Saturday, May 31, 2014
The month of May has come quickly to an end. Much thanks to Dan and the PrawfsBlawg team for letting me visit this month. Thanks also my very supportive colleagues at Texas Tech including reader extrordinaire, Professor Eric Chiappinelli, to everyone who read the pieces, who commented on-line, and who contacted me directly. For those interested in thoughtful commentary on legal education, the place to be in addition PrawfsBlawg and TaxProf blog this summer is a third member of the family, Law Deans on Legal Education edited by I. Richard Gershon, Dean and Professor University of Mississippi School of Law, Paul E. McGreal Dean and Professor of Law University of Dayton School of Law, and Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law
I look forward to visiting again in September.
With best wishes,
How do we know that the version of any case, statute or regulation we read is an accurate one
The recent kurfuffle about Supreme Court Justices changing the text of already released opinions raises the larger question of how we can ever know whether the version of any statute or case or regulation we are reading is the “final one.” It also highlights the problem of of linkrot that is also affecting the reliability of judicial opinions.
Given how important a problem it can be if the text we rely on is wrong, its interesting that authenticating information places no role in the legal curriculum. I never gave it a thought until one of my dissertation advisors asked me to write a methodology section that explained to lay readers “where statues and opinions come from” and “how do we know they are reliable.” Here's a highly abbreviated version with some helpful links (reliable as of posting, May 31, 2014).
For statutes, all roads led to the National Archives and the Government Printing Office which operates the FDYS. The National Archives operates the Office of the Federal Register (OFR), which receives laws directly from the White House after they are signed by the U.S. President..” The accuracy of these texts is assured by “[t]he secure transfer of files to GPO from the AOUSC [that] maintains the chain of custody, allowing GPO to authenticate the files with digital signatures.”
The GPO assures us that it “uses a digital certificate to apply digital signatures to PDF documents. In order for users to validate the certificate that was used by GPO to apply a digital signature to document, a chain of certificates or a certification path between the certificate and an established point of trust must be established, and every certificate within that path must be checked." Good news.
The GPO has developed a system of “Validation Icons”--explained further on the Authentication FAQ page.
Editors at the OFR then prepare a document called a “slip law,” which “is an official publication of the law and is admissible as ‘legal evidence.’” It is the OFR that assigns the permanent law number and legal statutory citation of each law and prepares marginal notes, citations, and the legislative history (a brief description of the Congressional action taken on each public bill), which also contains dates of related Presidential remarks or statements.” Slip laws are made available to the public by the GPO online.
The system is more complicated when it comes to judicial opinions. Each of the Eleven Circuit Courts of Appeal issues its own opinions. For example, this is the website of the Fifth Circuit Court of Appeals, The GPO has joined with the Administrative Office of the United States Courts (AOUSC) “to provide public access to opinions from selected United States appellate, district, and bankruptcy United States Courts Opinions (USCOURTS). Currently the collection has cases only as far back as 2004As indicated by the term “selected,” this database only contains some of the federal courts.
The official source for the opinions of the U.S. Supreme Court of the United States is the U.S. Supreme court itself. Pursuant to 28 U.S.C. § 673(c), an employee of the U.S. Supreme Court is designated the “Reporter of Opinions” and he or she is responsible for working with the U.S. Government Printing Office (GPO) to publish official opinions “in a set of case books called the United States Reports.”
According to the Court, “[p]age proofs prepared by the Court’s Publications Unit are reproduced, printed, and bound by private firms under contract with the U.S. Government Printing Office (GPO). The Court’s Publications Officer acts as liaison between the Court and the GPO.” Moreover, “the pagination of these reports is the official pagination of the case. There are four official publishers of the U.S. Reports but the court warns on its website that “[i]n the case of any variance between versions of opinions published in the official United States Reports and any other source, whether print or electronic, the United States Reports controls.”
To some exent this latest information suggesting that there may be different versions of opinions at different times fits in well with the history of the court. As most of us know, the Supreme Court did not have an official reporter until the mid-nineteenth century and did not produce a written opinion for every decision. Moreover, it has only been recording oral arguments since 1955 and although now issues same day transcripts this was hardly always the case. Also now available are the remarks that the Justices make when reading their opinions. But, and no link is missing, I don't have one, in hearing Nina Totenberg give a key note presentation at ALI in 2012 about her days at the court, she pointed out that when she began covering the Court this was not available. And that it was not unusual for notes to differ on exactly what the Justices said.
Donald Sterling v. NBA: Your new Civ Pro exam
Donald Sterling sued the NBA to stop his league-imposed punishment and the forced sale of his team. A $ 2 billion offer from Steve Ballmar was accepted by Sterling's wife, Shelly on behalf of the trust that owns the team, having had Donald declared mentally incompetent; the NBA has approved that deal and canceled a planned hearing of the Board of Governors (the other 29 owners) to strip Donald of ownership. The lawsuit, with Sterling and the trust as plaintiffs against the NBA, asserts claims for a violation of the state constitution, federal antitrust, and various breach of contract claims; it seeks damages and an injunction halting the NBA-imposed punishments (a $ 2.5 million fine and lifetime suspension from the NBA) and the hearing to terminate his ownership.Oddly, these claims are either not ripe or about to become moot, depending on what happens with the sale. The NBA has not yet held the hearing to terminate his ownership, so he has not yet suffered any damages from it. And since the league will cancel the hearing if the sale goes through, that claim becomes moot. If the sale goes through, expect the league to rescind the fine, mooting that element of relief. It might even lift the lifetime suspension--what involvement will Sterling have with the league if he is no longer an owner?--mooting that claim. And assuming the sale goes through, what damage will Sterling have suffered? Two billion dollars will be more than double the sale price of any NBA franchise and likely more money than he would have earned from continued ownership of the team. So, at best, maybe he can get the non-economic value of being an NBA owner--except he is such a pariah now among NBA owners that it would be hard to put any real value on this.
What Sterling really wants is an injunction halting the sale of the team, at least pending outcome of the litigation. But to get that, Shelly Sterling needs to be involved in the case, since she claims an interest in controlling the trust and pushing through the sale. So either she has to be joined under FRCP 19 or she will try to intervene under FRCP 24. (Note: I don't do much more than lecture on these two rules, just to show other ways of bringing parties into cases But Rule 19 confuses students, who think it applies more broadly to cover simple joint-tortfeasor situations; having a nice clear example, purely involving injunctive relief, is helpful).
Jurisidction here hinges on the antitrust claim and § 1331; there is supplemental jurisdiction over the state law claims (although Sterling's lawyer--who in an ongoing media blitz has come across as the worst kind of slickster lawyer who does not actually care about things like law and procedure--did not mention that or any other basis for jurisdiction over the non-federal claims). But, here is where it gets fun. Antitrust experts generally agree that the antitrust claim is nonsense--Sterling signed a series of agreements and contracts to become owner of an NBA franchise and cannot claim harm if those contracts harm the public or competitors. Sterling really is arguing that, by violating its own Constitution and By-Laws in punishing him (arguments that are not entirely frivolous), the NBA has breached those agreements; in other words, this is really a state-law case. So perhaps the court declines supplemental jurisdiction under § 1367(c)(2) because the state claims predominate. Moreeover, the court is going to have to figure out who controls the trust (Donald or Shelly) and, perhaps, whether Donald is competent. Those sound like potentially complex issues of state law, warranting the court to decline jurisdiction under § 1367(c)(1). Finally, and most obviously, if the antitrust claim is that weak and the court dismisses it relatively early, it could decline jurisdiction simply for that reasons under § 1367(c)(3).
Update: An alert reader emails with another way Shelly Sterling could be brought into this case: She agreed to indemnify the NBA for any judgments arising from the sale of the team, including for lawsuits by her husband. So, having been sued, the NBA could now implead Shelly and the trust to enforce the indemnification agreement in the same action. Sterling then could assert claims against Shelly relating to any injunction of the sale.
Friday, May 30, 2014
The Flawed NRC Report: No Mention of Realignment!
In my previous post, I pointed out that the NRC report overlooked the centrality of prosecutors to prison growth, and thus ignored the importance of counties. In my next few posts, I will expand on the signficance of this oversight. But in the meantime, I wanted to write a short post to highlight just how badly the NRC over-emphasizes national and state factors over county-level ones.
At no point--nowhere, not a single time--does the report discuss Realignment in California.
It talks briefly about Plata v Brown, the Supreme Court case that upheld the 9th Circuit's decree that California's prison system was constitutionally deficient. It talks briefly about the fact that following Plata the state has been releasing numerous prisoners. But that's it.
I searched the entire pdf for the word "realignment" and got nothing relevant. To be careful, I then checked every time the word "California" appeared. Nothing.
For those not up on California penal policy, Realignment is potentially one of the biggest penal policy changes in recent history. In my next post, I will discuss in more detail how a potentially major cause of prison growth is that sending an inmate to prison is basically "free" to a DA: as a county official, the DA doesn't care about the cost incurred by the state for the defendants he sends to prison. In fact, the problem is even worse: since jail and probation are county expenses, the DA likely prefers to send them to prison, since he looks tougher and pays less.
Realignment is California's effort to directly confront this moral hazard problem. Simplifying greatly, under Realignment, counties are required to detain "triple-nons" (non-violent, non-sexual, non-serious offenders), no matter how long the sentence. In other words, if a county DA wants to lock up a low-level offender, the county jail now has to pay for it.
Now, the details of how Realignment is playing out in practice are incredibly complex. But the fact that California has chosen to go this route to reduce its prison population indicates that the state with the largest state-level prison population feels that a major cause of prison growth is county-level budgetary moral hazard, and it has adopted a revolutionary process to try to correct it.
Yet in a twenty-five page chapter on the causes of prison growth, the NRC committee gives the moral hazard problem two sentences (almost in passing), and it never once talks about Realignment.
This is a shocking oversight, and it indicates that the report truly does not provide a viable explanation of where prison growth is coming from, and thus that it is in no position to recommend how to regulate it.
FSU Law VAP position available
Florida State University College of Law seeks applicants for a new Visiting Assistant Professor (VAP) in business/commercial law for the 2014-2015 academic year. The VAP will hold a one-year appointment which is designed to help and train future law professors. Candidates will be selected based on their prior work and educational experience, and teaching and scholarly potential. FSU is committed to achieving equal opportunity in all aspects of University life. Applications are encouraged from people of color, individuals of varied sexual orientations, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of the law school.
If interested, please email a Curriculum Vitae (including a research agenda) to Associate Dean Manuel Utset (mutset at law.fsu.edu).
The Flawed NRC Report: The Mysterious Case of the Missing Prosecutor, Part 1
As I argued yesterday, the claim that longer sentences drove prison growth in the 1990s is at worst wrong and at best an extreme oversimplification. Which means that prison growth must be driven by admission-side factors. In fact, I have a paper that points to one factor in particular: the prosecutor. Unfortunately, while the NRC report acknowledges that admissions droves growth in the 2000s, it reaches that conclusion in way that makes it miss the role of the prosecutor.
This is perhaps the single biggest error in the report’s analysis of the causes of prison growth, so I want to spend a few posts looking at how it makes this mistake, and how failing to identify the central role of the prosecutor poisons efforts to make meaningful policy recommendations more generally.To its credit, the report does note that admissions drove prison growth in the 2000s. But two key flaws nonetheless persist. First, it gets the dates wrong: admissions drive growth in the 1990s ass well, perhaps even earlier (but the data I have starts in 1994). Second—and this is what I want to focus on the most—its analysis of why admissions grew is simplistic to the point of being unusable.
To figure out why admissions grew, the NRC report disaggregates the path to prison: crimes, arrests per crime, and admissions per arrest. It admits that “admissions per arrest” is a clunky term—we’d really like to filings per arrest and convictions per filing—but that it is a concession to limitations in the data:
Because national trend data are not readily available for charging and conviction, analysis of imprisonment population dynamics has examined the probability of prison admission given an arrest.
There are two big mistakes with this sentence, tied together by a common thread: charging data is actually quite readily available. First, there actually is an easily-accessible state-level nation-wide database on case filings. And while the on-line version is an annual pdf report, all it took for me to get the data in a computer-friendly Excel sheet was sending a single email.*
Second, every state Secretary of State (or at least every one I’ve checked with) compiles court processing statistics—usually at the county, not state, level, the importance of which will soon be clear—and makes them available on-line. Sure, the formatting is often inconvenient (pdfs, strangely-designed Excel sheets, etc.), and gathering the data requires going to fifty different websites and downloading multiple annual reports. And states count differently, use different terms, and so on. But “the data require some work to gather and merge” is no excuse for not gathering and mergin them, especially for an authoritative NRC report.
Now the committee is right that conviction data is hard to get. The National Judicial Reporting Program provides data only on those who have been convicted (so you can't detect the conviction rate); the State Court Processing Statistics dataset does provide case-level data on conviction outcomes, but it is a sufficiently wonky dataset that the BJS has issued a special warning against relying on it too much for causal analysis.
But even breaking up “admissions per arrest” into “filings per arrest” and “admissions per filing” is hugely useful. Because here is the problem with using “admissions per arrest”: agreeing that that is the source of growth, if we want to rein in or regulate prison growth, what reforms does that recommend? After all, “admissions per arrest” implicates numerous independent criminal justice bureaucracies. Are prosecutors becoming more aggressive? Are judges using their discretion more aggressively? Are legislators forcing judges to act more aggressively through mandatory minimums?
Each of these theories yields different reform suggestions—repeal of mandatory minimums if it is legislators, guidelines or other limitations if it is judges, something else enitrely if it is prosecutors. And not only are the reforms different, so too are the jurisdiction: changing legislative outcomes is a state-level action, but regulating prosecutors has to take place at the county level (since in almost every state no state official has any oversight of directly-elected county-level DAs). So knowing it is “admissions per arrest” really doesn’t tell us much.
But adding in felony caseloads tells us a lot. Consider Figure 3B from this paper:
What this figure says is the following: between 1994 and 2008, the probability that an arrest would result in a felony filing** rose from 0.387 to 0.57, an increase of 54%. During the same time, the probability a felony case would result in a prison admission was flat at 0.26. In other words, growth is driven almost entirely by an increase in felony filings.
This solves the “who” question that the report’s analysis can’t answer: growth is driven almost entirely by the prosecutor. Once a felony case is filed, the defendant is no more likely to go to prison in 2008 than in 1994. But the probability that an arrestee finds himself confronting a felony charge soars.
This is a significantly important finding. Almost all analyses of prisons looks at national- or state-level data, and the NRC report is no exception. And this focus, while wrong, makes intuitive sense: prisons are state institutions, so it is logical to compare state outcomes. But while prisons are run by the state, my results indicate that prisoners come from the county.
In other words, to understand prison growth, we must understand the prosecutor. And to understand the prosecutor, we have to turn our attention to the counties. The NRC report simply fails to do this. And in my next several posts, I will examine the very real costs of this failure.
* Strangely, the on-line version only links to the 2010 report. When I first used the data, all past reports were easily available as well; it is unclear why past reports have been taken down or made less accessible. Regardless, all it takes is an email to get all the past data.
** This is just the ratio of state arrests for all index violent and property crimes and non-marijuana drug offenses to total felony case filings in that state in that year.
Thursday, May 29, 2014
Does History Support Investigative Searches Incident to Arrest?
Under Arizona v. Gant, police who have arrested the driver of a car have authority to search the car’s interior when it is “reasonable to believe” that the car contains evidence of the crime of arrest. This holding is anomalous, since it allows for warrantless searches that are purely investigative. Yet the rule established in Gant is poised to expand. In the pending cases United States v. Wurie and Riley v. California (which I discussed here), the governmental parties argued in the alternative for the adoption of a Gant-like rule in the cell phone context. Thus, the Court is now considering whether to allow purely investigative searches of cellphones incident to arrest.
In this post, I’d like to complicate the historical picture that underlies Gant‘s embrace of purely investigative searches incident to arrest. The basic difficulty with that historical picture is this: it derives an authorization for searches from historical cases that govern seizures.
To support the idea of investigative searches incident to arrest, Gant cited Justice Scalia’s concurrence in the judgment in Thornton v. United States. Scalia’s main historical claim was that performing an “evidence-gathering search” incident to arrest finds support in cases establishing “the general interest in gathering evidence related to the crime of arrest.” In Scalia’s view, these cases contain “no mention” of non-investigative interests, such as the “specific interest in preventing [evidence's] concealment or destruction.” I think that Scalia took the wrong lesson from his cited authorities.
To see why, we need to distinguish between two related but nonetheless distinct types of Fourth Amendment rules: those that tell police when they can search, and those that tell police what they can seize. Given this distinction, it’s possible for police to conduct a legitimate search that turns up materials that cannot be seized. That possibility arose, for instance, in Gouled v. United States (1921), a then-leading case in which a search warrant led police to find and seize unseizable evidence. Later, Warden v. Hayden (1967) characterized the “mere evidence rule” established Gouled and related decisions as a rule about “materials … which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest.” These sources corroborate Justice Frankfurter’s 1947 observation (in dissent) that “[i]t is important to keep clear the distinction between prohibited searches on the one hand and improper seizures on the other.”
To illustrate and explore the significance of this key distinction, let me focus on the only historical authority that Scalia’s Thornton opinion quotes at any length — namely, Bishop’s 1872 treatise. This source looms very large for Scalia, as he cited it repeatedly, block quoted it, and called it “typical” of the other cited materials. Given all that, one might expect the treatise to state Gant‘s rule of investigative searches. Yet it does not.
Scalia cited a section of the Bishop treatise that is headed “The Seizing of Goods in other Cases of the Arrest of the Person.” So this is a section about seizures, not searches. The first paragraph subheading is more ambiguous on that score, since it at least mentions searches: “Power to Search and take Property from Prisoners.” But this is just another way of referring to the government’s authority to seize “Goods” or “Property” during searches incident to arrest. The treatise section goes on to take for granted the authority to search incident to arrest, without explaining either the proper scope of that authority or its basis (that is, whether it is justified by investigative interests, as opposed to interests like evidence preservation or officer safety).
And why have rules on seizures incident to arrest, anyway? Well, Bishop reports that constables often seized whatever they wanted from the arrestee, but this was problematic — primarily because the arrestee “is thereby deprived of the means of making his defense.” Thus, the treatise says, someone arrested for rape shouldn’t have his watch seized. The focus in Bishop’s discussion is on items of value, like “money” or “a watch.” There is no mention of personal objects like diaries or letters. (Cf. my earlier post suggesting that diaries and cell phones shouldn’t be readable incident to arrest.)
Based on the need to protect arrestees’ valuable property, the treatise proposes a rule that (it concedes) had not actually been stated in the case law. This proposed rule is what Scalia block quoted in Thornton. Here’s the block quote:
The officer who arrests a man on a criminal charge should consider the nature of the charge; and, if he finds about the prisoner’s person, or otherwise in his possession, either goods or moneys which there is reason to believe are connected with the supposed crime as its fruits, or as the instruments with which it was committed, or as directly furnishing evidence relating to the transaction, he may take the same, and hold them to be disposed of as the court may direct.
Again, Scalia cited this passage as evidence of a “broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested.” Later, Scalia added a “cf.” cite to the above-quoted passage and parenthetically asserted that, according to Bishop, an “officer should ‘consider the nature of the charge’ before searching.” But the passage talks about what to seize, not when to search. In other words, this passage (which references “instruments” and “fruits” and so at least partly tracks the now-abandoned “mere evidence” rule) takes the officer’s search authority for granted and inquires only into what the officer can reasonably seize.
Given its focus on seizures, the cited passage does not support Scalia’s claim that the authority to conduct warrantless searches incident to arrest was historically based on a “general interest in gathering evidence related to the crime of arrest.” Instead, the Bishop passage is entirely compatible with the notion — embraced in modern cases like Chimel v. California (1969) – that the power to search incident to arrest depends upon non-investigative interests, such as preventing destruction of evidence and protecting police. In fact, Scalia himself candidly acknowledged that “Chimel‘s narrower focus on concealment or destruction of evidence also has historical support,” as well as that “Chimel's officer-safety rationale has its own pedigree.” A separate set of interests and principles, including the those outlined by Bishop, limited what could be seized.
In sum, when the police can search was (and still is) analytically distinct from what the police can seize. It was thus a leap for Scalia — and, by extension, for the Gant Court — to ground a rule of investigative searches in the history of rules governing seizures. In particular, Bishop’s proposed restriction on what could be seized does not translate into a rule permitting warrantless investigative searches. I hope that the Court does not rely on this aspect of Gant when deciding Wurie and Riley.
The above is cross-posted from Re's Judicata.
On class supplements
I have written a supplement (available at your local supermarket checkout line). I assign supplements in every course I teach, including selecting one casebook that combines the best elements of a treaty treatise and a casebook. But the overuse of supplements and study aides, especially in 1L courses, feels as if it is getting out of control. Two related problems: 1) Students are using supplements and study guides in lieu of the class reading and 2) Students are using too many study guides and it is all getting confusing.
Some examples: 1) On Civ Pro, I gave question (from a recent 5th Circuit case) that basically lined up with Nicastro, yet a significant number of students never mentioned Nicastro, but discussed the competing opinions in Asahi (which is what a supplement written before 2011 would have discussed). 2) Several students meeting with me after grades came out told me how hard they worked in the class, always indicated by how many different supplements and study guides and audio recordings they used, never by how much they focused on the actual assigned cases, rules, and statutes.
Do others notice this problem? And is there a way to get it under control, to make students focus primarily on the primary sources and let the supplements be just that?
A Flawed NRC Report: Prison Populations and Sentence Length, Part 2
As I noted in my previous post, the NRC report's focus on longer sentence length failed to address multiple papers--admittedly written by me, so not exactly a neutral observer here--that provide at least credible empirical results that longer sentence length really isn't that important. Here I want to turn to problems with the results the NRC itself relies on. That the report ignored dissenting positions is made all the worse by the fact that its own analysis is quite weak.To compute how much time inmates serve, the report simply takes the total stock of prisons and divides by the number of admissions. So if in 2000 there are 1,000 people in prison for murder and 100 are admitted for murder, the average time served in 10 years (1000/100). There are many problems with this.
1. As the report acknowledges, this is an accurate measure only if the system is in equilibrium, which it never is here. The report tries to adjust for this a bit, but the adjustments are unconvincing.
2. Why do they only report the average, which by definition cannot be calculated for most admission cohorts (since we don’t know how long those unreleased will spend in prison until released)? Where is the median (which can be calculated), and other quintiles? This isn’t just a question of data availability: it useful to know how skewed the prison population is, but the report does none of this (even though there is a paper out there that does).
3. As my papers show, there is another source of data, the National Corrections Reporting Program, that allows you to look at individual-level data to measure more exactly just how long inmates are staying in prison.
4. This next criticism is the most technical, but it perhaps the most important, because it points to the very sort of careful technical analysis NRC reports are supposed to do but which this one completely failed to do. The problem with the NCRP, one could say, is that it applies to only a limited number of states, and the NRC report relies on national-level data from the BJS on incarcerations by offense type. But how does the BJS get that national-level data? By extrapolating from the limited data in the NCRP. And for technical reasons that I have written about extensively but which the committee again ignored, there are reasons to be concerned about using national-level aggregates from the NCRP. This is the very sort of really-understanding-the-data issue that we should count on NRC reports to explore (see the exemplary one on the death penalty), but there is none of that here.
In other words, even if the criticism in point 4 seems obtuse or unclear, it should raise a red flag for everyone reading the report: it indicates that it wasn’t thinking carefully about the data, a cardinal sin in statistics.
In fact, I can go further. The NRC report claims that the biggest increase in sentence length was for murder, which rose to 17 years by 2000. Let’s see how plausible that is, using state-specific NCRP data. I looked at data on murderers (both murder and manslaughter) admitted in 2000 in New York, Missouri, and Georgia. I have data on how many are released each year between 2000 and 2012. In New York and Missouri, two-thirds of all murders are released by 2012, and in Georgia (more Southern, more red, more punitive) almost half. (In NY the median time to release for a killer is 6.5 years, in Missouri 4.5 years.)
So given the number of people admitted, the time served by those released, and the number of people remaining in prison, it is easy (grade-school algebra is actually useful in real life!) to calculate how long those admitted in 2000 and still in prison at the start of 2013 have to stay in prison for the average time served for by all murderers admitted in 2000 to be 17 years. For New York, the 341 remaining killers (out of 1057 admitted in 2000) would have to serve an average of 44 years; for Missouri, the remaining 121 (out of 363) would have to serve 44 years as well; for Georgia, the remaining 228 (out of 453) would have to serve 29.
The numbers for New York and Missouri are implausible. First, that’s the average, so a significant number would have to serve more than that, and at that point you’re hitting the actuarial limit for being alive (since this is time actually served, not sentence imposed). Georgia is more credible, but given the number still in still unlikely.
Again, these are just some quick back-of-the-envelope calculations, but they provide an important counter-arguments to the crude calculations used in the NRC report--and I should point out here that the report bases its entire conclusion on a single unpublished, un-peer reviewed presentation given to the committee by Alfred Blumstein and Allan Beck.* It is possible to argue that my murder-plus-manslaughter elision is too important to overlook, or that 30 or 40 year sentences are not as implausible as I think. These are all valid concerns to raise. But this is a blog post, not a National Research Council report. I put this together in about two hours, not the months and months of time the committee had.
So not only does the NRC report overlook rigorous studies reaching different conclusions, but its own analysis relies on a crude approximation that weakens signficantly when subjected to close scrutiny using the very dataset it implicitly relies on.
An NRC report provides a valuable--and rare--opportunity to closely analyses controversial, policy-relevant data with a rigorous eye. As should be clear by now, whatever the right anwer, this report has simply failed to do so.
* In a future post, I will discuss more fully the committee’s surprisingly naive, unrigorous use of empirical work in report. It stands in stark contrast to other NRC reports, such as that on the death penalty, which wrestled with deep methodological issues openly and with sophistication.
A Flawed NRC Report: Prison Populations and Sentence Length, Part 1
Perhaps the most common explanation for prison growth is that sentences have simply gotten longer. It’s an understandable position, given the frequency with which we hear about long sentences for crimes that seem not to deserve them. And legislatures have spent years passing tough new laws, such as three-strike laws, truth-in-sentencing provisions, and just tough new punishments in general.
But for all its intuitive appeal, the connection between prison growth and sentence length is complicated and likely overstated. Unfortunately, the NRC report’s treatment of this issue is remarkably simplistic. The best that can be said of it is that it significantly and unacceptably understates the complexity of the issue; the worst is that it oversimplifies to the point of just being wrong.The NRC report is unambiguous about the role of time served. In its conclusions, it states:
[I]ncreased time served is closely associated with incarceration for violent crimes and explains much of the growth since the 1980s.
The body of the report itself is somewhat more nuanced, arguing that longer sentences explain growth during the 1990s, and increases in admissions per arrest the growth in the 2000s. As I will argue soon in a future post, the report appears to be right about the causes in the 2000s, although its treatment of this issue is similarly dangerously oversimplified. But there are reasons to doubt its conclusions about the 1990s as well.
1. Using inmate-level data from eleven (disproportionately Northern and blue-leaning) states from the 1980s to the early 2000s, I couldn’t find evidence that sentence length played any role in prison growth (and my data included the carceral behemoth of California). The detail in my data allowed me to run simulations in which I assumed that the sentencing practices in place in the late 1980s remained in place over the whole sample period, and I found that there was almost no difference between the simulated prison populations and the real ones. In other words, the passage of new sentencing laws in the 1990s did not noticably shape prison populations. I also found that most prisoners served fairly short sentences.
2. There was a potential limitation with that earlier study: it could be that even though most inmates served fairly short sentences, a small cohort of very “durable” offenders could create a large bloc of unreleased inmates that would bolster prison populations for a long time. Using the same data but projecting forwards rather than backwards, I found that such a core did exist but (under some contestable assumptions) would not exert too much pressure on prison size.
3. Moving beyond the fourteen states used in the first two papers, I expanded my reach to all fifty states over the period 1977 - 2010. I made a simple assumption: what if I just assumed that every admission cohort in every state starting in 1977 faced the exact same release schedule (40% out within a year, 10% out within two years, etc., etc.). How would a fake prison population based on an invariant release schedule compare to the real one? Much to my own surprise, it tracks is almost perfectly, for every state.
Note that my studies all cover the years when the NRC report says that increased sentence length was at the heart of prison growth, and they don’t find it.
Now, you don’t have to agree with my conclusions: two very smart economists don’t, and the concerns they raise are ones that deserve attention (although I still stand behind my results). There are tricky methodological issues at play here, and even tricky semantic ones: if someone goes from serving probation to two years in prison, is that an increase driven by admissions or by longer sentences (from zero to non-zero)?
But an NRC report is supposed to engage rigorously with the entire literature, and here the report has completely ignored dissenting views from its conventional take. And not just random, obscure disagreement: one of my articles was published in the leading peer-reviewed law and economics journal. So if not wrong, the report glosses over—by which I mean completely ignores—significant disagreement about its conclusions.
If nothing else, just look at this figure (from here), which plot annual admissions to and releases from state prisons. If sentence lengths were getting tougher, the two lines should diverge, but except for a brief moment in the early 1990s—admittedly consistent with the NRC report’s claim—it doesn’t. And it isn’t clear that the gap is big enough to be the key explanation for that period either (especially given the other results I have derived). Clearly this issue is far more complex than the NRC's analysis suggests.
I’ll end this post here. A second post, which will also go up today, will look at problems with the NRC’s analysis itself. But I don’t want to cross (even more that I already have) the tl;dr line.
More statutory interpretation from Donald Sterling
Sterling leads off by challenging the NBA's reliance on the secretly recorded conversations as evidence, which gets interesting. He points to California Penal Code § 632(a), which prohibits recording confidential communications without consent, and § 632(d), which excludes "evidence obtained as a result of eavesdropping upon or recording a confidential communication . . . in any judicial, administrative, legislative, or other proceeding." From this, Sterling insists he has a constitutional right not to have his private conversations recorded or having the evidence of his conversations used against him. That seems overstated--that the state offers a statutory protection against being recorded in furtherance of the constitutional right of privacy does not convert the right against being recorded into a constitutional right.The interesting statutory question is whether internal dispute-resolution proceedings of a private organization constitute an "other proceeding" under § 632(d). On one hand, the language seems to contemplate public proceedings, since the three enumerated types of proceedings are all public in nature. So under ejusdem generis, that catch-all should be read to cover only similarly public proceedings. It also makes sense that the criminal code would regulate evidence in public but not private proceedings. On the other hand, are there any public proceedings that are not judicial, administrative, or legislative? If not, then "other proceedings" must mean something not public. Perhaps it refers to something like arbitration or mediation, which can be considered quasi-public--they are privately controlled processes to which parties agree to send otherwise-public disputes. But this proceeding still seems different. This is not a situation in which the NBA established an outside-but-private process (such as arbitration of appeals under the CBA with the players' union). This is the collection of 30 owners establishing their own internal processes controlled by the 30 owners, for regulating who stays within their own ranks. Even if § 632(d) goes beyond public proceedings, the NBA process still seems fundamentally different.
Finally, the answer may be affected by the 2001 decision in Bartnicki v. Vopper. Bartnicki held that Congress could not punish publication of an illegally intercepted and recorded phone call, where the publishers were uninvolved in the unlawful interception or recording. The First Amendment protects publication (and, implicitly, other uses) of truthful lawfully obtained information on matters of public concern, except where the government is serving a need of the highest order. So perhaps the NBA could argue that it is entitled under Bartnicki to use the laefully obtained (and thus constitutionally protected) recording in its private internal proceedings, meaning California law is limited only to public, California-established proceedings, but not to whatever private proceedings private persons and entities may adopt.
When To Reach The Merits In Qualified Immunity Cases
Yesterday’s decisions in Plumhoff v. Rickard and Wood v. Moss addressed different claims on the merits but shared an important procedural issue. In Plumhoff, the Court reviewed a violent car chase and an excessive force claim under the Fourth Amendment, while Wood involved an allegation that secret service agents engaged in viewpoint discrimination against anti-Bush protestors. Both cases involved findings of qualified immunity, but only one of the cases (Plumhoff) expressly went on to opine on the merits. This intriguing pair of decisions illustrates the Court’s varying and often unexplained willingness to reach the merits when finding qualified immunity.
In recent years, the Court has taken various positions on when to reach the merits in cases finding qualified immunity. For a while, the Court called for always reaching the merits, lest constitutional law go undeveloped. But the Court later made the merits optional. And, even more recently, the Court appeared to suggest that reaching the merits was disfavored. As the Court memorably put it in Camreta v. Greene, courts should generally “think hard, and then think hard again, before turning small cases into large ones.” One virtue of that default rule is that it might prevent judges from reaching the merits for unreflective or even untoward reasons, such as because doing so would be conducive to the judges’ own policy views.
In Plumhoff, the Court expressly recognized the need to explain why, in addition to ruling in favor of the officers on qualified immunity, it was also resolving the merits in the defendants’ favor. In particular, the Court noted that Plumhoff involved “an area that courts typically consider in cases in which the defendant asserts a qualified immunity defense.” While the “area” referenced isn’t clear, it could be read to encompass all Fourth Amendment excessive force claims. That might be a significant doctrinal development, since it would seem to create at least a presumption of merits findings in a substantial category of cases.
Accentuating both the decision’s significance and its ambiguity, Plumhoff did not seem to distinguish between unnecessary merits decisions that do find a violation and those finding no violation. As Plumhoff later noted, its two holdings (merits and immunity) were “[i]n the alternative” in the sense that they both independently supported the judgment in favor of defendants. But that wouldn’t have been true if the Fourth Amendment issue had come out the other way. Plumhoff did not seem to think that this distinction should make a difference — perhaps because other approaches would skew merits decisions either toward or against finding violations.
Meanwhile, Justices Ginsburg and Breyer declined to join all or parts of the Court’s merits discussion in Plumhoff. Yet those justices did not issue a separate statement explaining their declination. Perhaps they were simply less confident in how the merits would come out. Or did they believe there was some other reason for the Court to avoid the merits?
Wood is a fitting complement to Plumhoff. Whereas Plumhoff unnecessarily reached the merits while finding qualified immunity, Wood at least purported to resolve only the qualified immunity issue. In exhibiting this ostensible restraint, Wood may reflect Justice Ginsburg’s consistent approach across the two cases. As noted, Justice Ginsburg declined to join the merits discussion in Plumhoff. In writing the Court’s opinion in Wood, Justice Ginsburg was able to implement that same restrained approach. A speculative reader might therefore guess that the Court reached the merits in Plumhoff because it was authored by Justice Alito, as opposed to Justice Ginsburg.
Yet Wood's final paragraph did offer a brief comment on the Court’s decision to forgo the merits, parenthetically noting that the defendants’ “briefing on appeal trained on the issue of qualified immunity.” But the Court had granted cert on both the merits and immunity. Judging from the case’s transcript (cited in Wood’s last paragraph), it seems that the Court was frustrated that the defendants hadn’t argued the merits with sufficient force. Or was the problem that the defendants simply hadn’t taken the merits position that the Court wanted to adopt? Uncertainty as to the Court’s reasoning is compounded by the fact that — as Howard already observed — much of the discussion in Wood actually does appear to go to the merits. Perhaps Justice Ginsburg could obtain needed votes only by shading her immunity analysis toward the merits. Or, perhaps, she was simply more sympathetic to the defendants’ merits position in Wood than in Plumhoff. Once again, we are left to wonder.
In a perfect world, the Court would have viewed Plumhoff and Wood, not just as separate opportunities to resolve important merits and immunity issues, but as a pair of cases that might illuminate when courts should and shouldn’t reach the merits when finding qualified immunity. Instead, we are left with something almost as good: raw material for further debate on the important procedural question of when to reach the merits in qualified immunity cases.
The above is cross-posted from Re's Judicata.
Wednesday, May 28, 2014
Schemas, Shortcuts, and Software
We are constantly being provided with information -- whether we want it or not -- about what is going on in the world around us. Luckily our brains are equipped to handle the data (at least most of the time). In cognitive science, schemas are structures that help us to organize and interpret this information efficiently. We also use heuristics, or shortcuts, to process information quickly. And for the most part, these are good things. We may have a schema that organizes the data we need to drive safely and when faced with an unexpected obstacle, we have heuristics that help us to avoid that obstacle in time.
(NB - I'm still making sure I'm understanding the cognitive science terminology, etc. - see my earlier post on the subject...the point of this post isn't the precision of the cognitive terms but rather some implications in law.)
This raises at least two concerns for me. First - while it certainly is important to be able to process legal issues quickly, when considering questions about the law and its applications, should we always be focused on efficiency and speed or are there times when getting it right, even when it is slow or inefficient, should take precedence? Second - what happens when the schemas and heuristics we are working under are wrong?
I have an article that's coming out later this year in the George Washington Law Review that looks at the schemas and some of the heuristics that have arisen around the question of whether software and computer-related inventions should be eligible to receive patents. My arguments are basically that there are two schemas that are driving the software patent conversation -- the bad patent schema and the troll schema. In very brief, the schemas go like this: the Patent Office can't properly examine patent applications on software and computer-related inventions so it is issuing many invalid patents in this area -- therefore we should ban software patents. And because a lot of these patents are invalid and because they are easy to obtain, etc., patent trolls assert software patents in disproportionate numbers and trolls are bad -- therefore we should ban software patents.
Basically there is a framework set up underneath the software patent discussion that has very little to do with whether we want good software patents -- in my opinion, a bad schema. This problem is exacerbated by some flawed shortcuts, which I won't go into here.
But I don't want to make this post all about my paper or software patents or patent trolls (regardless of how much I like all three of those things). I'm wondering where, besides this question in patent law, is the conversation being had largely unrelated to the central question. Patent law can't be unique in this area - at least I hope not. Any thoughts of other flawed schemas?? Are there other important areas of law where the conversations are being misdirected by the structure set up to examine the problems?
Research on heuristics and the implications of these on law are much more common. In fact, much work has been done on flawed shortcuts. For example, stereotyping is one prominent heuristic that has been given a lot of ink in scholarly literature - in part because it often strikes us as just plain wrong. I imagine its a lot harder to sell you on a stereotype narrative about patent trolls, isn't it? This brings me back to my troll taxonomy - as long as patent trolls are seen as universally bad, it is unlikely that any argument that the stereotype is flawed will succeed.
The Problematic National Research Council's Report on Incarceration: Some Initial Thoughts
The National Research Council, the well-respected research arm of the National Academy of Sciences, recently released a putatively authoritative report on the causes and implications of US incarceration growth. Sadly, it appears to be a deeply, profoundly flawed report. It is, in short, a rehashing of the Standard Story that I have argued time and again lacks real empirical support.
Dangerously, this report gives the Standard Story the NRC’s seal of approval, which will only increase its hold on policy-makers’ perceptions. The New York Times has already written an editorial pushing the NRC’s Standard-Story arguments, and no doubt it will be cited widely in the months to come.
So in the posts ahead, I want to dig into the report more deeply. I will certainly acknowledge what it gets right, but my sense so far is that it is one rife with errors. Many of these points will be ones I have made before, but they are clearly points that need to be repeatedly. In this post, I want to point out (once again) the troubling ways in which drugs crimes are given too much weight.To the report’s credit, its conclusion does not focus solely on the war drugs, but rather claims that drug-related admissions drove growth in the 1980s and longer sentences for violent offenders drove growth in the 1990s and 2000s. However, the body of the chapter often takes a less nuanced tack.
Consider Figure 2-7:
As the report explains:
Most striking, however, is the dramatic increase in the incarceration rate for drug-related crimes. In 1980, imprisonment for drug offenses was rare, with a combined state incarceration rate of 15 per 100,000 population. By 2010, the drug incarceration rate had increased nearly 10-fold to 143 per 100,000. Indeed, the rate of incarceration for the single category of drug-related offenses, excluding local jails and federal prisons, by itself exceeds by 50 percent the average incarceration rate for all crimes of Western European countries and is twice the average incarceration rate for all crimes, including pretrial detainees, of a significant number of European countries.
This is an argument that puts a lot of weight on drugs over the entire period. But Figure 2-7 is a very strange figure. Sure, drugs is the fastest growing category, because it is compared to all the index violent crimes separately. “Drug offenses” is no less a heterogenous category than “Violent crimes,” so why is it the only homogenous category?
It’s like saying the United Kingdom has more people than New York State, California, Ohio, etc. Sure, that’s true, but the United States has more people than the United Kingdom, and the big US states have more people than the big UK counties.
Take a closer look at Figure 2-7. Just eyeballing it, if we aggregate up all the violent offenses (which are all the other crimes except burglary, which is an index property offense—and strangely not the only one: where is larceny?), then the incarceration rate for “Violent Index Crimes” is about 115 per 100,000 in 1980 and about 280 per 100,000 in 2010. So violent index crimes are incarcerated at twice the rate of drug crimes in 2010. Drugs aren't as central as Figure 2-7 suggests.
But we can attack this argument even more directly. The NRC report is correct to argue that we shouldn’t view prison growth as a single monolithic process since 1975: surely the factors that mattered in 1980 differ from those in 1990 or 2010. And a lot of work on prison growth—including some of my own—does merge multiple decades together. But even then the report overstates the importance of drugs.
The report’s conclusion clearly puts the onus of growth in the 1980s on drug incarcerations:
The growth in imprisonment—most rapid in the 1980s, then slower in the 1990s and 2000s—is attributable largely to increases in prison admission rates and time served. Increased admission rates are closely associated with increased incarceration for drug crimes and explain much of the growth of incarceration in the 1980s, while increased time served is closely associated with incarceration for violent crimes and explains much of the growth since the 1980s. These trends are, in turn, attributable largely to changes in sentencing policy over the period….
But let’s look at the components of incarceration over the whole period. As I’ve argued before, between 1980 and 2009, over 50% of prison growth is due to increases in violent inmates, and only about 22% due to increases in drug offenders. But that number makes the error of treating the whole period as monolithic. Let’s break the results up into 1980 - 1990, 1991 - 2009:
What are the percentages? Between 1980 and 1990, state prisons grew by 387,400 inmates, and 36% of those additional inmates were incarcerated for violent crimes. (The math is below if anyone wants to see it.*) Two things stand out here:
- The NRC is right that drugs mattered more during the 1980s than after, and that violent crimes played the dominant role in the 1990s and beyond.
- But even in the 1980s violent crimes mattered more. Drugs were important, but (by a slight edge) violent crimes even more so. US incarceration rates have always been a story about violence.
Actually, the “violence” point can be made even more strongly. Drug incarcerations were most important during a period of acute violence (I have shown elsewhere that in New York, the rise in drug incarcerations has nothing to do with the Rockefeller Drug Laws and everything to do with the onset of crack-related violence). To what extent are these drug incarcerations—perhaps unlike the drug incarcerations taking place in less-violent times—pretextual cases aimed at violent offenders whose violence is harder to prove?
Perhaps such pretextual use drug offenses is troubling—perhaps it is seen as undermining the presumption of innocence or of having disturbing racial effects—but it nonetheless cautious about much importance we put on drug sanctions even in the period when drug sanctions were most important.
That’s enough for now. I next want to consider the NRC's major flaw looking at admissions, and then turn to the problems with its discussion of time served.
* 387,400 is just 681,400 - 294,000; the number of new violent inmates is 140,300, which is just 313,600 - 173,300. 36% is just 140,300/387,400. All the other percentages are calculated the same way.
Is Wood v. Moss generalizable?
Wood v. Moss turned entirely on the reasonable security rationale of keeping protesters out of "weapons range" of the President, even if that meant moving only certain speakers out of visual and audio range of their target. But does this rationale apply to all public officials who have security details? Is the President sui generis for security purposes? Or can the state troopers who protect, say, Gov. Chris Christie also claim a security interest in moving protesters out of weapons range? Certainly the President has a larger security apparatus and is more of an obvious target. But the security logic of Wood is not so obviously limited, especially since there was no evidence that anyone intended to harm the President here (other than the protesters' disagreement with him).
Tuesday, May 27, 2014
A Separate Concurrence on the Kinsley Review
There have been some heated reactions to Michael Kinsley's review of Glenn Greenwald's book. (I'm not sure there are anything other than heated reactions these days, given the nature of online commentary. I do not consider this an unqualified good.) The Times's public editor or ombudsperson, Margaret Sullivan, has written a somewhat silly commentary on the controversy, which the Times unwisely but understandably has given prominent coverage on its web site tonight. At the Volokh website, Will Baude argues that the Times was right to publish Kinsley's review, although as I read it he is saying more than that--is saying that Kinsley is substantially right.
Of course the Times had every right to run the review and should not, as Sullivan argues, have edited out the heart of its colorable argument because it might be wrong or because, as she intimates, it constituted an unpardonable assault on journalism's amour propre. But Kinsley's argument is also basically correct. In that I agree with Will. But because we take different positions on how to get there and they are relevant to a good deal of my work, I thought it was worth spelling this out. (By way of disclosure, I have not read all of Greenwald's book, but I have read the final chapter, which is the relevant chapter, and skimmed the remainder of the book.)
Whether you care much about the whole contretemps is of course your own affair. If you do or would like to, however, the key is this paragraph in Kinsley's review:
The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.
Mr. Kinsley’s central argument ignores important tenets of American governance. There clearly is a special role for the press in America’s democracy; the Founders explicitly intended the press to be a crucial check on the power of the federal government, and the United States courts have consistently backed up that role. It’s wrong to deny that role, and editors should not have allowed such a denial to stand. [I interrupt to say that this last clause is what leads me to call Sullivan's commentary silly, and to suggest that she intimates that the problem with the statement is its assault on the press's amour propre.] Mr. Kinsley’s argument is particularly strange to see advanced in the paper that heroically published the Pentagon Papers, and many of the Snowden revelations as well.
Will disagrees with Sullivan, and agrees with Kinsley, in that--like his fellow blogger Eugene Volokh--he believes that "journalists have the same constitutional rights (with the same limits) as other citizens," that the freedom of the press should be viewed in purely technological and not institutional or teleological terms. At least I think he does. He might simply mean to say that there are arguments to this effect, that they are reasonable and backed by good authority, and that it is therefore silly for Sullivan to suggest that Kinsley's argument was beyond the pale. If that's all he means, I join his opinion fully. (Although I wouldn't rely too much on the majority's discussion of the point in Citizens United, which was loosely constructed and weakly made. Eugene's article is much better than that. Still, I suppose the Supreme Court is an authority.) To the extent that he means to subscribe to this argument more fully, however, I part ways with him. And yet I come to the same conclusion he does.
Unlike Eugene, I do believe that there is an important institutional element to freedom of the press. (I discuss my views in a chapter of this book, which I continue to hawk and which would make a fine belated Memorial Day present.) It raises difficult boundary questions, to be sure (so does freedom of religion, for that matter), and its legal status tends to be as much sub-constitutional as constitutional. But I believe it's there: that there are relevant attributes and functions to the "press" and to the role of journalism, that they serve an important role in public discourse and particularly in the monitoring and checking of government power, and that they tend to receive some legal protection. (Sometimes that recognition comes less through a singling out of the press and more through the announcement of legal protections for every speaker that are nevertheless drafted very much with the press in mind and applied with special vigor in that context. Or so I have argued.)
I stress all this because, notwithstanding the different set of premises from which I am arguing, I think Kinsley's argument is still basically right. I think he could have put the point much better, and that he is knowledgeable enough to do so. But he basically gets the law--and the good sense behind the law--right. Where he is inelegant is in his description of the press not getting the "final say" over the publication of government secrets. For the most part, absent the extraordinary circumstances in which injunctive relief would be permitted, the press (or any other speaker) does get the final say in whether to publish government secrets. Where Kinsley is right is that, even under a pretty staunch institutionalist view that might accord much greater privileges to the press than we currently do, of course the press does not get some absolute right to publish government secrets "with no legal consequences"--a "free pass." There are good institutional reasons to take care with those consequences and not to leave the decision whether to impose them solely to the regime in power. And so we insist that the final decision is made through the legal system and with the important legal, factual, political, and constitutional restraints added to that decision through judicial review. If Kinsley meant by "the government" only the executive branch or the political branches, he would be wrong. But if we include the judicial system as well, then he is quite right that the final decision on whether press publication of government secrets will, after the fact of publication, carry legal consequences rests with "the government." Any suggestions to the contrary in Sullivan's piece are wrong. So, even if you don't share Eugene's view (or, possibly, Will's), that "freedom of the press" is about nothing more than a technology--even if, as I do, you believe the press as an institution is important and constitutionally recognized--you should still conclude that Kinsley's argument in this paragraph is basically right and that Sullivan is quite wrong.
Two shorter points. (What points wouldn't be, by now?) A minor point first. Sullivan gigs Kinsley for employing ad hominem argument. This seems wrong to me. Kinsley's discussion on this point is not an immaterial attack on something not present in the book. Much of Greenwald's book, at least in the first and last chapters, is not a technical or even substantive discussion of the information contained in the Snowden disclosures: it is a discussion of Snowden's good character, of his own moral decency and fierceness, of the sterling character of anyone who agreed with him, and of the low moral character of anyone who did not. Kinsley's criticisms were relevant not only to the tone of the book--to call Greenwald's writing in this book bombastic, as Kinsley does, is like calling the Hindenburg a wee balloon--but to its content. The irony thickens insofar as most of the negative responses to Kinsley's review are mostly rich with the sneering tone that his critics accuse Kinsley of using, although without his style. Sullivan is wrong to say Kinsley gets too personal in the review; the review is as personal as the book--correction: the memoir--requires. (I would agree, however, that Greenwald's character or bombast are irrelevant to the substance or value of the disclosures themselves. I do not expect my news to be brought to me by cherubim.)
Second, I was surprised to see some of Greenwald's supporters echo a line that appears in Kinsley's review and in Greenwald's book, in which Greenwald deplores a TV journalist for asking him about the potential legal consequences of his actions. In the book, Greenwald says that question constitutes “an extraordinary assertion” that “journalists could and should be prosecuted for doing journalism.” As an institutionalist on the question of press freedom, and as a former journalist, I might be expected to like that sentence. But it's rot. I admire its brevity; but if it can be said to mean anything at all, which I doubt, it is wrong.
The awfulness of Wood v. Moss
OK, if Town of Greece did not get me too worked up, Tuesday's decision in Wood v. Moss (summary here), while not surprising, is so bad as to have me going the other way. And this was a Ginsburg opinion for a unanimous Court, so I am all alone on the island on this one. The Court held that two Secret Service agents enjoyed qualified immunity because no case law had held that agents engaged in crowd control were obligated to ensure that competing groups are at comparable locations or given equal access at all times when reasonable security concerns are in play. Sounds simple enough, but inside the opinion is a lot of really bad stuff.
First, the Court makes explicit (it previously was implicit) that the absence of qualified immunity is an element of the claim, rather than qualified immunity being an affirmative defense. The Court stated that the plaintiff must plead facts, under the Twiqbal standard, showing that the defendants violated a constitutional right and that the right was clearly established. So this means qualified immunity is the default starting point--a plaintiff must carry the burden of persuasion both as to the facts on the ground and the state of the law.
Second, for the third time, the Court assumed without deciding that a Bivens could be used for First Amendment claims (the issue was not preserved below). Eventually some defendant will be smart enough to preserve this issue (the hints are there) and the Court will resolve it--and likely not in a good way.
Third, while the Court purported to resolve the case on the second prong of the qualified immunity analysis (no clearly established right ) rather than the first (no right violated), the analysis kept conflating the prongs and moving back and forth between them--there was a lot of discussion about why there was no violation here because the agents were motivated not by viewpoint discrimination but by security concerns. This is partly a consequence of the Court's insistence that the second prong must consider the right in the particular factual context and not at too high a level of generality, which invites entwinement of the two prongs. But the analysis (particularly at pp. 14-end) is all about why the agents were justified in moving the anti-Bush protesters (but not the pro-Bush protesters) in this case, not about anything having to do with prior case law. That sounds like the Court saying the plaintiffs did not sufficiently plead a violation.
Fourth, the decision does not leave any obvious room for protesters to ever challenge Secret Service decisions regarding crowd control (which is what Justice Scalia urged during argument). The Court pays lip service to the principle that "government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views those persons express." And it insists (as the defendants conceded) that the First Amendment might be violated if the agents moved some protesters with "no objectively reasonable security rationale." But that principle will virtually always be trumped by the overriding concerns for protecting the President and it is impossible to imagine a case in which a court would find that the Secret Service lacked an objectively reasonable security rationale while protecting the President. Indeed, the only purported security rationale in this case was keeping the protesters out of "weapons range" of the President (Ginsburg repeats that phrase four times), even though there is no indication on the facts pled that anyone had or planned to use a weapon. Someone being in range raises, per se, a valid security rationale.
But the Court then summarily dismissed any significance of allegations regarding the diners permitted to remain inside the restaurant--obviously in "weapons range" of the President--as undermining the security rationale. The justices simply accept the defendants' argument that the diners “'could not have had any expectation that they would see the President that evening or any opportunity to premeditate a plan to cause him harm,'" and thus were not a security risk, even if within weapons range. Of course,the anti-Bush demonstrators also did not expect to see the President in the open courtyard; they originally only expected to be able to stand along the path of the President's motorcade as it drove by (with pro-Bush protesters on the opposite sidewalk). So they, too, could not have had any opportunity to premeditate a plan. If the diners were not security threats because they were not expecting to be near the President, then neither should the protesters be security threats. Except for one difference--the protesters held anti-Bush views and were there to express those views. So is the Court saying that everyone who disagrees with the President is a security threat if in weapons range and thus can constitutionally be kept from getting "too close" to the President (at least when he is outside his secure car)?
Fifth, the Court does a lot of factfinding (without acknowledging as much, of course) on a case that remains at the pleading stage. The Court finds and accepts the defendants' security rationale, even though the defendants still have not answered the complaint or offered their own factual allegations or evidence. The Court makes determinations about what maps of the area, included as part of the Complaint, show (perhaps another example of plaintiffs pleading themselves out of court by providing the additional information needed to comply with Iqbal). And the Court rejects inferences about differential treatment of the protesters as compared with the diners. It appears to be apply Iqbal's "obvious alternative explanation," although without saying so. Otherwise, these at least should be matters for discovery and summary judgment, if not the factfinder.
Finally, the plaintiffs alleged past instances of viewpoint discrimination by other Secret Service agents; they were trying for an inference from these past instances to an informal agency policy of viewpoint discrimination to the individual defendants acting pursuant to that policy. The Court rejected this out of hand, insisting that Bivens liability can attach only to the officer's own misconduct and declining to accept the plaintiffs' inferences. Putting aside that reasonable inferences should be drawn in the plaintiffs' favor on a 12(b)(6) motion, this seriously cramps the ability to ever plead viewpoint discrimination in the absence of an agent dumb enough to announce that he is moving speakers because of their viewpoint. Moreover, the Court points to the agency's official policy--which expressly prohibits viewpoint discrimination--as evidence that the agents did not act improperly. But repeated past instances of ignoring official policy at least raise an inference that officers regularly ignore official policy, suggesting that these officers also ignored the policy. At the very least, that should be enough at the pleading stage.
As I pointed out previously, at oral argument Justice Kennedy mused that "it seems to me that if this complaint doesn't survive, nothing will." And given what the Court finally said in this case, nothing will.
Should "National Consensus" Matter?
We’ve seen this before. Today, in Hall v. Florida, the Court reached a controversial Eighth Amendment holding based on some combination of a perceived "national consensus" and the Court's own "independent judgment." This two-step approach has come in for criticism, as the Court's national consensus analysis seems carefully tailored in each case to suit the Court's independent judgment. Yet, despite the criticisms, national consensus arises anew in case after case after case.
In this post, I'd like to ask whether the national consensus analysis, as currently employed, is worth retaining. My answer is yes -- but not because a supportive consensus is a necessary feature of Eighth Amendment holdings. Rather, resort to public views can still play a useful role in preventing the Court from defying national consensuses in favor of certain punitive practices.
Hall held that, under the Eighth Amendment, states must consider IQ tests' "standard error of measurement" when determining whether defendants are intellectually disabled and therefore ineligible for capital punishment. On its face, the "standard error" issue is a dubious subject for national consensus: it's a technical statistical concept that is not often publicly debated, and most people likely have not considered how "standard error" relates to IQ tests for purposes of determining intellectual disability or the permissibility of capital punishment. In this respect, Hall is different from past cases, which have concerned issues of greater public salience, such as the execution of persons who are juveniles or concededly intellectually disabled.
Yet the Court was undeterred and, after a few pages on recent state legislation, concluded that there is "strong evidence of consensus that our society does not regard [Florida's] strict [IQ] cutoff [which did not consider standard error] as proper or humane." But can "our society" really condemn a practice for being less than "humane," when only a very small slice of America has ever heard of the practice at issue, or formed an opinion on it? If Hall depended on the answer to that question being yes, then, as in prior Eighth Amendment cases, the Court would be pretty open to criticism.
But maybe Hall didn't depend on there being "strong evidence of consensus" against the punitive practice at issue. Instead, maybe Hall required only that there was no national consensus in favor of the practice. That move would pose a legitimacy trade-off. On the one hand, it would require the Court to own its "independent judgment" as the true impetus for its Eighth Amendment decisions. On the other hand, it would allow the Court to be more candid about the fact that "national consensus" on high court holdings is pretty rare -- anywhere and at any time, but especially in the United States of 2014. (E.g., if the "consensus" is really "national," then why are four justices dissenting?)
Moreover, viewing national consensus as a side-constraint would lower the stakes in debates over the Court's independent judgment. The Court wouldn't be seizing absolute authority to invalidate punishments disfavored by "elites," as Justice Alito alleged in Hall, but would instead be operating within a zone demarcated -- and, perhaps, policed -- by the democratic process. (For more, see here and here.)
In my view, the Court's recent Eighth Amendment cases are marked by a genuine concern with respecting both democracy and federalism, even though the "national consensus" analysis has long been a misnomer. At this point, the best path forward isn't to abandon recourse to public views, but rather to be clearer and more modest about the role that those views should play in the legal analysis.
The above is cross-posted from Re's Judicata.
Book club on "Making the Modern American Fiscal State"
Just wanted to provide a heads-up that on Tuesday, June 10, we'll be hosting a book club on Ajay Mehrotra's new book, "Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929." Joining us for the club will be:
- Reuven Avi-Yonah, University of Michigan Law School
- Steven Bank, UCLA School of Law
- Matthew Lindsay, University of Baltimore School of Law
- Susan Morse, University of Texas School of Law
- Julia Ott, The New School
- Nicholas Parrillo, Yale Law School
Hope you can join us.
Cornelia Kennedy, RIP
Cornelia Kennedy, a former judge on the United States Court of Appeals for the Sixth Circuit, died on May 12. Her obituary appeared in the New York Times a few days ago. Kennedy was, among other things, the first woman to serve as a law clerk for the DC Circuit, the first woman to serve as chief judge of a federal district court, the first woman to serve as a member of the Judicial Conference of the United States, one of the first women to be short-listed for a seat on the Supreme Court, and so on--a veritable crescendo of "firsts" and impressive achievements. A passage from the obituary reads:
Arriving at her new post in Cincinnati, Judge Kennedy was startled to be presented with a hot plate. The only previous female judge to have served on the Sixth Circuit had used it while male colleagues dined at the University Club of Cincinnati, which excluded women then.
Judge Kennedy was eventually the first woman to be admitted to the club, though she objected that it continued to refer to itself as a “gentlemen’s club” in a newsletter.
Well worth remembering. I must add that although the fault may be in my searching, I have been astounded by how little attention her death received, certainly prior to the Times obituary but since then as well, and most certainly including no mention on the many sites that I would have expected to give it at least a line of space. I hope this redresses the balance a little.
Monday, May 26, 2014
The Finally Fallible Court
Is this the year when the Supreme Court finally becomes fallible?
Consider these recent events, all within the last month or so:
- Justice Scalia writes, and later corrects, a dissent that trumpets a misreading of his own prior opinion.
- Justice Kagan writes, and later corrects, a dissent with a mistaken assertion regarding Jewish-American history.
- The Court calls for a response in a case asking, in effect, whether a prior decision accidentally denied a prisoner habeas relief.
- After dismissing a number of cases as mistaken grants, the Court apparently establishes a double-check policy before granting cert.
- Professor Lazarus posts a much-discussed article showing that the Court has long been sub silentio revising its opinions without notice.
Meanwhile, the Court is hurtling toward another epic End of Term. With just over a month go to, major decisions are expected on recess appointments, the treaty power, cell phone searches, capital punishment, corporate religious exemptions, and the future of the TV industry—among many others.
The proofreading at 1 First St. must be getting intense.
Now, I am pretty sure that the justices have always been human, yet something new seems to be happening. I think it’s this: in small but meaningful ways, the Court is being forced to acknowledge its own fallibility.
The above is cross-posted from Re's Judicata.
Legal movie recommendation: "Shenandoah"
My wife's late father grew up in Shenandoah, PA (apparently, pronounced Shen'-en-doe-uh), a coal-mining town in east-central Pennsylvania populated (like many of these towns) by people of eastern European descent (Poland, Lithuania, etc.). Back in the day, there was a small Jewish population in town that was received about as you would expect for the '40s and '50s; my father-in-law told of suffering anti-Semitic bullying (and worse) growing up and of rocks being thrown at the houses that were not decorated at Christmastime. My wife has not visited since she was a teen-ager (her family is gone from the area).
So she was struck to learn, belatedly, about a documentary called Shenandoah: The story of a working class town and the American dream on trial, released in 2012. It tells the story of the 2008 beating death of Luis Ramirez, an undocumented immigrant from Mexico living in town, by six white members of the high school football team (who shouted ethnic slurs during the attack) and the ethnic, xenophobic, divisions it created in the community. Two players were tried on third-degree murder and related charges in state court, but acquitted on all but simple assault; they then were convicted of federal hate crimes (here is the Third Circuit opinion affirming those convictions). One player pled guilty to federal hate crimes and testified against the other two. And a fourth attacker was a juvenile and not tried as an adult; he cooperated and received probation. (Several police officers also were charged with various federal crimes for helping the players cover-up the crime, with mixed results).
The movie simultaneously tells the story of the murder and the subsequent state court proceedings, of the football's team's unsuccessful season following the attack (playing without several key players), and of a struggling industrial town and how it is dealing with changing demographics. It is definitely a film worth seeing. A couple of thoughts on the film and the story.One is the role of narrative choice. A main participant in the film was Brian Scully, the juvenile who received probation for his role in the attack. Scully is portrayed very sympathetically in the film--he is remorseful and thoughtful about what they did and how wrong it was, and he is seen achieving some redemption in joining the school musical (the football coach would not allow him to play while charges were pending) and graduating. But the facts in the Third Circuit opinion describe Scully as being more centrally involved in the assault, including in shouting ethnic slurs. The movie shows that the state-court defendants tried to shift blame to Scully, but it portrays this as an unfair lawyer move (that was unfortunately successful).
Second the film portrays the ethnic tension as something new, a product of the town's relatively new economic struggles and the new wave of Mexican immigration. But my father-in-law's experiences suggest that this tension is nothing new; there always have been insiders and outsiders in this community and outsiders have not been treated well. And the smallness of the town (there was much "celebration" of the small town in the film) exacerbates those problems, because outsiders simply stand out more. One of the more disturbing events was a rally in support of the defendants, with attendees wearing shirts and carrying signs with messages like "I'm American and I speak English" and singing "patriotic" songs. It degenerated into people shouting epithets and sexually offensive comments at the victim's (Anglo) fiancee, who was there as part of a counter-protest. The tenor of the rally was captured by a speaker who said something to the effect of "he didn't deserve to die, but if he had stayed in his own country, he'd be alive today." There concededly is no good way to protest on something like this without looking like a bigot. But you can help yourself by not saying and doing bigoted things.
Third, I did not know that the Fair Housing Act has a hate-crimes provision, which was the basis for the federal convictions of the two assailants. The provision criminalizes violence, threats, or intimidation because of the victim's race and because he is occupying a dwelling or with the intent to prevent him from occupying a dwelling. The goal would appear to be stopping cross burnings and other acts directed at keeping people from integrating neighborhoods. But in affirming the conviction, the Third Circuit made clear the statute reached all conduct motivated by dislike of particular people seeking to live in an area. Statements made during the attack about this being "our town" and telling the victim to go home to Mexico and that he did not belong in Shenandoah, along with evidence the defendants generally did not like the influex of Mexicans into town, all suggested an intent to intimidate him and other Mexicans from dwelling in Shenandoah.
Friday, May 23, 2014
Report from ALI Annual Meeting--and What Justice Ginsberg is Reading
I’m just back from the 91st annual meeting of the American Law Institute in Washington, DC. So much happened in a three day period that it’s hard to do justice—I know that many others have blogged and tweeted. In keeping with the theme of what I’ve been blogging about, higher education, I will report that the current state of legal education was a palpable presence and a frequent topic of conversation. Whether it was ALI President Roberta Cooper Ramointroducing Associate Academic Dean Ellen Clayton of my neighbor institution, the University of North Texas, UNT Dallas College of Law, as someone doing a remarkable thing to open a new law school to Justice Breyer's charming refusal to be drawn into either a criticism of legal education or a comment on the current complaints being made against it.
It is also my honor to pass on that Justice Ruth Bader Ginsberg reported that she was reading Wings of Freedom: Addressing Challenges to the University while giving its author, former president of Stanford University Professor Gerhard Casper, the ALI’s Distinguished Service Medal. I have ordered but not yet received the book, so here is the blurb:
“From affirmative action and multiculturalism to free speech, politics, public service, and government regulation, Casper addresses the controversial issues currently debated on college campuses and in our highest courts. With insight and candor, each chapter explores the context of these challenges to higher education and provides Casper’s stirring orations delivered in response. In addressing these vital concerns, Casper outlines the freedoms that a university must encourage and defend in the ongoing pursuit of knowledge.”
ALI is always inspiring--like everyone I had no idea as a law student that the Restatements were actually the product of so much collective and collaborative work. It is also a "how to" of running an event at which every attendee is used to being in charge either as a Judge, a Professor, a General Counsel or a Partner.
Lithwick on Scalia (and God)
Let me get the sincere if rote caveats out of the way first. I think there is lots to admire about Dahlia Lithwick: she's a great writer, funny, and I think it's very impressive that she essentially created a niche for herself in Supreme Court journalism that did not previously exist, through talent and hard work. I also like her personally, if Facebook acquaintance is any indicator. She has a new piece on Justice Scalia in the Atlantic, reviewing a new biography of Scalia by Bruce Allen Murphy. It is, as usual, well-written. But I have a substantial number of disagreements with the piece. The gist of the piece can be summarized as follows: discussing the influence of religion on decision-making is "taboo" when it comes to Supreme Court justices; we ought to do more of it. I have little problem with the second half of that statement, serious questions about the truth and application of the first half, and plenty of large and small criticisms of the specifics of her attempt. Many of them are particular to her piece, a few have more general import, and there is perhaps a larger point to my criticism, which is that there is a quality mostly missing from her piece and entirely absent from a couple of the other examples she cites. Somewhat ironically, given the recent vocabulary of liberal discussions of judging, that quality is empathy.
Lithwick's piece begins like this:
March was a hugely important month for religion and the Supreme Court, and a pivotal moment for Justice Antonin Scalia, the subject of a fat new biography. Too bad we couldn’t talk plainly about what was, and is, at stake. In a country historically averse to political debates about competing faiths, nowhere is frank discussion of religion more taboo than at the U.S. Supreme Court. “Religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company,” as Jeff Shesol, the author of a book about the New Deal Court, put it. He was speaking with NPR’s Nina Totenberg in 2010, when John Paul Stevens was looking at retirement and, for the first time in American history, there was the prospect of six Catholics, three Jews, and no Protestants on the highest court in the land—a watershed almost too “radioactive,” Totenberg remarked, even to note. And beware of venturing any further than that, as the University of Chicago Law School’s Geoffrey Stone did in a controversial 2007 blog post suggesting that the Supreme Court’s five conservatives likely derived their abortion views from Catholic doctrine: Scalia—a devout Catholic, and the current Court’s longest-serving conservative—announced a boycott of the school until Stone leaves the faculty.
I have written often before that I don't think religion ought to be a taboo subject in public discussion, in general terms or with regard to specific individuals. Like many law and religion scholars, I think religion can be a valid subject of discussion in politics and with respect to judges. I do not think legislators are precluded from considering and talking about religion in their decision-making, although I think they are limited in the outputs of their deliberation. I think a reasonable corollary of all this is that religion should be a permissible subject of discussion--and criticism--in public discourse. It is no more untoward to suggest that a judge's religion might influence his or her decision-making than to suggest that he or she is influenced by being a liberal, or a feminist, or a Republican, or a member of the affluent, well-credentialed elite. If there's a difference, it's one of degree, not of kind: criticism of that sort can be done rather poorly, and criticisms and assumptions based on religion can be done very poorly. It's ironic that Lithwick cites, with apparent approval, a blog post by Geoffrey Stone as an example of someone venturing bravely into this "radioactive" subject, because when Stone writes about these issues he generally does so quite badly. (More specifically, in my view, while there is some nuance in what he writes in the "middle" of those pieces, his introductions and conclusions are often cruder and more inflammatory than those middle sections can justify.)
To do it right does not mean avoiding direct criticism of religious beliefs: if they can permissibly serve as a basis for (non-judicial, at least) decision making, they can certainly be proper subjects for criticism. But it does require a good deal of nuance, care, self-examination, and, for lack of a better word, empathy: an attempt to appreciate the perspective of the religious individual from within and not just from without.
I think some failures along these lines are apparent in Lithwick's piece, in various ways. Some of them have to do with how the piece is framed. Framing the subject in terms of its being so "radioactive" that no one ever ventures there tends to lend to the author an air of intrepidity, inviting the reader to respond by praising the author for doing what no one else will and braving the consequences, and perhaps encouraging the reader to forgive any imperfections in the piece; after all, it's extraordinary that the dog is walking on its hind legs at all. But although the subject is controversial, it's hardly as unusual as all that. I have seen no shortage of blog posts, commentary in "news" outlets, and even law review articles discussing the subject. (Or, at least, discussing it when it comes to Catholicism; there are many fewer articles, if any, discussing how the Judaism of three members of the current Court affects or afflicts their judicial decision-making, although people have written about it in the context of long-dead Justices. Would they be applauded quite as loudly?)
Moreover, current writers are eager to point out that American Catholics' beliefs are not monolithic when it comes to things like contraception. It is unfortunate, then, that little evidence of the myriad ways in which the current Catholic Justices might differ--in their views of Catholicism, of the judicial task, and of the relation between the two--shows up in this piece or elsewhere. There's nothing wrong, again, with asking how a justice's religion influences his or her decision-making, But it will often be the case that a modest examination will answer the question "not proved." Yet the conclusions critics draw in this area are rarely so modest and, literally, unassuming. She writes, following Murphy, that "Scalia's religious self-certainty" has isolated Scalia on the Court and made him less effective at bringing together his fellow justices. A more modest examination might well conclude that Scalia has indeed isolated himself; I find his dissents of late often terribly ineffective and unnecessarily alienating. But would it require us to blame that on his "religious self-certainty," as opposed to his unquestionable self-certainty in general? Does the word "religious" add much to this conclusion?
Lithwick continues by trying to draw a connection between the general topic of Scalia and the majority's Catholicism and broader doctrinal themes: "The problem of engaging religion openly at the high court extends beyond the unspoken agreement not to talk about the justices’ religions. The Court itself has opted not to probe the intensity or validity of a plaintiff’s religious conviction, in part thanks to Scalia’s reasoning." Of course, the discussion comes around swiftly to the Hobby Lobby case:
Fast-forward to March 2014, when the Court heard arguments in another case about religious dissenters from general laws: Sebelius v. Hobby Lobby Stores, Inc.—probably the most important case of the term, and a revealing capstone in Scalia’s jurisprudential career. Nobody that day dreamed of questioning the religious beliefs of the arts-and-crafts chain’s Christian owners, who were seeking exemption from the Affordable Care Act mandate to provide insurance coverage for birth control. Certainly the justices on the left wing of the Court and the Obama administration didn’t: whatever science, medical consensus, or neutral law may say on the subject of abortion-causing drugs and devices, the government wasn’t about to challenge Hobby Lobby’s belief that particular forms of birth control cause abortions (or to note that the business, even if inadvertently, once covered the same contraceptive methods its owners abhor). Nor was Scalia, who this time—in a dramatic about-face from his 1990 position—clearly supported the religious objectors. In fact, in the course of grilling the lawyers, he blurted out what sounded like agreement with the plaintiffs’ claims that these items were abortifacients. The spectacle was enough to make one wonder, quietly: Peyote didn’t sway him, but what about his own brand of piety?
This all seems rather questionable to me. Is this really about Scalia's faith, or any other justice's? It has long been a settled part of Free Exercise jurisprudence, since well before any of the current justices served on the Court, that judges should not inquire into the validity or intensity of religious beliefs, although the sincerity of those beliefs is still open for examination. Whether it's the right approach or not, there are many reasons for it. To the extent that Lithwick is concerned about Scalia being influenced by his Catholicism, she should if anything be reassured by this rule, which prevents him from diving skeptically and clumsily into the "validity" of religious convictions held by members of minority faiths. This approach not just required by the caselaw, but by Congress as well, in cases involving RFRA or RLUIPA.
One may be skeptical about the suggestion that the government or the left wing of the Court was entirely supine on some of these questions; certainly those carrying the administration's water in public arguments over the Hobby Lobby have not been. (And, to meet a parenthetical with one of my own, if prior subsidy of contraceptive methods was inadvertent, how relevant should it be?) Nor, despite his gyrations in the field of Free Exercise, is it fair to say that Scalia showed a dramatic about-face from his 1990 position: here he is facing a statute that was specifically intended to give the Court a different set of marching orders from those he set out in 1990, and even under that case the question would remain whether existing exemptions from the contraceptive mandate rules create problems of neutrality and general applicability.
"Peyote didn't sway him, but what about his own brand of piety?" is a great sentence, but neither clause is especially warranted in the circumstances. Although I think Scalia was wrong in Smith, he didn't question the intensity or validity of those worshippers' beliefs or practices; and in the current case, we have plenty of reason to conclude that RFRA requires an exemption without inquiring uncertainly into his own Catholic piety. (And plenty of reason to conclude that any Jewish or liberal dissenting justices read RFRA and its application differently without drawing conclusions about whether, in rejecting an exemption claim on the part of Christian groups, they are moved by their own brand of Jewish or secularist or feminist piety.)
Perhaps a note on Lithwick's conclusion is warranted as well. She describes the Court as currently hearing "passionate challenges to a secular society from religious dissenters." For those of us who still disfavor the Court's decision in Smith, there is some irony here too, because for many of us the problem with Scalia's opinion in Smith is that it was, if not secularist, then certainly highly statist. More broadly, though, that description relies on a set of assumptions about ours being a "secular society" and what, exactly, that means. I would have thought, or hoped, that it was more accurate to call ours a pluralistic society, and in some official and unofficial areas an agnostic one. Even if it is a secular society, it is at best an open question whether that requires us to be inhospitable to religious accommodation, which is capable of secular as well as religious justification. That's doubly true when the accommodations regime is ordered by Congress, not the courts. We should not accept this framing too uncritically.
Thursday, May 22, 2014
Teaching vs. Scholarship vs. Influence
A lot of discussion has been had about spending time on scholarship vs. teaching. Scholarship is, of course, the activity that makes our Deans and peers happy and drives our promotion and tenure packet; teaching (and teaching well) requires a lot of time, but is something that some (but not all) of us enjoy. One main issue is that too many new faculty spend too much time on teaching prep and not enough of their scholarship, leading to major stress as their promotion deadlines appear.
Now that I've had tenure a few years, I'm looking again at how and where I spend my time. I love to teach -- it's invigorating and I truly enjoy working with students. I love to write (except when I'm in that "pit of despair" stage of writing that happens all too frequently). But lately I've had a few opportunities to work in what I'll call "influence." I was asked to come give a briefing at the Senate building on patent troll legislation -- currently dead or dying, by the way! (N.B. I have no delusion that I am the cause of the bill's demise...) I've written some op eds on a few pending Supreme Court cases. I've been interviewed by reporters on current issues, such as language being used in the net neutrality debates.
Given that there are only so many hours in the day, I need to make choices about where to spend my time. (And I apologize if this is a path that has been well worn - the opportunities to engage in the world outside of teaching and scholarship is relatively new to me.) Many of these influence opportunities arise based on my scholarship, but to participate in these influence activities means that I may write a little slower (or, heaven forbid, spend less time prepping for a class session).
Certainly there is value that can come from all three of these activities, but I get the feeling that influence activities, while exciting and important to me, may not be viewed as important by others, such as students or peers or maybe even the people who adjust my salary every year. It's a lot harder to qualitatively judge the influence activities -- right? My students regularly provide a rating that, in theory, indicates the value and quality of my teaching. My articles are placed in journals that can be rated on any number of ranking metrics. But how can you evaluate how well I influenced? Is this why it may be viewed as less important than the other two?
It's nice to think that something I'm doing may have some influence on the outside world -- and maybe some folks' mainstream scholarship does that...but is the cost of engaging in other influence activities worth the potential costs to teaching and scholarship?
Standing, the Merits, and Judge Fletcher's "Softened" Views
On Monday, I blogged about standing in Town of Greece v. Galloway, and Howard’s subsequent comments on that subject have reminded me of an interesting recent development in standing scholarship that I’d like to draw attention to here. In short, Judge Fletcher—a renowned critic of modern standing doctrine—recently wrote that his “views have softened somewhat.”
To recap, Howard initially suggested that standing might be found in Town of Greece and other Establishment Clause cases based on a plaintiff’s feeling of religious offense or exclusion, even in the absence of coercion. But in fleshing out that instinct, Howard found it tricky to avoid collapsing the distinction between standing and the merits—a move that current standing doctrine frowns on. To state Howard’s point using the categories of my earlier post, when trying to make answer #5 work, it’s tempting to slide into answers #4 or #6.
In particular, it’s tempting to slide into the theory famously put forward by then-Professor and now-Judge William A. Fletcher. To grossly simplify his beyond-classic article, Fletcher argued that the scope of standing should turn on the merits, that is, on the meaning of the substantive law at issue. From that vantage, an inquiry into “injury in fact” seemed pointless—or worse. In a well-known passage, Fletcher compared the injury-in-fact requirement with “substantive due process.” Here’s an excerpt:
To use a phrase that is particular anathema to those members of the Court most anxious to tell us that there are Article III limitations on statutory grants of standing, one may even say that the ‘injury in fact’ test is a form of substantive due process.
This was a drop-the-mic moment—a powerful and compelling charge of intellectual hypocrisy.
One difficulty with that line of attack, however, is that a lot of people like substantive due process, and many of them are otherwise sympathetic to Fletcher’s critique of standing doctrine. As so often happens, inconsistency could be viewed as a two-edged sword.
With that background, consider Fletcher’s recent contribution to a terrific Alabama Law Review symposium in honor of Fletcher’s work on standing. I’ll only reproduce portions of Fletcher's keynote remarks here, but I recommend reading them all:
I have rethought a few things, helped in part by the papers contributed to this Symposium. In my article, I criticized the Supreme Court for not admitting what it was doing. The Court wrote that its purpose in limiting standing under Article III was to exercise judicial restraint and thereby preserve our democracy. In Justice Scalia's words, the Court was preventing the “overjudicialization” of our government. But each time the Court holds that a grant of standing to enforce a statutory duty is unconstitutional under Article III, the Court is doing precisely what it says it is not doing. It is not deferring to the exercise of power by our democratically elected legislative body. Quite the contrary. It is restraining Congress’s power and increasing its own.
While I have not exactly changed my mind, I have to say that my views have softened somewhat. I no longer insist so vigorously that the Court explain what it is doing and why, and I no longer object so strenuously to the Court's substituting its view for Congress’s.
[Fletcher then discussed leading standing cases involving the Establishment Clause, the Equal Protection Clause, and environmental law.]
... I regard all three lines of cases as examples of the Supreme Court’s use of its lawmaking power. ...
The Supreme Court has not, and will not, explain its Establishment Clause, equal protection, and environmental standing decisions in the way that I have just explained them. It has not, and will not, state openly the degree to which it is making law. This is not a new phenomenon. Common law courts have always been reluctant to say openly the degree to which they are changing the law. They much prefer to emphasize the degree to which their decisions are consistent with, even compelled by, decisions reached in earlier cases. I do not regard the Court’s unwillingness, perhaps inability, to explain what it is doing as illegitimate or improper. The Justices are acting in the way they and their predecessors have always acted, making law even as they seek to disguise the degree to which they are doing it.
Given that Fletcher has been an intellectual leader both in the academy and, now, on the bench, his “softened” views seem noteworthy—particularly since they’re coupled with a candid description of how “[c]ommon law courts have always been reluctant to say openly the degree to which they are changing the law.” Indeed, Fletcher's softer attitude toward standing doctrine seems linked to a similar change in attitude toward the exercise of what he calls the Supreme Court's "lawmaking power." As he puts it, "I no longer object so strenuously to the Court's substituting its view for Congress’s."
To my mind, Fletcher’s “rethought” view of standing addresses a significant set of questions raised by his original piece. And it adds an interesting perspective on the standing issue in Town of Greece and many other cases.
The above is cross-posted from Re's Judicata.
Wednesday, May 21, 2014
Sunstein on Epstein
Cass Sunstein has a quasi-gossipy and (therefore/still?) interesting review of Richard Epstein's latest book up on TNR. My quick sense is that it seems unnecessary and probably anachronistic for Sunstein to have credited (or blamed) or even linked Epstein for Tea-Party Constitutional politics altogether. E.g., "Everyone knows who Rand Paul's father is, but in an intellectual sense it is Richard Epstein who is his daddy." Having done so, I also wonder why Randy Barnett's work in the area isn't equally (credited or blamed) or linked.
Comments On "Is the Cert Process Fully Adversarial?"
On Monday, I wondered whether the Supreme Court's apparent decision to auto-relist cert petitions before granting them might, counterintuitively, have something to do with the rise of the Supreme Court bar. The post prompted some noteworthy comments from members of the Supreme Court bar, and I'd like to draw attention to those comments here.
First, a recap. My original post acknowledged that the rise of the Supreme Court bar has increased awareness of the need to flag so-called "vehicle problems," that is, reasons why a particular case might prevent or complicate the Court's resolution of the question presented. But, I suggested, the rise of a prestigious, exclusive Supreme Court bar might also undermine adversity at the cert stage. Sophisticated counsel sometimes advise acquiescence in cert as part of a litigation strategy; in those cases, both parties actually agree on the desirability of Supreme Court review. In addition, the counsel that prevailed below might have a personal interest in arguing before the Court. In theory, this concern could apply to leading Supreme Court advocates maintaining their practice, to novices trying to have their first big day in the big Court, and to dedicated clinics that exist to do Supreme Court litigation. These personal interests could even have unconscious effects. So, much as class action counsel might be subjected to a little extra judicial scrutiny in light of their personal interest in settlement, lawyering at the cert stage might benefit from a judicial double-check. Hence, I speculated, the new auto-relist policy.
My post prompted this comment from Tom Goldstein:
For what it’s worth, I think that the development of the Bar probably points in both directions, but not for reasons related to the lawyers’ mixed incentives. More petitions are being done by experienced practitioners who are skilled at hiding problems with cases. On the other hand, more briefs in opposition are being done by the same kind of lawyers who are skilled at finding problems and raising doubts about whether to grant cert. Also, the contrary premise of the post is that the Court is DIGging materially more cases. Anecdotally, I don’t think that’s true. In terms of its reasoning, I’m not aware of a case where someone has said it looked like the opposition wasn’t full throated. But I can say from my experience that a lawyer representing the respondent is frequently more enthusiastic about cert. being granted and getting his/her first opportunity to argue than an attorney for whom it would be one of many. I don’t think it affects how they brief the case in either event, though.
And my post, plus Tom's comment, prompted this additional set of remarks from Roy Englert:
I largely agree with Tom, but would go further. I do not think the best cert. petitions hide vehicle problems. Rather, I think the very best cert. petitions anticipate, acknowledge, and offer answers to any major vehicle problems. And I do not think the leading members of the Supreme Court bar try — consciously or unconsciously — to do anything other than maximize the chance of a cert. denial when they file briefs in opposition, save in cases like Aereo where the client actually wants Supreme Court review. As a result, I do not think the rise of the Supreme Court bar cuts in both directions. I think it cuts heavily in the opposite direction from Richard’s hypothesis.
I will acknowledge one exception, but it has nothing to do with counsel’s motivation. I do think that the Court itself seeks cases in which the presentation on both sides will be strong. Therefore, when the brief in opposition is really good — regardless of authorship — but the issue is certworthy, the Court (somewhat perversely) may take the case with the good BIO rather than a different case presenting the same issue with a weak BIO.
I'm grateful to these commentators for sharing their very interesting and thoughtful views.
The above is cross-posted from Re's Judicata.
JOTWELL: Malveaux on Marcus on Trans-Substantivity
The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing David Marcus Trans-Substantivity and the Processes of American Law (BYU Law Review).
Tuesday, May 20, 2014
It's time to talk about what really matters: the underrated use of exclamation marks in Supreme Court opinions. Let's call them "Supreme exclamations."
The propriety of exclamatory opinions recently came up in the blogosphere when Judge Leon (of the DC district court) dared to exclaim in Klayman v. Obama, which involves an important constitutional challenge to an NSA surveillance program. In fact, Leon exclaimed more than once. Consider: "Candor of this type defies common sense and does not exactly inspire confidence!" And: "[T]here is the very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!" Over at the Volokh Conspiracy, Stewart Baker suggested that Leon's exclamations undermined the persuasiveness of his opinion. That criticism struck me as plausible. Legal writing shouldn't be boring, but it also shouldn't be overwrought.
But then I found myself reading Marbury v. Madison and, lo and behold, Chief Justice Marshall wasn't above dropping a few exclamation marks in his day. As Marshall put it in Marbury: "How immoral to impose [the constitutional oath] on [judges], if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!"
Clearly, originalists should be using lots of exclamation marks.
This got me thinking: when have members of the current Court seen fit to exclaim? Here are a few examples:
- Justice Scalia in his Brown v. Entertainment Merchants majority: "And Hansel and Gretel (children!) kill their captor by baking her in an oven."
- Justice Alito in his recent Town of Greece v. Galloway concurrence: "At Greece Town Board meetings, the principal dissent pointedly notes, ordinary citizens (and even children!) are often present."
- Justice Kagan in her Arizona Christian School Tuition Organization v. Winn dissent: "We have faced the identical situation five times—including in a prior incarnation of this very case!—and we have five times resolved the suit without questioning the plaintiffs' standing."
What's your favorite/least favorite Supreme exclamation?
The above is cross-posted from Re's Judicata.
Injury and standing, rights and merits
In this post, I suggested that the difference between an injury and a right (or claims of right) marks the difference between standing and merits. Richard's post explaining unspoken standing issues in Town of Greece offered as one possibility that while coercion is necessary to state an Establishment Clause claim, something less (say, mere offense at being subjected to sectarian prayer) is enough of an injury for standing. So are we saying the same thing?
My initial inclination was no. Richard notes that mere offense has not been sufficient injury in other contexts; for example, the stigma of race discrimination is insufficient to establish standing, as is knowledge of general wrongdoing by government. But I saw the offense in Greece as something different and more direct. The plaintiffs were offended by sectarian prayer with which they were directly confronted and made to sit through. A pure stigmatic or generalized injury would be a citizen who did not attend council meetings, but alleged that she was harmed simply because sectarian prayers were going on. It was not that there was something unique about the Establishment Clause that the Court was afraid to address; the nature of the conduct and thus the injury genuinely were different.
But as I think on it further, I am less sure we are not saying the same thing. The difference between Warth or Schlesinger and Town of Greece is the different nature of an injury caused by the Establishment Clause compared with the Equal Protection Clause, given the unique purposes of each provision. But if so, that is problematic for my attempted explanation for the standing/merits divide. It necessarily means that whether someone has suffered an injury-in-fact turns on the potential right at issue--in other words, something may be injury for one source of right (Establishment) but not for another (Equal Protection). This more closely links injury to right (or claim of right). And the closer those two things come together, the less standing doctrine makes sense as a concept distinct from merits and the more it appears as nothing more than a cheat to preempt ordinary merits analysis on some constitutional claims.
Two procedural cases of note
Two procedural cases having nothing to do with one another, other than being interesting (to me).
1) Monday's SCOTUS Orders List included Thomas v. Nugent, in which the Court GVR'd to the Fifth Circuit for further consideration in light of last week's per curiam reversal without full briefing (also of the Fifth Circuit) in Tolan v. Cotton (which I wrote about here and here). I will simply quote what an alert reader wrote in an email: "So if the holding of Tolan is 'remember the basic concept of summary judgment, dummy,' then Thomas v Nugent seems to stand for the proposition 'you probably did it again, dummy, but your work was so sloppy that we're not even going to check it until you rewrite it.'" That about covers it.
2) Scott Dodson (Hastings) points me to this Ninth Circuit decision, written by Fed Courts guru Judge William Fletcher. A lot of Civ Pro/Fed Courts/Civil Rights stuff in here. Of particular note is the discussion at pp. 25-27. Part of the case involved the failure by the county to take sufficient steps to immediately find the family of an unidentified man shot and killed by a police officer (thus denying the family the opportunity to bury him in accordance with their Muslim faith). Among the many claims were I/I/E/D and negligence claims by the victim's siblings; the district court found they lacked standing because they had no legal interest in the disposition of the victim's remains and thus had not suffered an injury-in-fact. The court of appeals rejected that conclusion. The plaintiffs suffered emotional harm allegedly caused by the county's actions, which was sufficient to establish standing. Instead, the siblings' claims failed on the merits, because the county owed no duty to the siblings (defeating the negligence claims) and the county did not intend to cause the siblings emotional distress (defeating the I/I/E/D claims). But the absence of a valid claim of right reflects a failure of the claims on the merits, not an absence of standing/jurisdiction.
This standing analysis--resting on the distinction between injury-in-fact and right (in the Hohfeldian sense)--provides a different explanation for Richard's post on standing in Town of Greece (I tried to put this as a comment to that post, but Typepad is having some problems). There is a difference between whether a plaintiff has suffered an injury and whether his rights have been violated; the former goes to standing while the latter goes to the merits. In other words, a person can be injured, and thus have standing, even if the conduct at issue did not violate their rights, thus losing on the merits.
Here, for example, the siblings' emotional distress constitutes an injury-in-fact for standing, even if their rights were not actually violated (because there was no duty and no intent). In Town of Greece, the plaintiffs suffered an injury in that they were offended or felt excluded, even if their rights were not violated because only actual coercion runs afoul of the First Amendment; again, the plaintiffs have standing, but the claim fails on the merits. Or take one more example: The victim here suffered an injury-in-fact in being shot, providing standing (for his survivors), even if turns out the use of force was reasonable and thus the claim fails on the merits.
Now perhaps this distinction between injury and right is artificial or impossible to implement. But it may be the only way that standing does not swallow merits.
State panel denies InfiLaw license
The South Carolina Committee on Academic Affairs and Licensing voted 3-1 to recommended rejection of the sale of Charleston Law School to InfiLaw. Members cited two lawsuits against the company by other law schools. Faculty, students, and alumni all oppose the sale. It now goes to the full Commission on Higher Education for a vote on June 6.
Monday, May 19, 2014
The Missing Standing Decision in Town of Greece
As part of my ongoing quest to discover under-appreciated jurisdictional issues, I'd like to return to the Court's recent decision in Town of Greece v. Galloway. In that case, the plaintiffs objected to the use of sectarian prayers to solemnify public proceedings, and the Court found no Establishment Clause violation in part because the public prayers at issue were not deemed coercive. That holding raises an interesting threshold question: in the absence of coercion, did the plaintiffs have standing to bring their claim in the first place? Bizarrely, the Supreme Court has never directly addressed this issue, even though it arises in many Establishment Clause cases.
I can see a bunch of possibilities, all with problems.1. The Court could try to squeeze a conventional "injury in fact" out of the situation in Town of Greece. For instance, the plaintiffs could have argued that the sectarian invocation imposed costs on attendees in the form of wasted time. But that kind of argument would generate causation problems, including because the town would likely employ other, equally time-consuming forms of solemnification in the event that its actual prayer policy were struck down. There is also something dissatisfying about basing standing on what seems like a convenient excuse, or an "ingenious academic exercise in the conceivable," when the real reasons for bringing suit -- and hearing the case -- lay elsewhere.
2. The Court could invoke municipal taxpayer standing, which was briefly noted in the District Court and Court of Appeals decisions in Town of Greece. Obviously, this approach wouldn't work in many public prayer and display cases. Further, the prayers at issue in Town of Greece seemed to involve only "incidental" expenditures, and did not necessarily involve the kind of direct cash outlay that, under recent cases, serves as the basis of taxpayer standing. Finally, taxpayer standing is generally in decline at the Court, and, in that context, it is odd for municipal taxpayer standing to be going strong. As Judge Sutton has pointed out, cities can have populations larger than those of states.
3. Maybe, in cases like Town of Greece, the Court is thoughtlessly issuing "drive-by jurisdictional rulings" that it would focus on and reconsider in a future case, if only the point were squarely argued. On this view, there was actually no standing in Town of Greece or any similar Establishment Clause case. The main problem with this approach is that it would mean that there was actually no standing in Town of Greece or any similar Establishment Clause case. While objectionable and counter-intuitive, that result isn't impossible. In fact, something similar happened a few years ago in another Establishment Clause case, Arizona Christian School Tuition Organization v. Winn.
4. Perhaps the coercion issue controls both standing and the merits, such that the two inquiries effectively collapse into one another. This would presumably mean that, in ostensibly finding no Establishment Clause violation on the merits, Town of Greece actually (or simultaneously) found no jurisdiction. That possibility comports with the widespread sense that standing is often just the merits by other means. But the Court has given no sign that it's issuing jurisdictional holdings in cases like Town of Greece, even though jurisdictional and merits inquiries are different and can have distinct consequences for the parties. And, of course, standing is supposed to be separate from the merits.
5. Coercion could be viewed as relevant to the merits, while something less than coercion might suffice to create "injury in fact" for standing purposes. For example, standing might arise from being religiously offended or from personally witnessing an establishment of religion. This is probably what most people think is going on in Town of Greece. But offense short of coercion normally isn't enough for standing. For example, stigmatization caused by racial discrimination has been found inadequate. And personally witnessing an illegality usually isn't enough to obtain standing either. So something unusual must be going on in Establishment Clause cases for this approach to work -- and the awkwardness of saying so may explain why the Court has repeatedly ducked this issue.
6. Finally, the Court might be prepared to set aside the doctrinal "injury in fact" analysis. Since this is my blog, let me offer my own preferred means of doing so: in cases without coercion or other traditional injuries in fact, the Court might afford standing to those persons with the greatest interest in bringing the claim. In Town of Greece, the challengers seemed to fit that bill. There are problems here, too, of course. Comparing potential claimants won't always be easy; and the Court has said that standing can remove entire issues from the federal courts, thereby excluding even "best" plaintiffs. Still, the justices sometimes seem to follow this basic approach, and even say so. If you're curious to read more, here's a link to my article, "Relative Standing."
Which answer is best? Are there others?
This post is cross-posted at Re's Judicata.
More on taxis and the First Amendment
Introduction: Re's Judicata
Thanks to Dan and the other Prawfs for inviting me to guest blog! For the next few weeks, I'll be cross-posting some material from my new blog, "Re's Judicata," which provides offbeat commentary on the Supreme Court. My first few posts have been on topics like "Schuette and Quidditch," "Heien and the Other Rule of Lenity," and "Custom in Town of Greece and Vonnegut's 'Spruce Falls.'" This coming year, I'll start teaching criminal procedure and federal courts at UCLA; if you're curious, my papers are here. I'll look forward to your comments as we wrap up an exciting end of term!
Sunday, May 18, 2014
One Last, Small Point About Justice Scalia's Commencement Address
It did not take long to exhaust the basic points of commentary on Justice Scalia's recent commencement address. First Amendment scholars, lulled or captured by his mistaken suggestion that every law student ought to take a First Amendment course, may, however, have missed a small point of some interest to them. Here, via Will Baude at VC, is an introductory, stage-patter-ish remark from Scalia's speech:
I have a philosophy of commencements. They are not for the benefit of the graduates, who would probably rather have their diplomas mailed to them at the beach. They are for the pleasure and satisfaction of the graduates’ families and friends, who take this occasion to observe and celebrate a significant accomplishment on the part of those whom they love. In that respect a commencement is like a wedding or baptism: the primary participants in those events would rather be elsewhere as well. Since that is the nature of a commencement, it does not much matter what the commencement speaker talks about. He can talk about whatever burr is under his saddle, so long as he does not go on too long.
Rereading this, I realized what the line about weddings and baptisms reminded me of: Scalia's concurrence in McCreary County v. ACLU. In his dissent in the companion case of Van Orden v. Perry, Justice Stevens pointed out that there are several different versions of the Decalogue, "ascribed to by different religions and even different denominations within a particular faith." Scalia, in his dissent in the McCreary County case, chimed in on both cases and was both incurious about and indifferent to Stevens's point about the varieties of Decalogue: "The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not)." One may also be reminded of the oral argument in Salazar v. Buono, in which, as Richard Schragger has written, Scalia was "aghast...when an attorney from the ACLU suggested that a cross commemmorating the war dead was offensive to Jews." ("It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect?")
What does all this have to do with the paragraph quoted above? Well, of all the examples of religious ceremonies at which the primary participant would prefer to be elsewhere, I would have thought the best example (aside from a funeral, which may be a little heavy for a commencement address), far better than a wedding--is that a good example at all?--or a baptism, is: a bris.
Saturday, May 17, 2014
Jennifer raises a good point: There is too much law to know now. I can think of several subjects I would add to Texas Tech's upper-level requirments. So perhaps the solution is breadth over depth--expose students to a bit less of more areas and subjects. And if that is what we are after, what about a trimester/quarter system? Stanford and Chicago are the most prominent law schools to follow that calendar (Stanford switched about five years ago). And Northeastern uses a year-round quarter system, with students alternating quarters in the classroom and in field co-ops over the course of three calendar years. I did undergrad on a quarter system and really enjoyed the academic experience.
The trade-off in law school is obvious. Students can take 12 courses in an academic year rather than 8-10, so they can be exposed to more subjects and areas. But instead of 13 weeks/52 class hours of a four-hour course, they get 10 weeks/40 class hours; instead of 13 weeks/39 hours of a three-hour course, they get 10 weeks/30 class hours. In Civ Pro, for example, this means so long Erie and discovery.
Thoughts? For those teaching at/attending/attended Stanford or Chicago, how did you like the trimester system? Does the trade-off work and is it worth it? Do we need to trade depth to get additional breadth?
Justice Scalia and Developing an Advanced Required Curriculum
By now, everyone has had a good chance to read Justice Scalia's remarks at William & Mary and to read many thoughtful posts. I'm here to say that we here at Texas Tech have a strong advanced required curriculum. Not only do all the students take Torts, Contracts, Legal Practice, Criminal Law, Property and Constituitonal Law during the first year, they take Business Entitities, Criminal Procedure, Commercial Law, Evidence, Income Taxation, Professional Responsibility, and Wills & Trusts (26 credit hours) during their second and third years.
And it's not enough to directly address the phenomena Justice Scalia identified--the rapid increase of regulation. He noted that there were entire fields now that did not exist when he was in law school and although not on his list, my own field, health law, is very much one of them. It is almost entirely a creature of regulation.
While everyone has heard about the Affordable Care Act, it is merely the latest in what have been wave after wave of regulatory programs springing out of nowhere and imposing substantial compliance obligations.
So what to do as a matter of curriculum? Of course looking just at health law, we teach them the regulatory schemes that exist while they are in law school, but we do so with the guarantee that they will change substantially by the time they graduate (and more likely during the course. Teaching healthcare regulation can be like weaving Penelope's Shawl).
In the bigger picture, the rate of regulatory growth leaves the question of whether a student can really be comfortable practicing law without an understanding of Administrative Law?
If it helps, Medical Education has exactly this problem. There is so much to know that it is no longer possible to study each topic separately--instead all are moving in the direction of an integrated curriculum. Here's an example of Yale's. But as this article reflects well change is no easier for medical faculty than it is for us.
The idea of a "general education" is as central to medical as it is to law, but has become equally unrealistic. Like Law, phsyicians can specialize but they are not limited in their practice. When it comes to prescribing medication, any doctor can prescribe any drug for any reason. Equally, nothing but self-restraint (and fear of liability) prevents a licensed attorney from offering advice on a topic about which she knows little.
This situation of too much to know in too little time probably isn't new. I'd suspect that all law schools at all times have wrestled with what courses "all" students should be required to take. No matter how many courses are required, at some point, no one can take a class covering everything they "should" know as a lawyer. Some schools that have minimized required courses offer paths or tracks for students to take depending on their interests. Essentially this is academic advising instead of a required curriculum.
More later, but one way to tackle this Augean Stable would be, again taking a medical school model, to put aside the idea that every subject needs to fit into a specific amount of weeks with a specific amount of credit hours. Many schools are looking at offering one course at a time in a sequence rather than let schedules emerge according to availability.
It's easy to dismiss Justice Scalia's words as nostalgia, but that would be a mistake. His point is a good one. We probably all should, actively, be thinking not just about what "every" new lawyer should be able to do or know, but how to structure a curriculum so that students can have some coherent base in one or two areas. Even though the reality of law practice is almost all of us end up doing something different than we thought, it still might be helpful to know not just "a little about a lot" but more than a little about something.
Friday, May 16, 2014
First Amendment problem?
A New York City cab driver who was seen driving around wearing an armband with a Nazi swastika has had his license suspended for 30 days by the New York City Taxi and Limousine Commission. How does this not raise significant First Amendment problems?
The TLC is an agency of the New York City government. The driver, Gabriel Diaz, appears to be an independent contractor operating under a government license and not an employee of the city or the TLC. According to this report, the suspension was for violating § 54-12(e) of the regulations for medallion cab drivers, which prohibits commission of "any act that is against the best interests of the public." But the act at issue--wearing the arm band--is unquestionably expressive. There is no indication he ever refused to transport anyone. Is the issue that the armband effectively dissuades people from getting in his cab? But is that enough to overcome his First Amendment interests? Isn't it on him if he chooses to forego income by presenting an unwelcoming vehicle? Or is there an analogy to a licensed attorney who has a Nazi flag in his office--"I'm willing to represent anyone who comes through the door, sorry if you don't want to retain me because of this flag"? How is this different than if he were listening to neo-Nazi radio programs in his cab?
There is a Travis Bickle joke to be made here. But in the meantime, please tell me what I am missing here.
Update: The ADL's public statement praising the suspension made the "message of exclusion" argument, stating that Diaz "sent a frightening and offensive message to New Yorkers about who might be welcome – and unwelcome – in the taxicab he was driving." And this story summarizes Diaz's political beliefs, sarcastically describing him as a "[c]harming fellow all around." But that does not change the role of the First Amendment in prohibiting government from stripping even a "charming fellow" of a business license solely because he holds and wishes to express those reprehensible views.
Justice Scalia and the upper-level curriculum
Scalia also criticizes the absence of required upper-level classes, noting the curriculum from his Harvard days. I probably would be all for required upper-level classes, but do not see how it would happen. The problem is that the first-mover would be at too-great a disadvantage. Schools are now actively and competitively recruiting good students and students are playing schools against one another; one thing schools may try to offer is "flexibility" in the final two years and the chance to "create" an upper-level course package. School A thus can sell that flexibility as against School X and its mandatory post-1L classes (however limited they may be). School X is not going to win the battle for that student (all else being equal), even if its approach may produce better Scaliaesque lawyers-as-professionals.
On the other hand, is that move necessary? At least outside the super-elite schools, the pressure of bar passage causes schools to push students hard towards "bar-tested" courses, which likely are the same courses that schools would make mandatory in any event.
Justice Scalia on legal education
Justice Scalia delivered the law school commencement address at William & Mary earlier this week week and had a lot to say about two-year law schools, "carefully-structured skills-based experience," and the difference between law-as-trade and law-as-profession. Will Baude offers his thoughts. Apropos of my post last month about what every lawyer should know, Scalia specifically points to the First Amendment:
Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law? And can a society that depends so much upon lawyers for shaping public perceptions and preserving American traditions regarding the freedom of speech and religion, afford so ignorant a bar?
This all reflects a very Tocquevillian view of the law and lawyers as a learned intellectual aristoracy. And much of the resistance to proposals such as two-year law schools and all-experiential education rests on a similar view.
How US News Rankings Have Obscured the Highly Regional Nature of the Legal Market
Yesterday I probably gave more attention than I should to an article claiming that only 45 law schools were worth attending based on the ration of sticker price to employment statistics—because my intent is to use it as an example of the kind of data-free speculation that has fueled one of the most irrational market phenomenon since the tulip mania of 1637. Here’s a quick map of the false assumptions and data gaps I will be reviewing:
a) All law students are always better off going to a higher ranked school than a lower one (false)
b) Every region has identical job markets—with equal opportunities and challenges for all students; (false)
c) Any law student without a job 9 months after graduation will never find one sufficient to pay her debts; (false)
d) Every student has borrowed every penny of the tuition sticker price plus living expenses and therefore has equal criteria for a job that makes it worthwhile to have gone to law school; (false)
e) That there was a golden past where most law students nailed down six figure jobs by the end of their second year summer—and never had to worry about employment or financial security again. (false)
Lets start with (a) and (b)
The biggest inaccuracy in all the accounts of why law school is a bad idea for everyone is that they assume a national market for legal employment. And that's not true. This is a big country and law is a very, very localized profession.
So-- if college graduates were working with accurate information, then every law school in Texas should have a five-fold increase in applications. Because Texas is in the middle of an oil and gas fueled M & A boom. Why don’t they? In part, because the only information reaching them is that there are “no” jobs for law graduates and in part because it has never been as necessary as it is now to relocate in order to become a successful lawyer.
Part of what's broken here is that the US News rankings of law schools has led many students to choose law schools based on rank rather than based on either the economy of the region where the school is located or where they themselves want to practice. And that’s a very bad idea.
The US News rankings started as process of bringing information to the public that people within the fields the magazine ranked already knew. A student interested in becoming a physics professor didn’t have to buy a magazine to find out the top physics programs. And the model of going to the “best” school wherever they happen to be located in order to have the “best” employment chances works pretty well for many graduate programs. Because the market for physics professors isn’t regional.
But that model doesn’t work for law. Sure, there are nationally “known” law schools and law schools with reputations so powerful that they can get a resume out of a pile in a region that doesn’t see many graduates—or out of the pile with a slightly lower GPA than a firm with close ties to the school would accept from anywhere else. But law school prestige really doesn’t carry very far beyond the regions where a sizable population of graduates live and work.
Quick example. Student from small town in South Carolina goes to University of the Midwest ( top 10 ranked school located where there actually is a vibrant job market), does wel (35%), comes home and gets great job in large South Carolina law firm. O.K.
Student from small town in Texas goes to University of the Midwest, does well, falls in love with the polar vortex and gets a great job in a law firm where the school is located. O.k.
But student from a small town in Texas who goes to the University of the Midwest isn’t going to do much better in South Carolina than a student with family ties to the area who did well at a lower ranked law school and certainly not better than a student who did pretty well (top 25%) at a law school well represented among the partners of the firm.
Ties to a region is more than the hiring partner going to college with your father. It’s the fact that a successful law practice depends on its lawyers maintaining a close connection to the community where it’s located. Most law firms don’t work on the old Biglaw model of churning through relatively low cost labor. The cycle of life catches up with all of us--a 24 year old may be excited about living in an area where she knows no one. Young children and aging parents can make that prospect far less attractive. There's a reason why big companies routinely rotate executives from city to city and law firms don't.
A magic wand solution? I don't have one. But the more everyone understands how damaging it can be to pick a law school based on rankings or reject one because of rankings, the more likely we can operate on facts rather than speculation.
Comments are Off:
Note—before I was a law professor I was a whistleblower attorney and still believe strongly how important it is for people with unique access to information of public concern to have a way of anonymously bringing that information forward. But having unique access to facts is not the same thing as wanting to express anonymous opinions without verifiable factual allegations. I’d be happy to correspond with anyone who wants to contact me directly with their real name and situation—and to offer you the same help and advice I give every day to my own students who are looking for jobs.
Thursday, May 15, 2014
But I Did Stay at a Holiday Inn Express Last Night
In the late 90s and through the 2000s (and again in 2013), Holiday Inn Express ran a set of clever ads that found an average person endowed with special skills because, well, because he or she stayed at a Holiday Inn Express last night. Sometimes I wonder if that line should be invoked for legal scholarship. Just a couple of anecdotes...
First story: I like to write about language and the law, but I'm not a linguist. In addition to my JD, I have an advanced degree in Electrical Engineering, but the closest thing I have to linguistics is...well, nothing. When I first started presenting my academic work in this area, I would occasionally acknowledge that "hey, I'm no linguist, but..."; however, various mentors and friends told me to cut that out and stand on the research I had done without apology.
A few years later, I was doing some ego-surfing on the internet and I found a comment on a blog run by actual linguists that basically called me uninformed - and you know what, I probably am...but I did stay at a Holiday Inn Express last night. I mean, hey - the credentials that make me useful for patent law (see below) are not based on my expertise in the field of linguistics. I do think, though, that there are some important synergies between the fields of patent law and linguistics that should be explored and the person to do that exploration is unlikely to be an expert in both.
After licking my wounds at being called uninformed, I did the grown-up thing and contacted the guy that wrote the comment. I explained to him that I was an engineer, not a linguist - but that I truly wanted to get it right. His beef wasn't my main thesis, necessarily - but that I approached the explanation from an overly simplistic viewpoint. So I asked him to tell me what I should learn to do it right. He graciously sent me a list of books and articles that he considered canonical in his field and said he'd be happy to answer any questions I had going forward.
Second story: Over the last few weeks, there has been a raging debate -- well, not really debate, more of a brouhaha about who is qualified to talk about patent law. For years now, when an academic has written a blog post about patent law, someone would chime in with a comment that patent academics didn't really know anything about patent law and should keep their mouths shut. The recent discussion has been a survey of which current patent professors have a registration number with the US Patent and Trademark Office (required to interact with the Patent Office to obtain patents) and/or clerked at the US Court of Appeals for the Federal Circuit (the court that hears appeals in patent cases). FWIW, I worked in patent law, have a PTO registration number, and clerked at the Federal Circuit - so I guess I'm cool and don't need to stay at a Holiday Inn Express. But there are a number of well-respected and prolific patent professors that do not meet these qualifications - does that mean they shouldn't write and speak about patent law? Are they uninformed?
How, as professors, do we get the special skills we may need to write in an area? Are we really limited to only what we know stone cold or should we stretch the edges? If we see areas of synergy between areas we know and areas we don't know as well (or at all), how should we proceed to write knowledgeably about the overlap? Is it enough to stand on our research or do we need to seek out the help of an expert in that field (that knows little to nothing about our area of law)? I'm pondering this question as I am dabbling a bit in cognitive science and intellectual property law. So far, I haven't run afoul of any cognitive scientists, but when I do - should I tell them I stayed at a Holiday Inn Express last night?
Wrap-Up for Book Club on "Corporate Governance in the Common-Law World"
Many thanks to all our clubbers, particularly Christopher Bruner, for a terrific discussion on "Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power." Here are the posts from the club:
- Introductory Post
- Sokol: Common Law Corporate Governance
- McDonnell: Corporate Governance and Shareholder Dispersion
- Gold: Common Law Corporate Governance and Legal Ambivalence
- Heminway: Uncommon Law: Social Welfare and Corporate Governance in the Common-Law World
- Bruner: Is the UK really more shareholder-centric than the US?
- McDonnell: The Timing of Corporate Law Developments: Two Questions
- Cioffi: Chris Bruner on Corporate Governance in the Common Law World-Is There a New Grand Bargain Underlying the Varieties of Liberalism?
- Bruner: Corporate governance and social welfare policy -- what's the mechanism?
- Bodie: Bruner Book Club: The Relationship between the Corporation, Employees, and Social Welfare
- Bruner: Corporate governance and social welfare -- mapping the explanatory domain
- Bruner: Corporate governance and social welfare -- stability and change
- Cioffi: Bruner Book Club, continued: Mechanisms, Institutions, & (In)coherence
Many thanks to everyone for a great club.
Dean Baquet's Historic First
Given the particular media tastes of folks who read this blog, some may be interested in learning more about Dean Baquet, the new executive editor of the New York Times and the first African-American executive editor in the paper's history. Baquet grew up in a working-class family, living "in the back of a Creole restaurant that his father — a former postal worker with only a grade-school education — owned and operated." His first ride on an airplane came at the age of 18. He made it to Columbia but dropped out to pursue a career in journalism, winning the Pulitzer in 1988, among other achievements. Pretty well universally liked by his colleagues at the Times and elsewhere--one profile of him is titled, quite accurately, Nothing But Fans--Baquet is also well-known in the field for his stint as editor of the LA Times, where he pushed back against the publisher and was ultimately pushed out.
Much has been made in the past day of an anecdote in which Baquet punched a wall after a newsroom argument. At the risk of overanalyzing it, I was surprised that none of those discussions pointed to one potentially interesting aspect of that anecdote. As others, both scholars and journalists, have written, a traditional stereotype by which black men are often characterized and then rejected as unsuitable leaders or executives is the trope of the "angry black man." Perhaps there is a slim glimmer of hope in the fact that Baquet is and remains widely admired and respected as a collegial, hands-on editor, rather than having been relegated to the realm of stereotype and judged as presumptively "angry" or "temperamental" by this minor incident. Again, I would hardly want to draw too much from any particular anecdote; and I am not much given to punching walls myself. But I was surprised that, given the sheer volume of identity politics discussions surrounding the Times in the past day, not one of them mentioned the ways in which this anecdote might have been, but ultimately was not, viewed through the lens of a fairly typically recognized racial stereotype that often unfairly holds back or constrains black men in the workplace, for whom the slightest departure from coded workplace norms can be a heavy professional millstone. Within the profession, Baquet is one of the most popular and respected journalists of his generation. His ascension is both impressive and historic.
Is Yours One of the 45 Law Schools to Which it is Worth Going: A Look at the Broken Market for Legal Education
As those of you who have read my earlier posts (and I hope you have) know everything I’m writing on legal education takes as a premise that the entire system of financing higher education is broken and that we, as a society, are borrowing against our future by making college, let alone graduate and professional schools, financially prohibitive to those who otherwise have the interest and ability to pursue it. But as bad as the debt to employment ratio is for many law students right now it is made worse by a misperception of a uniform level of financial stress, a uniform kind of desirable job, and a uniform market for legal services. These misperceptions are making the market for legal education inefficient yet this inefficiency is supported by a social norm that higher must be better (yes, Wikipedia--Prof. Ellickson don't rescind my property grade)--and as a result causing hardship for prospective law students and law schools alike.
On Monday, fearless leader of the Law Professor blogs network, Professor Paul Caron, in our flagship, Taxprof Blog highlighted this working paper by Kelsey Webber who “does the math” and concludes that there are only 45 law schools worth attending at sticker price. That may sound better than the critics who conclude that there are no law schools work attending, but it is based on the same flawed assumptions.
Like all “works in progress” there’s lot to pick at—starting with the premise that any law student anywhere is paying “sticker price,” but over the next five days, or so, I’m not going to pick at the paper but rather am going to challenge the generalizations it reflects. I’m going to focus on law’s status as a highly regionalized profession and on the differences that have always existed between schools that historically sent a big chunk of their students to large firms and schools that never did.
And I’m going to address a lurking elephant in the living room that is contributing to the misery—students pursuing legal educations often do so not out of a sense of vocation but rather as a hazy path to a good income. Nothing wrong with that—but it interferes with an efficient, market in which law students would flock to regions not suffering from economic downturn and to law schools offering attractive combinations of low tuition/strong financial aid.
I’m not here to blame students for decisions they make at age 20 with limited available information. I’m just pointing out that this idea of a universal hierarchy of law schools perpetuated by US News rankings has fueled the suffering and distress in the regions where there is little hope of getting a job that would make law school a sound investment. I'm not blaming the messenger, I'm suggesting that they don't work in law the way they work for Clinical Psychology Programs, Engineering Schools or even Medical Schools where higher ranked programs (regardless of location) are closely linked to better job prospects.
I’m also going to address some measurement issues that assume a “big law” view of the world. So, for example, while lack of a big law job 9 months out of law schools is catastrophic because traditionally those were sewn up by the end of the second year summer or certainly by graduation, it means far less outside big law where students are seldom even considered until they have passed the bar-something that won’t happen until five or six months after graduation. And in general, what it means in relation to whether law school was “worth it” depends entirely on the size and shape of the financial hole law school creates. And that varies a lot.
At the other end, I’m going to dispute how safe a bet these 45 schools actually are for every student interested in becoming a lawyer. These are all great schools. The students attending them worked hard to get there, and have every right to enjoy the status they confer, but, again, law is highly regionalized and I plan to vigorously dispute the pernicious paradigm that all higher ranked law schools are better for all law students than all lower ranked law schools.
To be continued.
Wednesday, May 14, 2014
Bruner Book Club, continued: Mechanisms, Institutions, & (In)coherence
I am delighted to have been invited to participate in the book club devoted to Chris Bruner’s recent volume. The commentary and discussion have been by turns illuminating, insightful, and provocative. These entries have helped sharpen my thinking on subjects I’ve been thinking about for years. Several of the posts, including Chris’s responses, have spurred me to comment on a few issues I left out of my original comment.
I had noted that employees and labor may be losing across the board such that political (and economic) losses in the domain of corporate governance, narrowly defined, are not offset or even cushioned by other forms of legal protection or social welfare policies. In response to this suggestion, Chris notes that the scenario I proffered is not “inherently in tension with [his] core claims.” I completely agree, and this is why I read his book as opening up broader developmental possibilities for both stakeholder and more shareholder-centric corporate governance regimes. I do not read Chris to argue for a causal relationship in which stronger protection of stakeholder interests outside of the confines of corporate governance necessarily lead to pro-shareholder governance reforms (or vice versa). Rather, politically speaking, these stronger protections for stakeholder interests may—depending on the structural character—may allow for adoption of pro-shareholder and pro-finance reform policies while dampening the likelihood and likely intensity of political backlash against them. In fact, we have seen examples of this in practice.
One apparent anomalous feature of Thatcherism, for example, was the resilience of the British welfare state despite the ideological zeal with which organized labor was assailed and assaulted, and the ways in which the interests of the financial sector were vindicated in policy and practice. In the end, this wasn’t contradictory at all, and for reasons consistent with the Bruner thesis. Leaving the welfare state intact supplied a cushion to absorb the shock and economic harms inflicted by Thatcher’s neo-liberalism. It blunted the backlash that might have cost the Tories their governing majority. At the same time, the policy changes wrought by Thatcher and British conservatives of that era systematically favored managers over labor (and employees generally), and finance over managers. And these biases were (mostly) quite deliberately embodied in and institutionalized by law to effect structural reallocations of power and wealth (arguably even more radical than they first appeared).
Conversely, German corporate governance and financial system reforms of the 1990s and early-2000s were adopted in a context in which employee and labor interests were far more comprehensively protected in comparison with British labor during the 1970s and 1980s. Like the pro-shareholder agenda Chris describes under Prime Minister Harold MacMillan during the 1960s, successive German governments, most notably the SPD “Red-Green” coalition under Gerhard Schroeder, embraced pro-finance and pro-shareholder without resistance from the country’s powerful unions. In fact, German industries’ push to restore export competitiveness was not achieved via the blunt instrument of financial market pressures and shareholder capitalism, but through the Hartz reforms of employment and social welfare law along with wage restraint accomplished through established mechanisms of sectoral collective bargaining.
However, we should remain mindful of the differences between these two situations. British policy of the 1960s may have favored shareholder interests in some instances, but within a context of other policy commitments, legal rules, and institutional arrangements that made those pro-shareholder rather marginal and non-disruptive. Likewise, the more recent German reforms were designed—politically and institutionally—to preserve the existing architecture of the German economic model outside of finance. In contrast, Thatcher’s reforms were designed to undermine and transform the post-war status quo and were exceptionally successful in doing so.
A number of implications flow from the comparison and consideration of these cases. The first, following up on my original comment, is that the analysis of legal and economic reforms must be temporally framed and bounded. The significance and effects of reforms—even identical ones—may be very different as historical circumstances and political economic contexts change, just as they may differ cross-nationally. A pro-shareholder policy agenda during the post-war era up to and including the 1970s did not have the same political, economic, ideological, and ultimately systemic implications that they did during the 1980s, 1990s, and 2000s.
The second implication follows from this recognition of the import of historical context, on the one hand, and the substantive character of policy and legal reforms, on the other. Pro-shareholder policies and reforms within a political economic regime that effectively protects and empowers other stakeholder groups may be largely irrelevant in practical and political terms. Comparative and historical analysis shows us how changing contextual factors over time may transform the significance and longer-term effects of even seemingly minor policy changes. (Paul Pierson's work, to cite an influential example, has been conerned with these types of causal relationships.)
A third implication, building on comments regarding the identification of mechanisms through which social preferences and structural conditions are causally connected to actual policy outcomes. An argument (or assertion) that public preferences somehow will find their way into politics and policy not only doesn’t tell us much, it is also in many cases empirically questionable. Political mechanisms include, most importantly, the institutional structures of the state, parties, electoral systems, but also non-state institutions such as firms, unions, and private, professional, and para-public associations. These institutions, singly and in concert, effectively filter issues that become politically salient and subject to policy reform.
Even more fundamentally, these institutional arrangements perform an even more profoundly constitutive role in shaping the interests, norms and values, membership, and relative power of political economic constituencies. (That these constitutive effects of institutional contexts may be entirely unintended or unexpected makes them no less important in the development of social order.) The earlier emergence of a legalistic regulatory state during the Progressive Era and New Deal made market reinforcing transparency regulation more politically viable despite corporate law federalism that arguably favors corporate managers (though less than many, and some posters here, have suggested). The German economic model embodies corporatist bargaining arrangements at the levels of national, sectoral, and firm governance that use law to constitute and reinforce these bargaining relationships and fora in ways that tended to preclude or displace legalistic regulation. Lacking a well-developed regulatory state apparatus along American lines, the U.K. beginning with Thatcher began to develop one, almost on the fly and not very successfully, as British capitalism took what might be called its financial turn in the 1980s. Because Thatcher and her allies were antagonistic to labor and forms of governance premised on (non-market) relationships of countervailing power, no attempt was made to appropriate German-style forms of governance.
The structural character of reforms therefore matters. Reforms may vary in their short-term and long-term consequences, and those that target political and economic power relations, particularly those that alter their foundational legal rules, tend to have the most substantial impact over time. This is another reason why corporate governance has become more politically salient and economically important, especially in countries where non-market forms of economic governance and social welfare programs are less comprehensive or well established—it is one of the foundations of power relations in any capitalist economy. Pro-shareholder reforms became particularly consequential as other competing constituencies weakened and other forms and mechanisms of governance eroded. Ironically perhaps, the short-termism characteristic of actual existing shareholder capitalism became highly consequential for the longer-term development of national political economies and of the global economy as a whole.
Finally, notwithstanding Chris’s well argued case for more nuanced and realistic analysis of the common law (or liberal market) countries, we should remain mindful of the apparent differences between them as a group and non-liberal countries such as those of continental Europe. Chris advances complementary arguments that common law countries vary widely in the degree and forms of protection granted to non-shareholder groups, and that greater protection for these stakeholder groups may enable the adoption of more pro-shareholder corporate governance. Quite right, I think. However, the prevalence of market-reinforcing regulation and market-based economic governance and coordination in the common law countries is striking when compared to the non-liberal political economies. VOC and other theories of comparative political economy have their weaknesses and problems, but they do pick up on and are preoccupied by some very important differences in the structural characteristics of national political economies and patterns of common and distinguishing structural characteristics. The degree to which non-liberal features have persisted over time has always been an important subject of study. Today, understanding how they have withstood and whether they can continue to withstand neo-liberal globalization along with the political and economic consequences of global financial crisis is of paramount importance not only for comprehending our world, but also for shaping the one in which we will live in the future.
Faculty protest at Charleston Law
In the run-up to hearings and a vote (scheduled for next Monday) by the South Carolina Commission on Higher Education regarding the sale of Charleston Law School to InfiLaw, the tenured faculty and untenured faculty (speaking through counsel and anonymously, for fear of retribution) have sent letters to the Commission urging denial of InfiLaw's request for a license to operate the school. The tenured-faculty letter notes the "culture of intimidation and fear--fear of reprisal for speaking out against the transaction or even voicing concerns" about the proposed sale and a desire not to "see the Charleston School of Law mirror the admissions practices, attrition rates, transfer rates, or educational programs of the InfiLaw consortium schools." (For an alleged picture of alleged life at an InfliLaw school, see this lawsuit by two tenured professors fired by InfiLaw-owned Phoenix School of Law).
The Commission has hearings scheduled for this Friday and next Monday morning, with a vote scheduled for Monday afternoon.
Corporate governance and social welfare – stability and change
As several posts in this book club series have suggested, there are a number of factors that my theory suggests might reinforce stability or catalyze change in US, UK, Canadian, and Australian corporate governance moving forward.
In the third and final part of the book I address various possibilities. One is the potential for the shareholder base to evolve in ways that blur the boundaries between “employee” and “shareholder” identities, complicating efforts to distinguish them by reference to distinct sets of interests (a possibility toward which Matt points in his post in questioning the implicit assumption that “pro-shareholder” necessarily equals “anti-employee”). Defined contribution pensions have arguably moved us in this direction to some degree, though I think John Cioffi is right to conclude in his excellent comparative book that “shareholder” does not represent “a salient political identity” in the US. In Australia, on the other hand, compulsory “superannuation” seems clearly to have promoted a much stronger investment-orientation across society. Under this system of mandatory retirement pension fund contributions, employees are directly engaged in the investment process as they select funds and identify suitable investment strategies, and the program has been reinforced by aggressive marketing aimed at promoting an investor identity across the working population. This program blurs not only the boundary between “employee” and “shareholder” identities, but also the boundary between state-based and private social welfare provision. As such, Australia’s compulsory superannuation program actively promotes pro-shareholder sentiment at the same time that traditional social welfare programs (such as universal healthcare) actively defuse anti-shareholder sentiment – a particularly potent combination that helps explain Australia’s adoption of strongly shareholder-centric corporate governance structures in recent years.
Another significant possibility is that a given country’s responses to the financial crisis might enhance the stability of shareholder-centric rules, or tend to undermine them, as the case may be. As I describe at some length in the book, both the US and the UK have, in the wake of the crisis, responded with shareholder-centric corporate governance reforms (a mistake in my view, as described in a prior post). Yet the US has, at the same time, substantially enhanced certain forms of social welfare protection – most notably related to health care – while the UK hasn’t. This contrast presents a natural experiment that may help test further the explanatory power of my theory, which would lead one to predict that the US approach will exhibit greater stability in the face of future crises than the UK approach will. Time will tell (assuming that these policy packages are themselves sustained in the meantime).
Other factors with the potential to reinforce stability or catalyze change have been suggested in posts contributed to this book club. One, identified in Joan Heminway’s post, is that changes might occur within the sphere of corporate law itself that impact how we think about the social dimensions and impacts of corporate governance. Specifically, Joan points to “the introduction of social enterprise entities into state corporate law” in the US, including “benefit corporations, flexible purpose corporations, and the like.” As she rightly observes, such developments “could both substantiate and challenge [my] observations about shareholder power under U.S. corporate law,” depending on how things unfold in this rapidly evolving area.
As a normative matter I’m suspicious of these developments because I suspect that, were such entities to grow in popularity, they could amount to a social net minus. Suggesting that we need a new business form to wed pursuit of profit with pursuit of non-shareholder interests might be read to implicitly concede that shareholder interests literally define the purpose of presently existing corporations – which, as I detail at length in the book, I consider a gross misstatement of current law. My guess (perhaps even my hope) is that social enterprise entities will ultimately amount to one of those thought experiments that, although of little ongoing relevance, leave us with a better understanding of where we were to begin with – perhaps analogous to close corporation statutes, now largely moribund because business people realized that they could already achieve their goals through better-understood preexisting corporate legal structures. Joan is absolutely right, however, that such developments could ultimately impact how we think about the degree of shareholder-centrism exhibited by general corporate law, depending on the use and popularity of such social enterprise entities moving forward.
Another intriguing possibility, raised in John Cioffi’s post, is that employees might simply lose across the board, in all the policy domains that I discuss. As John explains, “[t]here appears to be an implicit logic [in the book] that if employees lose in one policy domain … their interests will be protected to some degree in another.” John observes, however, that “employees and organized labor have been on the losing end of the corporate governance and broader political economic changes of recent decades, which were coincident with and constitutive of the emergent variants of finance capitalism” since the 1980s. In this light, he argues, “it’s awfully hard to make a convincing case that employees’ interests have not been compromised.”
The force of John’s point is considerable, and well-taken. As I indicate in my methodology chapter, I build on approaches common to the political economy, social welfare, and risk management literatures in making the broad assumption that “stable democratic rule” requires, in each of the countries investigated, that “popular demands for social protection are guaranteed some form of institutionalised access to the policy-making process.” (Here I quote Australian political scientist Francis Castles’ fascinating book, Australian Public Policy and Economic Vulnerability: A Comparative and Historical Perspective (1988).) This broad assumption clearly leaves plenty of room, however, for an absolute fall (or, in theory, an absolute rise) in organized labor’s capacity to bring employee interests to bear on the formulation of policy in any domain, as John suggests.
I certainly don’t deny this possibility, and broadly agree with John’s characterization of the trajectory over the last several decades. But I don’t think that this observation is inherently in tension with my core claims. As discussed in a prior post, the predominant US responses to takeovers in the 1980s and the crisis aftermath in the 2000s are (at a mid-level of abstraction) quite similar. And the latter episode, in particular, illustrates the peculiar rhetorical and political force of the “middle class” concept as a means of merging, and mutually drawing upon, the financial and social welfare-oriented interests and concerns of working families in a period of substantial social and economic instability. Notwithstanding the losses endured by employees and organized labor over recent decades, social welfare concerns of the sort that I’ve emphasized demonstrably impacted post-crisis reform efforts in the US – even if corporate governance reforms took a pro-shareholder form due to the prevailing (and mistaken) conceptualization of the corporate governance problem to be solved.