Monday, July 28, 2014
Bay Area Memorial
Jonathan Simon, Malcolm Feeley, and Ashley Rubin have organized a small Bay Area gathering for Dan's friends at 4:30 p.m., this Wednesday, July 30, at Berkeley Law. You can email Jonathan ([email protected]) or Malcolm ([email protected]) for more details.
First MarkelFest! at SEALS
The first MarkelFest! will be at SEALS this Saturday, August 2, from 8:30-?, in Seaglass Lounge at the Omni Amelia Island Plantation. Drinks and lounge food are available. Continuing Dan's tradition of blog-sponsored conference get-togethers and now under a new moniker, this is co-sponsored by PrawfsBlawg and Concurring Opinions. Seaglass is located directly off the lobby of the hotel.
Come remember Dan with your best tales and stories and continue his beloved tradition of blog-sponsored gatherings. Hope to see everyone there.
FSU Memoral at SEALS
Florida State will sponsor a formal memorial program on Monday August 4, from 6:15-7:15 in Magnolia D. Approximately 50 people already have expressed interest in attending and/or speaking; Wayne Logan (FSU) will be reaching out with more details. If you have not responded and are interested in attending, please fill out this form.
Thursday, July 24, 2014
Rest in Peace, Dan
Our dear friend Dan was to be laid to rest today. All of us here, and so many others elsewhere, send our love to him, and our deepest condolences to his family and loved ones.
As his family has noted, memorial donations may be made to the Crohn's and Colitis Foundation of Canada; to Canadian Magen David Adom; to Shomrei Torah Synagogue; and to Harvard Hillel. If and when further information about donations becomes available to us, we will attempt to provide it in due course. Please be patient with us.
Tuesday, July 22, 2014
Memorials for Dan Markel (Updated)
So much outpouring of affection for our friend.
1) At Brooklyn Law School as we speak (it began around 5:30). It is on the 22d floor of Feil Hall, 205 State Street (building # 3 on this map). Sorry for the late notice; get there if you can.
2) Correction: The informal gathering at Harvard Hillel happened on Wednesday (yesterday). aplogies for the confusion. You can email Jill Goldenziel at "Jill underscore Goldenziel at hks dot harvard dot edu" for further information. Apparently, HLS Dean Martha Minow and the director of Hillel both indicated a desire to do something more formal in the future. Stay tuned.
3) Funeral and shiva in Toronto on Thursday. You can email any of the perma-Prawfs for more details and information on these events and on memorial tributes.
4) Florida State will sponsor a memorial at the upcoming SEALS Conference at Amelia Island on Monday August 4 from 6:15-7:15, right after a discussion group in which Dan was to participate. Precise location will be announced soon. If you plan to attend, please fill out this form.
5) Also at SEALS, will be the first-ever MarkelFest! on Saturday evening, August 2 (Time and Location T/B/D). As you know, blog-sponsored happy hours have been a regular feature at the major prawf conferences, thanks to Dan's energy and organizational skills. Steve Vladeck suggested that all such gatherings should henceforth be known as MarkelFest!(s) and we agreed.
6) Law and Society's Collaborative Research Network # 27 (Punishment and Social Control), will host a panel in Dan's memory on retribution at the 2015 Law & Society Association Annual Meeting in Seattle, May 28-31, 2015. Regular Guestprawf Hadar Aviram is co-chairing the group. Anyone whose work corresponds with Dan's or retributivism and is interested in participating on that panel can send an abstract to Hadar.
We will post information about other local gatherings and memorial efforts as we receive them.
Saturday, July 19, 2014
We Have Lost Our Beloved Friend, Dan Markel
We write this together, all of us, as a community. Our friend Dan Markel has been taken from us, suddenly and terribly. His law school, the Florida State University College of Law, will issue an announcement in due time. We do not have all the details, but our understanding is that Dan was shot and killed. Painful as it is to say that, and as little as we know, the early news reports left enough room for speculation that it seemed necessary to say that much. The terrible, senseless nature of his loss makes it all the harder to bear.
All of us here on Prawfsblawg live in different places and come from different backgrounds. What we have in common, with many others, is Dan. His network of friends and loved ones--and he had a great deal of love for all his many friends, as we did and do for him--is enormous. His boundless energy was at the center of this community; it made it run, it gave it life. We are stunned and bereaved by his loss, and our thoughts go to his two little boys, who were precious to him, and to his family. Many, many people loved him and are grieving today. Baruch dayan emet.
Chokeholds and clearly established rights
This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).
I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:
1) What will the court do with the video on summary judgment? As I wrote in a draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.
2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).
3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).
Friday, July 18, 2014
Green Bag Call for Papers: Scalia and Garner’s “Reading Law”
Theme: Reading Law: The Interpretation of Legal Texts (2012), by Antonin Scalia and Bryan Garner, was the subject of a notable review by Richard Posner: The Incoherence of Antonin Scalia, New Republic, Aug. 24, 2012. Since then, much commentary on Reading Law has focused on the clash of celebrity lawyers, rather than the content of the book, at the expense of substantive critiques of the sorts that usually appear in serious reviews of a new work. Critiques not only help consumers make choices about what to read, and what to rely on, but also help authors produce better second editions. And we do not doubt that Scalia and Garner will put out Reading Law 2d someday. So, we invite you to pick nits, and motes and beams, in Reading Law. Tell us what is and isn’t worthwhile in it, and tell Scalia and Garner how to do better next time. As part of this symposium, we will be printing the “Hirsch Report” – commissioned by Garner in response to the Posner review – in the Journal of Law, so commentary on Hirsch’s work is also welcome.
Invited topics: Any theoretical, empirical, or practical commentary that will help readers better understand the book – its correctness or incorrectness, the good or bad uses to which it might be put, or anything else useful or interesting. Please do not waste your time or ours on tiresome anti-Scalia/Garner or anti-Posner ax-grinding. Scalia and Garner will have the last word, if they want it.
Length limit: 1,000 words, including title, text, footnotes, and everything else.
Deadline: Finished works must be received at [email protected] by September 1, 2014. No extensions will be granted and no post-deadline tinkering will be permitted.
Selection criteria: We will select works for publication based on how original, interesting, well-researched, well-written, good-spirited, and potentially useful they are.
Marilyn Peters - Lawyer, Leader, Friend, Survivor, Hero
I just got off the phone with my friend (and former law partner) of some thirty-four years running, Marilyn Peters, a partner at Dykema LLC (Detroit, Bloomfield Hills, and the world). Marilyn is married to my friend since 7th grade at Norup Junior High School in Oak Park, Michigan and also Dykema law partner, Alan Greene. Marilyn has been a member of Dykema's management committee, manages its Bloomfield Hills office, and leads its Commercial Litigation Practice Group.
We worked and raised our kids (all about the same age) in parallel, in suburban Detroit houses a couple miles from each other (actually, a little irritating to my wife Alene who on vacations or when dining out had to listen to the other three of us going on and on about Dykema crap).
She was also diagnosed with stage IV stomach cancer earlier this spring and is doing her chemo now. Her blog, "EatChantChemo," is a narrative of friendship, hope, love, survival, and some helpful tips on healthy eating.
Not only is she one of the most alive people I know, she is personally responsible (let's get our priorities straight here) for Michigan's victory (and therefore ensuing national championship) in the 1998 Rose Bowl because she went into the bathroom at our house in Charlevoix just before Michigan started its final drive, Michigan got a first down, and we didn't want to jinx things, so we didn't let her out for something like seven consecutive first downs and the final punt.
Please read the blog and recall Deuteronomy 30:19: "I call heaven and earth to witness against you this day, that I have set before you life and death, the blessing and the curse; therefore choose life, that you may live, you and your seed." Seems to me this is one amazing person's narrative of choosing life.
Since Prof Nancy Leong's request for investigation by the bar of an anonymous lawyer received a good deal of attention on the front end, it's only fair, it seems to me, to note that the lawyer in question reports that the bar decided to "proceed no further" on the matter. I have not seen any formal materials, I should say, including either the request for investigation or the bar's communication; I'm passing on the report but can't verify it. (Except as a matter of custom, I don't think that lawyer has any "right" to anonymity, incidentally, although I think there can be value in online anonymity, in general though not in all cases. In any event, I'm otherwise occupied and not currently inclined to do any detective work.) At least based on what I had read online earlier, I tend to think this is the proper resolution, although I also think and have said that there is a difference between writing anonymously because you have cause for concern that even a fairly, if vehemently, offered opinion may have adverse employment consequences, and writing anonymously because you want to be vulgar, personal, intemperate, and sometimes worse without any professional consequences. As a practical matter, I think there are sometimes good reasons for anonymity, although almost never, if ever, for law professors writing about the law; as a matter of personal honor, I think those who opt for anonymity should be doubly insistent on not saying things they would be, or ought to be, ashamed of saying in their own name. Anonymity, such as it is, should be treated by the anonymous speaker as a protection, not a perverse incentive.
[NOTE: The post reflects a couple of updates, including: 1) referring to a request for investigation rather than a bar complaint; 2) noting that I have not seen the record; and 3) noting that my view is therefore tentative, and based on the rather extensive earlier writing on the subject, including by the principals.]
Thursday, July 17, 2014
Marriage equality in Florida
Judge Luis Garcia of the 16th Judicial Circuit of Florida (the higher-level trial court covering the Keys) has invalidated Florida's prohibition on same-sex marriage, finding that marriage is a fundamental right for Due Process purposes and that there is no rational basis for prohibiting same-sex marriage. The ruling does not take effect until next Tuesday, July 22. This is one of three actions in Florida challenging the anti-equality constitutional amendment passed in 2008--the other two are in state court in Miami-Dade County and in federal court in the Northern District of Florida.
Several quick thoughts:
1) Judge Garcia is up for non-partisan election this fall; let's see what happens in that race.
2) I genuinely expected Florida to be one of the stragglers that would get marriage equality only when SCOTUS finally spoke after 40 other states had eliminated SSM bans.
3) At this point, we need to stop reporting on trial-court decisions, since they are all going in one direction, but their coverage is so limited. It really will matter when federal courts of appeals and state supreme courts begin speaking out.
4) Is it even remotely possible that these lower courts are all getting it wrong? Is there any chance that appeals courts will split or go in different directions or that SCOTUS will ignore the singular position of these lower courts and hold that SSM bans do not violate the Constitution?
Kolber on Dichotomies in Law ... And Just Another Few Words on the (False) Dichotomy of Theory and Practice
Apropos of my comments about "dichotomy skepticism," frequent Prawfs guest Adam Kolber (Brooklyn, below left) dropped me a nice note about his recently published California Law Review article Smooth and Bumpy Laws on the same topic. Here's the abstract:
Modest differences in conduct can lead to wildly different legal outcomes. A person deemed slightly negligent when harming another may owe millions of dollars. Had the person been just a bit more cautious, he would owe nothing. Similarly, when self-defense is deemed slightly negligent, a person may spend several years in prison. Had the person been just a bit more cautious, he would have no criminal liability at all. Though the law must draw difficult lines, the lines need not have such startling effects. We can adjust damage awards and the severity of prison sentences anywhere along a spectrum.
A legal input and output have a “smooth” relationship when a gradual change to the input leads to a gradual change to the output. The prior examples are not smooth but “bumpy”: a gradual change to the input sometimes dramatically affects the output and sometimes has no effect at all. The law is full of these bumpy relationships that create hard-to-justify discontinuities.
In this Essay, I discuss the relative advantages of smooth and bumpy legal relationships and explain how the choice of an input-output relationship differs from the choice between rules and standards. I argue that smooth relationships will often create less “rounding error” than bumpy relationships by more closely approximating our underlying moral norms.
Adam's approach to this issue is infinitely more practical than my own - the goal of the article is to set forth a template for creating law that does a better job of not being binary where the consequences of actions are not themselve binary but fall on a continuum of harm or fault. It's a terrific piece (with over 400 downloads on SSRN); I'd see Larry Solum's "Highly Recommended," and raise him one "Download It While It's Hot!
Perhaps to beat a dead horse, but below the break I want to return to theorizing about the false dichotomy between practice and theory (NB: it's a horse that doesn't want to die, seeing as how in 1793 Kant published his essay "On the Old Saw 'That May Be Right in Theory But It Won't Work in Practice'", and we're still debating it here).
Adam's piece invokes the modern turn to legal positivism, seeing legal and moral norms as distinct. ("Legal versus moral" is a particular dichotomy in that debate.) He's saying (as I read it, and so I apologize), "Look, the law as a social artifact often requires these bright line distinctions that don't really necessarily map well on moral norms. So within our discipline, let's think about that and do a better job being binary where we need to be, and not so binary where we don't." As I said, great stuff.
But I want to see Adam's intuition about false dichotomies within the law and raise him one on positive law itself as dichotomously distinct from other norms and disciplines. There's a wonderful paradox here. I do think there's a continuum at one end of which there are norms clearly of positive law, regardless of their morality, and at the other end of which there are norms that simply do not constitute law. That is, Kelsen's or Hart's articulation of positive law divorced from morality clearly has explanatory "oomph." But to treat the difference as a dichotomy? I think it's an illusion that as lawyers and law professors we can practice and teach as though what we do within our discipline is bounded off and hermetically sealed (pace Luhmann, Teubner, and theories of autopoiesis). Maybe if you are in some segments of the judicial system, but not in my world!
I mentioned in the last post on theory and practice that I presented a paper on Hans Kelsen's theory of legal positivism at a conference last month. Terrific conference, but I am holding off posting the paper on SSRN as the organizers are discussing the publication of the papers in a book. The title is "Cognition and Reason: Rethinking Kelsen in the Context of Contract and Business Law." (Send me a note if you'd like to see it.) Here's a sampling from the end of the paper:
Perhaps as the result of a long career in doing law “purely” as a law firm lawyer and “not-so-purely” as an interdisciplinary law-and-business practitioner, I am far more inclined to think of law in the context of lawyering, and thus doing, rather to think of it as an object of demarcation and classification. This is the conundrum at the heart of the positivist project as least as it appears in the law of contracts: that cognition of the “law” on the books or the physical reality of contracts is each trivial from an epistemological standpoint, and the whole game is in the theories, sometimes descriptive and sometimes normative, that constitute the systematic application of rules to circumstances, whether before or after the fact. No single label serves us particularly well. To call what we are doing mere practical reason, for example, suggests that our only goal is to decide what to do, and fails to acknowledge the descriptive theorizing we often need to do about what actually happened in the creation of the legal norms. “Formalism,” for example, in the sense of a presumption that the parties are best served by a derivation of their rights and obligations from the text of the document, is simply a practical guide to the exercise of both practical and theoretical reason in resolving the issue. Even after Hart’s overshadowing of Kelsen, the Pure Theory and the Basic Norm open the door to an assessment of what it means to do law that is, to me, more satisfying than Hart’s approach, even if I wonder from time to time about the aridness of the entire philosophical project of distilling legal norms from all the other “oughts” by which we live.
My pluralism as to exploration of the objective and the subjective knows few bounds. Reason may well be the slave of the passions in employment of legal doctrine (and I do teach it that way because we live in a passionate world), but long experience at the intersection of law and business inclines me to think we are free and autonomous moral agents when we make the choice in the first instance to turn to law rather than all the other possible norms that inform relationships. That is, the reasoning we happen to do as lawyers is not particularly privileged, notwithstanding the efforts of Kelsen and others to distill and fence off law as an academic or professional discipline. Kant wanted to deny knowledge of that which is not knowable to make legitimate room for faith; I prefer to deny the law (at least for the business lawyer) is something we know as a matter of a priori cognition so as to make room for theoretical and practical reason that takes account of law, morality, principle, compromise, civility, and pragmatism. Even more radically, I see Kant’s account of reason itself as merely one of a number of cognitive processes – among them, for example, the kind of metaphoric thinking and cognitive blending proposed by George Lakoff, Mark Turner, Gilles Fauconnier, Mark Johnson, Steven Pinker and others – that mediate between our cognition of the world around us and acting in response to it.
In short, even the defining of a discipline creates a dichotomy, and if it's not false, then at a minimum it's unhelpful when it comes to practical exercise of that ineffable thing we call wisdom. And I continue to think it's our job not just to impart technical skills, but also to impart wisdom - even if they don't test wisdom on the bar. And there the lines between theory and practice once again blur.
Wednesday, July 16, 2014
What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision
The indispensable Doug "not that subway fugitive" Berman alerted me earlier today to the Jones v. Chappell opinion by the federal judge in California who struck down the Cal death penalty on the grounds that the insane amounts of delay between sentence and execution are violative of the Eighth Amendment's ban on cruel and unusual punishments. (I have registered my retributivist and constitutional doubts about the death penalty before, but I haven't been too enamored of the argument that wins the day in this case. Whether I revise my views, well, anything's possible. I am after all getting older.)
Having worked my way through the opinion by Judge Cormac Carney (a GWB appointee), I imagine the outcome won't stand on appeal to SCOTUS should it get there. That said, with Justice Kennedy as the swing vote deciding on California issues, you never know for sure. Moreover, Justice Breyer has in the past voiced concern about foot-dragging death penalty delays.
Regardless of when/if it gets struck down, the Carney opinion notes the following about error rates, which I found to be of profound interest. Specifically:
"Of the 748 inmates currently on California’s Death Row, more than 40 percent, including Mr. Jones, have been there longer than 19 years."
"Of the 511 individuals sentenced to death between 1978 and 1997, 79 died of natural causes, suicide,
or causes other than execution by the State of California."
"For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated. As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process. Of them, 32 were denied relief by both the state and federal courts—13 were executed, 17 are currently awaiting execution, and two died of natural causes before the State acted to execute them. The other 49—or 60 percent of all inmates whose habeas claims have been finally evaluated by the federal courts—were each granted relief from the death sentence by the federal courts." But of those 49, the "State resentenced 10 of these individuals to death, thus starting anew the post-sentencing appeal process on the renewed sentences, though two have since died while on post-conviction review for the second time."
A few points here.
First, what's left unsaid by Judge Carney, so far as I can tell, is whether the state has abandoned efforts to resentence to death the remaining 39, or accepts that 39 out of the 81 people originally sentenced to death should in fact not be sentenced to death. If the state is committed to resentencing the 39 to the death penalty, then it's not clear that the facts adduced here have much traction; all they show is that the system is hyper vigilant at the post-conviction review stage. On the flip side, if the state basically concedes that 39 out of the 81 people should not or cannot be resentenced to death, then we have an almost 50% error rate in the initial distribution of the death penalty. As a purely prudential/consequentialist matter, that error rate strikes me as quite worrisome (independent of my constitutional or retributivist concerns). Indeed, unless such error rates were valuable in creating a higher deterrence through random terror effect, which I doubt, I suspect if I were the DP czar, I would be seriously concerned that the death penalty cases are a complete regulatory failure. Perhaps it's time to re-read Robert Morgenthau's famous oped about why prosecutors with resource constraints and a crime-fighting streak should oppose the death penalty.
Second, if 81 people have had a decision on the merits and exhausted all judicial review, it does seem a puzzle as to why there's an ostensible delay of YEARS between those decisions and the executions. Maybe the explanation is in the appendix that I didn't see; but in its opinion, the court notes that California hasn't executed anyone since 2006. Are there delays resulting from California's executioners waiting for the clemency process to be exhausted in addition to the post-conviction judicial review? Wouldn't that be worth knowing about?
Third, the defendant, Mr. Jones, and the Court here seem to think that only a random few people are selected for execution. If that were true, I could see why the constitution should step in and eliminate that randomness in distribution. But I'm not convinced yet that the source of delay is inherently random or arbitrary (terms the court conflates here). I guess I take issue with the claim that the Court offers: "a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose." I could well imagine that a rational legislature or jury would in fact understand their votes to constitute a view to execute subject to stringent review out of a desire to cause death to the defendant but only as long as and once the process has run out. Flipping it around as the fed Cal court does may seem rhetorically nifty, but it's not exactly a model of intellectual generosity to citizens and officials who disagree in good faith.
Fourth, while I understand and accept the claim advanced that deterrence is undermined by delay, it's not the case that harm prevention generally is necessarily undermined by procedural delay. Confidence in the system's accuracy or fairness in a death penalty tribunal might be thought to bolster compliance--this is the mantra that Bentham(!), Tom Tyler and Paul Robinson have all adopted. Inasmuch as the delays bolster confidence and compliance generally, which I take to be a fragile but possible relationship, then the part of the court's opinion addressing deterrence moves too quickly, in part b/c it makes the same mistake Eighth Amendment caselaw makes too frequently: by quickly conflating deterrence with harm prevention generally.
Fourth, the retribution analysis by the court (p21-22) also moves too quickly. I don't accept as persuasive the invocation of authority (citations to Rehnquist and Powell and Fletcher) as opposed to argument the claim that retribution is undermined by delay attributable to post-conviction review. The court takes that proposition for granted but it again conflates retributive justice with satisfaction of communal preferences for condemnation. Moreover, it assumes that the wrong against retributive justice ideals associated with executing a few of all those sentenced to death is the same regardless of whether the reason is because of the drag of post-conviction review or because someone is selected for execution based on his race (or, hypothetically, the race of his victim). But I don't think that's right at all.
In short, if we accept arguendo the controversial premise that capital punishment is consistent with retributive justice (a premise I reject), it doesn't follow that delay attributable to judicial review of the underlying accuracy or respect for the defendant's constitutional rights is antithetical to retributive justice. Indeed, the respect for accuracy manifested by an exhausting (albeit exasperating) forensic process could reasonably be thought to bolster the retributive value of the execution.
I don't want to signal an overly skeptical posture; I'm still unsure about what my views are here. I support striking down the d/p on Eighth Amendment grounds generally but for the reasons I've suggested, I'm less certain this court's arguments are the right arguments to bolster that constitutional claim. Regardless, I hope the dispute has the effect of spurring proper funding for capital appeals and post-conviction review so the delays are less likely to materialize. [Of course, I agree with Doug Berman's general view that the d/p is a sideshow to the more mundane and pernicious and pervasive problems with noncapital punishment.] That said, the claim that "justice" delayed is no justice at all, and indeed, unconstititional, needs more work -- so it seems to me. I'm not defending the claim that the delays are worthwhile, but I don't see how this opinion explains adequately how the delays harm the defendant once a) the defendant wants to benefit from the procedural wrangle, and b) the public has an interest in ensuring that justice appears to be done properly, ie, with appropriate judicial or executive clemency review for severe sentences.
Two (more) op-eds on Hobby Lobby
Ann Lipton has nicely captured the zeitgeist with the notion that "there is something of an obligation for all corporate law bloggers to weigh in on Hobby Lobby." Today, for example, the Conglomerate is starting up on its second Hobby Lobby symposium. So it is with some trepidation that I highlight for you two additional pieces on that speak to this case once again. First, Brett McDonnell defends the decision from a progressive perspective in "Ideological Blind Spots: The Left on Hobby Lobby," appearing in the Minneapolis Star-Tribune. Brett argues that the decision provides space for corporations to have goals outside of shareholder wealth maximization -- something that liberals have promoted in the corporate social responsibility context. The op-ed also recounts the history of RFRA, which overturned Justice Scalia's Smith opinion, and points out that progressives have traditionally been defenders of religious liberty and toleration. The op-ed has (at this point in time) 716 comments, which kind of puts us blawgs to shame.
Second, Grant Hayden and I have penned "Who Controls Corporate Culture?", which appears this morning in the St. Louis Post-Dispatch. Although not written with this intention, it is actually a nice complement/rejoinder to Brett's piece. It argues that folks are riled up about Hobby Lobby in part because the company's 13,000 employees had no role in making the decision. If corporations are going to be according political and religious rights, we argue, the employees need a voice in choosing how to exercise them, particularly when the primary impact is on employees.
"Something That U Post Instead of Doing Passably Original Sophisticated Thinking," or, a Reprise of "So, A Rough Cartoon Always Says Much"
For some reason the significance of the controversy over refresh rates and their effect on Paul Caron's blog rankings didn't kick in for me until late last night, and all I could think about that EVERYBODY in that thread (at least who wasn't anonymous) was male, and was there some gender significance to the fact that it was only men who seemed to be so concerned about issues of measurement? (I'm not going to throw stones from my glass house; I confess to knowing exactly how hits you will get for "lipshaw % pinosky" under "Secondary Sources/Law Reviews & Journals" in Westlaw Next.)
As usual, Dan Markel got right to the heart of it with this comment: "Of course, since Prawfs doesn't engage in auto-refresh, it suggests further that on Paul's rankings (which should have a Roger Maris type asterisk on the LawProf Network ones), we're totally kicking ass ;-)."
And I thought, "You know, he's right, and I did a post awhile back on one of those blogs whose ass Prawfs is kicking, and I ought to refresh it here where a lot more people will see it." That post had its origins in my friend Joan Heminway's interesting things to say about the private-public distinction in securities law over at Business Law Prof, another Law Prof Network blog whose ass Prawfs is kicking.*
The point there (and again here) was to highlight my usual instinct for avoiding the import of a serious presentation and jumping immediately to the trivial and irrelevant, it having never dawned on me until Joan pointed it out that the Crowdfund Act of 2012 was really the CROWDFUND Act of 2012.
My cartooning skills are not up to what they were in my productive peak thirty-five to forty years ago during my brief stints at the Michigan Daily and the Stanford Law Journal,** but I was inspired to grab a sharp pencil and some paper and sketch the not very funny but unbearably clever cartoon at the left.
* Disclaimer: I am an editor on two blogs, Legal Profession Blog and The Legal Whiteboard, within the Law Professors Blog network, and every couple years Paul Caron sends me a check with which my wife and I can splurge for dinner at a restaurant that makes your keep your silverware for the next course. I have no idea how the refresh rates work.
** This was the student newspaper, not the law review, something I noted on my resume for many years.
Tuesday, July 15, 2014
Weird Al teaches English
And Slate evaluates the rules he espouses in the song. Someone said this could be the new generation's "Conjunction Junction."
Implicit Bias at the Point of Contact: Refereeing and Police Encounters with the Public
Since the World Cup is over, and the best team won, this is my last post on soccer, refereeing, and policing, I promise.
This is my last post on soccer, refereeing, and policing, I promise. In the dying minutes of the group-stage game between Ivory Coast and Greec, the Greek striker Samaras tangled with an Ivory Coast player, and the referee awarded a penalty. Foul? Flop? The penalty certainly looked really soft. What provoked some ire from my friends on Facebook was, not only the fact that the penalty seemed to be an overreaction, but that it was an overreaction to a foul committed by a black person on a white one. Was bias at play here.
The—by now familiar—answer is: probably. My buddy Song Richardson has written some great articles explaining how implicit bias works. Because officiating requires the referee to make instant fact-based determinations in highly stressful circumstances, these judgements prove susceptible to an unconscious, implicit bias. Implicit biases affect all of us, regardless of our race. But they impact us in strikingly racially differentiated ways.
Richardson is concerned to demonstrate the relevance of recent innovations in cognitive science for the Fourth Amendment in general, and police encounters with racial minorities (primarily African Americans) in particular. Her argument is both simple and powerful: the current Fourth Amendment doctrine on stop-and-frisks promotes a form of policing that is racially biased and practically inefficient. The cause of the inefficiency is unconscious cognitive biases that the officer may not be aware of; the problem is that such biases decrease the efficiency with which an officer is able to separate criminal from non-criminal activity.
She identifies two sources of cognitive bias as particularly problematic in the Fourth Amendment context: (1) perception bias, which is the degree of hostility or aggressiveness that a subject attributes to a target varies based on the target’s race; and (2) attention bias, which is the speed with which an observer notices the conduct of a target based on the target’s race. Importantly, African Americans are perceived as more hostile and attract attention more quickly than their white counterparts. Perception and attention bias operate no matter what the race of the observer.
Perception and attention bias have important Fourth-Amendment side-effects: they render officers more inclined to perceive the same equivocal conduct as suspicious when engaged in by African Americans rather than whites.
Arguably, the same thing happened in the Ivory Coast game. Contact that would be ignored, or if not ignored, then treated as incidental if it was between whites, or white on black, was treated as aggressive physical harm when perceived as initiated by a black player on a white one. The conclusion suggested by the implicit bias literature is that referees are likely to police more often and more harshly contact-based infractions by minorities than by others, and to do so independent of the race of the referee.
Richardson made another, counter-intuitive, but extremely powerful point at a recent conference. She suggested that recent experiments demonstrate that when officials are confronted or challenged by minorities, then—ironically—those most aware of implicit bias are those most likely to react most harshly and most quickly. One explanation might be that the official feels unable to rely upon their moral authority (because, conscious of their implicit biases, they believe this is a circumstance in which they lack moral authority) and so they turn to other sources of authority. In the case of cops, this means their physical authority or "command presence." In the case of the referee, this would mean their authority to impose a yellow or red card.
There is, however, a middle ground left to be covered. One remaining question is whether the rapid and violent turn to "command presence" has a gendered aspect? Frank Rudy Cooper and Angela Harris's work on masculinity and the police suggest that it might be. Another is whether officials aware of implicit bias are less likely to confront minorities than other officials? That is, knowing their propensity to over-react when confronted by physical contact or other indicia of misbehavior, they might simply under-enforce the law. Is that a good thing? A bad thing?
A central feature of policing is whether and at what point the official seeks to intervene and diffuse potentially problematic situations. For the most part, these choices happen at the "encounter" stage, before the Fourth Amendment is implicated. There is certainly a question, given different policing styles (rapid response, radio car policing, foot patrols, hot-spot policing, and so on and so forth) whether there are many encounters outside the Fourth Amendment any more—at least, those that are not staged, checkpoint style, at bus stops in the butt end of Florida (or some other spot along I-95).
Encounters provide an opportunity for the police to engage in egalitarian, perhaps consensual, perhaps contested and unruly, interactions with the public. But the implicit bias literature suggests that the racially reflective officer may perceive certain encounters escalating more rapidly and more violently than other officers. If a resort to a forceful command presence is a masculinist response, then that only goes to raise more questions about the nature of policing and low-level interactions with the public.
Given what I think is the strong democratic possibilities for encounters, and the possibly gendered nature of the violent response, some attention to policing styles during the encounter phase is long overdue. Policing style matters, both at the point at which the police engage with the public, and also when they don’t: when they avoid engagement or disengage. Encounters form perhaps the front line of this decision to engage or disengage; and encounters are often used to escalate policing into something more intrusive than informal badinage on the street. Richardson's scholarship gives us one route by which encounters escalate. We should, I believe, also think about ways to de-escalate encounters, and use them as a focal point of contact between state and citizen. But a theory of policing for that style of encounter must, I believe, include notions of non-domination and contestation that lead us down the path of civic republicanism. But that is for another post.
JOTWELL: Levy on Bray on declaratory judgments
The new essay for JOTWELL's Courts Law comes from Marin Levy (Duke), reviewing Samuel Bray's The Myth of the Mild Declaratory Judgment (Duke L.J.). Sam's article is terrific and both it and the review essay are worth a read.
Intentions, Compliance, and Fiduciary Obligations
This essay investigates the structure of fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to “accidental compliance.” Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons. By contrast, fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance. The intentional dimension of fiduciary loyalty is best described by what we call the “shaping” account. This account both explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty. Our analysis challenges two of the most prominent ways of conceptualizing fiduciary obligations. “Contractarianism” configures fiduciary obligations as a species of contractual duties. The view that we call “proscriptivism” reduces fiduciary obligations to the juridical prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory, because each neglects the intentional dimension of fiduciary loyalty.
The paper is available for download here from Cambridge University Press: Download -LEG-S1352325214000032a.
The citation will be as follows: Stephen R. Galoob & Ethan J. Leib, Intentions, Compliance, and Fiduciary Obligations, 20 Legal Theory 106 (2014).
Monday, July 14, 2014
Wechsler vs. Black Will Be the New Black
Based on what I have been reading in the past month or so, allow me to venture a small, perhaps obvious prediction: The next five years, leading up to the sixtieth anniversary or so, will see a cottage industry of articles revisiting, reassessing--and refighting--two classic law review articles: Herbert Wechsler's Toward Neutral Principles of Constitutional Law, and Charles Black's The Lawfulness of the Desegregation Decisions. These will be treatments of a live issue, not just the typical anniversary pieces or historical assessments. And I suspect it will become evident that we have made fewer advances on these issues than is generally assumed.
Practice Experience vs. Scholarly Chops in Legal Academia - False Dichotomy?
Over at Faculty Lounge, Brian Clarke mentioned me (in an kind way) in the process of picking at a particularly popular scab right now - the balance within faculties between practice and scholarship chops. (It's a lot easier to make an extended comment in TypePad than in the comments, and I don't want to hijack Brian's thread, so I'm closing comments here, and invite commenters to head thataway.)
I've written at some length in prequel, full-length feature, and sequel about being a tenure-track or tenured law professor after significantly more practice experience than is the norm. (Think of them as "Rise of 'Retire and Teach'" and "Dawn of 'Retire and Teach'", then decide as between practitioners and academics who gets to be the humans and who gets to be the apes. I have dibs on Caesar, the chimpanzee raised by humans. Do what you want with that metaphor.)
Brian's plea is for balance across the faculty between, on one hand, what Larry Solum described as "the normative turn" in legal scholarship - that mix of theory and interdisciplinarity that critiques rather than merely elucidates doctrine - and, on the other, an orientation toward the real-world practice of law.
I've come to believe more and more that we need to treat analytical dichotomies with a grain of salt. There are zillions of reasons why we have to set arbitrary lines within continuums or family resemblances, particularly in the law (e.g., to be protected as free exercise, something either is or is not religion). But those lines tend not to do a great job of cutting reality at the joints, as it were; hence the Munchausen's (or Agrippa's) Trilemma of casuistry in working back and forth across and resetting thoses lines. Indeed, one of those continuums between practice and scholarship relates to instrumental advocacy, on one hand, versus academic argument, on the other, something I talk about in the Retire and Teach sequel.
But after the fold are some observations in no particular order.
1. I really do think it's hard to make across-the-board generalizations either about tensions between teaching and scholarship, or between extensive practice experience and the ability to be not just a good but also an effective teacher. It depends on the person, the subject matter, and the objective of the course. Just looking at our own pre-tenured non-clinical faculty at Suffolk, everyone of them has impeccable scholarly resumes (one Ph.D. from Harvard in English and American Literature, one M.T.S. from Notre Dame in Moral Theology, one MPA from the Kennedy School at Harvard, leading voices in intellectual property law, housing policy, and international environmental policy, dozens of well-placed law review and peer-reviewed articles), two of them have traditional big law firm experience and two do not (i.e. they come from the policy arena), but I can attest that each of them is regarded by our students as among the very best teachers we have. It's simply not an either-or.
2. There's a bit of either ambiguity or schizophrenia on the "practical" end of the spectrum. Sometimes you hear it as "practice-ready" which is something entirely different from bar exam-ready. You really don't have to have practiced much to teach a first year student the law in a way that will be helpful for the bar. I teach first-year contracts and occasionally get comments on the student evaluations to the effect that I take off on "theoretical tangents." That's always moderately amusing to me because my biggest disasters in now nine years of teaching have been things like Hohfeld's list of correlatives and my attempt to explain a particular Scalia opinion in terms of modus ponens logic. Both have long since been excised from the syllabus. There are, however, students who characterize as too "theoretical" what I would call "meta-thinking" about the law - that is, if you are practicing as a business lawyer, just what is it that you can accomplish by way of contract law versus other norms? Personally, I think that's at the very core of practical wisdom as a lawyer, and one of the benefits of having a teacher with long experience, but YMMV.
3. One of the commenters to Brian's post mentioned the differences between practicing skills and teaching skills, and the time it takes to develop the latter. Absolutely right. One of the things you have to accept as a long-time practitioner moving to the school setting is that teaching an effective law class is NOT like teaching a CLE course. Personally, I hated CLE classes when I was required to attend them; lots of droning on about dos and don'ts in tedious outline form, almost all of which I could have read in order to get the same information. It takes a lot of work to develop in-class teaching that harmonizes and builds effectively upon what the students are reading in the casebook and other materials. One upshot is that, notwithstanding your age and experience, you deserve to be treated, in a phrase I don't like generally as applied to new professors, like a rookie. Because you are! Indeed, there's an irony of some sort here, because I'd say that many long-time academics would say you are also a rookie as a scholar, and there's truth to that as well. (If you don't read your earliest work and gag on a frequent basis, you've got a real problem with self-deception.) But whereas there's a real issue with disciplinary cooptation in scholarship - i.e., resistance to work that doesn't quite fit in the discipline - I don't think there's any real dispute about what constitutes teaching excellence.
4. I've ragged on in various forums to the effect that in the new reality of most law schools tenure-track faculty will generally have to walk and chew gum - i.e. satisfy scholarly demands according to the disciplinary standards of both of the academic legal community as well as the broader standards within the university AND, like the professors mentioned above, satisfy their students and the alumni base that they are providing an effective education to that vast majority of students who don't want to follow in their professors' career footsteps. That's because law professors are pulled in two different directions, neither of which pull is going away any time soon - namely, that to succeed as a tenure-track or tenured scholar after the "normative turn" you need to be doing tenure level doctrinal or theoretical or empirical work that often doesn't translate to the classroom, and to be a good teacher you have to teach what is meaningful and helpful to the students, regardless of your scholarly interests.
5. One of the canards that floats around, however, is that law professors don't care about their teaching, and I react to it about the way I did to the canard that corporate board members were toadies, lackeys, and butt-kissers to the CEO. Simply: not in my experience. Skill and effectiveness levels may vary, but I have yet to run across a law professor at any school anywhere on the food chain who didn't care about being a good teacher.
6. Finally, I do think there is something to requiring an aspiring full-time tenure track academic in a university or quasi-university setting to signal (to Brian Galle's point) what I would call a tolerance for, if not a commitment to, in the absence of a better term, "the life of the mind." (Put aside my belief that there are whole areas of practice now the exclusive domain of lawyers and law schools that could be taught and practiced without a three year traditional law degree, and the university model need not apply there any more than it does for barbers or chefs.) The person who comes to mind is my friend Steve Bainbridge, who quite publicly proclaims (often and loudly in a metaphoric way) his impatience with both "law and ..." and empirical legal studies and his preference to focus on the law. Nevertheless, I don't think you ever pick up from Steve a disdain for intellectual pursuit or think of him as anything other than a university professor. (You can pick up a lot of other clever disdain from Steve - that's why we who disagree with him so much still love him - but not disdain for thinking!) Again, the analytical dichotomies tend to fail us. Late last month, I presented a paper at a day-long conference on "Hans Kelsen in America." The positive versus natural law debate in jurisprudence and philosophy of law is probably as divorced from practice as you can get, but I don't think there's any question that one can learn the kind of intellectual rigor you need in certain kinds of practice from that subject matter as much as any other. Will it help you if what you really aim to do is litigate plaintiffs' side personal injury cases? Probably not. But if you think law school, at least as presently constructed, should be about teaching only the skills necessary to try a tort case, you probably don't sufficiently tolerate the life of the mind to be on a university faculty.
7. To repeat a point likely buried in the preceding paragraph, does that mean that all practitioners of what presently constitutes the practice of law need to be educated in schools whose faculty are professors in the modern university conception of professors? Absolutely not. And even in the present system, if what you want to do is teach, you can as an adjunct, as a professor of the practice, as a clinician at schools where the job requirements involve teaching and service, but not scholarship, and all sorts of other accommodations to the very practical element of what we do. For myself, I wanted to be a university professor in that particular mold, to go back to a particular junction of a road not taken, and I accepted there was a particular gauntlet I was going to have to run.
Last year 46 leapt to their deaths from the Golden Gate Bridge. Last month the relevant government district approved a funding plan for a $76 million suicide net.story
Is the net likely to save lives? There are reasons to be skeptical: there are plenty of other places to jump from in and around San Francisco. And there are other ways to commit suicide---firearms being the most common and most deadly.
On the other hand, the research on suicide suggests that the net probably will save some lives.research Most suicide attempts are impulsive. Erecting any hurdle may deter the attempt. No other structure in San Francisco is as attractive as the Golden Gate Bridge, where there have been an estimated 1,600 suicides.story And switching to a gun in California is relatively difficult: there is a 10-day waiting period to purchase a firearm. Most suicidal crises pass more quickly than this.
Sunday, July 13, 2014
Refresh Rates and Traffic Rankings in the Law Prof Blog Network
Blog Emperor Paul Caron has the latest law prof blog traffic rankings up over at TaxProf Blog. If you look over the stats closely, you'll notice that all of the members of his Law Professor Blogs Network are up between 35% and 350% in traffic over the last year, with most of the blogs increasing between 100% and 200%. At the same time, I have noticed my LPBN pages automatically refreshing when I leave the window open.
So I guess I'll lay out my views straightforwardly -- I don't see any real reason to have auto-refresh other than to boost traffic. I suppose that if I wanted to just open up the blog and let the auto-refresh do my work for me, I could be assured of getting the most recent content. But if I leave the window open to a blog, it's often because I am in the midst of working my way through the past blog posts and want to come back to it -- not to have to figure out where I was. It makes viewing a video over time impossible, as well (as Caron himself notes). And if I'm on the page of a particular post, I suppose I might like the refresh to show any new comments -- but that's a pretty niche desire. What's more likely, perhaps, is that a lengthy comment will get "vaporized" by the refresh rates, as this comment thread indicates. (A great post & comment thread, BTW!)
So is the refresh innovation a real improvement in the blogging experience, or just a way to boost traffic?
The risk to catalyzed fans
As everyone in the Free World now knows, LeBron James chose not to re-sign with the Miami Heat and is on his way back to Cleveland to play for the Cavs, the team he abandoned (to angry rants and burned jerseys) four years ago. So it appears the efforts of two Miami sports-radio hosts to use charitable fan contributions to help keep James did not work.
This demonstrates the risk in Dan, Mike McCann, and my idea about fan action committees--it might not work and if it might not work, fans might not want to participate (I have not been able to find out how much money was donated to Boys & Girls Club or how many fans contributed). One way around that is to utilize a trigger, as many kickstarter campaigns do--the contribution remains only a pledge until and unless the player signs; this one did not have a trigger, and I imagine most charities will not allow triggers when the program is set up directly through the organization (as this one was). Alternatively, organizers hope fans still contribute despite the risk. Perhaps fans continue to donate as a way of engaging in the purely expressive act of showing their support for team and player; fans spend money on many things to support their team--why not charity? Alternatively, fans may be willing to participate because contributing to the charity is a social good (note the non-political nature of the chosen charity) and worth the donation, even if not achieving the alternative goal of convincing James to stay.
Friday, July 11, 2014
Over-Criminalization and Under-Funded Defense
Last year on this site, I initiated a petition to restore adequate funding for federal criminal defense. That petition garnered signatures from over 200 law professors. The state of affairs remains bleak. My friend and former colleague, David Patton, head of the Federal Defenders of New York, testified today before the House Judiciary Committee’s Over-Criminalization Task Force. Here is a link to his written statement1 and here are two excerpts:
“My office . . . represents indigent federal defendants in the Southern and Eastern Districts of New York. . . . We have a total of 39 lawyers. For those same two districts, there are approximately 300 federal prosecutors in the criminal divisions of the United States Attorney’s Offices. That is a nearly 8 to 1 ratio even though we represent more than a third of all defendants.” (p.7)
“Last year my employees and I took 12 days of unpaid furloughs – more than two weeks of not being paid – pay that will never be recouped. I was also forced to lay off several staff members and leave many positions vacant when others voluntarily left. Our clients and the cause of justice suffered in ways that cannot be measured.” (p.7)
Refereeing, Timekeeping & Floyd v. NY
One of the founders of this blawg has wondered, in private, about the fairness of the soccer timekeeping procedure. In soccer, the referee is the ultimate arbiter of time. The rule that trips up non-soccer aficionados, and perhaps Americans used to a separate timekeeper, is the fact that time is added on after 90 minutes based on delays during the game. The result is the same as in other sports, such as basketball or American football; but the way that soccer goes about it is slightly different—clocks don't publicly stop and start, and a sideline official announces how much "extra time" is added on at the end of each half.
The worry that was raised was one of excessive power. The thought is that, in soccer, there is room to cheat that is not present in public-timekeeping sports. In part, I think this is a cultural phenomenon rather than one specific to soccer. Other team sports, including all the non-American forms of football—rugby football (union and league), association football, Australian Rules Football—and field hockey, cricket, and so on, vest the power to keep time and enforce the timing rules in the same official: the referee/umpire. Where the Americans go for a separation of powers, these other teams do not. So the problem is not that the umpire has a an additional power from a timekeeper, nor that umpire has a different duty (to add on time as delays occur). Rather, the power and duty to keep and enforce time consolidated in same official, rather than separated among different officials, and that power is not open to full public scrutiny.
While separation of powers is a genuine concern, I think the real worry is the lack of publicity, given the consolidation of power in one official. Without the ability to scrutinize timing, the referee's ability to bend the timekeeping rule is greater than in public timekeeping sports. I'll explain how this timekeeping rule implicates Floyd after the jump.
It's worth noting that just because the referee has the ability to cheat, that does not mean she has a normative discretion to vary the timing. She is supposed to enforce the norm by accurately keeping time and ending the game on time. Furthermore, while the referee is not subject to detailed public scrutiny, she is subject to some scrutiny: the fans have watches; the stadiums have clocks, so everyone knows when the game is supposed to end. Hence the fans whistling as the end of extra-time approaches.
Furthermore, if the worry is that extra-time could contribute to match fixing, the that worry is minimal. It is the power to award penalties and offsides—to (virtually) add on or (actually) chalk off goals—that matters most there, and these are powers that no-one denies are vested in the referee. The real worry about misuse in relating to betting is spot-fixing: someone taking a bet on the moment the game will end, which is all that the referee has the power to control.
The lesson for discretion is that, just because the norm is not public, does not mean that the norm does not exist and is not enforced. The flip side is that failures to enforce are indeed departures from the norm and should be disciplined. Just because the referee has the ability to do wrong, does not mean she has the right to do so.
Once again, I think these features demonstrate that the referee is more like a police officer than a judge. A central aspect of judging is the giving of public reasons for decision. In soccer, the timekeeping rule does not require public reasons. Basketball, and other American sports, does provide a public reason for the continuing and ending of the game: the stop clock and buzzer.
The innovation wrought by the US World Cup in 1994 was that the sideline official introduced some transparency by indicating how much extra time should be allowed. The providing of even limited reasons was usefully inclusionary: it allowed neophytes the opportunity to understand what was going on, and provided some guidance to the players. In sociological terms, it increased the legitimacy of the timekeeping process.
Tom Tyler argues that social groups experience and interact with authorities and rules in a variety of ways. Groups may endorse and internalize the rules as valid or legitimate, and so accept the rule-enforcing authority's edicts without pushback. On the other hand, social groups may resist and externalize the rules, and so accept the authority's edicts only grudgingly, or if compelled to do so. The manner and degree to which one is able to participate in the enforcement process colors one’s internalization of the rules as legitimate or authoritative.
Publicizing the timing allows spectators to participate more fully in the timekeeping rule. It promotes a more interpersonal and less authoritarian or hierarchical appreciation of the game. And what is good for refereeing is good for policing. Rules that require the police, not simply to be polite, but to explain their behavior and interact with the pubic are likely to produce greater compliance with police directives.
Intriguingly, this is a feature of Judge Scheindlin's remedial order in Floyd v. NY. The police use form UF-250 in the field to memorialize her reasons for the stop. Judge Scheindling suggested that the form also include a tear-away section so that the person searched could see the reasons for the search, and so understand why the police had stopped and frisked them. Providing some insight into the reasons for the stop operates a bit like public timekeeping: it allows the person stopped to understand the reasons for the stop. I'm not so naive as to believe that providing reasons will obviate all the problems with stop-and-frisk. But, if done properly, undermines, even if only a little, the hierarchical relation between the officer and the person searched. Doctrinally speaking, the remedy demands that the police treat others as equals and articulate their reasons for engaging in a brief, weapons-related pat-down before continuing an encounter (a conversation that does not detain the individual, and so is based on consent rather than force).
I'm a fan of encounter-based policing. I'll explain why in more detail in the next week or two. But the short version is that, because individuals are free to stay or to leave, the interaction with the police is more egalitarian: the individual is able to "walk tall among others and look any in the eye, without reason for fear or deference," as Phillip Pettit, drawing on an 17th Century English republican tradition, puts it. Scholarship on consent certainly provides counter-arguments to this claim. Which is why I like prophylactic rules, and would, for example, favor a "free to leave" warning. But that is for a later post
For many years a large chain-link fence has separated a public housing project in New Haven, Connecticut, from a more affluent neighboring town, Hamden. New Haven “discovered that the fence, long assumed to sit on Hamden property, actually was built on land owned by New Haven. That allowed New Haven to tear down the fence without Hamden’s approval.” (NYT, 7/12/14).
But what about adverse possession? One answer is that New Haven has governmental immunity. “A public entity may claim immunity from adverse possession, however, only to the extent that the property against which a claim has been asserted is held for public use.” American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 77, 574 A.2d 796 (1990). Public housing is public use.
Don’t be fooled by the word “use.” In this context, it must mean a purpose, not actual or active use. If New Haven was actually using the land under the fence, Hamden wouldn’t have been able to establish the elements of adverse possession and no governmental immunity would have been necessary.
Thursday, July 10, 2014
Policing Sports: Basketball Referees are Lawless, and Soccer Referees are Lawful
Two of my interests are association football ("soccer") and policing. And I think the former provides some interesting insights into the latter. Soccer, and games in general, encapsulates relatively simple and law-like system of rules. Games are all the more law-like when enforced by referees and umpires. For the most part, the tradition when legal folks talk about umpires is to treat them as judges. I think that is—if not a mistake—then a little simplistic. The role of umpires and referees can be a little tricky, and somewhat culturally specific.
To illustrate the point, consider a phenomenon identified by Mitchell Berman as "temporal variance" in refereeing. The idea of temporal variance is a simple one: "at least some rules of some sports should be enforced less strictly toward the end of close matches." The justification is that "in the final moments, games should be won or lost by the players and not the officials.” The basic idea is that, at the moments when games are most likely to be decided, referees should "just let 'em play" and not insert themselves into the contest.
If you've been following the World Cup, you'll know that (even though valid) "just let 'em play," when stated as a rule of good refereeing practice, is a peculiarly American viewpoint. Both the Ivory Coast and Mexico were eliminated on last-minute penalties, ones that were pretty soft. The effect of enforcing the rules (assuming both penalties were at rightly awarded) was decisive. But, I'm about to argue, in awarding the penalties, the referees were acting more-or-less like judges; in turning a blind eye to these types of infraction, basketball umpires act more-or-less like police (or prosecutors). What's worse, they act like lawless police or prosecutors. What's worst of all, lawyers and judges often encourage the police to take a lawless attitude towards the law.
I should state up front that I'm not interested in the ins and outs of temporal variance. I'm interested in the fact that the referees have generated a set of background rules that regulate when to engage in temporal variance. These background rules are not part of the rules of the game. The are part of the unstated code of officiating. Is it legitimate for the referees to rely on this unstated code?
Two types of norms determine how we play a game. The most fundamental are the norms that constitute the game: what the players do, how points are scored, how we win or lose. These "practice rules" are the official rules promulgated by some governing body (even if they are just the rules that come in the box with the game). The rules of soccer tell us the size of the pitch, the number of players, and that players amass points by scoring goals.
Then there are the background rules of strategy that dictate what counts as good play. These background rules are not part of the official rules of play. Instead, they form a code of strategy or good conduct that tell players what to do in order to play the game **well**. They operate in concert with the rules, to fill gaps left open by the rules. Boxing out players under the basket or in the six-yard box; or making sure the goalkeeper does not stray too far from the goal-line when the opposition could lob the ball over her fall into this strategy/conduct category.
Referees can also generate background rules of good refereeing, just as players generate rules of good play. So basketball referees appear to have a shared code of conduct: in the last seconds of the game, there are certain contact-driven fouls they will not call.
The background norms of good play or good officiating are relatively autonomous. They are not part of the official rules of the game, and do not become part of the official rules of the game, because the players or officials who generating the rules are not a proper rule-promulgating source. These background rules might bind other officials. But they do so not through the law (not through the NBA, or through FIFA or IFAB, the body that generates the rules of soccer) but through some extra-legal institution, such as the referees union or some such group.
At least in the context of the "let 'em play" type of background rule, there is a crucial difference between the referees' code of conduct and the players'. It's this: there is no express rule of the game that permits the referees to engage in non-enforcement; nor is there some gap through which their background standards of good officiate operate to permit non-enforcement. The referees are not using these background standards of officiating to interpret the official rules or specify how they apply: they are using their code of officiating conduct to supplant and replace the express rules of basketball.
In generating non-official but binding rules of conduct, the referees operate like an executive, administrative body. They operate like cops. Cops like other administrative officials, can generate a relatively homogenous background set of rules of officiating strategy, that is, rules about how to apply the rules. Some of these rules are developed thanks to an express grant of rule-making discretion from some other body. And some are not. "Let 'em play" falls into the "some are not" category.
Judges also generate these types of rules. The judicial equivalent of "let 'em play" are the sorts of managerial rules that, e.g., promote the settlement process pre-trial by setting general scheduling parameters and then delegating the actual process to the parties. These managerial rules are a lot like the sort of administrative rules discussed above. Crucially, because the judge possesses an express permission to make the these types of managerial rules, these judicial versions of "let 'em play" are lawful. Without the grant of rule-making discretion discretion, they would be acting unlawfully.
Basketball referees might be acting lawfully if "just let 'em play" is the basketball analog of the police discretion not to enforce some applicable legal norm. The permission not to enforce is, for the most part, a distinctive feature of the police and prosecutorial roles, rather than the judicial one. In part, that's because cops don't have to give reasons not to enforce, but the courts do. But for the most part, the license not to enforce is an express license, recognized by the courts, based upon the need to choose where to place their energies.
Let 'em play could derive from an express license to choose non-enforcement. FIFA may have issued refereeing to this effect edicts at the current World Cup. That means that in soccer, non-enforcement derives from an express license not to enforce (in fact, from an order not to). To the extent that the referees simply apply the rules, they act in ways indistinguishable from judges (but also the police).
"Let em play" could be appropriate when enforcement practice is within the boundaries of set by vague official rules. Here, the officials have the delegated discretion to specify or concretize norms of official conduct where rules are squishy. Again, this would be acting like a judge. But it's not OK when enforcement practice is outside, and in opposition to, rules. Such enforcement practice is not "discretion" but something else. In that case, the background rules of the officials do not fill an interpretive or normative gap. Rather, the background norms of officiating operate to supplant and replace the official rules.
There is no express license to "let 'em play" in basketball. Instead, "let 'em play" derives from unofficial background rules that supplant the official rules. The referees who engage in this practice are lawless. Rather than enforcing rules, they are enforcing a different standard of conduct generated behind closed doors in a manner unavailable to public scrutiny.
The fact that their enforcement practice fits within (one portion of the) public(s) perception of justice does not make it more defensible: on the contrary, it raises problem of "our" rules versus "their" rules, or selective enforcement worries. What's more, in setting up private, institutional rules of enforcement in opposition to the rules of the game, or the law, the officials fail in one of their major role-based duties: to uphold the rules of the game, or the law. There may be good reasons for acting in opposition to the law. But because the failure of an is so significant—acting directly against the duty is the worst sort of failure of duty there can be—the justification for this type of conduct would have to be pretty weighty.
Like basketball referees, cops could decide that the certain legal requirements are pretty dumb, and develop some internal policy to and replace it. But, again like basketball referees, cops lack the right (really a "permission," that is, an Hohfeldian license-right) to change the law. So their internal policy would not fill out the law, it would act in opposition to it, and so be unlawful. Evidence obtained under such policies would be illegitimately obtained.
There is plenty of evidence in, for example, the giving of Miranda warnings that the police do have practices designed to work around and in opposition to the law, and that these practices are generated by lawyers who train the police in the law. The phenomenon is not, however, limited to the Fifth Amendment, but applies under the Fourth Amendment as well.
Finally, my point does not depend upon two related canards. This is not a rules/standards issue, nor is it a British (or European) formalism versus American realism issue.
The issue is: who gets to change the rules and by what procedure. Judges have a limited legal license to change the rules in applying them; the police have no such license. Yet the police, like basketball umpires, sometimes generate an alternative set of norms that they use not only to interpret the official rules of the game, but to supplant (and so ignore) the rules of the game. This body of norms may obtain some public support, and so arouse little controversy. But populism is not legitimacy, and supplanting the law with some other system of norms is lawlessness, even if it is popular or populist lawlessness. Lawlessness from those charged with upholding the law is an egregious moral failing. And to the extent it is encouraged from the bench and bar, the legal profession participates in that egregious moral failing.
Wednesday, July 09, 2014
A recent survey found that 29% of Americans could not “name any of the specific rights that are guaranteed by the First Amendment.”survey1 Some concluded from this that “Americans have failed their 2014 civics test.”reaction
Perhaps true for those 29%, but should we care? An April 2013 survey of likely voters found that 99% think the right of free speech is important to them.survey2 It seems Americans know that there is a right to free speech---many just don’t know that its source is the First Amendment.
Knowing about the right but not the source will obviously be good enough if they decide to file a pro se complaint. Alleging a “free speech” violation, or even just the underlying facts, puts everyone on notice that the First Amendment is implicated. “[T]he rules of notice and fact pleading permit a complaint to omit citation to precise legal theories or statutory provisions so long as it alleges facts sufficient to give rise to those theories.” Cardiovascular Surgery of Alexandria, LLC v. Kerry, No. 10-1003, 2011 WL 672244, at *5 (W.D. La. Feb. 17, 2011).
Tuesday, July 08, 2014
A General Counsel's Advice to A Law Firm - Circa 2004
Nothing promotes de-cluttering one's office like a move or new furniture. A colleague is retiring; I bought his table and standup desk, and gave up the humungous thing they gave me when I showed up. It meant tossing lots and lots of stuff I never look at anymore (and goodbye hundreds of reprints - may you recycle into something far more valuable).
I found the notes from a talk I gave in Chicago to a 2004 meeting of the firm then called Piper Rudnick - a combination of Piper Marbury of Baltimore and Rudnick & Wolfe of Chicago soon to absorb Gray Cary, and thereafter to merge with Dibb Lupton of Great Britain to become the behemoth DLA Piper.
At the time I was the general counsel of Great Lakes Chemical Corporation. Piper had done a lot of our work under the various EPA-administered statutes that regulated household and other chemicals - TSCA, RFRA (the one dealing with rodenticides and fungicides, not the one dealing with religion), etc. It had succeeded in securing more work through a "Preferred Provider Program" our terrific Associate GC, Joanne Smith, organized. In Chicago, I was on a panel with the general counsel of AON, a senior lawyer from Boeing, and one other I can't recall now. I do remember it was a big room with a lot of people in the audience.
Ten years later, there isn't much here that I'd change - other than I wouldn't have notes on lined paper but would instead have used the Speeches app on my iPad. A reconstruction of the talk from my notes follows the break.
[Cross-posted at The Legal Whiteboard and Legal Profession Blog.]
Thank you for inviting me here. I am the Senior Vice President and General Counsel of Great Lakes Chemical Corporation, one of your most important clients. Actually, your most important client. (Laugh.)
Compared to the other companies represented on the panel, we have a relatively small legal staff inhouse, with four lawyers who serve on the management teams of our business units and manage our litigation, as well as two paralegals. Based on benchmarks to other corporations our size or in our industry, we are highly skewed to outside counsel. [Note: as I recall, we had a budget of something in excess of $10 million per year, more than 80% of which went outside.]
I'm going to talk about "convergence" [Note: I don't know why I used that particular jargon now; maybe it was the theme of the panel. I am pretty sure it meant trying to figure out how our business interests aligned rather than competed] and firm-client partnerships. Our relationship with Piper is an example how we create win-win out of both. I've been on both sides of the relationship - as a big firm lawyer for 15 years and a GC for ten years - and as I told a reporter for Crain's a few years ago, "there's no gamekeeper like an ex-poacher."
As to convergence of interests:
- It all turns on leverage. Our mutual opportunity to reduce costs increase with the volume of legal work we give to your firm.
- What are the implication of becoming one of our "preferred provider firms" (and thus "converging" with us)?
1. It's harder to get in than to get out. The benefit to you is that we don't replace firms willy-nilly.
2. It's the total value and the total cost, rather than hourly rates, that matter to us. We want you to eliminate non-value added work, like the things you do to CYA or the "partner review" that the associate really doesn't need. We want your processes to be more productive.
3. The old paradigm of wining and dining your clients to attract and maintain business has fallen away. I don't want your lunches, dinners, football tickets, golf outings. Direct all of those costs and all of that effort to adding more value to my shareholders.
4. Look to the long-term of our relationship.
As to our "partnership,"
1. In the time-honored tradition of consultants everywhere, I'm going to employ the classic four-box matrix of low to high on two factors. In my case, one axis is "Client Orientation" and the other is "Legal Results." If you are good on both, the world is your oyster. If you are bad on both, I hope your other clients appreciate you because we've moved on to another law firm. If you are great on results, but your orientation stinks, or if you are great on orientation, but you aren't performing, trust me: we are looking around and our relationship is on thin ice.
2. What does that mean for you?
a. There's some overlap but I've given you a handout [Note: how quaint! Powerpoint existed, but I hated it even then.] I have categorized the "to dos" by People, Processes, and Technology [Note: I have a lot of material here, but I do like a lot of it. There's a sheet giving examples of characteristics of superior performance and client orientation in each of the three categories. Here are some of my favorites. Under People-Performance, "Not afraid to express a business view; Doesn't lose sight of the distinction between advocate and counselor, and switches roles effortlessly, seamlessly, and clearly; Is willing to make decisions and take calculated risks with the concurrence of the client." Under People-Client orientation, "Answers own phone, returns calls promptly, uses voice mail appropriately; Speaks the language and understands the concepts of modern business (lean enterprise, Six Sigma quality, etc.); Delights the client with unexpected expertise, client sensitivity, self-confidence, unfailing honesty and directness, and panache.]
b. I will focus on my particular bugaboo, which is our ability to forecast.
(i) We are financially-driven organizations. Love it or hate it, we are measured by the earnings we report on a quarter-by-quarter basis. After Sarbanes and the Enron-WorldCom debacles, it's clear that the world isn't as tied as it once was to making one's numbers to the penny, but there's still a substantial tension between what a company reports and what the securities analysts expected. We are a multi-billion dollar company with over 4,500 employees. Notwithstanding that apparent size, I repeat over and over again that the math is easy - every [high six figure number in dollars] equals a penny a share in reported earnings. So what we pay your firm every year is a significant percentage of our earnings.
(ii) I understand there are problems that it is going to cost money to solve. I also understand that we (and you) don't control all the timing of all the problems all the time. But generally speaking, we can deal with it if we can predict it, and the longer lead time of prediction, the better off we are.
(iii) Hence, we DEMAND as a condition of your retention that you enthusiastically and accurately participate in our quarterly reforecasting process. I have just completed my run through our anticipated 2005 budget. For outside counsel, we itemize matters line by line. We don't put in a lot of slush for contingencies. But we know the budget will be obsolete shortly after the beginning of the year. Hence, every three months we review every item and ask you for your best estimate of the costs expected for the remainder of the year.
(iv) There are implications of this budgeting and reforecasting process.
(A) It's not a second chance for you to recoup a forecasting mistake. It's our process for recalibrating on account of uncertainty and contingency.
(B) Lags in your system being doing the work and billing for the work can cause me no end of grief, particularly if the amounts are big. I'm not promising you we'll pay you any sooner because your lawyers are timely in submitting their time sheets (I mean on a daily basis!) or you get your bills out on time. But I want to be able to call you on any given day and know to the penny how much work has been done through the preceding day.
(C) In other words, garbage in, garbage out. Your senior partners are going to love the fact that what I'm saying is that it's a condition of working on our business that you submit your time EVERY DAY into a system that is capable of telling me EVERY DAY what costs you've incurred on our behalf.
* * *
At this point my notes, the last two pages of which are scrawled on the back of Yahoo Maps directions from Midway Airport to 230 N. Michigan Avenue, end abruptly. No doubt the talk did as well.
Thoughts on Work-Life ImBalance from Those Left Behind
Friends, I suspect many of you recall the world's light dimmed in the aftermath of Andrew "Taz" Taslitz's untimely death earlier this year. Andy made the world brighter through his ebullient spirit, infectious laughter, and tireless work on behalf of improving the criminal justice system and the lawyers thrust into its maw.
Since it's summer time and many readers of the blog are just beginning their teaching careers, I thought I'd share a post of Taz's widow, Patty Sun. This is reproduced with her permission from Facebook:I'll post this on Andy's FB page because I'm not sure anyone reads mine anymore, and while this can apply to anyone, it's really addressed to law professors. In the past 4 months I have kept seeing accolades to Andy's amazing productivity - the 100+ articles, the zillions of case books, etc., and I have always told people that yes, he led a normal life, yes, he got plenty of sleep and yes, he even took plenty of naps.
But that's not really true. His life was not normal, at least not to me, and it certainly wasn't balanced. Yes, I know he genuinely loved his work and yes, I know he had a brilliant and unusual mind, and yes, I know he was cut down in his prime when he still had so much more to give.
But all of that came with a price. Not the teaching or the mentoring, but all that scholarship. A few years ago the chair of some symposium set an absolute deadline for everyone to get their drafts in, and by then, even I knew that academics never did that, so I told him to relax and finish it at a normal pace. So what did he do instead? He sacrificed an entire weekend and worked 12 hours both Saturday and Sunday, because damn it, HE was going to submit his draft in on time. So of course what happened? NO ONE else was even close to done by the deadline so the chair had to give everyone else a long extension. And did he mind? Not really, because it just freed up more time for him to do another encyclopedia entry or edit another friend's manuscript.
So what was the price in the end? In the entire time we were married we only took a two-week vacation once, and just about every vacation we did take was wrapped around one of his conferences or presentations. The furthest he went on each of his two sabbaticals was his front bedroom, because he spent every single day on his manuscripts. He turned down trips to China, to South Africa, to Japan, and most impressively to me, he twice turned down a chance to be an observer at Guantanamo. Of course he always had different reasons - S. Africa wasn't safe, the timing of the China trip was bad, etc., but I knew the real reason was he didn't want to take time away from work.
It was only the last vacation we took, to Vermont two years ago, that truly had no relation to his work, and then last year when we finally booked a 2 week cruise to Alaska we had to cancel it after they found his tumor a month before we were supposed to go.
So in the end how do I feel about his productivity? Yes, he enjoyed it, but he also killed himself trying not to disappoint people or to break deadlines.
And as I sit here with the dogs on July 4th, I think was it really that important to add one more book review to his CV or to do one more tenure letter as a favor for someone he never met? I'm glad his peers all loved him for the reliable genius that he was, and I don't know how he feels wherever he is now, but I am very, very bitter.
Yes, he was a great academic mentor and collaborator, but the price for all that frenzied output was me, and there's a part of me that will never forgive him for it, because he died right after he promised to slow down and enjoy life itself more.
So think about it, members of the "academy." All that talk about US News rankings and SSRN citations. Do you REALLY think stuff like that is life and death to your loved ones? I think most of them would sacrifice one more line on your resume for one more day of quality time with you. I know I would. But it's a bargain I can't make any more.
I know that pre-tenure and post-tenure are different worlds, but in Andy's case getting tenure didn't relax him a bit. It only spurred him on to work harder to prove, I think mostly to himself, that he really did deserve it. And it never stopped, because he could always find another reason to choose work over play, becoming active in the ABA, signing on to yet another new project where he could work with good friends or meet exciting new people, and of course lately, brainstorming ways to keep his law school competitive.
I'm not saying Freud was wrong when he said you need both love and work to be happy; in fact, my own work is one of the factors in keeping me sane now, but I believe equally strongly in the Golden Mean. I know that Mean differs for everyone, but Andy always found a reason to keep the needle tilted very far to the work end. I know that kept him happy, but love always involves other people, and anyone who cares about that other part of the equation would do well to remember that if you always decide to choose the work side of the balance you run the risk of having no balance at all.
Determining the effect of video
Just coincidentally, three stories are simultaneously in the news involving potential police misconduct caught on video. The recordings are after the jump (these are partial, although fuller recordings of some are available):
1) A California Highway Patrol officer (Erik Estrada never did this) takes a woman to the ground on the side of the highway.and repeatedly punches her, including in the head. The video was taken by a passing driver. The matter is under investigation.
2) A South Carolina state trooper arrests Sam Montgomery, an NFL player, for driving more than 25 m.p.h. over the speed limit. The officer threatens to TASE Montgomery for not cooperating. This is dashcam video. The trooper was suspended for failing to treat Montgomery with the expected courtesy.
3) A Lafayette, Indiana police officer shoves a man in a wheelchair with two hands, causing the chair to tip over and the man to go sprawling on the sidewalk. The shove occurred after the man rode over the officer's foot while departing an encounter with the officers, who had been called to the scene when the man allegedly told officials at a school that he had a gun. The department sought to fire the officer, but a civil service board reduced the punishment to a 30-day suspension without pay, demotion, and probation. This is dashcam video.
These three stories tell us a few things about video and its role in parsing events.
First, it should call into doubt the argument that allowing citizens free-range to video police in action will change officer behavior, making them over-cautious because of how things will "appear" on the video and the snap judgments people might reach. But video in two of these cases came from the officers themselves and, even knowing they were being filmed, they still engaged in some, at least, questionable behavior. So if officers are threatening and shoving people knowing they are being filmed by their own cars, there is no reason to believe that thei behavior will change by the possibility of being filmed or recorded by someone else. And that is before any argument that we want the chilling effect that the threat of video might have on officers.
Second, these videos show why the Supreme Court was wrong in its treatment of video on summary judgment in Scott v. Harris and this past term in Plumhoff v. Rickard. The videos do not "speak for themselves," as demonstrated by the wide range of responses to them, responses that seemingly confirm the Kahan thesis about how personal characteristics and political preferences affect perception of video. There likely is more that each video does not show or fully contextualize. If we would not grant summary judgment in favor of the arrestees in any of these cases (and I doubt we would), then we should not grant it in favor of the police in other video cases.
Third, I have to admit to feeling some sympathy for the trooper in # 2. Reading press accounts, it sounded like the officer simply started out acting in an overbearing and overofficious manner. But in watching the video, Montgomery is not following the officer's instructions to put his hands behind his back with his palms up in the air, keep his feet apart, and face away from the officer. The reason appears to be not resistance but confusion about what the officer wanted and how to do several things at once (try putting your hands behind your back with palms up--it's not a natural position). So while the officer perhaps jumpted to the TASER pretty quickly, it sometimes is hard to distinguish confusion from disobedience. Of course, given my political and social views, my viewing the video in that way flies in the face of everything Kahan, et al. would have predicted.
And now the videos. Draw your own inferences as if you are a juror, think about inferences if you are a judge on a motion for summary judgment.
Monday, July 07, 2014
Last week, New Jersey Governor Chris Christie vetoed a bill that would have reduced the maximum size of a gun magazine from 15 to 10. Christie claimed that it would not have reduced gun violence: “Nor is it sufficient to claim that a ten-round capacity might spare an eleventh victim.”nj.com
But Christie did more than veto the bill. He offered in its place a new standard for involuntary civil commitment of people who may not be deemed dangerous, “but whose mental illness, if untreated, could deteriorate to the point of harm.”nj.com A similar proposed expansion of the civil commitment standard is pending in Congress (H.R. 3717).
The merits and demerits of the magazine size and civil commitment bills are beyond the scope of this post. I want only to observe that expanding civil commitment to prevent violence falls within a long U.S. tradition of preventive detention. Other targets have included Japanese Americans, terrorists, mobsters, and sex offenders.my article Most directly on point, Virginia also broadened its civil commitment standard after the Virginia Tech massacre, but didn’t spend the money needed on beds to give the change any practical effect.
Is Rote and Mindless Legal Practice Our Standard?
Last week, I suggested that the legal academy could do with providing a more concentrated study of legal materials to prepare students for practice. I actually think the case could be made stronger: for many, not only is knowledge of the legal materials in a given doctrinal area our core competence: it is the central obligation of the legal academy to provide competence in legal doctrinal knowledge.
I chose criminal law as my central example. But my point was supposed to apply more generally to torts, contracts, family law, and so on across the curriculum. In short, the argument is that concentration in a particular practice area should not simply mean a wider range of courses, it should primarily mean greater interaction with the extant doctrine.
My claim is that the substantive version of "practice ready" does not require the academy to match practice. I think that is especially the case if the bulk of practice involves the equivalent of agency capture, so that the lawyer becomes divorced from the clients, and instead becomes part of a quasi-bureaucracy. That may be a feature of production-line litigation, and the criminal law may be more prone to that style of litigation than other fields (although tort law shares some of these characteristics). But equipping lawyers to recognize complexity and co-option when it occurs should be part of our teaching mission. Where judges and co-counsel fail to see the issues.
Here's what I think is the most powerful pushback against the doctrinal knowledge thesis: most lawyers are engaged in low-level practice. Low-level practice is more social work than law. Accordingly, lawyers don't need legal knowledge, they need people skills. If they do need legal knowledge, either it's really simple legal knowledge—how to enter into a contract—or it's already in the system—filling in the blanks in an estate plan. Legal practice just is dumb: it's rote and repetitive and doesn't require much beyond the stuff you learn for the bar.
There are two problems with this vision of practice. The first is it makes lawyers redundant, quite literally. Online forms can replace the cut-and-paste document, and specialty courts can provide a forum for self-representation: the Benthamite ideal of a legal system without lawyers. The second is that this is an image of a broken practice. I go to a lawyer to fill out my estate plan, not because I couldn't do it myself, but because I value their expertise in working out what the consequences are for doing it one way rather than another. I expect the lawyer to be able to tell my why I need to do it this way, what my options are, and what the consequences might be if I choose one planning device rather than another. Even at the level of a solo practice, that requires a lot of legal knowledge.
In the criminal sphere, the Court in Argersinger made this point in 1972: "We are by no means convinced that [the] legal … questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more."
Understanding where and why legal issues become complex is what makes someone a good lawyer. It explains why lawyers are necessary, non-fungible, individuals.
Now it could be the case that lawyers are, in general, not necessary, and that people could just as well represent themselves. That's Jeremy Bentham's ideal legal system. But I don’t think that is the case. I was struck by something that Ted Cruz said in his New Yorker feature, concerning his briefing of the Medellín case: the major issue is how to frame the case in a way that wins (classic parliamentary debating move, by the way). He knew that under the standard framing of the case, he would lose. But by changing the framing, he made it much more likely that he would win. This is what good lawyers do (I've had the privilege of working with some pretty good ones from time to time). Some of that is by framing the facts in a way that is persuasive. But some of it is understanding which issues to focus upon. If you don’t know the issues, you can’t frame the law or the facts in a way that is persuasive.
Perhaps criminal law is the wrong place to emphasize the importance of a nuanced and deep understanding of the law. I’m not sure that’s true: if so, the Court was wrong in Argersinger. I guess the point is, dismissing whole areas of practice as ones in which knowing the elements is enough seems a little flippant: what might be useful is to work out which bits of a given practice area could bear more emphasis. Some of these areas are traditionally recognized as hard and focusing on them in depth makes for good lawyers. Some may be hidden, or novel, and so we could do better at thinking about what doctrine lawyers need to know to practice in, e.g., veteran’s courts. And it may be that the practice of law in some areas is poor, perhaps because of administrative-style capture problems, but those problems can be addressed in school and students taught to think about them and their responsibilities, rather than just accept them.
We might think that certain types of practice involve capture by the courtroom workgroup, so that the lawyers serve each other and the judge, and don’t worry about the interested of the parties (including the state). But if that’s what practice-ready means, then so much the worse for the legal profession. The "happier" version of this dire picture (described by Malcolm Feeley in "The Process is the Punishment") is that low-level lawyers are glorified social workers, helping their clients through a hostile system.
So I don’t think teaching to the Bar—the lowest common denominator—is making folks good lawyers. They may be ready for practice, but it is a practice that does not well serve the client or the profession. This is particularly true of practice in county and municipal courts. And even the best-intentioned of judges may not realize the legal problems their rulings entail. Judges need specialists to help guide them through the law. A good lawyer simply cannot expect the judge to know the law governing the case: the judge is a generalist, and has to be brought up to speed by the lawyer. In such circumstances, it’s enough to churn cases: the lawyer needs to explain the law, and the consequences of various decisions. Doctrinal knowledge is, for the most part, all the lawyer has at this point.
Legal knowledge is also a competitive advantage in the office. When a new attorney arrives who has studied lots and lots of cases above and beyond the classes (as a research assistant, on law review, and so on), they spot issues the less well read do not (I've been on the receiving end of that experience). They are immediately more valuable to the upper level-associate or the partner (or the judge): and that goes double for small firms as for big ones. That’s value added. Having only a Bar-level knowledge is value-subtracted, because it places lawyers at a competitive disadvantage to the better read and more thoughtful lawyer.
I recognize that, after a while, lawyers get up to speed and stay up to speed, in part because they specialize. But I’m not judging things by the third or fourth year associate who has already specialized: if practice-ready means something, it could mean that the first-year associate actually knows something about the doctrine and can add something to the case.
For better or worse (better, in my opinion) we are part of the academy, and are interested in producing not simply "skills" but knowledge. When challenged, we should double down on the idea that law schools produce knowledgable lawyers, and legal knowledge is not an elite skill, but a grassroots skill. It creates value in the office, the courtroom, and the conference room. And, as luck would have it, it's the value those of us with the time to study and think about the law have the greatest competence to impart.
Sunday, July 06, 2014
A Football Epiphany About Teaching Transactional Complexity
As the author of the preceding post under my name noted, in recognition of the significant birthday constituting the forty-seventh anniversary of my bar mitzvah, my wife took me up on one of my long-time fantasies and enrolled me in the men's football camp at the University of Michigan. (Note: for those concerned about gender equality, the men's camp, raising money for prostate cancer research, had 73 participants. The women's camp, raising money for breast cancer research, and which followed two days later, had over 500 participants.)
It turned out the most significant aspect of the experience was not my completing a pass in Michigan Stadium while wearing a boot on account of the ruptured achilles tendon incurred in the third drill.
No, as discussed following the break, it was the "aha" moment about my own teaching of transactional complexity that occurred in the first "team meeting."
My upper level classes include securities regulation, unincorporated business entities, and a new course this coming semester entitled "Entrepreneurship, Venture Capital, and the Law." One of the skills I try to introduce to students is the unraveling of transactional complexity. Hence, we spend a lot of time not just on the doctrine, but also digging deeply into cases where even understanding the facts takes a fair amount of sophistication. The diagram at left, for example, is the structure of the recent Achaian case in Delaware Chancery, dealing with management issues within an LLC.
And I advise students that the exam will require they unravel transactional complexity before getting to the doctrinal issues. Hence, at right is a graphic example of a deal structure that underlies the narrative in an old exam. But notwithstanding what I do in class and my advice to students about what they will need to do to prepare, I am invariably disappointed, by and large, with that aspect of their performance on the exam.
But I learned something about dealing with that in, of all things, the football meeting in Ann Arbor.
As we concluded our brief tour of the facilities and filed into the team meeting room, the coaches handed us a "playbook," a three-ring binder with about two dozen pages of diagrams of offensive and defensive formations. You will have to take my word (heaven knows there are readers loyal to the Team Whose Mascot is a Hairless Nut) that even that chunk of information, itself only a fraction of what the football players themselves need to know, was overwhelming on first glance. For the offense, there was a full page of procedures for the huddle, a page on offensive personnel combinations (i.e., the number of running backs, tight ends, and/or wide receivers that would be on the field), four different formations for each combination, two dense pages of general offensive terminology, a page each for passing, running, and "play action" (i.e., faking a run and then passing) terminology, then diagrams of eight different plays. The section of the book on defense was equally detailed.
So when you are playing, you need to have all of this processed and you don't have time to think about it. When the coach calls "11 doubles LT 3 jet comebacks," you have to know immediately what it is you are supposed to do and then go do it.
As I said, I was impressed with the complexity, and overwhelmed by the idea that I was going to have to absorb this before we took the field the next day. No doubt my/our level of absorption would have been as disappointing to the football coaches (if this were serious) as mine in my students' internalizing of transactional complexity.
I spoke to Brady Hoke, the head coach, about this aspect of teaching. The answer is that it is indeed complex and a teacher (whether football coach or law professor) cannot expect that the students (whether football players or lawyers-in-training) will perform well without practice, and in particular repetitions under which the skills become second nature. And I am pretty sure he liked the fact that I, a law professor, had just learned something about teaching from a football coach.
My epiphany was that there is no other experience in law school that teaches that unraveling skill. While I am not springing anything on the students that they haven't been "taught," all of my interim methods of evaluation (e.g., practice questions at the end of each topical unit) focus on the doctrine rather than the complexity itself.
So next year, I will add regular exercises in unraveling narratives in my transactional courses. The point of the exercises will not be to solve the doctrinal problem, but merely to be able to diagram, for example, the corporate and subsidiary relationships, who the members, shareholders, or partners are, or what is being exchanged for what in the transaction at issue. I suspect a salutary effect, when we finally get to the exam, will be measurably fewer instances of partnerships being mistaken for LLCs, limited partners being mistaken for shareholders, fiduciary duties being imposed where not applicable, and more of the subtle doctrinal issues being spotted.
Saturday, July 05, 2014
EPA's Decentralization of Policy-Making: The Obama Administration varies regulation with citizens' willingness to pay for it
It is probably bad form to brag about one's students, but it is worth a breach of etiquette to publicize their work. With his permission, therefore, I am posting Joe Kolatch's outstanding paper on the EPA's proposed rule on energy utilities' water intake systems, written for my Federalism Seminar. (Download Joe Kolatch 316b Paper) Aside wanting to publicize Joe's work, I want to publicize an interesting example of the EPA's apparently endorsing a theory of decentralization more frequently associated with conservatives -- the idea that the level of environmental regulation should vary with a subnational community's willingness to pay for it. Conservatives sometimes give the Obama Administration guff for alleged command-and-control centralization in environmental regulation. But, as Joe notes, the EPA's proposed section 316(b) rule is an example of environmental federalism for which (if you like that sort of thing -- I do) the Obama Administration deserves some credit.
The EPA's proposed rule implements section 316(b) of the Clean Water Act by setting standards for the "entrainment" of critters by water cooling systems used by energy utilities. Utilities suck up billions of gallons of water from river to cool their machinery, and critters that get sucked up with the water are cooked as they are "entrained" through the pipes. Utilities can avoid such slaughter of river fauna by installing cooling towers with self-contained systems of water -- but the cost of such towers runs into the billions. Do the benefits of saving larvae and small fry justify increasing citizens' electric bills?
EPA's proposed rule says, "it depends on the citizens." According to the EPA's survey of residents' willingness to pay for environmental quality, tastes for environmental protection vary a lot from jurisdiction to jurisdiction, ranging from a high of $2.52 for a percent reduction in critter mortality in the Pacific region to only 75 cents in the Southeast. So the EPA proposes that each state be permitted to conduct their own cost-benefit analysis to strike their own balance between environmental protection and cheaper energy.
This approach to environmental law is music to my federalism-lovin' ears. According to Wallace Oates' Decentralization Thereom, there are big welfare gains to be had from varying regulation to suit the people affected by the rules. Moreover, as Joe notes, any state agency lacking the personnel to crunch the data on local citizen preferences and critter kill rates can either just adopt the blanket "cooling tower" rule (i.e., maximal protection) or ask the EPA for technical assistance: Scale economies in scientific information, therefore, do not require a nationally uniform standard.
Anyway, take a look at Joe's paper -- an admirably succinct, clear, and intelligent summary and analysis of an important but obscure case of environmental federalism.
Thursday, July 03, 2014
Two Kinds of Federalism in Hobby Lobby: Does state corporate law define federal free exercise rights?
As Howard Wasserman and Michael Moreland both note, Hobby Lobby's limits on the ACA and similar legislation will not impede state legislatures from forcing employers to provide benefits to their employees, because Boerne insulates state employment and insurance regulation from RFRA challenges. Michael Moreland in particular notes that such a strategy of giving states more power than the feds to resolve questions of religious liberty might be consistent with an overarching vision of federalism under which the Constitution decentralizes "deeply contested moral questions" to reduce the animosity and gridlock that a national debate would inspire. In effect, Blue States and Red States are each invited to resolve the question of employers' religious autonomy in their own way, subject to some minimum outer constraints on state laws that either unreasonably burden or benefit religious practices.
As I have noted before on this blog, using federalism to decentralize the definition of liberty and equality is an under-appreciated way to give equal concern and respect to opposing sides in the Culture Wars, each of which have plausible views about the scope of constitutional liberty. The blogs and twitter feeds ring with indignation and exultation about Hobby Lobby, as if there were some plainly correct way to define the religious autonomy of private organizations. The truth, however, is that the relevant text of RFRA is semantically vacuous and canons of construction for filling these semantic gaps are contested and conflicting. The invective hurled by each side at the other is more a tribute to the intensity of their convictions than the persuasiveness of their logic: It is a patent fiction to pretend that Congress ever really reached any consensus about the proper scope of employers' religious liberty in RFRA. Absent such a congressional consensus, one might urge a narrow scope for contentious federal statutes like ACA by adopting a broad reading of RFRA and thereby giving each side a chance to test its vision of religious liberty at the state level. Hobby Lobby did not urge any such federalism-based argument for its narrow reading of ACA, but such a federalism canon strikes me as the strongest argument for the result that the majority reached.
But one might reasonably reply that it is easy for me to be gooey-eyed about Hobby Lobby's benefits for federalism, given that I am not nuts about the idea of using mandates on employers to deliver health insurance. Is there any theory of federalism more comforting to the friends of ACA's employer mandate? There might be -- in Hobby Lobby's reliance on states' law of corporations to define proper corporate purposes.
In response to Justice Ginsburg's dissent about the purpose of for-profit corporations, the majority noted that "the objectives that may properly be pursued by the companies in these cases are governed by the laws of the States in which they were incorporated." Later on in the opinion, the majority responded to the dissent's concern that the owners of corporations might disagree about whether and how to advance religious principles by again invoking state law, noting that "[s]tate corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure."
Do these brief statements suggest that a state legislature could revise its law of corporations to limit the purposes that for-profit corporations can pursue? Could, for instance, state legislatures enact a new measure providing that, as a condition of getting the benefit of limited liability, individual businesses that adopt the corporate form cannot pursue religious purposes that require exemptions from generally applicable employment or insurance laws to which businesses are normally subject?
I certainly hope so. SCOTUS has, of course, a history -- an inglorious one, in my mind -- of using doctrinal devices like the doctrine of unconstitutional conditions to limit state power over corporations doing business within their borders. I suppose that a religiously oriented corporation might argue that an analogous doctrine of unconstitutional conditions would bar the revisions of corporate law described above.
If Justice Alito's invocation of state corporate law in Hobby Lobby is not mere window-dressing, however, then the SCOTUS ought to resist such efforts to limit states' power to define the proper purposes of corporations. There is a tendency to speak of "the law of corporations" as if it were one statute (in, for instance, this fine article by Alan Meese and Nathan Oman). But corporate law is not an "it" but a "they": If Hobby Lobby is serious that proper corporate purposes are defined subnationally, then SCOTUS ought to allow states to re-define those purposes to exclude behavior at odds with what state legislatures seek to promote through the corporate form.
Such state revisions of corporate law, of course, might be futile as a serious constraint on corporations that can easily re-incorporate under the laws of another jurisdiction more favorable the broad pursuit of extra-commercial purposes. Putting aside this practical question, however, the same reasons for allowing states to pursue a broader vision of religious liberty through their own state RFRAs also counsel in favor of allowing states to pursue a narrower vision, by waiving (through their corporate laws) the federal RFRA. In both cases, asking a single national government to answer every hotly contested dispute about the scope of religious liberty arising among an intensely polarized nation is just asking for trouble.
A Return to Substance?
In all the discussion of preparing lawyers for practice, one aspect that is missing is whether we should train lawyers to know the law in a particular area. For some core subjects, American law schools do not produce students who know the law in any deep sense. Would we be better aiming for deep knowledge of core subject areas? Could this be the academy's most genuine contribution to making lawyers "ready for practice" (an amourphous concept at best)?
In Scotland, to take a jurisdiction I am familiar with, students must become intimately familiar with areas of law in the sort of deep way that requires them to read lots and lots of cases and statutes on a topic. For example, a student concentrating in criminal law could spend, not only the equivalent of a semester studying the introductory course, but a full year studying nothing but criminal law doctrine.
That's not the American approach. In many American law schools, students will graduate knowing (much) more about criminal procedure than the substantive law of crimes. That's because most schools offer only the first year criminal law course as the substantive law of crimes (and which is some schools is combined with criminal procedure). Most first-year casebooks concentrate on only three substantive crimes: homicide, rape, and theft. Even these are presented rather brusquely. Anecdotal evidence suggests that a chunk of professors avoid teaching rape (a big mistake, in my opinion). The law of theft (for reasons of uniformity or to anticipate the bar exam) reflects the practice of 19th century England. The rest of the standard American criminal law casebook focuses on defenses and inchoate crimes. This might be philosophically interesting stuff. But pressures of coverage or "practicality" mitigate against philosophical depth. So current American practice often requires students to become familiar with cases which are neither representative of current law nor of much precedential value. That's surely a waste of everyone's time.
This is not to pick on criminal law. I'm sure the same could be said of most first-year courses, and some upper-division ones as well. And there are certainly teachers who modify the casebook to make it fit the real world, or their state's criminal law.But all this talk of "practice ready" focuses on filing papers in court. It rarely focuses on learning some actual, relevant law. In fact, the practice ready movement (whatever practice ready actually means) appears to be a movement away from legal knowledge defined as knowledge of the law, and towards an ever more shallow, bar-level knowledge of law, along with clerical competence. While filing papers is important, it is not rocket science. Reading cases, thinking hard about the reasoning behind them, and becoming an expert in thinking through issues is (supposed to be) rocket science. It's how we justify the fees we charge our clients.
The standard rebuttal is that we train lawyers how to find the law. But that means we do not give them more than a bare-bones outline of how to think about the law. Upon finding the law, the neophyte must attempt to learn the doctrine in all its intricacies, unmoored from any framing of the issues. They could turn to a senior lawyer for advice. However, the senior attorney may not have the time to provide a deep education into the relevant substantive law. Worse, the senior lawyer may not even know the relevant law, if the law has changed significantly over time (which it does in many fields) or the senior attorney lacks experience in that area of law. The young lawyer may have been hired specifically to provide knowledge of current law or difficult-to-discern doctrine. Without deep legal knowledge, the novice is of limited use to the partner and the client.
Another worry is that providing immersion in a particular topic may also narrow the student's legal knowledge while deepening it. The Scottish way allows for four years of study: the student can engage in a year of criminal law and still have room for three (or more) "deep" subjects during her final year. But Scots Law is an undergraduate degree. Few people are arguing that American law schools adopt four year law degrees. I certainly am not. But there should be space in the curriculum to emphasize those aspects of the practice of law that do not focus on process, but address important issues of substantive law. Encouraging students to read lots of cases so as to understand doctrine seems to be an obvious way to go.
pleasure doing business with y'all
Thanks to Danny Markel and Paul Horwitz for another guest posting stint at this wonderful blog. It is always a privilege and a reminder of how incredibly fortunate I am to be part of an extraordinary community of law professors, all working hard on important research, teaching and mentoring, and thinking strategically and creatively about how to improve not only our piece of the profession, but the legal profession generally. My hat is forever off to all of you great law profs!
Quick plug for my merry little blog, Word on the Streeterville, https://deansblog.law.northwestern.edu/. There I blog about varia -- Northwestern stuff (of course), research on legal education, the blandishments of Chicago and other interesting places in the world, sports, and my favorite current topic, the ways in which law and legal education is becoming de-siloed and recreating itself as a component part of our multidisciplinary, technologically complex business world.
Legal education scholarship and its coming heyday (?)
"If a were a rich man . . ." as the song goes. There ought to be financial support heading toward legal scholars, within and outside of the academy, who are doing focused analytical work on legal education. We have many bold claims and anecdotes -- I plead guilty for offering both frequently -- but there is emerging only recently a substantial body of research that investigates and interrogates claims about legal education, and in a way that can credibly be called real scholarship, and not just polemics. Some folks explore the utility of different modalities of instruction; others looks at the connection between educational inputs and outputs; and there are those whose focus is principally on the legal profession and the ways in which modern legal education does or does not serve the objectives of modern lawyers.
This is a critical area of analysis which desperately needs more light than heat. The availability of data provided through the internet (and, albeit as an unintended consequence of USNews, a plethora of marketing materials) would seem to provide a treasure trove of information about what law schools are doing. "Soak and poke" can often do the trick; and some databases are in the works, a necessary step to developing a richer body of empirical work in this area. And periodic meetings of constituency groups -- thinking here, especially, of the remarkably vast annual AALS clinicians conference -- provides venues for the dissemination of serious scholarship on legal education.
But we ought not be too Panglossian about these developments. The incentive structure of law schools makes it hard, or at least tricky, for young scholars to map out a research portfolio in the legal education space and be properly rewarded for the effort. Indeed, for those who work seriously in this area, it is (perhaps with a few exceptions) more or less a hobby -- that is, it is what active scholars do in addition to work in their substantive fields. We should ask, self-critically, is there not room in the cathedral for scholars whose central objectives is to devote their principal scholarly attention to questions about legal education? Can promotion and other accoutrements of the academy take seriously law profs who do their primary work on these key questions?
And there is the matter of money. Major scholarly contributions to the understanding of legal education are likely to involve serious empirical work. Organizations such as the American Bar Foundation have been diligent about supporting scholarship on legal education. Elizabeth Mertz's superb work on the language of law is just one of many examples of the fruits of this support. The ABA and AALS have been less actively invested in this area and, consistent with resources constraints, ought to have more skin in the game. But, in the end, it falls to the law schools themselves to think about creative ways of incentivizing law professors, neophytes and experiences folks alike, to invest energy in some of the big and not-so-big questions involving legal education.
As with any scholarly area, we should be cautious about our priors and follow where the analysis and data leads us. Fact is that we (present company certainly included) believe we know an enormous amount about legal education, its component parts, its efficacy, and its deficits. But that we don't know what we don't know is an unmistakable message that more research -- and more support for this research -- is needed.
On a positive note, the growing scholarship on legal education emerging from creative, diligent folks who are committed to the project (I will here take the prerogative to give a shout-out to Mike Madison, whose imaginative posts on legal education are unfailingly thought provoking, and also to Robin West, whose new book on "Teaching Law" I recommend) gives me every confidence that scholarship on and about legal education may be coming into its golden age. And, given our predicaments, there has never been a better time!
Federalism, RFRA, and Free Exercise in the next Hobby Lobby
Someone please tell me if I am wrong on the following points in the potential next round of Hobby Lobby-type litigation.
A major concern after Hobby Lobby is that similar closely held corporations will raise similar objections to legal obligations to hire (and not create hostile environments for) women, racial minorities, pregnant women, religious non-believers and other-believers, LGBTQ people, etc., as well as obligations to serve and do business with those groups.
Here is the thing. Protections for LGBTQ employees and customers are, at this point, not federal; they exist only in some states and/or some municipalities. But RFRA and strict scrutiny does not apply to state or local laws under City of Boerne. So any such claims to avoid those state or local obligations must be brought under the Free Exercise Clause and are likely to fail under Smith, since laws prohibiting discrimination in employment or public accommodations appear to be neutral laws of general applicability. The only way around that is if the company can tie some other constitutional liberty in (such as Free Speech in the wedding photographer case). So, ironically, LGBTQ people may be better off in this realm than women, since the corporation can rely only on the First Amendment, not a statutory strict scrutiny, to avoid its non-discrimination obligations.
Pushing it a bit further: Every state has a prohibition on race, gender, etc., discrimination that parallels federal law. So even if a hypothetical company could claim an opt-out from Title VII's ban on sex discrimination in hiring based on RFRA, that company still must comply with the state ban on sex discrimination in hiring, which, if challenged, again would only receive Smith-level Free Exercise scrutiny and the challenge likely will fail.
On the other hand, many states have their own RFRAs, which would require strict scrutiny of state anti-discrimination laws and might require analysis similar to Hobby Lobby. But that case at least would be litigated in state court, with the state's highest court having the last word; that court would not be bound by Hobby Lobby, may be less solicitous of accommodation demands (depending on the state), and might adopt the Ginsburg view on the question. Such a case would not be reviewable to SCOTUS, because a decision applying state RFRC would be an independent and adequate state ground for the decision. So the future of Hobby Lobby may produce some interesting federalism angles.
Wednesday, July 02, 2014
The Maize and Blue Notebook: An Introduction and Thoughts on Certainty a la Wittgenstein
Preface to “The Maize and Blue Notebook”
What we publish here (mainly after the break) belongs to that period in Lipshaw’s life following his decision to participate in the Michigan Men’s Football Experience on June 4-5, his complete rupture of his right Achilles tendon in the third (high knee running) drill on the first day, his decision thereupon to participate in the Big House scrimmage nevertheless (as evidenced at 6:15 of the linked video), surgery under general anesthesia on June 9, and recovery thereafter with a supply of generic Vicodin (the picture below left being one taken in a rare moment of lucidity).
It seemed appropriate to publish this work by itself. It is not a selection; Lipshaw wrote this on several pages of lined foolscap, undated, and left them on a table at Simon’s Coffee House on Mass Ave. near Linnaean Street when he wheeled himself off on his knee scooter to a training session at Karma Yoga the other side of Harvard Square. Coates, Goldberg, and Fried reported seeing him on a bench near Langdell Hall, but I (G.E.M.L.) cannot now recall why I am under such an impression. But there is no doubt that the pages were inserted in an acetate maize and blue cover.
G.E.M. Lipscombe, Cambridge, 02 July 2014
The Maize and Blue Notebook
1. Can one assert with certainty that all Canadians are nice? "I know that Canadians are nice." Markel [ed. Dan Markel, D'Alemberte Professor, Florida State University College of Law] seems nice and he is Canadian (at least for a while). If the proposition is that all Canadians are nice, and Markel is a Canadian, can we be certain he is nice?
2. "I know Markel is nice." In order to see how unclear the sense of this proposition is, consider that he called my work "orthogonal to existing debates." While this may be true, is it nice? So how can we be certain that Markel is nice? Maybe he has still not gotten over that I referred to him in print as "the Johnny Carson of new bloggers" (to make a point about metaphors). [Ed.: The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity, 41 Seton Hall L. Rev. 1, 59 (2011).]
3. Whether it is pompous as all get-out to refer to Wittgenstein depends on whether we are doing it seriously or in parody.
4. I did it once! Not only referred to Wittgenstein in the presence of Sarat at a Law & Society event in Amherst [ed. Austin Sarat, and this likely refers to a meeting of the Northeast Law & Society Association meeting], but reached into my briefcase and pulled out the hard copy edition of Anscombe's translation of Philosophical Investigations.
5. Whereupon Sarat observed that it reminded him of this:
6. But perhaps it is time to get to the point.
7. In his notes titled "On Certainty," L.W. wrote: "The difference between the concept of 'knowing' and the concept of 'being certain' isn't of any great importance at all, except where 'I know' is meant to mean: I can't be wrong." (para. 8)
8. There are instances in which a statement about what we know, even if not true, still makes sense because we can imagine an instance in which it would be true.
9. So I can say, "there is my hand" or "Markel is a Canadian (for a while)" and it follows from those assertions that what I said is so. But L.W. says - wait a sec, bub, you can't say that what is so follows from the utterance "I know." Even if it's not my hand but my dog's paw or Markel was naturalized a week ago, my statement in the language game is sensible.
10. Not so for an assertion that I know something and cannot be wrong about it. "That he does know remains to be shown." (para. 14)
11. L.W.: "It needs to be shown that no mistake was possible. Giving the assurance 'I know' doesn't suffice. For it is after all only an assurance that I can't be making a mistake, and it needs to be established objectively that I am not making a mistake about that." (para. 15)
12. There's an infinite regress about "I know" when asserted as certainly as "there is my hand," if "I know" means that I am incapable of being wrong, because how do I establish objectively that I really know in the sense of being capable of being wrong!!!!
13. Oy vey.
14. "'I know' often means: I have proper grounds for my statement." (para. 18) Well, that would be okay if everyone who hears the phrase "I know" knows that all I am saying is that I have a reasonable basis for saying I know what I know -- that this is what "I know" means under the rules of the language game.
15. But if "I know" doesn't mean "for certain," it really doesn't mean much at all, because then it means the same thing as "I believe," "I surmise," "I am convinced," "I have no reason to doubt...."
16. Most of the time this isn't a problem. But it is if our discussion is about whether something exists at all. So if we are talking about doubt regarding the existence of my hands doing this typing, that's just a kind of silly discussion because nobody seriously doubts that I know those are my hands.
17. Our rule in the language game is that there's an implicit "in ordinary circumstances," because it is possible that there COULD be doubt about the existence of my hands, but if you really wanted to talk about it like that, you'd be obliged to make that statement clear under the rules of our discourse (the language game).
18. What becomes clear from the regress of one's own certainty is that we cannot infer how things are just from our own certainty. "Certainty as it were a tone of voice in which one declares how things are, but one does not infer from the tone of voice that one is justified." (para. 30)
19. "I know" has a particular meaning about the relation of the speaker and a fact, and not about the relation between the speaker and the sense of a proposition like "I believe." (para. 90)
20. Ribeiro [ed. Brian Ribeiro, philosophy, University of Tennessee] asks a good question about philosophy and disagreement [ed. "Philosophy and Disagreement," Critica 43 (127) 3-25 (2011)].
21. He concludes that they “confront us with an unresolved, and seemingly unresolvable, challenge to the rationality of philosophical discourse, thereby raising the spectre of worrisome philosophical skepticism.”
22. What is a hard case? Not one in which one of the interlocutors is ignorant of a critical fact - e.g., an argument about the temperature in which one person has access to a thermometer and the other does not.
23. Or that the other person is uneducated - e.g., a child who believes that a stork has brought his baby sister.
24. Or that the other person is under a cognitive liability (e.g., someone who simply does not have the mental capacity to understand a mathematical proof).
25. I have friends in the legal academy like Oman [ed. Nathan Oman, William & Mary] and Bainbridge [ed. Stephen Bainbridge, UCLA] whose access to information, education, and intelligence are unimpeachable.
26. Nevertheless, they are very publicly Mormon - Oman - or Catholic - Bainbridge. I feel quite certain (note that I do not "know" in the sense I cannot be mistaken) they believe things as true - for example, about the divinity of Jesus, miracles, transubstantiation, Joseph Smith's vision, the Book of John, the Book of Mormon - that I am quite sure no amount of reasoned persuasion could cause me to believe.
27, L.W. and Ribeiro think (know?) this kind of disagreement is incapable of reconciliation.
28. A change in belief of one of the interlocutors requires conversion. “If reconciliation is to occur, then one of us must forsake reason-giving, (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute.” [ed.: from Ribeiro's essay]
29. Hobby Lobby. Once again Markel is right. I am orthogonal.
30. People who are bloggers and Facebook friends (and I like to think - know? - are real friends), whose intellect I respect immensely, like Bainbridge [ed. Stephen Bainbridge, UCLA] and Aviram [ed. Hadar Aviram, UC-Hastings] disagree. Aviram thinks Hobby Lobby is odious. Bainbridge's only disappointment is that he wasn't cited in the opinion.
31. Is it that "know" in the sense of "I cannot be wrong" is simply inapplicable here. That the argument is about the "ought" rather than the "is"?
32. The interlocutors give off every indication that they cannot be wrong in their views.
33. Can one know an "ought" in the sense of "I cannot be mistaken"? Are there normative facts? What counts as an adequate test of the the proposition "there are normative facts"?
34. Return to L.W.: "Can one say: 'Where there is no doubt there is no knowledge either'? Doesn't one need grounds for doubt? Wherever I look, I find no grounds for doubting that.... I want to say: We use judgments as principles of judgment." (paras. 121-124)
35. Law is rules. It is an issue of rule-following. If A, then B. A. Therefore B. But what rule? That is the judgment! How do we make it?
36. L.W. again: "But isn't it experience that teaches us to judge like this, that is to say, that it is correct to judge like this? But how does experience teach us, then? We may derive it from experience, but experience does not direct us to derive anything from experience. If it is the ground for our judging like this, and not just the cause, still we do not have a ground for seeing this in turn as a ground. No, experience is not the ground for our game of judging. Nor is its outstanding success." (paras. 130-31)
37. L.W. again: "We do not learn the practice of making empirical judgments by learning rules: we are taught judgments and their connexion with other judgments. A totality of judgments is made plausible to us." (para. 140) This is very Kantian of L.W. - some judgments are a priori, and not just analytic ones!
38. The regress of certainty: "Doesn't testing come to an end?" (para. 164) "The difficulty is the groundlessness of our believing." (para. 166)
39. L.W. comes around to the view of Hans Albert, one of Popper's students, and the Munchhausen trilemma: all efforts to reduce what we know to a fundamental proposition end in an infinite regress, circularity, or brute belief. Hence, "Well, if everything speaks for an hypothesis and nothing against it - is it then certainly true? One may designate it as such. - But does it certainly agree with reality, with the facts? - With this question you are already going around in a circle. To be sure there is justification; but justification comes to an end." (paras. 191-192)
40. If the insurance plan pays for Viagra for men, shouldn't it pay for abortifacient birth control for women? Fine with me, although this is not something I "know" for certain - it simply seems fair.
41. If Mom and Pop own a grocery in the form of a corporation versus a partnership or an LLC, should Mom and Pop be required to do something in the administration of their business that violates their sincerely held religious belief (like if they are orthodox Jews, want to close on Saturday, but remain open on Sunday even if the latter means violating the Blue Laws)? Let them follow their religion, it's no skin off my nose.
42. There is a hypothetical world of perfect information and free choice in which we might say that if you are Mormon or Scottish Presbyterian and working for Mom and Pop on Sunday violates YOUR sincerely held belief, you just shouldn't work for Mom and Pop.
43. It seems highly unlikely that a diversified public corporation is ever going to want the publicity, the employee disruption, the potential boycotts, that go along with this kind of debate. And the board is just as likely to be as diverse, at least religiously, as the the employees or the customers.
44. No, this is an empirical problem in a way. At least pragmatically. Just how "free" are the employees? It's probably not as perfect a market as the conservatives would like to say, and probably less "oppressive" than the liberals think.
45. But the one really pragmatic problem is being unfair or providing disparate treatment to men and women where there is limited choice or mobility, as might occur when you have a company of very large size, akin to a public corporation, but with shareholders more akin to Mom and Pop. So if women are trapped working for Hobby Lobby and its ilk, this is highly problematic.
46. This is what makes it a hard case as a matter of knowledge.
47. But for one friend to call the majority opinion "odious," and another to refer to "left-wing frenzy" about it, when neither friend is misinformed, under-educated, or operating with limited mental capacity, tells me that no conversation, no discourse, no persuasion is going to resolve the issue.
48. Moving from one side of the issue to the other is instead going to be a matter of conversion.
49. So what do we do? Refrain? But quietism seems not an option.
50. Epistemic humility is good.
51. Ah, Markel is nice. He posted a middle of the road assessment, but it's on Facebook.
Ed. note: This concluded the notebook, except for the following marginal note: "I have discovered a truly marvelous resolution of this, which this margin is too narrow to contain."
Inazu on Justice Ginsburg's dissent . . . and CLS v. Martinez
Justice Ginsburg’s Hobby Lobby dissent criticizes the majority for failing to distinguish between a community of believers of the same religion and other forms of communities: “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”
But, as my friend and fellow prawf John Inazu, observes, one could level a similar critique of the majority opinion in Christian Legal Society v. Martinez. In that opinion, Justice Ginsburg rejected the distinctive claims of the Christian group -- that is, the group's claim that leadership in the group should be limited to those who embrace the group's views and commitments -- in favor of an “all-comers” policy that required all student groups -- including communities made up of believers in the same religion -- to accept any student who wanted to join, regardless of that student’s beliefs or practices. Isn't it fair to say that groups that want to maintain their distinctive faith-commitments (or philosophical or ideological commitments) and practices are different than those that do not? In Martinez, it seemed to some of us that the "Court shut this key difference from sight."
For more on Justice Ginsburg's CLS opinion (including a response to the argument that it was a "subsidy" case), check out this article by Inazu.
Legal automation and law curriculum
Frank Pasquale has provided an extraordinarily thoughtful, informed perspective on the "machine v. lawyers" debate, a topic my Northwestern colleague, John McGinnis, has discussed at length. And, as well, it is a topic of growing interest to folks looking at the future of the legal profession and of dynamic change therein.
As an interested, but much less informed observer, Frank's caution about the "we are all going to be replaced by robots" narrative seems quite right to me. A "more nuanced" perspective, as he aptly puts it, sees the contributions of automated legal services as more limited; and, likewise, sees the comparative and competitive advantage of real lawyers as not supplantable. Good news for lawyers; and, more importantly, sensible news in light of the evidence.
That all said, even the more nuanced view he describes does point to the key role of legal curricula and law teaching to help our law students understand where automation can intersect with human activity -- that is where the calculus is "machine + lawyers" rather than "machines v. lawyers." And, indeed, the courses Frank and a small cadre of other expert lawyers teach at their respective law schools respond to this need well.
My only small contribution here is this: Law schools would do well to formulate curriculur strategies that explore in this "more nuanced" way the dynamics and dimensions of automation and its impact on legal services. The objective is not to convince our students that the sky is falling. Rather, the objective is to help them understand how best to use the products and processes developed through automation and (especially) the contributions of big data in order to prosper as lawyers and to assist clients.
Interestingly, the impact of such processes are likely to be felt at two ends of the spectrum -- wealthy clients and "bet the company" litigation where sophisticated use of automation assists the disaggregation of legal services in order to provide maximum service and, on the other end, service to middle and low-income clients where machine-assisted work can help these clients more efficiently. If this is right, then law profs -- and perhaps especially clinicians -- can structure courses and simulations to assist law students in understanding these techniques and their utility.
Some good news
I'm delighted to point our readers to the direction of the NYT oped page today, where they can find Paul Horwitz's excellent essay on the Hobby-Lobby case and its implications.
I'm also thrilled to note that Rachel Harmon's recent contribution here -- about the Riley case and the fragility of policing knowledge demonstrated by the Court therein -- was selected to be included in a Green Bag/Journal of Law series called The Post (here and here); that series showcases exemplary legal writing from the blogosphere.
Congrats Paul and Rachel!
World Cup Goals
With the elimination yesterday of the United States from the World Cup, it seems appropriate to examine a broader story from the competition: the flurry of goals. In the first round of 16 games at this year’s World Cup 49 goals were scored. Four years ago there were just 25. What accounts for this remarkable increase? There are no doubt many factors, but this post will focus on just one theory: the top players in the world have finally read and internalized my article: “Missing Well: Optimal Targeting of Soccer Shots,” 22 Chance 21 (Fall 2009).
My thesis in that article was that to maximize goals per shot a player should aim the ball halfway between the goalkeeper’s reach and the goalpost. This would generate roughly(!) equal numbers of keeper saves and shots wide. I found support for this hypothesis using player-level data from the U.S. professional league.
If players adjusted their targeting strategy accordingly between the two World Cups: (1) the percentage of shots generating goals should have increased; (2) that increased yield should have accounted for some of the added goals; and (3) the ratio of misses to saves should have moved closer to one.
Let’s take the predictions in order. On number (1), 12% of shots generated goals this year versus 8% in 2010. As to number (2), that increased yield accounted for 7 of the additional goals. The rest of the 17 added goals came from the fact that many more shots were taken: 406 this year versus 317 in 2010.
So there is still some room (7 goals) for my theory to have worked, which brings us to number (3). Unfortunately, the miss-to-save ratio actually increased between from 2.6 in 2010 and to 3.25 in 2014, farther from one. These guys are doing pretty well even without heeding my advice. Go figure!
Tuesday, July 01, 2014
Rotations...and Happy Canada Day
Friends, it's the first of July and therefore a great day for all the Canadians now ruling the American legal empire. Congrats to Sujit, Austen, Trevor, Gillian, et al. It's just sort of shocking that Eduardo's not Canadian in light of his overall sensibility, but perhaps being up in Ithaca now will simply accelerate his asking for what must be his birthright.
Anywhoooo, it's time to welcome back Frederick Vars (Alabama), Jeff Lipshaw (Suffolk) and Eric Miller (LLS) to the conversation for the month of July. Big thanks to all our June contributors, some of whom will linger as they get their last kicks in.
Last, keep your ears and eyes open for there will almost certainly be a Prawfs happy hour coming up at the SEALS conference in Amelia Island the beginning of August. Peace out!
Winning the World Cup was the Worst Thing to Happen to the English. It Won't Be So Bad for Americans.
I hope you're enjoying the game. In celebration of American football fever, and anticipating the Fourth of July, I though I might share a few thoughts on the World Cup.
Jurgen Klinsmann was right. Team America will not win the world cup. Worse, the American Soccer Outlaws new chant, "I believe that we will win," is worse than self-delusion. It fails to understand the spirit of the World Cup. Only 8 teams have won the world cup, and 12 of the 19 tournaments have been won by 3 nations: Brazil, Italy, and Germany. For everyone else, the challenge is not to win, but to do better than they did last time they qualified, or to do better than, on paper, they should. By that standard, the US team has already "won."
It is a slow climb to soccer nirvana, plagued by precipitous falls (Spain). The World Cup spits in the eye of progressives. Few teams make it to the Cup; fewer past the first round (Scotland, one of the two founding nations of international football, never has, despite fielding some world class teams). To demand to win, to expect to win: only three nations have a history at the cup that entitles them to that sort of bravado, and one of them is ignominiously out.
The curse of the English is that, having won a World Cup, they now expect to win every time they enter, and are disappointed every time they fail (to be fair: were it not for Russian intervention, they wouldn't have won in 1966). Every four years, the English subject themselves to the torture and recriminations either for not qualifying (1974, 1978, 1994), or for exiting almost uniformly in the quarter finals. A mediocre fanbase, living out its end of empire fantasies on the world stage, unable to move on. They are the Alexandra Forrests of the soccer world. America, don't let this happen to you! Embrace the World Cup spirit, celebrate the journey, in the knowledge that there really are moral victories despite your team losing (Mexico; Ivory Coast).
Georgia Law Review Symposium on NYT v. Sullivan
The Georgia Law Review held a fine symposium on the fiftieth anniversary of New York Times v. Sullivan, titled "The Press and the Constitution 50 Years After New York Times v. Sullivan." I was sorry not to be there in person but delighted to contribute to it. The issue is now out; alas, I don't think the articles are available on the Law Review's website, but they should be on the usual databases shortly. (Another, equally superb symposium was also published in another law journal; both feature valuable contributions by Sonja West of the University of Georgia.)
Inconsistency About Inconsistency at the End of Term
One of my favorite fallacies is the “tu quoque” or “you, too!” fallacy – that is, the argument that a proposition is wrong because it’s advocated by someone who previously said the opposite. An accusation of tu quoque may demonstrate inconsistency, but it doesn’t prove much else.
In that spirit, I’d like to make a tu quoque charge of my own – against Justice Ginsburg.
Earlier this year, Justice Ginsburg wrote Daimler v. Bauman for the Court over Justice Sotomayor’s dissent. During the analytical back-and-forth, Ginsburg launched a surprisingly sharp tu quoque charge: “On another day,” Ginsburg wrote, “Justice Sotomayor joined a unanimous Court in recognizing” a particular point. In Daimler, by contrast, Justice Sotomayor took a different view based on new research.
Yesterday, however, it was Justice Ginsburg who found herself on the receiving end of a tu quoque barb. And the barb was almost identical to the one that Justice Ginsburg herself had previously leveled. In the words of Justice Alito’s opinion for the Court in Burwell v. Hobby Lobby: “Although the author of the principal dissent [that is, Justice Ginsburg] joined the Court’s opinion in City of Boerne, she now claims that the statement [in that opinion] was incorrect.”
To her credit, Justice Ginsburg’s Hobby Lobby dissent not only acknowledged her own substantive inconsistency, but also (contrary to her own prior opinion in Daimler) embraced the general point that such inconsistency doesn’t really matter:
Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: "I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday."
In short, Justice Ginsburg has been badly inconsistent on the subject of inconsistency.
Now, if you think there’s something odd about my complaining about all this, then I can only recommend that you try out two very fun but useless words:
The above is cross-posted from Re's Judicata.