switzerland once experienced—even though its population is socially more diverse than our own. Switzerland has effectively melded its French, German, Italian, and Romansh citizens, as well as its Catholic and Protestant communities.
I think the Swiss have it right. Accordingly, in my book on political dysfunction, I recommend a bipartisan executive, with two presidents from different parties who would share power equally. Voters would still cast a single ballot every four years, but instead of sending the candidate with the most votes to the White House, the top two vote-getters would share the Oval Office. Most likely, the two presidents would come from the Democratic and Republican parties, but a two-person presidency would make third-party candidates much more viable. The Ralph Nader supporter in 2000 could have voted for him with the assurance that either Nader or Gore would run second.
Why wouldn’t two presidents bicker too much and become paralyzed by their inability to share power? The key to making shared power work, as in Switzerland, and avoiding failure, as happened in Uruguay, is to structure the sharing of power properly. For example, a party’s share of power needs to reflect its support among the public. Since the public is divided close to 50-50 between Democrats and Republicans, it makes sense to have a 50-50 division of power.
It also is critical to ensure that executives have strong incentives to cooperate and weak incentives to fight. In the case of a two-person, two-party presidency, the two executives would not have incentives to develop a relationship of conflict. Elected officials may be highly partisan, but they are partisan for a purpose. In typical power-sharing settings, one person can hope to establish a dominant position by outmaneuvering the other person. In the coalition presidency that I discuss, neither president could hope to prevail over the other president. During their terms, they would share power equally, and reelection also would come with half of the executive power.
Not only would the two presidents lack an incentive to engage in conflict; they also would have an important incentive to work cooperatively. Having reached the pinnacle of political life, presidents care most about their legacies. George W. Bush’s decision in 2003 to invade Iraq and overthrow Saddam Hussein is illustrative. While there were a number of reasons for his decision, it appears that he was influenced by the potential for introducing democratic governance to the Arab Middle East and providing a model that could spread to neighboring countries. The possibility of transforming a major region of the world overcame his opposition during the presidential campaign to policies of “nation building.”
If the two members of a coalition presidency spent their terms locking horns, they would not be able to implement key proposals that could enhance their reputations and burnish their legacies. Accordingly, they likely would come to accommodations that would allow them to implement meaningful policy changes.
Even if presidents from different parties could work together, wouldn’t members of Congress undermine cooperation with their own partisan battles? Not likely. In a two-person presidency, nearly all voters would have their preferred candidate serving and would be much more comfortable with the initiatives that emerged from the executive branch. Instead of half the public feeling disempowered and inclined to break the president’s administration, almost all voters would have a stake in the success of the executive branch. There no longer would be a mass of disaffected voters receptive to a policy of partisan obstruction. Currently Eric Cantor’s constituents like his opposition to Barack Obama, but they would not be very happy if he were obstructing an Obama-Romney administration.
For the same reasons, presidential partners would not have to worry that their compromises would leave them vulnerable to primary challenges when they stood for reelection. The 47 percent who voted for Mitt Romney are disaffected and receptive to a radical movement on the right. If those 47 percent had a voice in the Oval Office, they would not respond to the Tea Party. Indeed, Barack Obama faced no primary challenge from the left in 2012 even though he sold the left out on single payer health care, closing Guantanamo, drone strikes, and other issues. The Democratic Party was represented in the White House, and that was good enough for most Democrats.
If it seems unfair for the losing candidate to share equally in the executive power, it should seem even more unfair for the losing candidate to exercise none of the executive power. Forty-seven percent of the vote is a lot closer to fifty percent of the power than to zero percent of the power.
Whether my prescription is the right one or not, we won’t solve our political dysfunction unless we take seriously the need to ensure that all Americans have a voice in the policymaking offices of their government.
Wednesday, April 23, 2014
CFP: Seventh Junior Faculty Federal Courts Workshop
The University of Georgia School of Law will host the Seventh Annual Junior Faculty Federal Courts Workshop on October 10-11, 2014. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Confirmed senior scholars include, at this time, Janet Alexander (Stanford), A.J. Bellia (Notre Dame), Heather Elliott (Alabama), Evan Lee (UC-Hastings), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Amanda Tyler (UC-Berkeley), and Steve Vladeck (American).
The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee.
The conference will begin with a dinner on Thursday, October 9, then panels on Friday, October 10 and Saturday, October 11. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers. Georgia Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs.
Those wishing to present a paper must submit an abstract by June 20, 2014. Papers will be selected by a committee of past participants, and presenters will be notified by early July. Those planning to attend must register by August 29, 2014.
JOTWELL: Effron on Glover on happenstantial federalism
The latest essay for JOTWELL's Courts Law comes from Robin Effron (Brooklyn), reviewing J. Maria Glover's Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Class Actions in Multi-District Litigation (Journal of Tort Law).
I am thinking about the question of whether courts should ever take into account the gender of the plaintiff in considering privacy questions. In other words when deciding whether an individual has a reasonable expectation of privacy under the Fourth Amendment test, or whether a private-sector intrusion upon seclusion tort would be "offensive to a reasonable person," should that "reasonable person" be genderless, or take on the gender of the plaintiff.
One of the clearest examples for where the gender of the plaintiff may matter to the analysis is in the context of workplace drug testing. In deciding whether a particular drug test procedure is legal under either a Fourth Amendment or tort standard, courts might take into account that there are both biological differences, and cultural differences in the way our society has currently structured our public restrooms that may make a woman perceive a particular drug test procedure as more offensive than a man would. The difference is the most apparent when a drug test procedure involves a monitor observing urination to ensure that there is no tampering with the sample. To date, however, no court that I could find has explicitly admitted to taking into account the gender of the plaintiff in deciding these cases.
Nonetheless, although it is a small sample of cases, I could not find a single case where a court upheld such a direct-observation drug test of a female employee. There are, however, cases where courts uphold direct-observation drug tests of male employees. Nor, as far as I can tell, can this difference be explained by differences in legal tests being applied, or differences in the safety-sensitive nature of the job (some of the female employees were prison guards for example).
This begs the question as to whether courts are either consciously taking into account the gender of the plaintiff without saying so, or whether they are doing so subconsciously. If the former, is there any benefit to courts coming out and admitting that they are taking into account gender as part of their analysis? It certainly seems more intellectually honest, but would it have unintended consequences for other areas of privacy law, or unintended consequences for discrimination in the workplace? I am very interested to hear all your thoughts, but especially would love help identifying what might be the harms of such a gendered approach.
The American Presidency: An Invitation to Detrimental Decision Making
I’ve previously described some serious disadvantages from a presidency that gives all of the executive power to a single person—the denial of representation to the half of the public that supported the other candidate and the promotion of partisan conflict as both sides fight to secure control of the Oval Office. Might these disadvantages be offset by the benefits of an energetic executive who can act decisively and with dispatch?
That might have been true for the first 150 years or so of the United States, but the energetic executive of Federalist No. 70 no longer meets the demands of the modern presidency. Indeed, a one-person presidency invites decision making harmful to the country.
As Congress has transferred much of its policymaking power to the executive branch, the nature of presidential power has been transformed. The Constitution envisions a president with secondary responsibility for the creation of national policy and primary responsibility for the execution of national policy. However, the contemporary president enjoys primary responsibility for both the creation and execution of policy.
This assumption of policy-creating responsibility by the president allows national policy to be made in the absence of a robust debate among multiple decision makers who bring different perspectives to their decision making. It may make sense to have a single person who can act decisively and with dispatch when the person is an executor of policy made by others. But the founding fathers correctly reserved policy making for multiple-person bodies such as Congress and the Supreme Court. As Woodrow Wilson observed, “ The whole purpose of democracy is that we may hold counsel with one another, so as not to depend upon the understanding of one man.”
Indeed, when it comes to making policy, there is much truth to the maxim that two heads are better than one. Studies by economists, psychologists, and other researchers demonstrate that shared decision making works better than unilateral decision making. As the example of George W. Bush waging war against Iraq illustrates, a single decision maker can make very poor choices. Multiple executives from different parties would bring the different perspectives and problem-solving skills that make for better decision making. Multiple executives would make more good choices and fewer bad choices than single presidents.
To be sure, too many cooks can spoil the broth. As Congress illustrates, very large groups can become quite dysfunctional. But small groups generally make better decisions than do individuals or large groups.
Of course, even single presidents do not make decisions in isolation. They consult with members of their cabinet and staff, so they enjoy many of the benefits of group decision making. Nevertheless, there is a big difference between deciding alone after consulting with advisers who are inclined to reinforce one’s inclinations and sharing decision making with others who are inclined to challenge one’s inclinations. Consider in this regard how different would be decisions from a Supreme Court of one justice and eight law clerks.
Don’t we need a single president to keep gridlock out of the Oval Office? While the framers were concerned about dissension and rivalry between multiple executives, there are good reasons to think that multiple executives could develop a meaningful willingness to cooperate with each other. That will be the topic of my final post in this series on the presidency.
[cross-posted at orentlicher.tumblr.com]
If you are seeing this, then we're back from that DDoS that Typepad blogs have been subject to for the last few days. We're relieved but still looking over our shoulders, frankly. Has absence made the heart grow fonder? Or is out of sight out of mind? We only hope that you don't know what you got 'til it's gone. (Oh here, enjoy some Joni Mitchell instead.)
Saturday, April 19, 2014
Lamberth in Cobell Part 3: The Sideshow and Its Message
To continue the Cobell story (earlier posts here and here), I want to turn to the case’s numerous and contentious collateral proceedings. Much has been made (not just by Glenn) of the contempt citations to cabinet officers, the orders disconnecting the Interior Department’s computers from the Internet, and, of course, the class-wide notice orders. I am not going to speculate on Judge Lamberth’s feelings or state of mind in making these rulings. Instead, to counterbalance the perspective Glenn offers in the comments—by the way, thanks, Glenn, for commenting!—I want to place some of these episodes in a fuller context and see what conclusions present themselves.
The sideshow began early in discovery, when in February 1999 Judge Lamberth held then-Interior Secretary Bruce Babbitt and others in contempt for failing to produce documents years after the judge had ordered their production and for destroying documents the government had agreed to preserve. (Three years after the suit was initiated, the government still couldn't produce the full trust records for the named plaintiffs.) It’s worth noting that Judge Lamberth was already famously intolerant of litigation misconduct, especially by the government.
After the Phase 1 trial (discussed here), the computer security issue bubbled up when the Bureau of Indian Affairs’ Chief Information Officer said publicly that "[f]or all practical purposes, we have no [IT] security . . .[o]ur entire network has no firewalls" and "can be breached by a high school kid." The second contempt hearing began in late 2001 after additional evidence suggested that Interior officials knew about this and other trust problems and hadn't disclosed them in either their trial testimony or their status reports to the court. (The judge imposed no sanction with the contempt findings, but the government appealed because, the Court of Appeals explained, “the decision . . . ‘impose[d] opprobrium’ upon [the Secretary and Deputy Secretary of Interior]” to such a degree that they “engaged private counsel and sought to intervene as appellants and to present arguments in their respective personal capacities.”)
By July 2003, Judge Lamberth concluded that Interior's continuing failure to resolve its networks' vulnerabilities placed Indian trust data and documents at risk of corruption or loss, threatening the class's access to the accounting he'd ordered; so he ordered that Interior's computers be disconnected from the Internet until security was improved. (This was not the first disconnection order: In December 2001, the judge entered a TRO disconnecting systems housing trust information; two weeks later, the Department agreed to a consent order requiring that those systems stay disconnected until Interior could demonstrate to a special master that trust information was secure. Interior’s relationship with the special master, which was initially cooperative and led to 95% of its computers being reconnected, broke down in mid-2003 when the special master claimed that Interior was undermining computer security tests. The plaintiffs then filed the motion that led to the July 2003 injunction disconnecting Interior’s trust-data systems from the internet again. Judge Lamberth entered a modified injunction in March 2004, which was the operative order at the time the D.C. Circuit decided the appeal.)
The D.C. Circuit vacated the second contempt order and the 2003-2004 Internet disconnection orders, but on primarily technical grounds. On contempt, the court explained that: “[T]he district court cites completed conduct of the defendants . . . making the proceeding criminal in nature[,]” and while the department filed reports with the district court that “were misleading about the progress being made,” most of the misrepresentations were made under the previous secretary such that the then-sitting Secretary couldn’t be “held criminally liable for contempt based on the conduct of her predecessor in office.” On the IT security injunction, the court of appeals emphasized that “the district court’s authority properly extends to security of Interior’s information technology systems . . . because the Secretary, as a fiduciary, is required to maintain and preserve [trust data,]” but that the judge should’ve left the burden of persuasion on the plaintiffs, held an evidentiary hearing and given more weight to Interior’s certifications that its systems were secure. In short, Judge Lamberth found and the Court of Appeals agreed that Interior made material misrepresentations to the court –in omitting to mention its seriously vulnerable IT infrastructure and by filing overly rosy reports of its progress on trust reforms it had been ordered to complete.
(In summer 2005, I sat in a 59-day evidentiary hearing on the state of Interior’s IT security. Judge Lamberth concluded, in over 200 pages of findings, that while things had improved significantly, there was still substantial danger to trust data. His order disconnecting Interior from the Internet yet again was vacated on appeal, with a D.C. Circuit holding that more directly cabined his equitable power. I may say more about that in a later post, though I suspect you’ll be tired of the issue after this one.)
Then there were the class notice orders, of which the July 12, 2005 opinion and order—the one that prompted the case's reassignment--was the third. (The first was a Rule 23(d) order issued in 2002, precluding Interior communications with class members about the litigation without prior court approval. (See 212 F.R.D. 14.)) In September 2004, the plaintiffs presented evidence that Interior was facilitating sales of Indian trust lands despite its failure, to that point, to complete an accurate accounting of trust assets; so Indians, the plaintiffs argued, were making decisions about whether to sell trust assets without any guarantee that Interior’s information the value of those assets was accurate. Later that month, Judge Lamberth ordered that Interior “include notice to class members regarding [the Cobell] litigation and Interior's duties as Trustee–Delegate” with all communications that might affect beneficiaries’ decisions about trust assets. (See 225 F.R.D. 41.) In October, the plaintiffs returned with evidence suggesting that “Interior felt that compliance with the [land sales] Order required Interior to shut down the Bureau of Indian Affairs entirely. Field offices were closed and notices were affixed to their doors explaining that no business could be conducted due to this Court's Order” and “the entire process by which payments are made to IIM account holders . . . was similarly shut down.” (224 F.R.D. 266, 270.) Judge Lamberth’s clarifying order made even more explicit what was already obvious—that the land-sales order did not restrain the distribution of trust checks or require offices to shut down.
Was contempt strong medicine? Absolutely. Was disconnecting Interior from the Internet aggressive and perhaps stretching the court’s equitable powers? Sure. That both happened more than once over several years, however, is illustrative of the pace of Interior’s progress. Did these orders make the case more frustrating for the government? No doubt. But there had never been a case quite like this before, and most of these issues, in the context of a massive and massively mismanaged government trusteeship, were matters of first impression. The D.C. Circuit noted more than once that broad district court authority and oversight was warranted by “the magnitude of the government malfeasance and potential prejudice to the plaintiff class,” as well as the “record of agency recalcitrance and resistance to the fulfillment of its legal duties.” Were the plaintiffs’ attorneys at times overzealous and perhaps somewhat thin-skinned later in the litigation? Fair enough. But given the historical experience of the people they represented, is that really so difficult to understand? And they received plenty of defeats and chastisements of their own from the court of appeals.
As Glenn notes, there were numerous appeals after the first trial, and most went for the government. But this case—understood in its historical context—was destined for high drama. It would have been surprising if it had been routine. The contempt citations wouldn’t have issued had the government not neglected the Indian trust and its recordkeeping duties for a century. The disconnections wouldn’t have been necessary had the government assigned the Indian trust something other than what appears to have been the lowest possible priority. The notice orders wouldn’t have been necessary had the government not delayed the Indians' remedy for as long as it did and fought so hard to avoid any bad publicity. These events are symptoms of the larger problem, which we mustn’t lose in the forest of orders and appeals. The D.C. Circuit emphasized this even as it reassigned the case:
“In [the appeal from the first trial], we recognized that ‘the federal government has failed time and again to discharge its fiduciary duties,’ resulting in serious injustice that has persisted for over a century and cries out for redress. . . . Yet today, five years later, no remedy is in sight . . . and growing hostility between the parties distracts from the serious issues in the case. . . . Our ruling today presents an opportunity for a fresh start. As the litigation proceeds, the government must remember that although it regularly prevails on appeal, our many decisions in no way change the fact that it remains in breach of its trust responsibilities. In its capacity as trustee and as representative of all Americans, the government has an obligation to rise above its deplorable record and help fashion an effective remedy. For their part, counsel for the plaintiff-beneficiaries, as counsel to a large class of Indians and as officers of the court, would more ably advance their worthy cause by focusing their energies on legal issues rather than attacking the government and its lawyers.”
Despite Glenn’s invitation to change my focus to the technical merits of these orders, jurisdictional questions, etc.; those issues are orthogonal to the point I want to make. And despite the superficial attraction of trying for journalistic balance, I’m not a journalist and there are not two sides to every story. This story is about who was to blame for the mismanagement of the Indian trust, who was responsible for fixing it, and how the responsible party behaved when that remedy was finally demanded. The sideshow suggests an unflattering answer to the last question, but it doesn’t change the questions. I leave it to you to draw your own conclusions. Let me know what you think.
Friday, April 18, 2014
How the Common Core Fosters an "Ideological Circus": David Brooks Misses the Point of Educational Federalism
David Brooks has a typically Brooksian "split-the-difference" column about the Common Core in this morning's New York Times, in which he lays a pox on both houses of Left and Right -- the "ideological circus" in his words -- for beating up the Common Core standards promulgated by the U.S. Department of Education. Because the "Common Core" standards emerged from a "state-led movement" topped by the National Governors Association and the Council of Chief State School Officers, Brooks asserts that the Common Core respects federalism principles. As for their content, the Common Core is neither left-wing brain-washing (as right-wing radio hosts assert) nor pedagogical straitjackets depriving teachers of discretion (as left critics frequently charge): The standards are, instead, common-sensical goals that are plainly superior to the "verbose, lax or wildly confusing" earlier curricular rules in most states.
Agreeing with all of Brooks' statements about the intrinsic merits of the Common Core standards, I think that Brooks has missed the point of educational federalism. By decentralizing educational policy, federalism lowers the ideological stakes involved in schools. Standards endorsed by the national executive in a polarized party system tend to attract controversy like a dead cat attracts bluebottles, even if the standards themselves are innocuous or sensible. By using conditions on federal spending to "encourage" adherence to the Common Core through waivers of NCLB -- itself a policy attracting suspicions of illegality from Ravitchian Left and Heritage Foundation Right -- the Obama Administration raised the ideological stakes in ways that defeat the stake-lowering function of a federal system. The process of tying curricular standards to federal money actually helps create the "ideological circus" that Brooks decries. Putting Obama Administration's fingerprints on the Common Core poisons the apple, so to speak, even if the apple itself is actually healthy.
One might ask, then, how nationally uniform K-12 educational standards are possible in a federal system. One answer is that the voluntary actions of the states themselves tends to converge on consensus curricula without the aid of a federal schoolmaster. The engine driving such convergence is greed -- or, more specifically, homeowners' desires to maximize the re-sale value of their house by pressing their school districts to adopt the curriculum that attract home-buying migrants from other counties and states. If this happy story sounds implausible to you, then I'd recommend your taking a look at Making the Grade, Bill Fischel's outstanding analysis of nineteenth century educational policy in the United States. As Bill notes, the thousands of little red schoolhouses converged on a standard curriculum revolving around the McGuffey Reader because the farmer-boosters financing the districts wanted to attract more migrants who would want their kids to pick up in the new school district where they left off in the old. A similar dynamic is described by Claudia Goldin and Lawrence Katz in their economic analysis of the "high school movement", in which the states made enormous investments in creating high schools between 1910 and 1940 without much of federal involvement at all. The high school movement was driven from below, starting mostly in the Midwest, especially Iowa, by individual households' pressing counties and state legislatures to create high schools because of perceived high returns from educational investments.
In short, the "rug rat race" drives anxious parents to seek out consensus educational programs and press them on their local and state political officials. As I have argued elsewhere, the process tends to break down when parents have less social capital and accompanying political acumen. Single parents and indigent households might not be able to control provider cartels as ably as suburban parents. But this problem counsels in favor of a targeted strategy of building up the political organizing capacity of low-income households, not trying to press for uniform curricular standards from the commanding heights of the national government. That latter strategy is a recipe for the sort of ideological circus that Brooks rightly decries
Three (and a Half) Takes on Animus
I have a "jot" on Jotwell today about Steve Smith's forthcoming piece, The Jurisprudence of Denigration, which offers a critical but (and?), I think, very intriguing take on the use of animus in United States v. Windsor. As I say in the jot, hopefully correctly, one may support the outcome in Windsor and still think that Smith offers some useful and provocative comments on why contemporary constitutional and moral discourse may lend themselves to the use of animus rather than alternative forms of argument in this area. I suspect that Steve and I may often have sharply different views on some of the underlying issues here and elsewhere, but I always find his work productive and disturbing.
It's an interesting coincidence that this jot appears a couple of days after I noticed a new paper by Dale Carpenter, Windsor Products: Equal Protection From Animus, forthcoming in the Supreme Court Review. I haven't read it thoroughly yet, but so far I find it a clearer and better description and defense of the concept of animus than much I have seen elsewhere, and certainly than Justice Kennedy's own writing on the subject. I look forward to reading the whole thing more carefully. It's not up on the website yet, but I should also note that the Harvard Law Review's latest issue has a good package of pieces on developments in this legal area, with a clear and lovely scene-setting introductory piece (although I'm not convinced that President Obama was the right person to quote at its conclusion) and an interesting chapter on, again, animus. Also recommended.
Thursday, April 17, 2014
Law Professors and Social Media
As someone who writes and teaches in workplace privacy, I have been thinking a lot about the role of social media in our workplace. I have been on Facebook for a long time, but I keep it entirely personal, and do not become Facebook "friends" with colleagues. Since joining the academy, however, I have received increasing numbers of "friend" requests from people I meet at conferences. I recognize that many others use Facebook as solely or largely professional.
I felt (whether true or not) that I was missing out on academic conversations that were taking place on social media. In order to try to remedy the situation, I recently joined Twitter, (#ProfVSchwartz) and have decided to use Twitter in a purely professional manner. I am using Twitter to be in touch with colleagues, not with my outside friends, just as I am using Facebook to be in touch with my outside friends, not my colleagues. It remains to be seen whether this balance will work for me.
Do you use social media? Do you feel it is becoming necessary in order to stay on top of the most current conversations? Perhaps my experience is unique because the sub-set of IP professors use social media more than others? What sort of balance have you struck between maintaining your privacy, and keeping up with social media?
Wednesday, April 16, 2014
The American Presidency and Partisan Conflict
In my previous post, I observed that reserving all of the presidential power for one side of the political aisle denies representation to half the country, a serious problem in itself. It also causes other problems. In particular, a one-party executive fans the flames of partisan conflict.
With the marked transfer of domestic and foreign policymaking power from Capitol Hill to the Oval Office over the past 75 years, the White House has become the dominant power center in the national government. Presidents control the issuance of regulations for air quality, energy exploration, education, health care, consumer protection, and many other concerns. They also establish national policy through signing statements, executive orders, and the granting of waivers from statutory obligations. Thus, for example, President Obama has doubled fuel efficiency for automobiles, expanded offshore drilling for oil and gas, and granted waivers from No Child Left Behind and the Affordable Care Act.
While presidents exercise considerable domestic authority, they dominate Congress even more in foreign affairs. Presidents play a far larger role in the determination of U.S. policy—and Congress plays a far smaller role—than intended by the founding fathers. Whether Truman with Korea or Obama with Libya, presidents send troops into combat without congressional authorization. Presidents also reach agreements with other countries without congressional participation, they unilaterally recognize other governments and terminate treaties, and they decide on their own about restrictions on the rights of U.S. citizens to travel abroad.
When one person exercises the enormous power of the modern U.S. presidency, we invite hyperpolarization. Under the current system, Democrats and Republicans fight tooth and nail to capture the White House. They spend hundreds of millions, now billions, of dollars. Moreover, once an election is over, each party launches its effort to win the next presidential race. The party of the president unites behind the president’s initiatives to ensure a successful administration. The losing party tries to block the president’s proposals so it can persuade voters to change parties at the next presidential election. Republicans lined up against the Affordable Care Act to "break" the Obama administration, and Democrats lined up against Social Security reform to weaken the Bush II administration.
Or to put it another way, excessive partisan conflict can be expected under a winner-take-all system for a presidency whose power has grown so much. Indeed, the sharp increase in partisan behavior over the past several decades parallels the marked expansion of presidential power over the same time period. Currently, a candidate can win election with a small majority or even a minority of the popular vote. As a result, substantial numbers of voters feel that that their interests and concerns are not represented in a politically dominant White House. It is no wonder that the party out of power spends more of its time trying to regain the Oval Office and less of its time trying to address the country’s needs.
This is not to say that the presidency is the sole cause of partisan conflict. Other factors are at work as well. Nevertheless, the one-party executive is an important factor. Indeed, the link between presidential politics and partisan conflict has a long pedigree. For example, political parties first appeared in Congress when legislators aligned themselves either in support of or in opposition to the executive policies of George Washington and Treasury Secretary Alexander Hamilton. Similarly, parties first mobilized nationally around presidential elections, starting with the 1796 contest between the Federalist John Adams and the Democratic-Republican Thomas Jefferson.
To be sure, partisan competition provides important benefits. We want elected officials to engage in a vigorous policy debate. But the debate today is too much about political calculation and not enough on the merits.
There is a another key problem when the presidential power is reserved for one side of the political aisle. It encourages misguided decisionmaking. That will be the topic of my next post on the presidency. In the meantime, you can find the introductory chapter to my book-length treatment of the presidency, "Two Presidents," here.
Hydrofracking and "Home Rule" Principle as a Canon of Statutory Construction
The dispute over hydraulic fracturing ("hydrofracking" to its critics) in New York State will finally be resolved in a showdown before the Court of Appeals this June. The question in Norse Energy v. Town of Dryden is whether the preemption clause of the New York Oil, Gas, and Solution Mining law preempts the town's power to zone out hydraulic fracturing. In an effort to re-focus the dispute on the general idea of "home rule" as a way to side-step contentious political issues, I wrote an amicus brief on "home rule" principles as a way to resolve the case (Download NY Zoning Amicus Brief Electronic Copy 3-28-2014), and I managed to persuade a dozen of my fellow profs to sign on. (Susan Kraham, Columbia clinical prof, kindly agreed to be Counsel of Record, dealing with the paper chase of New York courts' primitive lack of an electronic filing system).
Both the brief and an article I wrote for Albany Law Review that was derived from the brief (Download Albany Law Review Draft) make the case in favor of mushy "home rule" principles over hyper-persnickety textualism in construing state statutes' preemption clauses. The "home rule" principles defended in the brief and article do not invariably favor local power: When a local law imposes substantial external costs on non-residents or internally imposes a burden on settled expectations of resident landowners, then these principles would construe even ambiguous preemption clauses in state statutes to preempt local law. (The analysis here runs parallel to Paul Diller's analysis in Intrastate Preemption, a terrific piece that I routinely assign in Local Government Law classes. (Paul was my former student at Michigan Law, by the way, which makes me feel both proud and over the hill).
The idea of using a "localism" canon of construction to resolve statutory ambiguities in state law bears an obvious analogy to "federalism" canons of construction that have inspired far more commentary. There are, however, some important differences between the state-local and federal-state contexts that, as I explain after the jump, give state courts more justifications than federal courts for relying on mushy, arguably policy-laden canons.
1. State Constitutional Text: Caleb Nelson might be right that the U.S. Constitution's Article VI contains a non obstante clause implicitly barring federal courts from straining to preserve state laws from federal preemption. The New York Constitution, however, contains exactly the opposite sort of canon: Article IX, section 3(c) provides that the "[r]ights, powers, privileges and immunities granted to local governments by [Article IX] shall be liberally construed." This "liberal construction" clause would seem to function as an anti-preemption clause: One cannot broadly construe the powers conferred by home rule provisions by the state constitution unless one narrowly construes the state statutory language purporting to preempt those powers. (Oddly, there is a paucity of case law construing the "liberal construction" clause, even though the clause appears in many state constitutions and was an important goal of the "home rule" movement across the nation).
2. State Legislative Capacity: Daniel Meltzer has defended the use of non-textual bases for resolving disputes about the scope of federal preemption by noting that Congress "lacks the capacity, foresight, and linguistic tools" to specify the complex rules necessary for dividing up jurisdiction between state and federal governments. What Meltzer said about Congress is far more true of state legislatures, which have smaller staffs, poorer and smaller interest groups, and a less aggressively watchful media. In particular, the New York legislature tends to draft and enact statutes defining local powers with minimal care or, at least, minimal deliberation manifested in any sort of legislative history. One will look in vain for any discussion whatsoever of local zoning powers in the "bill jacket" (i.e., documents accompanying the bill) for the preemption clause of the Oil, Gas, and Solution Mining Law. No one in the legislature apparently gave any thought to the question of whether the vague "relating to" language in the preemption clause might entitle drilling operators to set up a rig in quiet residential neighborhoods without regard to local zoning restrictions. Norse Energy, the petitioner before the Court of Appeals, is apparently taking the position that the preemption clause does indeed preempt every sort of local laws that "relat[es] to the regulation of the oil, gas and solution mining industries," suggesting not only that they can drill away in quiet, leafy suburban residential zones but also park their trucks on sidewalks and toss litter into the street while they are drilling (because, of course, local traffic laws and litter ordinances would also seem to be preempted by such a reading). Putting aside the merits of such an interpretation (which would seem to be vulnerable to a reductio ad absurdum riposte), it is remarkable that the state legislature would enact a statute capable of being so construed by reasonable people without at least mentioning somewhere in its deliberations that such a law would play havoc with local real estate values. Or, rather, this lacunae would be remarkable to someone not already familiar with the lackadaisical way in which the New York state legislature produces legislation. The justification for a bit more judicial "quality control," in the form of a bit more massaging of vague statutory terms using "substantive canons," is inversely proportional to the capacity of the legislative body for careful deliberation: If one believes that the New York state legislature's capacity is extremely low, then the state courts might reasonably pick up the slack.
3. The electoral mandate of the state courts: New York supreme court justices are elected to fourteenth-year terms by county voters, while Court of Appeals judges are appointed for fourteen-year terms by the governor. To this extent, state judges have an electoral connection considerably stronger than a federal judge serving during "good Behaviour." If one worries about judicial policy-making because of the absence of such a connection, then the case for a "localism" canon of construction is ceteris paribus stronger for state than for federal judges.
Despite these reasons for a more robust "localism" canon, New York courts have traditionally been exceptionally tight-lipped about general principles with which to resolve ambiguities in the preemptive scope of state laws. Most people invested in the hydraulic fracturing controversy are excited about the ecological costs or economic benefits of the mining technique. I confess my indecision about that particular policy dispute. But, decentralization nerd that I am, I am just as exorcised about the neglect of local governments' powers in New York jurisprudence, and I am hoping that the Court of Appeals mines New York's legal resources for some decent pro-home rule language.
I want my Westlaw Classic
Oh yes I do! Sure, I feel about as outdated as this commercial in saying so, but Westlaw is now telling me that Classic database is disappearing in about two months, and I'm not happy. I tried to use WestlawNext when it first came out. The "copy with citation" feature was nice for quotations, and I liked the idea of a more Google-like approach. But the search results were just bizarre to me. It was more akin to the anti-Google -- I'd type in search terms or even a case name, and I'd get everything other than the case or article I was looking for. I retreated back to Classic after just a few frustrating forays. I like Classic's pure Boolean option -- I know it'll give me a complete result. Or, when I'm looking to skim the surface of a topic, the "natural language" search has actually worked pretty well for me. I don't see any need for change, certainly not based on my early Next experience.
Now, it looks like I will have no choice. Is anyone else in the same boat as me? Can we try to save Classic? Or should I just accept reality and try to adapt to Next? Your thoughts would be much appreciated.
[I should make clear -- I'm sure I was misusing Next. But it was supposed to be easier! If you have thoughts on what I was doing wrong, I'd appreciate those, too.]
Do Chemerinsky and Menkel-Meadow's Views on Curriculum Represent a Consensus View in the Legal Academy?
I'm focusing on only one piece of this op-ed by Erwin Chemerinsky and Carrie Menkel-Meadow. They write:
Some, including the Bar Association’s task force, have suggested that states should reduce the level of undergraduate education required to take the bar exam. Yet the profession benefits enormously by having attorneys who have undergraduate degrees in other fields: This makes them more well rounded and better-educated citizens, as well as better lawyers. Many other countries have begun to recognize this, and nations like South Korea, Japan, China and Australia have recently shifted to the American model of requiring an undergraduate degree before law school.
Another common suggestion — also made by President Obama — is to reduce law school to two years. This is a terrible idea.
The profession needs law schools to produce lawyers who are better prepared to practice law, not less well trained. That would be impossible in two-thirds of the time. If law school were of just two years’ duration, the first things to be cut would be clinical education and interdisciplinary courses, which are the best innovations since we went to law school in the 1970s.
We agree that legal education could benefit from further innovation, but not in the ways many of the critics advocate. Law schools need to teach a greater diversity of subjects to improve legal judgment and decision-making. In this respect, law schools should emulate business, architecture and planning schools. These have adapted to new economic realities by emphasizing the teaching of leadership, corporate governance, new finance and negotiation skills.
Law school faculties, in their teaching and their scholarship, must deal with the emerging problems of the 21st century. Law schools need to develop new courses to provide students with the expertise to deal with the crucial problems of our time in fields like banking law, national security, conflict resolution, food safety, Internet law and migration policy. There should be “problem-based” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace.
None of this will be possible if law school is cut to two years. Sometimes, less is not more. And sometimes, the rhetoric of crisis leads to proposals that are far worse than the actual problems we face.
I agree with the last sentence, as it turns out, although that has nothing to do with whether there is a crisis or not (I'm not sure the label is terribly useful, but neither is it outrageous), or whether law school reform is necessary (law school reform is always necessary). It's not just that treating reform in this area as a response to a crisis may lead to ill-considered reforms, although I think that is true. Rather, I'm worried that if the "crisis" is seen as having passed, it will sap the will and energy to think about useful long-term ways to reform or remake law schools. Law schools are ostensibly faculty-governed, and faculty have an ongoing ethical and professional obligation to monitor what they are doing and think about how they could do it better, crisis or no. I also agree that increasing and even mandating finance and accounting related offerings would be a good idea for law schools.
That's a side note. What I am really interested is in asking whether Chemerinsky and Menkel-Meadow's views represent a consensus view in the legal academy. I'm pretty sure the answer is "no." Of those interested in law school reform issues, as far as I can tell, many believe there is nothing wrong with a two-year law degree, or with a two-year degree for licensing purposes with the option of additional years of study. Of those who prefer a required third year of study, I suspect that a fair number of them favor it for traditionalist reasons and are not looking to redo the third year altogether; of that group, some hold those views strongly and others are just casual defenders of the status quo. Of those who favor a third year of study that does different things than the current curriculum does, I suspect that many of them would rather have that year emphasize lawyering skills and not "21st century" issues like "national security, conflict resolution, food safety, Internet law and migration policy."
And, sadly, I suspect a large (but shrinking?) number of law professors are still just not that concerned with these issues at all. Given a relatively costless choice like, say, going to an AALS panel on law school reform or hanging out in the hotel lobby, a substantial number will still choose the latter option. (Although I will note that the numbers of people attending those sessions, and voicing interest in such issues at their own institutions, has certainly grown.) In an ostensibly faculty-governed environment in which the faculty often don't govern much and mostly do their own thing in their own classroom, apathy is always a problem.
None of this makes Chemerinsky and Menkel-Meadow wrong, of course. (I think they are.) But I wouldn't treat their views as representative of the legal academy.
One last word, on “'problem-based'” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace." I think the idea of problem-based seminars on public policy issues is a good one. (And not just public policy issues: they could and should work with issues involving the private sector as well.) In my view, the benefit of such seminars, if they're done right, will derive substantially from bringing in people other than lawyers as students and speakers. Most public (or private) policy issues involve a variety of stakeholders with different skills and interests, and this would be a useful way to learn what (if anything) lawyers can contribute, how they should deal with these different stakeholders, and what the non-lawyer stakeholders think is good or bad from their experience working with lawyers.
But not on "world peace," for God's sake! Too many law schools are already too intent on being "national" schools dealing with national or global issues, emulating schools at the top of the food chain. They are too little concerned with local issues, with the fact that they serve a local market, with forging relationships with local lawyers and stakeholders, and with performing actual services for the state, city, or region in which they are located. Regardless of the conclusions these seminars draw, the recommendations they make, or the service they provide--which, obviously, need not fall into some cliched and rather ideologically particularized vision of "social justice"--it may be that by focusing on difficult local issues, these seminars could provide a useful education to the students, expose students, experts, and stakeholders to each other and help them to sit down at the same table, provide the kinds of recommendations that might be useful to local governments (or private interests) in an age of straitened resources in which many states and localities simply buy public policy solutions off the rack from various think tanks and interest groups, and actually give something back to the region in which a law school is located.
None of this is adequate reason, in my view, for a mandatory third year; and the more national or global the subject these seminars handle, the less useful and educational they will be. Nor must or should these courses have a specific, heavy ideological tilt; they're about problem-solving, not political indoctrination. (Maybe a seminar on public policy issues surrounding a local crime problem would recommend stop and frisk! Or a seminar on why a locality is having trouble growing new businesses would conclude that local licensing and zoning requirements are overly burdensome and monopolistic and should be lessened or repealed! Who knows?) But the idea itself is a good one.
Extreme views in the classroom
The Chronicle of Higher Ed reports that Frazier Glenn Cross, Jr., the white supremacist suspected in the shootings of three people earlier this week, was invited two years ago to speak in a class on "New Religions" at Missouri State University. (H/T: My colleague Tom Baker). The professor issued a statement yesterday defending the choice, saying he wanted to educate his students on white supremacist views (and their dangers) and that the students would not believe the true nature of these views just by reading a textbook or hearing the professor lecture about them. According to the article, it went about as you would expect--Cross yelled at the students, used racial slurs, and praised violence, and apparently the students yelled back at him. It sounded like a productive exchange.
I do not think there is any question that it is appropriate to present Cross' views in a classroom setting. And the alternative proposed by the ADL in the story--inviting experts who have studied the subject firsthand--are not sufficient. If the point is to get students to engage with and understand these views, then hearing them characterized and filtered through an expert (no doubt, since this is the ADL, an expert who believes these views are harmful and should be suppressed) is not a substitute for engaging with the primary materials. One can question whether white supremacy is a new religion, but I will defer to the instructor on that. The broader point is there are situations in which it is appropriate to present, in unfiltered fashion, even the worst and most offensive political, religious, etc., ideas.
There is a nice question about inviting him to speak in the classroom, as opposed to having students read his writings or hear his speeches--there were more than enough available on the internet (maybe this is what the ADL rep meant in the story by "multimedia tools," although that is such an inanely empty phrase). And this issue is more pedagogical than political. Some of this is my general objection to the use of guest speakers in the classroom. But some is the question of whether having him address the students directly was necessary to the pedagogical goal. They can experience and understand these views first-hand without having to experience him first-hand. Having him shout at the students (and having them shout back) shows that he is crazy and not to be taken seriously, but it does not really show his ideas or thoughts or require them to wrestle and deconstruct them, which is supposed to be the goal. It is the difference between a cable tv shoutfest and an academic discussion.
And I wonder if the visceral responses about "endorsing" and "providing a platform" goes away if students were reading his writing rather than seeing him in-person.
Standing and the proper defendants
To absolutely no one's surprise, a panel of the D.C. Circuit rejected the challenge to the constitutionality of the Senate's filibuster rule (shout-out to Josh Chafetz and Michael Gerhardt for the citation). The district court had found none of the plaintiffs (Common Cause, some members of the House, and some people who would have benefitted from certain filibustered bills, notably the DISCLOSE Act and the DREAM Act) lacked standing--none had not suffered any cognizable injury in fact, they could not show the bills would have passed but for the filibuster, and no injunction could have accorded them relief. Fed Courts 101 (and still a course everyone should take).
The circuit court took a different path: The problem was that the plaintiffs had sued the wrong defendants. The proper defendants were the Senate and the Senators who made, retained, and voted according to the filibuster rule with respect to the bills at issue. But all Senators would enjoy absolute legislative immunity, so they could not be sued. Nor could a court impose the remedy the plaintiffs wanted--an injunction prohibiting the 60-vote requirement and compelling the Senate to adopt a simple-majority rule.
To get around that, the plaintiffs sued Vice President Biden (in his role as President of the Senate) and a bunch of non-Senator Senate officers (Sergeant-in-Arms, Parliamentarian, and Secretary) as the people responsible for "enforcing" or "executing" Senate rules. (Powell v. McCormack being the obvious precedent). But that did not work here, because the named defendants did not do anything that caused the alleged injury, since the injury was the Senators' use of the 60-vote requirement.
This analysis adds a new wrinkle to the causation prong of standing by making the identity of the defendant an element of that prong. It requires not only that the defendants' action caused the harm, but also that these defendants caused that harm. Plaintiffs must show a link between conduct and harm and that they got the "right guys" in their suit. And causation--and thus standing--is absent if either one is absent.
But doing it this way shows-again-why standing makes so little sense as a jurisdictional rather than merits rule. In any other context--including constitutional claims, even constitutional claims for injunctive relief (where standing always comes up)--it is a merits dismissal when the plaintiff sues the wrong defendant. Moreover, had the plaintiffs sued the Senators--thus solving the standing issue as viewed by the court of appeals--the legislative immunity defense would have produced a merits dismissal, not a jurisdictional dismissal.
At bottom, however, this is all about how plaintiffs structure their lawsuits--who sues, who they sue, what they sue for, what remedy they seek. It should have nothing to do with federal structural jurisdictional concerns.
Tuesday, April 15, 2014
A (Limited) Defense of Saving Players for "Crunch Time"
If you love sports and you’re interested in empirical methodology, the last ten-plus years (call it the Moneyball Era) have been very good indeed. The increase in attention to statistical studies of sports has grown a ton (though of course it has much longer roots that date at least back to Bill James and early sabermetrics in the late 70s).
One of the most interesting parts of this movement has been to do what good research so often does: Take a longstanding belief and show that it’s nothing more than smoke and mirrors. For instance, does icing the kicker work? According to this study, the answer is simple: Nope (not that it’s stopped NFL coaches from doing it, of course).
Consider as well the practice in basketball games of sitting players early on so that they will be available (and not in foul trouble) when it’s late in the game and “crunch time” arrives. As many people, including Richard Thaler, have argued, this strategy is probably counterproductive because you get just as many points for baskets scored early in a game as you do during late-game moments, so that sitting players to save them for late-game heroics probably just means you’re shortening their total on-court minutes to the team’s detriment.
The point of this post is not to propound a full defense of the crunch time strategy. This is because I think it’s basically right that basketball coaches are too cautious with saving players for late-game situations, and would probably do better to just max out their points earlier on even if that meant more players would foul out.
The point of this post, rather, is to point out one reason why the story of the crunch time strategy may be more complicated, and somewhat more compelling, than its critics have let on. I elaborate this point below the fold.
To start with an orthogonal observation, the strategy of sitting basketball (and, for what it's worth, hockey) players periodically throughout a game is not only to save them for crucial late-game moments. It also is a necessity (or at least is very advisable) given the highly intense pace of basketball. If you didn’t give cagers regular breaks, by the end of the fourth quarter (or earlier) even the fittest players would be totally gassed, regardless of whether they were close to disqualification via foul accumulation.
That point aside, though, consider a reason that the crunch time strategy might not be a total loss. First, the critique of the strategy assumes that players are equally likely to score baskets throughout a game. If they are, then it makes the most sense to just maximize their on-court time, regardless of whether that court time occurs early or late in a game.
But if players’ likelihood of scoring is not constant, and in particular if players are more likely to score later in games, then saving them for the times when they tend to be more productive may be a good strategy. This sort of discontinuity in scoring aptitude is plausible—indeed, one of the hallmarks of what makes a player great may be their tendency to perform well in late-game high-pressure situations.
A related point is that great players have the dynamic effect of making others around them better, either through abstract qualities like inspiring leadership or more concrete ones like making good passes, setting effective screens, etc. These dynamic effects of a star player on their team could also vary throughout a game, and if they were greater at the end of a game, then reserving a star player’s minutes to allocate them later in a game could make more sense than crunch-time critique acknowledges.
This is, of course, only a limited defense of the crunch time strategy. This post has sought to add one underappreciated possible reason that sitting players early in a contest in order to save them for later-game moments might make more sense than the prevailing critique of the crunch time strategy lets on. And since, as I observed above, sitting players to some extent at intervals throughout a game is inevitable, it’s not possible to just play your best players until they successively foul out, even if this were the optimal strategy.
So given that it is necessary in basketball to sit players periodically throughout a game, one factor that might help craft the optimal strategy for when to sit players would be their likelihood of performing well later in a game (which is, of course, different than the prevailing wisdom that stars should always be saved for “crunch time”). And it bears noting that even if a given star performed marginally better later in games, that slight advantage might well not be great enough to justify reducing his overall on-court minutes by sitting him out earlier in the game.
This is, though, as the man says, an empirical question with an empirical answer. Do stars actually perform better later in games? Perhaps it’s true that some stars do while others tend to wilt under the perceived pressure. And why limit the inquiry to star players? It could be that all players' performance varies differently throughout a game, which could help a coach figure out when it's optimal to put anyone on the court. The broader point is that while we look at players' statistics as constant given that most basketball stats are based on games (points per game, assists per game, etc.), that may mask discontinuities in when during a game players are at their best, and that uncovering patterns in these discontinuities may be a strategically helpful insight.
What should every lawyer know?
It is schedule-selecting time again, particularly for 1Ls trying to map out the next two years. A colleague proposed a different way of thinking of this: Lawyers, as Tocqueville's American aristocracy, should have some core base of legal knowledge when they leave law school. Thus, there is some set of courses every law student should take--beyond classes targeting the areas in which a student wants to practice, bar-tested classes (although there is some overlap), and classes providing general skills and experiential practice. What is the law school canon? It must be a small portion of the 59 post-1L credits, thus leaving students room to 1) explore specific areas of interest and 2) do some skills/experiential stuff.
Accepting the underlying premise (and I understand that some people might not), what courses belong in that canon? If you were advising 1Ls on the doctrinal classes they should make sure to take before they graduate, regardless of anything else, what would they be? [Update: Just to clarify: This is for upper-level courses; I take as a given that the current 1L curriculum is unchanged] [Further Update and Clarification: I am not talking about career advice and what they should take for career/practice purposes, but general legal knowledge]
A tentative list:
• First Amendment
• Bus Orgs/Corps
• Federal Courts (at least if you are even thinking about being any type of litigator)
• Administrative Law
This is 19 credits, leaving another 40 for the student to play around with. What am I missing? Is there anything that should not be on the list?
Clarifying Again: Let me try to put the question this way. People would say you should not leave college without taking a basic course in some area of human knowledge and creation, such as, say, Shakespeare (even if your career is not going to involve his work in any way). So what are the legal equivalents of Shakespeare?]
Monday, April 14, 2014
We're Number 8! We're Number 8!
Congrats to our blogmaster Dan for not only hitting the ninth anniversary at Prawfs (willow/pottery or leather gifts, please), but also hitting eighth in the Caron law prof blog traffic rankings, with almost two million page views As I mentioned in an earlier post, we're glad that you come to Prawfs, whether it be for our series of posts or just one particular discussion, and we hope to give you reason to keep coming back.
And while we're on the traffic rankings subject, I've noticed that the law prof network blogs now automatically refresh after a spell. How do folks feel about this feature? And does each "refresh" count as a new page view?
The American Presidency: Does It Work Anymore?
Absent a major change in the political climate and a Democratic wave election in November, we can expect many more articles like Peter Baker's in the New York Times on the frustrations facing President Obama for the remainder of his term in office. As Baker observed, it is becoming increasingly difficult for presidents to get sweeping legislation through Capitol Hill.
While it is tempting to blame Congress, partisan polarization, or other features of the contemporary political system, it also seems clear that there is a deeper structural problem at work--the U.S. presidency no longer works well. I consider the defects in the presidency at some length in "Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch." In this and upcoming posts, I will discuss some of the key problems with the presidency.
For example, barely more than 50 percent of the public has a voice in the policymaking decisions that emerge from the Oval Office. While presidents may once have aspired to act as the representative of all Americans, and George Washington may actually have done so, contemporary presidents generally hew to the views of their partisan base. Even when they attract only 53 percent of the popular vote, presidents claim a broad mandate for their partisan platforms and remind the other side that “elections have consequences."
All citizens want to have a voice in their government, but nearly half the public is denied a chance for meaningful input into the development of presidential policy. This is fundamentally unfair. To paraphrase John Stuart Mill, instead of having an executive branch “of the whole people by the whole people, equally represented,” the United States has an executive branch “of the whole people by a mere majority of the people, exclusively represented.” Or as Jill Lepore wrote in The New Yorker last month, "one-half of the people ought not to be ruled by the other half." (To be sure, Lepore was speaking about women being ruled by men, but the point still stands.)
It's not only unfair to reserve all of the presidential power for half of the country, it also fans the flames of partisan conflict. We should not be surprised that when people are denied representation, they become receptive to a policy of obstruction that might enhance their chances of winning back power. In my next post, I will discuss the modern presidency and partisan conflict.
Sunday, April 13, 2014
The best sports deal ever
That is how Sports Illustrated describes the deal struck between the NBA and the owners of the Spirits of St. Louis when the Spirits folded and four ABA teams joined the league, which had paid them $ 300 million over the past three-plus decades. The SI story does a good job of elaborating on the deal's business and legal details, the negotiations leading to the original deal, and the litigation and settlement that ended it.
Pursuant to a recent confidential settlement (disposing of a lawsuit to obtain rights to certain international and online revenues), the old deal is over; the former owners (brothers Ozzie and Daniel Silna) will be paid more than $ 500 million, plus a small stake in the NBA's new TV contract. All told, the Silnas will make more than $ 1 billion (from a team they bought for $ 1 million in 1974).
Saturday, April 12, 2014
Lamberth in Cobell Part 2: Contextualizing Litigation Tactics
As a follow up to my first post on Judge Lamberth and the Cobell case and as a way of responding to questions that Glenn raised in the comments, I want to briefly note some historical antecedents of the lawsuit to situate the parties' litigation strategy in a broader context. I’ll take up the DC Circuit’s decision to reassign the case, and the ultimate result of the Indian trust litigation, in additional posts.
The General Allotment Act of 1887 (the Dawes Act) was in no uncertain terms designed to destroy the tribes and assimilate Indians into anglo-American social and economic systems. Senator Henry Dawes said that the Indians "have got as far as they can go, because they hold their land in common. . . . There is no selfishness, which is at the bottom of civilization."* The Dawes Act would therefore impose individual land ownership on Native Americans in 80- or 160-acre allotments carved out of tribal lands. The government ended up taking some 90 million acres--65% of tribal lands--for sale to non-Indian settlers and entities (railroads, ranchers, etc.). The plan was to force massive cultural change--having to tend their allotments would instill in the Indians proper anglo-American values. Or so went the thinking. In 1881, President Chester Arthur boasted that allotment "would have a direct and powerful influence in dissolving the tribal bond, which is so prominent a feature of savage life, and which tends so strongly to perpetuate it." In 1901, Teddy Roosevelt characterized the allotment system as "a mighty pulverizing engine to break up the tribal mass."
Arthur and Roosevelt were right about allotment breaking the tribes, but, of course, dead wrong about the benefits of that process. Private land ownership was a foreign concept and allotees soon faced tax foreclosure, reversion or bargain-basement sales of their land or its resources. The proceeds went into the government-managed trust accounts. And, as the D.C. Circuit noted, for decades before Cobell was even filed "report after report excoriated the government's management of the [Indian] trust funds." Pre-lawsuit reports from Congress, the GAO, and others all reported basically the same thing--"significant, habitual problems in [the Bureau of Indian Affairs'] ability to fully and accurately account for trust fund moneys, to properly discharge its fiduciary responsibilities, and to prudently manage the trust funds." The Interior Department itself, in a 2007 report to Congress on the progress of trust reform in the wake of Cobell, called the Indian trust "one of the most notoriously intractable management problems in the federal government."
The Department admitted most of this mismanagement before the first trial in Cobell, conceding that it "does not adequately control the receipts and disbursements of all [trust] account holders," that it "does not provide all account holders with periodic statements of their account performance," that it "does not provide adequate staffing, supervision, and training for all aspects of trust fund management and accounting," and, in the words of then-Interior Secretary Bruce Babbitt, that "the fiduciary obligation of the United States government is not being fulfilled." Paul Homan, Clinton-appointed Special Trustee for the Indian trust, testified that "[t]he record-keeping system [for the Indian trust] is the worst that I have seen in my entire life."
Unsurprisingly given their treatment by the government, of which the trust debacle is illustrative, Native Americans' economic circumstances generally are appalling: Data the 2012 census show that their median household income was $35,310 (compared to the overall national median of $51,371), 29.1% were living in poverty (more than any other racial group, and at a rate significantly higher than the 15.9% national rate), and 27.4 percent lacked health insurance (compared to 14.8 percent nationally).
It is against this background that we should consider the government's approach to defending the Cobell lawsuit. The system was broken. Everyone knew it. Even the Interior Department admitted it. But the litigation process was notoriously long and convoluted--14 years and nearly 4000 docket entries by the end. Given the enormous scope and variety of the proceedings, I will only describe a few exemplary bits that are suggestive of the government's general strategy. I do not intend to refute Glenn's suggestion that there were reasons for the government to be frustrated; my point is that there were plenty of reasons for everyone involved--including the plaintiffs and the judge--to be frustrated.
One could characterize the government's litigation strategy charitably as thoughtful, exhaustive and deliberate, or uncharitably as dilatory and obstructionist. Beginning with its initial motion to dismiss and continuing through the first Cobell trial (which was held in June 1999 and established the government's trust management failings), the government pursued legal theories that would have completely cut off the Indians' private rights of action for trust violations. They argued that despite all the problems with its management of the trust, the Interior Department's internal trust reform efforts were proceeding "in a reasonable fashion, [at] a reasonable speed," and that the plaintiffs had no judicial remedy because of sovereign immunity and because Interior had unreviewable discretion to make trust management decisions. After the trial, Judge Lamberth ordered an accounting and the government advanced its sovereign immunity and agency discretion arguments on appeal. The D.C. Circuit rejected them and held that "[t]he federal government has substantial trust responsibilities toward Native Americans," and that it was "equally clear [that it] . . . has failed time and again to discharge its fiduciary duties."
With hundreds of thousands of benficiaries and such a long-lived trust, one might have expected the accounting and reform of the system- the obvious remedy--to be a large, time-intensive project. But this wasn't that. It took 14 years for the plaintiffs to overcome the government's insistence that the Indians had no remedy at all.
Now, it may be that the government appealed the trial result (and continued to litigate for a decade more) out of a desire to protect the agency's trust management prerogatives from constraint by court order, but of course that would be a more plausible and acceptable reason had the agency's internal trust reform efforts not been repeatedly deemed massively deficient in the years before the lawsuit and thoroughly proved to be so at trial. Perhaps a vigorous defense is desirable in its own right regardless of the circumstances--certainly every defendant has the right to contest liability and we've long accepted that adversarial presentation is a valuable tool for working out the truth in factually complex cases (Cobell certainly had complex facts). But there is something about the government's attempts to cut off the class members' access to any judicial remedy, in the light of its universally recognized failings as trustee, that stands in tension with the idea, reflected in the Supreme Court's pronouncement in Seminole Nation v. United States, that the government "has charged itself with moral obligations of the highest responsibility and trust" in "dealing with the Indians [and] should therefore be judged by the most exacting fiduciary standards."
We can see already some of the reasons why Judge Lamberth might have emphasized the government's tendency to "litigate and relitigate, in excruciating fashion, every minor, technical legal issue" in the opinion that resulted in the case being reassigned. I leave it to you to assess whether Judge Lamberth's obvious frustration was justified and I'm interested in your thoughts. Stay tuned--the next post will detail some of the case's headline-grabbing collateral proceedings, including the contempt citations and Judge Lamberth's orders disconnecting the Interior Department from the Internet. These incidents, too, add important context for thinking about the tone of the judge's most controversial opinion in Cobell.
*Address at the Third Lake Mohonk Indian Conference, 1885, as quoted in Armen Merjian, An Unbroken Chain of Injustice: The Dawes Act, Native American Trusts, and Cobell v. Salazar, 46 Gonz. L. Rev. 609, 615 (2011). Much of what I am about to say is chronicled in greater detail, and with fuller citations, in the Merjian article (and I'm sure other articles on the Cobell case).
Thursday, April 10, 2014
Law prawf letter on Adegbile nomination
A group of law professors is circulating this letter to Senators Leahy and Grassley [Updated verion] regarding the Senate's rejection Debo Adegbile to head DOJ's Civil Rights Division; several Senators expressly pointed to Adegbile's past representation of Mumia Abu Jamal as the basis for their opposition. While not asking the Senator to reconsider Adegbile's nomination, the letter expresses concern for what this rejection says about the right to counsel (issues I discussed), the obligations of lawyers to take-on pro bono representation, and what happens if lawyers are tagged with the sins of their clients (pointing not only to Chief Justice Roberts, as did several commenters to my earlier posts, but also to John Adams for his (successful) representation of the British soldiers charged in the Boston Massacre).
The authors are looking for law professors to sign on to the letter. If interested, you can do so online at this link. The deadline for signing is April 17.
Health Insurance, Socioeconomic Status, and Health
Earlier this week, I wrote about the link between health insurance and health and suggested that socioeconomic factors such as education and wealth can be much more important for health than access to health care. There are some interesting studies in this area.
For example, researchers looked at health outcomes in England under that country’s National Health Service (NHS) and found that the higher the socioeconomic status of a person, the lower the death rate. People in the highest civil service grade for government employees had a mortality rate about half that of people in the lowest civil service grade, even though they all had good access to health care. In addition, the gap in mortality rates among men in England by socioeconomic status has actually widened over time since the introduction of the NHS in 1948.
Or consider an interesting policy experiment in Canada during the 1970s. For four years, the province of Manitoba guaranteed a minimum annual income for all residents of Dauphin, a small, rural city. Health status improved significantly. When Dauphin residents were compared with residents of other rural communities in Manitoba, the data showed that while people in Dauphin were more likely to be hospitalized before implementation of the minimum income program, the gap in hospitalization rates disappeared by the end of the program. The decline largely occurred for hospitalizations that tend to be sensitive to levels of income security.
And the improvements in health status cannot be attributed to better access to health insurance. Manitoba had implemented a program of universal health insurance before the minimum income experiment, so the income benefits did not affect health insurance status.
U.S. data also illustrate the value of socioeconomic interventions for promoting health. Studies have found that the provision of housing for chronically homeless individuals decreases the number of hospital admissions, shortens the duration of hospitalizations, and reduces overall health care costs substantially.
No doubt there are important political reasons for dedicating dollars to improving health care coverage rather than socioeconomic status, but we’re not making the wisest investments with our limited resources.
[cross-posted at HealthLawProfs and orentlicher.tumblr.com]
Wednesday, April 09, 2014
Does this apply to legal scholarship?
One thing I’ve learned in my life is that — creatively — it’s better to have one person love you than to have 10 people like you. It’s very easy to like someone’s work, and it doesn’t mean that much; you can like something for a year and just as easily forget it even existed. But people remember the things they love. They psychologically invest in those things, and they use them to define their lives (and even if the love fades, its memory imprints on the mind). It creates an immersive kind of relationship that bleeds into the outside world, regardless of the motivating detail.
(Practical) learning experiences
FIU today hosted an oral argument of the United States Court of Appeals for the Armed Forces, as part of the court's Project Outreach, a public and military education program. My colleague Eric Carpenter, who joined the faculty this year after twenty years in the Army, including a stint teaching at JAG School, arranged the visit. His Military Justice class wrote an amicus brief and one student was given ten minutes of argument. The court followed the argument with a public Q&A session for students, military lawyers and personel, and others.
It was a great learning experience; it would be great if other courts would so similar things in law schools and other public places.
Overcoming the Public-Private Divide in Privacy Law (Part 1)
I'm working on a project I'm calling "Overcoming the Public-Private Divide in Privacy Law." Under the traditional public-private divide in privacy law, cases in which the privacy-invading party is in the public sector get analyzed under a 4th amendment framework, and cases in which the privacy-invading party is in the private sector get analyzed under a hodgepodge of non-4th amendment frameworks including privacy torts, trade secret law, state and federal statutes, etc. In the descriptive portion of the project, I want to offer an account of the ways in which this traditional public-private divide has broken down.
First, courts have been drawing analogies across the private and public sectors without any real consideration for when these analogies make sense. For example, in public sector workplace privacy cases courts, including the Supreme Court, look to the private sector, although when private sector workplace privacy cases arise courts generally note emphatically that the Fourth Amendment framework does not apply. By contrast, in private sector trade secret cases, courts will look to the 4th amendment cases for analogies, but the 4th amendment cases tend to reject analogizing to trade secret cases.
Second, the private-public divide in privacy has broken down in various ways with respect to how information is obtained and whether it remains in the original sector. This includes reverse FOIA claims and privacy merchants selling data to the government.
I would love any thoughts/suggestions regarding these or other breakdowns in the divide.