Wednesday, December 31, 2014
A shandeh fer der politsey
There is a Yiddish phrase, "a shonder shandeh* fer der goyem," which colloquially means that when a Jew misbehaves, it confirms all the worst beliefs that the non-Jewish world has about the Jewish people, and thus is "bad for the Jews." The title of this post is a riff (not linguistically quite accurate, admittedly, but it sounds good when you can bring the Yiddish) on that. One theme to emerge from recent controversies over police abuses is that the public position of the police is to not experience or aknowledge that feeling of shame when one of their own does something wrong. The "thin blue line" remains forever unified and will not criticize even the worst behavior; there is no public sense that good cops do (or should) despise cops who do wrong.
(*) Several readers questioned my original transliteration; in deference, I have changed it to the more common one.
And that has further manifested in a sense that any criticism of even a misbhaving cop is an attack on all cops; any failure to support all cops is necessarily anti-cop; any criticism of some police or police tactics is necessarily anti-cop; and any suggestion that systemic problems affect police-public relations (especially as to African-Americans) and that the police are in any way responsible for those problems is necessarily anti-cop. Look no further than the Mendocino H.S. basketball controversy,** where some have suggested that "I Can't Breathe" t-shirts, criticizing NYPD Officer Pantaleo and the Staten Island grand jury, are insensitive to the family of a Mendocino County sheriff's deputy who was killed in the line of duty, although I cannot imagine what one has to do with the other. Or the suggestion by the Cleveland police officers' union that such t-shirts insult all cops everywhere.
(**) Which got more complicated. After the host school backed down on its t-shirt ban, the Mendocino coach prohibited his players from wearing the shirts in warm-ups for Tuesday's game. When the Mendocino superintendent overruled that decision, the coach refused to coach. The players (including the one player who did not play on Monday under the host school's prohibition) did not wear the shirts on Tuesday. Members of the Mendocino girls' team, who were not playing in the tournament, sat in the stands wearing the shirts.
Anyway, maybe this is another example of the militarization of police departments--you can't criticize the military without being labeled a traitor, either.
AALS Bloggers' Get-Together and Markelfest
Happy impending new year to everyone. Most of us here, hosts and guests alike, have spent the latter half of the year in the shadow of the senseless death of our friend and colleague, Dan Markel. Most of us have shared our thoughts and feelings about this, but little things bring back his memory most every day and remind me again that he is gone. The feeling is not, for me, one of unmixed grief, or perhaps this is what grief actually feels like and I just didn't know, not having gone through it before: the fresh, recurring, often joyous and poignant nature of the memories; the sentiment at particular moments that I wish Dan was around to experience something; and the aftertaste of futility and loss each time when I remember that he is not. We here have tried to blog more in the past few months (mea culpa for my failures on this point, and thank you to permanent bloggers like Howard and our many guest bloggers for doing so much), and more energetically; not so much in tribute, but more out of a sense that the best way to honor some of the things we loved best about him--his boundless energy and his many friendships--is to try to emulate it. His blog was a great project and we remember him in doing our best to keep it going. We're grateful to our readers for sticking with us. I always want to note that Howard Wasserman and Ethan Leib have done an immense amount of work behind the scenes and deserve all our thanks.
By way of remembering both Dan's energy and his innumerable friendships, I'm happy to announce that Prawfsblawg, Concurring Opinions, and the Younger Comparativists Committee of the American Society of Comparative Law have organized a joint happy "hour" at this year's annual AALS conference, beginning Saturday, January 3rd at 8 p.m. All are welcome: bloggers, readers, neither-bloggers-nor-readers, friends of Dan, anyone (the last two are basically synonymous). In recognition of the fact that many of us are now friendly, energetic, middle-aged bloggers, the start of the affair is earlier than it sometimes has been, and the location is closer to home base: we'll gather at the Stone's Throw bar in the lobby of the swanky Marriott Wardman Park in DC. I'm sure the happy "hour" will inevitably become happy "hours," so if you're coming back from dinner and such, feel free to swing by later. Tell your friends. Drop by and have a drink and a chat for Dan.
As I type this farewell post, I find it especially fitting that this film is currently airing in the background on TCM. It has been a pleasure to visit this month, and I looked forward to reading every comment to my posts (yes, all of them, even the prickly ones). Currently, I am working on the second edition of my first book, and this has been an enjoyable diversion. Thank you for a memorable month, and I wish all of you the best in 2015.
A Checklist Manifesto for Election Day: How to Prevent Mistakes at the Polls
About a year and a half ago, during my last guest stint on Prawfs, I blogged about Atul Gawande's book "A Checklist Manifesto," which I had just finished. During those 18 months, in addition to my two other projects, I've drafted a new article, titled A Checklist Manifesto for Election Day: How to Prevent Mistakes at the Polls. It's not quite ready for the primetime of SSRN, but it will be soon, and I am targeting it for law review submission this February. If you'd like to take a look before I post it (especially if you're an Articles Editor at a highly-ranked journal!) just send me an email (joshuadouglas [at] uky [dot] edu) and I'll be happy to pass it along.
Here is the abstract:
Sometimes the simplest solutions are the best, even for complex problems. This certainly rings true for Election Day. The voting process involves a complicated web of rules and regulations, run largely by poll workers who are not professional election administrators. Poll workers are faced with myriad situations in which voting can go awry, and voters must comply with various requirements to ensure their votes count. But poll workers and voters generally are not given simple tools to help them through the process. Instead, the training guides poll workers receive from states and localities are lengthy, wordy, overly comprehensive, and difficult to use. They include anything and everything that might happen on Election Day, thereby making them essentially unusable as a reference in the heat of the moment when an issue actually arises. Instructions for voters are also often too complex. It is no wonder that poll workers and voters make mistakes in every election, which results in long lines, lost votes, and even post-election litigation. A simple and well-designed checklist can supplement these materials and help to avoid the humor errors that occur in many elections. This article shows how -- in a time in which policymakers are searching for how to remedy the voting woes in our country -- checklists provide a simple, non-partisan, and low-cost idea to improve election administration.
As always, comments are welcome!
Tuesday, December 30, 2014
With the increasing number of law school graduates entering “alternative legal careers,” the question continues to surface as to whether taking a bar exam is necessary for a successful career in the law. There have been studies about those who took a swing at the bar and failed, but little has been written about those who have never stepped up to the plate. There are a few articles here and there with advice for those who may wish to opt out, but not many. Yet another consideration is the large number of former lawyers who took the bar and later decided not to practice. This figure includes many, if not most, law professors. Is taking the bar for everyone, and would law schools maintain the same focus on its importance were bar passage excluded from counting toward accreditation or rankings?
Monday, December 29, 2014
Going to the Dogs
It seems that things have become so stressful for some law students that therapy dogs are in order. Certainly, spending time with a pooch can be a great stress reliever, but to what extent should law schools provide this relief? Does “dog rental” go too far?
Have Law Students Become Worse Students in Recent Years?
Over at his blog Excess of Democracy, Derek Muller (Pepperdine) has a provacative post titled "NCBE Has Data To Prove Class of 2014 Was Worst in a Decade, And It's Likely Going to Get Worse." Derek recounts that the overall bar passage rate across the country for the July 2014 sitting was down as compared to previous years, and he posits that the lower results were caused by "student quality and law school decisionmaking." He believes that the data suggests that lower quality students, and educational decisions of law schools, are producing graduating classes that are less qualified overall, in turn resulting in lower bar passage rates.
In essence, students come into law school having done worse on the LSAT, and they leave law school doing worse on the bar exam.
Are they doing worse while in school as well?
Reflecting on the past few years, I wonder if Derek is on to something, particularly with respect to law student quality. If he is correct, then we should expect to see lower student performance while students are in law school. Is the day-to-day classroom discussion, or their final exam performance, worse now than it was a few years ago?
My own experience suggests that the answer is...probably yes. But unlike LSAT scores or bar passage rates, performance while in law school is much harder to measure.
My students continue to be bright, inquisitive, and engaging. Further, Kentucky's bar passage rate, at over 90% for the past several years, remains high, even though, much like most other law schools, the LSAT scores of our incoming class has dropped. But there might be something intangible -- something that professors might notice in the classroom or on an exam -- that suggests that law student quality may be lower than even a few years ago.
Without suggesting that any particular student has been weak (I love you all!), upon reflection I have noticed that as a whole it takes longer now than even a few years ago to teach deep legal reasoning. What I mean is that students from the past few semesters, as compared to several years ago, seem to have a harder time making connections between the various doctrines, engaging in deeper-level thinking, and applying the legal rules to new scenarios in creative ways. I have spent more time recently going over material more than once or walking students through the basics of legal analysis. Moreover, their writing, at least when they begin law school, seems less advanced than in previous years. (I have an early semester writing assignment in my Civ. Pro. class so I have a sense of their writing toward the beginning of their 1L year. Luckily, our excellent LRW professors can, and have, improved their writing dramatically while they are in school.)
Regarding their exam performance, I again find that as a whole the students have not been as strong in deep and complex analysis. (And I can assure you that it had nothing to do with this year's Civ. Pro. fact pattern involving prisoners. I'm talking about their analysis on the actual Civ. Pro. issues based on the call of the question, such as personal jurisdiction.)
Of course, the problem could lie with me as a teacher. Maybe I am not connecting with this crop of students as well as I did previously. Maybe my exam was harder this year than in previous years.
I hope, however, that with each year I become a better teacher than I was the previous year. And I don't think the exam was materially more difficult than previously.
Again, let me emphasize that many, many students performed quite strongly. Yet I still have the sense that for many of them the analysis was not as deep or nuanced as it could have been, and their raw point scores on their exams showed it. The students did well spotting issues and giving a surface-level interpretation, but for many, complexity was lacking.
Luckily for us at Kentucky, our excellent faculty can (and has) overcome these kinds of challenges -- as our high bar passage rate reflects. But I am still left with the question that forms the title of this post: are law students, who potentially have worse credentials coming in than in previous years, and who may be having a harder time with the bar exam, doing worse in the classroom? And if so, what should we do about it? Are there innovative teaching techniques we should employ to account for this trend? Should our overall grades reflect poorer student performance by lowering the curve (if, in fact, that is warranted by lower quality performance)? Are there systematic changes we should make?
In the end, I am confident that my students, while perhaps coming in with lower numerical credentials, are still excellent students overall and will make fine lawyers, even if their classroom and exam performance has changed somewhat over the years. But Derek's post makes me wonder whether there is something more we should do in the classroom to account for lower-credentialed incoming students. If bar passage rate is the measure of success, then across the country our outputs have diminished. Derek points to the inputs (incoming student credentials) as at least once source of the problem, and my anecdotal evidence backs this up, at least somewhat.
What can we do for students to improve the outputs given the (potential) new reality of lower inputs? All law professors have the responsibility to spend significant time and energy contemplating this question.
Saturday, December 27, 2014
Gutless educational administrators and the First Amendment, part 6577 (Updated)
This is pathetic and really depressing. (Note the title is changed to reflect that the public face of the decision is not the school's AD, but the school's principal, which just makes this even more depressing).
First, we bemoan about how uninvolved and politically disinterested "kids today" are, then we systematically shut down their efforts to be involved or to take a stand.
Second, note the administration's move here--"we are too small to keep the peace 'should someone get upset and choose to act out,' so we are just going to stop people from speaking." This is a preemptive heckler's veto--In the ordinary heckler's veto, government stops the speaker when the crowd gets unruly and actually threatens violence; here, the government is stopping the speaker with no basis to know or reason to believe that anyone will get unruly, essentially by pleading poverty. Of course, government never has enough resources to protect everyone should someone decide to act out (someone will get hurt before police/security can respond). So, taken to its extreme, no one should be able to say anything that (government finds) controversial or objectionable, because government never can guarantee complete safety.
Third, while high schools are different and administrators have much greater control over expression on school grounds, this seems a step too far, particularly as to fans in the stands. Is an "I Can't Breathe" shirt really more likely to cause a disruption than an armband in the middle of Vietnam?
Fourth, given the insistence that "all political statements" be kept away from the tournament, should we assume that the national anthem will not be sung?
The tourney begins Monday. No indication that the players or potential shirt-wearing fans are running to court to even try to get an injunction.
Update: Some more details in this story. Before explaining the preemptive heckler's veto, the principal of the host school--a professional educator--indicated that she "respected the Mendocino teams 'for paying attention to what is going on in the world around them.'" Apparently, however, this professional educator does not respect them enough to not punish them for paying attention to what is going on in the world around them. Irony really is dead.
The Huff Post story also indicates that the father has been in touch with the ACLU and is hoping to hear back after the holiday. Someone in the N.D. Cal. is going to be handling an emergency TRO Monday morning.
Further Update: Per a commenter: The school district relented following negotiations with an attorney for one of the players--players and spectators will be permitted to wear the t-shirts, so long as they "do not cause any serious problems at the tournament." Of course, framing it that way walks us right back to the heckler's veto--if I object to the shirts, my motivation is to cause a disruption, which would then prompt the school district to do what I want and stop people from wearing them.
The Mendocino HS girls' team will not be able to play; since too few players accepted the no-t-shirt condition last week, the tournament invited a replacement team. This is where a § 1983 damages action would come in handy. Unfortunately, there is no way a court would find it clearly established that banning these shirts was unconstitutional, which would entail a parsing of Justice Alito's concurrence in Morse.
Finding what is emotionally charged
Mike Dorf posted his most recent Con Law exam (he writes great exams). The question touches on mandatory vaccinations and the rights of those who oppose or reject vaccinations, religious accommodations, non-religious accommodations, and the possibility of genetic and biological differences among different ethnic groups. Plus, compulsory broccoli consumption.
Emotionally charged? Likely to offend? Insensitive to some sub-section(s) of students? Otherwise inappropriate as an exam question?
Leo Strauss Man of Peace-Thanks to Paul HorwitzMany thanks to Paul for the great shout out about my new book Leo Strauss Man of Peace. Followers of PrawfsBlawg can get a sense of what I'm up to in the book in this NPR interview I did-the Leonard Lopate Show. https://bit.ly/1vh4YV4. There will be a launch event at NYU Law School on January 26, where Benedict Kingsbury will give introductory remarks and Seyla Benhabib will discuss the book. One of the discoveries I made in researching it was Strauss's course on Hugo Grotius, often considered the founder of modern international law. And also thsnks to Joseph Weiler for his appreciation of the book on EJILTalk, making it a "must read" pick for 2014.
Friday, December 26, 2014
Robert Howse, Leo Strauss: Man of Peace
Happy holidays to all. If you have an Amazon or Barnes & Noble or what-have-you book certificate lying around from the holidays, I'm happy to recommend a new-ish book by our friend and occasional Prawfsblawgger (and one of my former teachers) Robert Howse, Leo Strauss: Man of Peace. We have been behind the times here recently at Prawfsblawg. On the whole, given the times, I think that's a good place to be. But there are exceptions, and this is one of them: the official publication date of the book was mid-September, and we should have been shouting it from the rooftops long before now. My attention was called to the book by this review of it at The National Interest. And here is a review in the LA Review of Books. The book is also available on Kindle, so there's no reason you shouldn't own it seconds after looking at this post. Congrulations on the book, Rob! Here's a book description from Amazon:
Leo Strauss is known to many people as a thinker of the right, who inspired hawkish views on national security and perhaps even advocated war without limits. Moving beyond gossip and innuendo about Strauss's followers and the Bush administration, this book provides the first comprehensive analysis of Strauss's writings on political violence, considering also what he taught in the classroom on this subject. In stark contrast to popular perception, Strauss emerges as a man of peace, favorably disposed to international law and skeptical of imperialism - a critic of radical ideologies (right and left) who warns of the dangers to free thought and civil society when philosophers and intellectuals ally themselves with movements that advocate violence. Robert Howse provides new readings of Strauss's confrontation with fascist/Nazi jurist Carl Schmitt, his debate with Alexandre Kojève about philosophy and tyranny, and his works on Machiavelli and Thucydides and examines Strauss's lectures on Kant's Perpetual Peace and Grotius's Rights of War and Peace.
Tuesday, December 23, 2014
Teaching emotionally charged subjects, ctd.
The conversation, promptly most prominently by Jeannie Suk's New Yorker piece, is turning to trigger warnings, at least according to this piece from Slate/Inside Higher Ed. Shorter version from most of the people interviewed: "Of course we should teach sexual assault and other sexually related subjects, but let's be sensitive." "Sensitivity," among many of those interviewed, seems to entail some combination of not cold-calling or providing trigger warnings. Note that the conversation is not only about sexual assault; it also is about "discrimination," which means, if taken seriously, a trigger warning for any Con Law, Fourteenth Amendment or Employment Discrimination course.
Eye of the Beholder
Historically, case law has been hesitant to define what constitutes “art.” However, with respect to what constitutes “pornography,” we all know the infamous Supreme Court line, “I know it when I see it,” as well as the discussion of the topic in this case and Justice Thurgood Marshall’s opinion here. All of this being said, I am reminded of a painting that I once saw in a law professor’s office. It was of a nude woman, clearly artistic, and certainly not pornographic. Yet, I imagine that some students and other visitors were likely uncomfortable with it. A personal office that is part of a larger professional environment may thus not be the best location for such displays, and courts are weighing in. Should some art be off limits in the office – even in law schools?
"I've got a lot of problems with you people...!"
Today is one of my favorite made-up holidays: festivus (for the rest of us!) Somewhat amazingly, Festivus, the Seinfeld-inspired "holiday," has become a real thing in some places. According to that most-reliable source, both Wisconsin and Florida have displayed Festivus poles as part of their official winter holiday displays. Former Representative Eric Cantor apparently once held a Festivus fundraiser (although we can now see how that fared). This year, prominent politicians, such as Rand Paul, are finding their Festivus spirit, with Paul even hinting at a 2016 presidential run during his #festivus themed Twitter activity this morning.
So..air your grievances; engage in the feats of strength; and hope for a Festivus miracle!
Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong
Back in October, I wrote a post, titled "Is Ex parte Young Doomed?," about the Supreme Court's grant of certiorari in Armstrong v. Exceptional Child Center, Inc., which the Justices limited to the following question:
Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute?
As I wrote back then, this is the exact question that the Court ducked in its 2012 decision in Douglas v. Independent Living Centers of Southern California--a case in which, in a four-Justice dissent, Chief Justice Roberts would have dramatically curtailed the ability of private litigants to bring Supremacy Clause-based claims for injunctive relief to enforce any federal statute against a state officer if that statute didn't provide its own cause of action. Although HHS effectively mooted Douglas by approving the contested California state plan amendment while the case was pending, such a step is almost certainly not available in Armstrong--which means the Justices in the majority in Douglas, especially Justices Kennedy and Breyer, will now have to take a position on whether such a Supremacy Clause-based suit for injunctive relief is ever available for statutes lacking private causes of action. (The Supreme Court has previously endorsed the availability of such suits, but hasn't revisited those cases since its more recent jurisprudence curtailing the ability of private litigants to enforce statutes without their own cause of action, whether directly or through 42 U.S.C. § 1983).
One of the interesting back-stories to Douglas, which I covered in some detail on this blog, was the aggressive (and, in my view, disappointing) anti-private-enforcement position taken by the Solicitor General in an amicus brief filed in support of California. Leaving aside the controversial merits of the SG's Douglas brief, it was also a position that was radically inconsistent with the historical position of the Department of Health & Human Services (HHS) on the private enforcement question, especially with regard to "Section 30(A)"--the Medicaid Act's requirement that states set reimbursement levels high enough so that Medicaid recipients are able to have "equal access" to median quality medical care. Without this "equal access" mandate, economic pressures would almost certainly lead states to reimburse providers at the lowest possible levels, which in turn would likely relegate Medicaid recipients to the worst available providers. The problem, as the ACA litigation helped demonstrate, is that HHS doesn't have a lot of choices when faced with a state violating the Medicaid Act. The only real "stick" HHS possesses in such a scenario is the drastic remedy of cutting off Medicaid funding--which punishes the beneficiaries far more than it punishes recalcitrant states.
To that end, and tellingly, HHS did not sign the SG's Douglas brief, even though it had signed the SG's more equivocal cert.-stage amicus in the same case (which had recommended that the Court not take the case). Instead, in Douglas, I helped to put together an amicus brief on behalf of "Former HHS Officials," explaining why, because of the reality described above, (1) HHS has historically supported private enforcement of the Medicaid Act (and Section 30(A) in particular); and (2) partly as a result of this historical pattern, and partly for other reasons, lacks the institutional, political, financial, or administrative resources effectively to enforce Medicaid all by itself.
As in Douglas, the SG has once again sided with the states in Armstrong--albeit in an amicus brief that appears, at first blush, to be far more modest. Instead of opposing Supremacy Clause-based claims for injunctive relief in general, the SG's Armstrong amicus punts on that question, arguing that the Court need not resolve that general issue because "recognition of a private right of action under the Supremacy Clause in this case would be incompatible with the statute, the methods for its enforcement, and respondents’ claim."
And as in Douglas, a group of former HHS officials (including 15 senior administrators from three different administrations, led by former Secretaries Califano and Shalala) has now filed an amicus brief disputing the SG's position--and documenting how,
Since the early days of the Medicaid program, federal courts have recognized that providers may sue to ensure that state Medicaid plans conform to the requirements of federal law. Congress intended for such enforcement, and HHS has understood—and come to rely upon—its existence.
The brief, which I co-authored along with Matt Hoffman and Andrew Kim from Goodwin Procter, is in some important ways different from the brief we filed back in Douglas. There, our focus was on the SG's (since abandoned) position that private enforcement of the Medicaid regime would generally interefere with HHS's enforcement authorities and discretion. Here, our focus is on the SG's more modest claim about congressional intent and judicial enforcability of Section 30(A). Thus, the SG's Armstrong brief argues that Congress never intended for such private enforcement--and, even if it did, that courts would struggle to provide such enforcement given the vague language of the "equal access" provision's mandates.
Our brief rejects both of those claims, demonstrating how, not only have courts routinely applied Section 30(A)'s procedural and substantive requirements without serious difficulty (and, indeed, would have to do the same thing if HHS started to reject state Medicaid plans on the ground that they violate Section 30(A)), but how that provision--one of the Medicaid Act's most important requirements--would effectively be unenforcable without private enforcement by Medicaid beneficiaries or providers through some vehicle.
In other words, insofar as the SG's brief tries to duck the larger question implicated in Armstrong by arguing that Section 30(A) is an especially weak federal statute to enforce through such a Supremacy Clause-based injunctive action, our brief argues that it is, in fact, a textbook case for such a claim--since it is an essential federal mandate against states that, without such private enforcement, would almost certainly be frustrated.
Monday, December 22, 2014
The Dating Game
Dating is a personal issue – unless it involves the workplace or the classroom. In several law schools where I have worked, there are professors or employees who are happily married to former students, whom they began to date while they were students. Perhaps schools turn a blind eye because law students are adults – in contrast to undergraduate students – and, in theory, they are thus freer to make decisions about whom to date, much like people who date co-workers. But what about unwanted attention or a perceived inability to say no? An increasing number of companies and schools are instituting no-dating policies for these reasons. Should law schools follow suit?
Modesty About the System's Ability to Find Truth
The big criminal justice related cases, at the moment, are the killing in Ferguson and Rolling Stone's UVA gang rape story. It is remarkable that in both cases, a key lesson is that witnesses cannot be trusted. Of course, it has long been known that eyewitness identifications are unreliable. But it is becoming clearer that statements about what people said and did, or where they were, are not necessarily so.
And yet, prosecutions for perjury are apparently rare--other than in cases involving financial benefits or demonstrable harm. The Ferguson prosecutor, for example, is giving a pass to witnesses who lied on both sides, perhaps because prosecutions would have a chilling effect on future witnesses. For the most part, then, there is no real deterrent to lying.
Another disturbing piece of the puzzle comes from J. Guillermo Villalobos and Deborah Davis, psychologists at Nevada-Reno, and USF Law Professor Richard Leo. in Honest False Testimony in Allegations of Sexual Offences, they propose, essentially, that the general social context, coupled with use of alcohol and the plasticity of memory make it quite possible for two people to testify honestly about very different versions of a single event. The paper is about sexual assault cases, but the moral certainly extends beyond that.
My reaction is that we should recognize that criminalization comes with significant costs, which likely include a signficant error rate. For rape, robbery, murder, and the other common-law felonies, there is no choice but to criminalize, even recognizing that mistakes will be made; the alternative is too terrible. But for lesser forms of undesirability, perhaps greater caution is warranted.
Sunday, December 21, 2014
Law Professor Poetry
Poetry by law professors and lawyers is a pretty rare thing; the doctors had William Carlos Williams, the insurance industry had Wallace Stevens; and James R. Elkins recently edited an anthology of poems about the practice of law, but I am unaware of any lawyer-poets as famous as Williams or Stevens or their ilk. [Update: Of course, Stevens was a lawyer, New York Law School class of 1903. My mistake.] A lot of legal poetry is, for some reason, in the form of haikus about cases, practical stuff.
One law professor taking a shot at serious poetry is Case Western's Lawrence Mitchell, a distinguished writer in traditional legal styles. His poems on Youtube include work on Robin Williams and on what is surely the most common topic of poetry.
Professor Mitchell's Youtube channel is here.
Friday, December 19, 2014
Civ. Pro. is the New Black
And...they're off! My 1Ls just began taking their exam, which I titled "Civ. Pro. is the New Black." Eschewing Ferguson-style controversy (I hope), I'm ruining using the TV show "Orange is the New Black" as the basis for the fact pattern. Piper and Alex are in a fight, the Correction Officers put Piper in the SHU, and there is some tainted meat sold by "Felon Meats, Inc." that makes Piper sick. Piper sues Alex, the prison (run by a private company, Prisons R Us), Felon Meats, and one of the Correction Officers. Various other prisoners attempt to intervene. I made sure to vet the exam with someone who doesn't know the show so students who have never seen it are not disadvantaged.
I always feel nervous while my students are taking their exams. Perhaps I'm just reflecting their nerves; more likely I'm afraid that I have not really taught them much over the semester, which their answers might reflect.
In this way, I suppose the exam is also an assessment of me as a teacher. Here's to hoping I pass!
Should En Banc Review Correct Obvious Errors?
There's recently been a lot of discussion about Kosilek v. Spencer, a 3-2 en banc First Circuit decision by Judge Torruella on whether a prisoner has an Eighth Amendment right to sex reassignment surgery. Understandably enough, most of the discussion has focused on the merits of this dispute and on a dissenting judge's remarkable suggestion that the majority had responded to "[p]rejudice and fear." According to Judge Thompson's dissent, the majority opinion will "ultimately be shelved with the likes of Plessy v. Ferguson[,] deeming constitutional state laws requiring racial segregation, and Korematsu v. United States[,] finding constitutional the internment of Japanese- Americans in camps during World War II."
In this post, I will entirely bracket the merits--important as they are--and focus instead on a procedural issue that actually leads off Judge Thompson's dissent. In short, the dissent doubted that there was any proper basis for the en banc court to hear the case. That position rested partly on the claim that the case, though "not ... unimportant," was also not of "exceptional importance." The dissent further argued that en banc review is inappropriate if based on the belief that a panel decided a case incorrectly. To my mind, Judge Thompson is on stronger ground when she insists on a principled explanation of the grounds for en banc review. By contrast, her understanding of those grounds seems unduly limited. In this respect, Judge Thompson's position offers an interesting point of comparison to Supreme Court practice.
Here is the relevant discussion from Judge Thompson's Kosilek dissent (with some cites omitted and a paragraph break added):
The criteria for en banc relief are clear: it is not a favored form of relief, and ordinarily should not be ordered unless "(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance." Fed. R. App. P. 35(a).
My colleagues' reasons for granting en banc review are not articulated, but it seems clear that the maintenance of uniformity piece is not in play. Therefore I can only assume they perceive an issue of exceptional importance. This justification is problematic.
As my colleague has explained in a series of thoughtful dissents, in this circuit there has been what some might see "as the recurring unprincipled denial and granting of petitions for rehearing en banc, without any attempt to define and apply a set of objective criteria to determine when a case is of exceptional importance." [Cites to opinions by Judge Torruella] I am at a loss to see what objective criteria warranted review in this case.
While the relief ordered by the district court, and affirmed by a majority of the original panel, was unprecedented, Kosilek's case is not a legally complicated one. Rather it is a fact-intensive dispute, which required the original panel to determine whether the district court's take on the significant amount of evidence, and its ultimate holding as to the existence of an Eighth Amendment violation, was erroneous. I fail to see what in this framework made this case worthy of en banc review.
I am not implying this case is unimportant. This litigation is significant to Kosilek, the DOC, and many others, and the rights afforded under the Eighth Amendment are crucial. But if those things alone were enough, nearly every case would attract the full court's attention. And a good deal more cases would be heard en banc if disagreeing with the result reached by the original panel, or simply desiring to weigh in, were valid grounds for awarding en banc review. They are not, but unfortunately I suspect they were the grounds that carried the day here. See, e.g., Kolbe, 738 F.3d at 474 (Torruella, J., dissenting) ("En banc consideration is not for the purpose of correcting panel decisions.") (citing Calderón v. Thompson, 523 U.S. 538, 569 (1998) (Souter, J., dissenting)).
The basic structure of the argument is this:
- FRAP 35(a) dictates that en banc review is "ordinarily" appropriate only to preserve uniformity or to resolve matters "of exceptional importance."
- There is no uniformity problem, and the case, though "significant" to the parties and "many others," was no more important than many other cases.
- Disagreement with the panel doesn't justify en banc, in part because that would trigger too much en banc review.
- Having eliminated all legitimate reasons for en banc, we know that en banc here is illegitimate.
The dissent's argument about "exceptional importance" seems unstable, since the dissent clearly thinks that the case is very important indeed. As noted, the dissent goes so far as to assert that the case should be placed in the same category as Plessy and Korematsu. Those cases aren't just bad. They are also bad in a way that is exceptionally important.
Perhaps the dissent thinks that the importance of the case stems primarily from its value as a means of protecting minority-group rights. If so, then the case would be important only insofar as it should be resolved in the direction of the Eighth Amendment claim. So whereas a panel decision ruling against the Eighth Amendment claim would call to mind Plessy and Korematsu and create a case of "exceptional importance" warranting en banc, the actual panel decision--in favor of the Eighth Amendment claim--was relatively unimportant. However, that kind of outcome-oriented approach seems to be precisely what Judge Thompson is lamenting. In short, the dissent is unclear about how a case can be important, but not exceptionally so.
The more interesting issue is whether Judge Thompson is correct that en banc is inappropriate when based on "disagree[ment] with the result reached by the original panel." At first blush, Judge Thompson seems to be on solid ground. If mere disagreement were enough, that would indeed mean that "nearly every case would attract the full court's attention."
But what if a panel decision were obviously wrong--something, one hopes, that is fairly rare? That possibility isn't ruled out by FRAP 35(a), which speaks only of what is ordinarily appropriate for en banc. Moreover, that approach would have pragmatic appeal. When a panel makes a tough call, the mere possibility or suspicion of error might not justify the costs of sorting through the merits via en banc review. Only major stakes or disuniformity could then provide the extra justification for en banc. But if a panel issued a decision that is wrong on its face, then why not just reverse it en banc? Writing the en banc opinion shouldn't take too much effort, and the legal system would avoid the normal costs associated with bad precedent. So long as judges can reliably and quickly identify obvious errors, en banc review for obvious error would seem sensible.
If it makes sense to go en banc to correct obvious error, why doesn't FRAP 35(a) say that? Perhaps because such a rule would introduce an unfortunate element of disrespect into the en banc process. It is unpleasant enough to write a panel decision that gets rejected en banc. It would be all the more unpleasant if a majority of your colleagues expressly do so because they think you really badly missed the boat. This kind of thing isn't good for collegiality and might even deter courts from going en banc.
But do these points justify silent application of an "obvious error" rule? I don't think so. Most importantly, transparency is an important value in itself. And even if we should worry about judges' hurt feelings, there is likely a collegiality benefit to hewing to the FRAp 35(a) criteria in deed and not just in word. Perhaps that point is implicit in Judge Thompson's argument: by declining to explain why it chose to go en banc, the majority hasn't even done the dissenters--or the public--the courtesy of being candid.
It's interesting to compare FRAP 35(a) with Supreme Court Rule 10, which establishes guidelines for certiorari. Rule 10 famously provides that cert is appropriate when there is a circuit split or when there has been an "important" decision. Those points roughly track Rule 10's counterpart in the FRAP. But Rule 10 also provides that cert "is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law." In saying that error correction is rare, Rule 10 concedes that it happens. And of course it does, including via summary reversals.
Moreover, the Supreme Court is fairly candid about granting cert in order to correct what it views as an obvious legal error. Indeed, the Court sometimes seems to engage in this kind of error correction specifically in order to dress down or otherwise get the attention of wayward circuits. As a superior court, the Supreme Court has greater freedom to do this kind of thing. A similar attitude might be badly out of place within a circuit court.
Finally, the FRAP 35(a) and Rule 10 issues can intersect, for it's possible to think that the likelihood of Supreme Court review (including by summary reversal) might affect the propriety of going en banc. Interestingly, it's unclear which way this factor cuts. One of the efficiency gains of going en banc to correct obvious errors is that doing so spares the parties and Supreme Court the trouble of cert (perhaps after a split develops) or summary reversal. In other words, why pass the buck? But it's also possible to think that the Supreme Court is uniquely equipped to clean up obvious panel errors, particularly given the above-noted collegiality concerns associated with resolving horizontal disagreements via en banc review.
A few years ago, Judge Sutton took the latter position in a noted concurrence in the denial of en banc in a habeas case. Interestingly, Judge Sutton presented himself as doing pretty much exactly what Judge Thompson said should happen more often: he thought a panel decision was pretty clearly wrong, but decided to leave the decision where it was. As he put it: "Sometimes there is nothing wrong with letting the United States Supreme Court decide whether a decision is correct and, if not, whether it is worthy of correction." The Supreme Court obliged. In AEDPA cases, at least, it seems that the Supreme Court has assumed the role of Error Corrector in Chief: the buck stops there.
To repeat, I am not taking any position on whether Judge Thompson was right or wrong on the merits. Nor do I know why the en banc First Circuit decided to hear Kosilek. But Judge Thompson herself suggested that en banc review improperly occurred because the en banc majority "disagree[d]" with her panel opinion. And Judge Thompson also insisted on greater transparency into the reasons for granting en banc review. To my mind, Judge Thompson is on stronger ground with respect to the second point.
The above is from Re's Judicata. Happy holidays!
Thursday, December 18, 2014
Unlikely Holiday Films
One of my favorite "unlikely" holiday films, which has many useful teachable moments of clips to use in the classroom, is "Trading Places" (1983). This brilliant film is still one of the best business films ever made, and, personally, I think it's one of Murphy's and Aykroyd's best. It is also an "unlikely" holiday film because it just happens to be set during the holidays, and the season is not its primary focus. Instead, the film provides commentary on "nature versus nurture" and how good fortune can be fleeting (if left to someone else, such as the Dukes), or ready for the taking (with a little teamwork and creativity). What are some other great films set during the holiday season that have useful clips for the classroom?
The '60s, ctd.
Responding to how law schools handled testing on emotionally charged issues during the '60s, an alert reader points me to Harvard Law School's exam database, which seems to go back to Langdell.
In spring 1970,* Professor Cox's (presumably Archibald) Con Law exam (the link above takes you directly to this exam, beginning on p.335) asks whether a Black Panther can be prosecuted for criminal syndicalism for a speech discussing reasons to "tear down" and "burn" the town and how three men can do themselves. The hypo is fictionalized, but it is pretty clear who and what the prof is getting at and why (just as a fictionalized version of Michael Brown and Louis Head would not have covered anything). This exam was given two weeks after two students were killed and twelve others wounded when Jackson, MS police opened fire on an anti-war protest consisting of about 100 Black students).
Another Con Law exam that same year, this from Prof. Kaufman (beginning on p. 341 in the link), asked students whether, as clerk to a court of appeals judge, they would recommend joining an opinion affirming rejection of a Fourteenth Amendment challenge to a municipality closing all its swimming pools. It later asked students to evaluate the constitutionality of a federal statute permitting students to transfer out of segregated schools and requiring public payment of transportation expenses for students to attend other schools.
* Yes, 1970 was still "the '60s"; the '70s did not begin until Watergate.
So we have the Black Panthers and incitement during a civil rights protest, state efforts to avoid desegregation in places of public accommodation, and federal efforts to ensure integration, including bussing. Surely these were no less controversial or emotionally charged in May 1970 than Ferguson/police shootings is today. In fact, the pace of legal change (as opposed to just social disruption) was significantly greater then compared with now, so the times were even more unstable and even more likely to draw visceral reactions from students of varying political and identity stripes directly or indirectly affected by these issues.
Were these questions insensitive or inappropriate? One could argue that because there were far fewer students of color at Harvard in 1970 compared with at most schools today, there was less need for sensitivity to possible disparate emotional impact. Or, more precisely, less understanding of the need for sensitivity; Obecause we are more aware and more understanding of these issues and how they affect different students differently, we should be more willing to take that into account in drafting exams. In other words, we should not in 2014 emulate what law schools did int the benighted 1970s.
Civil Procedure "Creativity" Extra Credit
Stealing an idea from Andi Curcio of Georgia State University, which she shared on the Civ. Pro. list serv last year, for the past two years I have allowed my Civil Procedure students to earn extra credit by doing a "creative" project that helps to explain one of the main topics in the course. About a quarter of the students did something this year, ranging from amusing videos, to cartoons, to a spoof on the poem "The Raven," to a magazine article about "the talk," when a young girl asks her mother, "where do lawsuits come from?!" I show all of the projects at the beginning of the review session the day before the exam (earlier today). In my view, these projects provide some nice stress release, help make the concepts "sticky," and allow the students to exercise their creative juices. They often do things well beyond what I expected. Below the jump I've posted some of my favorites from this year. Enjoy!
Civil Procedure rap video (warning: there's a swear word at the beginning) (Alex Magara, Pete Rosene, Brandon Wells):
Hilter Rant Parody on International Shoe (Myranda Cotant and Emily McClure):
Civ. Pro. Cartoon (Ashley Angello):
Twas the Night Before the Civ. Pro. Exam (Catie Coldiron and Mary Tanner, performed wearing tacky Christmas sweaters!)
1. ‘Twas the night before Civ Pro, and all through finals hell,
2. Not a creature was stirring, not even a 1L
3. The outlines were made so no one need cram
4. In hopes that 28 USC §1367 would be on the exam
5. The 1Ls were nestled all snug in their beds
6. While visions of A pluses danced in their heads
7. And everyone still wearing their thinking cap
8. Had just settled their brains for a long winter's nap,
9. When all of a sudden, someone’s brain shuddered
10. The rules of 28 USC §1367 began to be muttered:
11. Where district courts have initial jurisdiction
12. All related state claims in the action
13. Give district courts supplemental jurisdiction
14. United Mine Workers of America v. Gibbs
15. Clarified when a district court does have dibs:
16. A state law claim gets into court when it reacts
17. From a common nucleus of operative fact
18. I knew in a moment there was more to the rule
19. So I asked friends for help so I’d keep my cool
20. And I whistled, and shouted, and called them by name:
21. "Now, Dasher! now, Dancer! now Prancer and Vixen!
22. On, Comet! on, Cupid! on, Donner and Blitzen!
23. There is still more to say so my grade does not fall
24. Now lets recite 1367 in all:
25. Unless there’s an exception, as already stated,
26. Supplemental claims are in if sufficiently related;
27. If a claim is based just on diversity
28. There is an exception: we’ll explain so that you see—
29. There’s no jurisdiction for certain defendants
30. Rule 14, 19, 20, 24 get no pendant
31. This rule extends to plaintiffs on occasion–
32. 19 and 24 may have no relation
33. But now there’s another exception afoot:
34. Supplemental claims can still be caput!
35. There are four situations in which to apply;
36. It can make district courts seem very sly
37. If novel or complex, the state law issue at hand,
38. The court may decline, and thus would remand;
39. If the secondary claim is too much to bear
40. The court can decide it need not be heard there;
41. If the district court has dismissed all other claims
42. The secondary cause can go down in flames;
43. The final reason a district court can decline
44. It’s more broad in definition and can seem asinine.
45. In exceptional circumstances a court can refuse,
46. Their supplemental jurisdiction in this case to use
47. It’s really quite simple once all in your head
48. There’s really no reason to feel any dread;
49. So now you can see supplemental jurisdiction is a breeze
50. You are able to ace this exam with great ease,
51. So in the morning when you awake from slumber,
52. To school you will skip, not drag, moan or lumber;
53. Your fingers will fly, your brain quick as a whip
54. And nary a problem which you must skip.
55. At the end of the final you realize with delight—
56. “Happy Christmas to all, and to all a good night!”
(The) Personal Jurisdiction (a play on The Raven) (Whitney Grider and Grant Sharp):
Once upon a Civ Pro class, while I pondered, weak and weary,
Over many concepts and cases of forgotten lore—
While I nodded, nearly napping (not true), suddenly there came a “Miss Grider,”
As of some one gently calling, calling my name, heart hitting the floor—
“Tis my day to be called on,” I muttered, “calling my name, heart hitting the floor—
Hopefully this time and none more.”
Ah, distinctly I remember it was in the Mid-September;
And each classmate sighing that it was not their name called.
Eagerly I wished the morrow;—vainly I sought to borrow
From my casebook, I thought in sorrow—sorrow for the loss of Pennoyer—
For the forgotten about Mitchell and Neff whom because of Pennoyer—
Nameless here for evermore.
“Pennoyer!” said I, “thing of evil!—still making students learn you!—
Whether by the Professor, or whether tossed at thee from attorneys before,
Desolate the ideas of Pennoyer, deserted lands—
In this jurisdiction—is there minimum contacts? –tell me—tell me, I implore!”
Quoth the Jurisdiction “Nevermore.”
“Be the minimum contacts needed for personal jurisdiction!” Mr. Sharp shrieked,
“Be continuous and systematic and related to the claim!”
An unrelated and isolated and infrequent contact is unconstitutional!
Leave Pennoyer in the past!—quit referring back to the forgotten lore!
Take the International Shoe doctrine, and take it out the door!
Quoth the Jurisdiction “Nevermore.”
And Jurisdiction, never flitting, still needed, still needed
In every case or otherwise not constitutional
And first look for minimum contacts,
And look for if they offend traditional notions of fair play and substantial justice;
New Law Teachers' Workshop at SEALS
This year, in addition to the terrific New Scholars' Colloquia (early-morning panels of papers from new scholars, with each presenter assigned a mentor/reviewer), the Southeastern Association of Law Schools (SEALS) will be offering a New Law Teachers’ Workshop. It will include a variety of panels designed to prepare the new (or newer) law professor for his/her new career. This also is in addition to the Prospective Law Teachers' Workshop, which does mock job talks and interviews for people (usually VAPs/Fellows) about to his the market.
Details (courtesy of SEALS macher Russ Weaver) after the jump.
Several things to note about the SEALS workshop. First, it is relatively inexpensive ($150 registration fee for faculty from member schools and $175 fee for faculty from non-member schools which is a fraction of the cost of other comparable programs). Second, in addition to being able to attend the New Law Teachers’ Workshop, attendees will have access to the entire SEALS meeting, including a rich variety of programs on pedagogy, research, publishing opportunities, etc., (see below) as well as programs on an array of substantive topics. Included in the general SEALS programming are specific programs designed specifically for legal writing and clinical faculty. Finally, and again for the same $150 fee, faculty from institutional member and affiliate schools will have the opportunity to participate in the New Scholars Workshop. This latter workshop allows young faculty to present a work in progress, to have a mentor, and to receive feedback on their scholarly projects.
Listed below is the rich tapestry of programs available to SEALS attendees. For this particular workshop, we will include the following panels:
Teaching Students Born In the Digital Age
As students get younger, and we professors age, the phrase “mind the gap” becomes increasingly pertinent. The panelists have ideas on how to connect with the newest generation to attend law school, from differing uses of mobile learning, such as pod casts, to using the Internet and multimedia in the classroom, videos, flipping the classroom, new technologies, and much more.
Speakers: Professor Brannon Denning, Samford University's Cumberland School of Law; Professor Michael Rich, Elon University School of Law; Professor Maggie Thomas, Louisiana State University Paul M. Hebert Law Center; Professor Laurie Zimet, University of California, Hastings, College of the Law
Becoming a Productive and Fulfilled Scholar. (Panel and Breakout Groups).
This panel of experienced scholars will discuss a variety of topics, including what a “scholarly agenda” is and how to develop one; alternate routes to tenure and self-fulfillment; using colleagues and research assistants in productive ways; the art or luck of publishing “well;” the importance of presenting at conferences; and how to enjoy, not dread, the scholarly process. The discussion will include the “nuts and bolts” of writing – where, when, what, and why. The panelists will then lead a breakout group to discuss these topics with participants in more depth in a roundtable format.
Moderator: Professor Colin Marks, St. Mary's University School of Law
Speakers: Professor Linda D. Jellum, Mercer University Law School; Professor Ronald Krotoszynski, The University of Alabama School of Law; Professor Nancy Levit, University of Missouri-Kansas City School of Law
Discussion Group: Advice for Newer Law Professors from Law School Deans
Building on the success of last year, this Discussion Group will bring together a panel of experienced deans to give their perspective on issues common to newer professors. These include things like juggling multiple service requests, navigating faculty meetings, setting reasonable expectations of availability with students, and evaluating advice from all the many people who will want to provide it. The discussion group will have ample opportunity for individual questions and for breaking into smaller groups.
Moderator: Professor Jennifer Bard, Texas Tech University School of Law
Discussants: Dean William Adams, Deputy Managing Director, American Bar Association, Section on Legal Education; Dean Luke Bierman, Elon University School of Law; Dean Nora Demleitner, Washington and Lee University School of Law; Dean Daisy Floyd, Mercer University Law School; Dean Jon Garon, Nova Southeastern University, Shepard Broad Law Center; Dean Richard Gershon, The University of Mississippi School of Law; Dean Danielle Holley-Walker, Howard University School of Law; Dean Ian Holloway, Calgary Law School; Dean Alicia Ouellette, Albany Law School; Professor Elizabeth Pendo, Saint Louis University School of Law; Dean Christopher Pietruszkiewicz, Stetson University College of Law
Creating Successful Methods of Assessment, Including Essays and Multiple Choice Questions
The panelists for this session will explore formative and summative assessment tools, especially in light of the future implementation of A.B.A. Standard 302, Learning Outcomes. The tools include writing a meaningful exam and creating efficient formative assessments during the semester. Topics will include the basic mechanics of exam-writing, constructing useful formative tools, and related matters such as cultural implications, the relevance of disabilities, and the rationales behind open and closed book exams.
Moderator: Professor Joel Mintz, Nova Southeastern University, Shepard Broad Law Center
Speakers: Professor Doug Chapman, Elon University School of Law; Professor Michael Coenen, Louisiana State University Paul M. Hebert Law Center; Professor Eang Ngov, Barry University, Dwayne O. Andreas School of Law; Professor Nancy Soonpaa, Texas Tech University School of Law
Designing Effective First Year Courses and Upper Level Elective Courses
The panelists, who have spent many years designing effective courses and seminars,, will discuss syllabus design, how to make decisions about the allocation and amount of coverage, the selection of texts and supplemental reading material, the amount of reading to assign, setting outcomes for the course or seminar, and overall teaching philosophy. Each panelist will then lead a breakout group to discuss these issues in-depth with participants in a roundtable format.
Moderator: Professor Susan Klein, University of Texas School of Law
Speakers: Professor Kathy Cerminara, Nova Southeastern University, Shepard Broad Law Center; Professor Howard Katz, Elon University School of Law; Professor Ben Madison, Regent University School of Law
Putting Your Teaching Philosophy to Work In the Classroom
The panelists, all dedicated and excellent teachers, will discuss their teaching philosophies and the differing methods they use to implement those philosophies. The panelists also will discuss concrete issues, such as the role of different learning styles, the best methods of controlling the classroom, time management, coverage of material, and teaching respect, professionalism and cultural awareness in the classroom. Each panelist will then lead a breakout group to discuss these issues with participants in depth in a roundtable format. Some of the breakouts will focus on nuts and bolts; other groups will pursue broader issues such as teaching philosophy.
Speakers: Professor Enrique Armijo, Elon University School of Law; Professor Olympia Duhart, Nova Southeastern University, Shepard Broad Law Center; Professor Susan Kuo, University of South Carolina School of Law; Professor Connie Wagner, Saint Louis University School of Law
Wednesday, December 17, 2014
Paul rightly links the request by some students to delay exams in light of events in Ferguson, New York, Cleveland, etc., to the '60s, when students were similarly protesting about the war, civil rights, etc.
Let me ask a different question that relates back to the issue of exams and coverage on hot-button subjects and contexts: How did professors handle discussing and testing on the subjects that ruled the day 40-50 years ago and how did students react? After all, just as students then were similarly too busy protesting the war to deal with exams, they were also similarly emotionally invested/triggered by these issues (after all, many of them were a student deferrment away from maybe fighting in the jungle). So did profs feel free to ask questions about protesters and demonstrators getting arrested? What about the constitutionality or wisdom of US conduct in Vietnam or Cambodia? What about the constitutionality of the Voting Rights Act or C/R/A of 1964? And did students object to such questions when they appeared on tests? And if not, what should we make of that difference?
An Interesting Op-Ed on Delaying Exams, and its Consequences
The National Law Journal has this op-ed from a law student, titled (although the author probably didn't write the title) "Delaying Exams Is Not a Request from 'Coddled Milennials.'" It concerns, as the author writes, students at various law schools who have "requested that their administrations allow extensions on final exams for students who have been confronting the aftermath of the recent failed grand jury indictments of the officers who killed the unarmed black men."
But that's the least interesting aspect of the op-ed for present purposes. What is interesting is that the author makes clear that the trauma is, for him at least, not the most relevant reason the students want a delay. To the contrary, many students in his position, by his description, are not only capable but extraordinarily capable of taking their law school exams right now:
Although over the last few weeks many law students have experienced moments of total despair, minutes of inconsolable tears and hours of utter confusion, many of these same students have also spent days in action—days of protesting, of organizing meetings, of drafting emails and letters, and of starting conversations long overdue. We have been synthesizing decades of police interactions, dissecting problems centuries old, and exposing the hypocrisy of silence. . . .
Our focus and critical thinking are at an all-time peak while the importance of our textbooks is at a low. It is not that law students are incapable of handling their exams. It is that we are unwilling to remove ourselves, even for a few days, from this national conversation. As future practitioners, professors, judges and policymakers, we have all been trained not only in the faithful application of the law but also in the critical examination of its effectiveness. And by our analysis, responsible members of the legal community can no longer defend our criminal justice system as exemplifying fair process when that system so frequently produces the same unjust result—life drained from an unarmed black body by a barrage of government-issued bullets.
We recognize that this is a moment for change. If not us, then who? For most of us, we know that if we get lower grades this semester, this cost will have been worth the importance and privilege of joining a national movement to fundamentally reform this country’s approach to law enforcement and criminal justice. But just because we are willing to pay this price does not mean we should have to. . . .
Our requests for exam extensions are requests for our faculties and administrations to recognize that this movement is our legal education—that when we march, when we advocate, when we demand accountability and action we are employing the analytical skills and legal knowledge that we have learned in our law school classrooms far more than we would be if we responded to a hypothetical exam prompt.
I have quoted the student at length because, rather than employ two common responses to these recent questions--unqualified acceptance of the students' claims or unqualified ridicule--I want to take the student and his argument seriously on their own terms. As such, I read the op-ed to say the following: However upset we may be, we are more than capable of doing the work the exams demand--more than capable of marshaling and analyzing facts and law and using and communicating analytical skills and legal knowledge. We can take the exams. But we don't want to; nor, all things considered, do we want to suffer grade penalties for taking them later. This is a unique time. It is a time for all good people to get involved in issues of police violence, and specifically racially disproportionate police violence. We are making a knowing choice to do this instead of working on our law school obligations, and the law schools should recognize the importance of these issues and assist us in doing so without what penalties given the circumstances. I hope that is a fair precis.
For what it's worth, I think the student is right that this is not simply a "coddled millenial" argument, notwithstanding the hundred or so comments on the National Law Journal website calling the student a coddled milennial, although in less friendly language. This student argues not that these students are done in by grief and sensitivity, but that they are engaged and skillful; they simply think they have more important things to do. In that, it makes me think not about the millenial generation in particular, but about other generations and other eras in which this kind of argument might have been made, at least in elite circles. In particular, it reminds me of Laura Kalman's great book Yale Law School and the Sixties, in which, as I wrote here in a post in 2006 (searchable, if you plug in Prawfsblawg and Kalman and sixties), a bunch of YLS students in the Hillary Clinton period staged a walkout to end the war in Cambodia, and then demanded that those students receive course credit without sitting for their final exams. It reminds me, too, of debates and goings-on at law schools in the era I think our current era most closely resembles: the early 90s.
To my mind, taking this op-ed seriously is more valuable than either mocking it or accepting its claims categorically. And it raises some interesting questions. Are the students right that this is a unique moment? Conversely, are there times when a "moment" would be judged insufficiently unique or pressing to justify a student's request for exam delays on the grounds of political activism and an emotional response to current events?
More important, perhaps: Why attend law school at all at such moments? Why not take a leave from school, or drop out altogether? Why not become a full-time activist instead of a part-time student? One hardly needs a law degree to work for social change. It is true that law school teaches valuable skills, or at least gives one credentials, that might help one engage in certain forms of socially conscious work in the long run. But I take the student's point to be that the students cannot wait; they must act now, notwithstanding their prior obligations as students, and the moment is sufficiently pressing that they should not be penalized for making that choice. If the moment is so pressing, why remain in law school? One could ask similar questions about the possibility that some of these students--not all, I'm sure, perhaps not even most of them--will go to work at standard-issue law firms after graduation, on the grounds that those credentials and experience will allow them to do more important work for the social good in the long run. Whether this is a good argument or not in normal times, doesn't it entail these students waiting to make significant contributions until after they've done a few years gathering standard credentials in clerkships and law firms--in other words, until well after the moment has passed? And if that's so, doesn't that weaken the argument that the students should have their exams delayed because the moment is so urgent?
I initially intended while writing this to acknowledge at this point that these may seem like somewhat unkind questions. On reflection, though, I think they're not. They're perfectly legitimate questions that arise if you take the student's arguments seriously instead of just mocking him as another "coddled milennial." If they're at all unkind, it's not because they're dismissive but because they take the student's logic perhaps more seriously than he would want. Once you accept the argument of the logic--protesting is more important than exams right now because of the urgency of the moment, and the issues raised by the news right now deserve some extra consideration over the mere routine of law school and its obligations--than the question "why not drop out?" seems perfectly reasonable. Conversely, it seems unreasonable to accept the logic of those arguments up to a point--"Yes, you should certainly get an extension from exams on the grounds of political urgency that you offer"--but not accept them too much: "Of course, that doesn't mean that, having gotten the extension, you shouldn't remain in law school, graduate from Harvard, and go on to a prestigious clerkship and a short career at a fancy big firm before doing the things that are really important. Those things can always wait, and you'll do more good in the long run. By all means, have your cake and eat it too." In the circumstances, if you accept his argument, I think the student has made a fine case for abandoning law school immediately and taking up full-time activism. And I sincerely appreciate his offering a different, non-milennial take on things.
The Developing Law of Rotating Credit Groups
Here's a quick summary for how rotating credit groups work, drawn from Eric Posner's thoughts about them in The Regulation of Groups: The Influence of Legal and Non-Legal Sanctions on Collective Action, 63 U. Chi. L. Rev. 133, 169-70 (1996):
[A] rotating credit group typically consists of a small number of people . . . who periodically contribute money to a pot. At the beginning of each period, one member takes the pot. Members determine the recipient by lottery or bidding. Failure to make timely payments and other breaches result in nonlegal sanctions such as criticism that, carried along the channels of gossip, injures the defaulter’s reputation and may lead to social ostracism. When everyone has taken one pot, the group dissolves.. . . [P]articipation in a rotating credit group either reduces the time necessary to save up to buy an indivisible good or earns interest.
These "money clubs" are often ways for ethnic groups or small groups of close friends and/or family to build capital outside the formal banking system. The clubs have roots that extend back centuries -- but they continue to exist in the US even today. Korean-Americans are particularly reliant on "gyes" or "kyes" -- but there are analogous money clubs in communities of, for example, Mexicans ("tanda" or "cundina"), Japanese ("tanamoshi"), and those from the West Indies or West Africa ("esusu," "sou-sou," or "susu"). Among legal academics, Lan Cao has a canonical article about these financial instruments -- Looking at Communities and Markets, 74 Notre Dame L. Rev. 841 (1999) -- though there are many anthropological studies of these practices, too. Perhaps Geertz's The Rotating Credit Association: A "Middle Rung" of Development, 10 Econ. Dev. & Cultural Change 241 (1962), is the most famous.
Both Posner and Cao see the clubs as essentially outside the law and recommend that courts approach these associations with a general "no legal recourse" norm except in very rare cases. To oversimplify, they tend to think keeping courts out of these arrangements may conduce to better solidarity within the group and that a rule of non-enforcement will enable the informal enforcement mechanisms in the clubs to do their work better. There is a risk of "crowding out" the intrinsic motivations of club members if the law gets too involved -- and there is a serious risk that courts will be incompetent at understanding the matrix of rules the communities use, rules that vary among the different ethnic groups and rules that vary from American contract law's default rules without being written anywhere.
I sounded a note of caution about carving out these arrangements from the enforcement mechanisms general contract law provides in Contracts and Friendships, 59 Emory L.J. 649, 710-12 (2010), arguing that the "crowding out" worry is overblown and that parties’ reasonable expectations ought to be enforced even in close-knit communities. Courts will have epistemological challenges, to be sure, but not insuperable ones. Relational contract theory helps us see that general contract law has always struggled to make the law fit within the fabric of ongoing complex relationships -- and we ought not throw up our hands, assuming that law has no place within intimate arrangements. Sometimes members of groups turn to these credit instruments not because they are trying to opt out of law but because there is social pressure to opt in or members have no real access to more conventional sources of credit.
In 2009, in Mi Bong Hong v. Chong Chin Cha, 979 A.2d 250 (Md. App. 2009), Maryland seemed to go the way of Posner and Cao. And, truth be told, the lack of litigation evident in the case reporters nationwide was its own form of evidence for Posner and Cao's general claim that "no legal recourse" is the internal norm anyway.
But two new cases in New York now seem to suggest that contract law will, after all, supply some remedy to those harmed within these money clubs. In both Duncan v. Campbell, 984 N.Y.S.2d 631 (Civ. Ct. N.Y.C. 2013), and Speare v. Johnson, 978 N.Y.S.2d 644 (Civ. Ct. N.Y.C. 2014), New York City courts see informal savings clubs as agreements that are enforceable like any other contracts. Although the court in Duncan found the plaintiff's claim barred by the statute of frauds under New York law, the court was explicit that the contract was otherwise valid. In Speare, the court also found the club to create a binding agreement under New York law.
By my lights, it is a welcome development that New York courts are opening their doors to people whose money is tied up in a shadow banking system with hundreds of millions of dollars that remains unregulated. Contract law is the least we can provide to those harmed by mismanagement or poor conduct by participants in these money clubs.
The Price is Right
December marks the start of the season for faculty job offers – as few and far between as they may be in this economy. In the “old” days, salaries and perks were likely much more flexible. Is there much room for negotiation, or will candidates jump at the chance to accept any offer, just to have a foot in the door? In our current economy, what can one realistically ask for and receive?
Suk, "The Trouble with Teaching Rape Law"
Adding to the conversation about teaching and testing on controversial or emotionally charged subjects, here is Jeannie Suk (Harvard) this week in The New Yorker. (H/T: My FIU colleague Eric Carpenter). Of course, sexual assault fits into the first category, in that the subject itself is emotionally charged regardless of the context in which it is presented or tested. Obviously, I share Suk's conclusion that it is too bad that we are moving in this direction--and that it is bad not only for law students, but also for law and legal reform.
Can Justice Kagan Narrow Heien v. North Carolina?
Yesterday, the Court decided Heien v. North Carolina by an 8-1 vote. Both the holding--that police act constitutionally when they make certain mistakes of law--and the lopsided outcome in Heien call to mind Davis v. United States, which involved the good-faith exception to the exclusionary rule and was resolved 7-2. Heien provides the most recent example of the "other" rule of lenity--that is, the newly ascendant principle that police should get the benefit of the doubt when it comes to ambiguous laws. Heien also shrinks the gap between Fourth Amendment rights and remedies, which now both include consideration of the police's "good faith." And then there's the historical dimension of Heien. So, as expected, Heien is a big decision.
For now, I'd like to focus on how lower courts will construe Heien in light of Justices Kagan's concurrence, which was joined by Justice Ginsburg. Because she asked the government several skeptical (and characteristically insightful) questions at argument, Justice Kagan's decision to join the majority may seem somewhat surprising. But the content of Justice Kagan's concurrence, along with the fact that her vote was unnecessary for the creation of a majority, suggests that she might have been motivated to concur to put her own spin on the decision for the Court. In other words, Justice Kagan's concurrence might be an example of "aspirational narrowing." It's less clear that Justice Kagan's efforts will be successful.
Justice Kagan points out three ways in which the Court's holding is limited. Two points appear in the main text of her opinion and another comes up in a footnote. The two main-text points are that the majority relies on an objective inquiry and that it imposes a more demanding requirement than would apply in a qualified immunity case. The footnote asserts that a reasonable mistake as to the content of the Fourth Amendment itself cannot be reasonable for Fourth Amendment purposes. Let me take up these points in turn.
1. The inquiry is objective, not subjective. This basic point is well supported, as the majority expressly endorses an "objective" inquiry. But Justice Kagan's cashing out of this point is surprising. As she puts it:
[T]he government cannot defend an officer's mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law. [C]ontrary to the dissenting opinion in the court below, an officer's reliance on 'an incorrect memo or training program from the police department' makes no difference to the analysis.
But the majority says nothing about police memos or training. Moreover, Justice Kagan's conclusions are questionable on their own terms. Objective inquiries often incorporate relevant facts, including things like training and advice. Indeed, the Supreme Court recently said just that in a qualified immunity case. Even though the qualified immunity standard is quite expressly "objective," the Court in Messerschmidt v. Millender found it relevant that "officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate." If the advice of superiors is relevant, then why not training and guidance documents?
2. The Heien inquiry is stricter than qualified immunity. Here, too, Justice Kagan's point starts out seeming well-founded. After all, the majority expressly states--in a sentence that looks like it might have been added to secure Justice Kagan's vote--that its inquiry "is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation." However, as Joshua Block has observed, this point is unexplained and so might not actually pose a serious bar for police. Indeed, the difference between Heien's standard and qualified immunity might be so small as to be irrelevant.
Justice Kagan tries to flesh out the majority's cryptic assertion, but her effort only raises more questions. As she recounts, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” By contrast, Justice Kagan explains, the Heien majority's "test is satisfied when the law at issue is 'so doubtful in construction' that a reasonable judge could agree with the officer's view." Justice Kagan also explains that "both North Carolina and the Solicitor General agreed that such cases will be 'exceedingly rare.'"
But Justice Kagan's statement of the Heien test--"that a reasonable judge could agree with the officer's view"--sounds very similar to the test for qualified immunity. As Messerschmidt and many other cases put it, qualified immunity protects "reasonable" officers. And, as Messerschmidt and other cases show, the conclusion that no reasonable judge could agree with the officer already seems key to determining whether the officer's action was "plainly incompetent" for qualified immunity purposes.
Justice Kagan's analysis also raises a lot of questions. For instance, does Justice Kagan mean to draw a distinction between reasonable officers and reasonable judges? Does she mean to exclude cases like Messerschmidt that consider things like oversight by district attorneys? Finally, and perhaps most provocatively, is Justice Kagan's "reasonable judge" standard satisfied whenever a case involves jurisdictional splits or even dissenting opinions, since the judges at issue are presumably "reasonable" ones? If so, then Justice Kagan is saying not only that the Heien standard is satisfied in connection with splits and dissents, but also that the relatively lax qualified immunity standard is as well.
Somewhat greater guidance comes from the Solicitor General's presentation during oral argument, which Justice Kagan cites. Here's the cited passage:
JUSTICE SOTOMAYOR: How is your standard differed from qualified immunity standard of reasonableness?
KOVNER: Sure. We think that an officer, in order to have reasonable grounds for a stop, needs to be able to point to something in the statute that affirmatively supports his view, whereas the qualified immunity standard seems to require essentially the opposite. It seems to require that there's a precedent that forecloses what the officer does in order to protect only those who were acting to protect everybody except for those who are clearly incompetent.
This statement doesn't appear in Justice Kagan's concurrence, much less in the majority, so we are getting pretty far from settled law. Moreover, it's quite unclear what it means to have "something in the statute that affirmatively supports [the officer's] view," if that is supposed to mean something other than that the statute is ambiguous. Perhaps the idea is that the statute actually seems to have been intended to support the officer (as in the exclusionary rule case Illinois v. Krull), but the state courts for some reason misread the provision. Or perhaps not.
Justice Kagan's effort at narrowing here calls to mind Justice Sotomayor's similar effort in Davis v. United States. Like Justice Kagan, Justice Sotomayor concurred in a lopsided decision in the hope of highlighting the majority opinion's limitations. In particular, Justice Sotomayor emphasized that Davis applies only where police action has been "affirmatively authorized" by precedent. That move is similar to the government's (and, therefore, Justice Kagan's) in the passage above. Yet circuit courts have read Davis quite a bit more broadly. Will Justice Kagan's effort fare better?
3. Searches based on reasonable Fourth Amendment errors are always unconstitutional. Justice Kagan's final effort to narrow Heien appears in a footnote.
Here is what Justice Kagan's footnote says (with some cites omitted):
I note in addition, as does the Court, that one kind of mistaken legal judgment—an error about the contours of the Fourth Amendment itself—can never support a search or seizure. See ante, at 10 (“An officer's mistaken view that” conduct does “not give rise to” a Fourth Amendment violation, “no matter how reasonable,” cannot change a court's “ultimate conclusion” that such a violation has occurred). As the Solicitor General has explained, mistakes about the requirements of the Fourth Amendment “violate the Fourth Amendment even when they are reasonable.” Brief for United States as Amicus Curiae 30, n. 3; see Brief for Respondent 29 (stating the same view).
Once again, Justice Kagan asserts a fairly bright-line rule based in part on the statements of the parties.
But here is what the relevant passage of the majority says (with most cites omitted):
Heien is correct that in a number of decisions we have looked to the reasonableness of an officer's legal error in the course of considering the appropriate remedy for a constitutional violation, instead of whether there was a violation at all. In those cases, however, we had already found or assumed a Fourth Amendment violation. An officer's mistaken view that the conduct at issue did not give rise to such a violation—no matter how reasonable—could not change that ultimate conclusion. See Brief for Respondent 29–31; Brief for United States as Amicus Curiae 30, n. 3. Any consideration of the reasonableness of an officer's mistake was therefore limited to the separate matter of remedy.
While the majority opinion provides support for concurrence's conclusions, Justice Kagan's statement and the majority's are not identical. The basic gap between them is that the majority is distinguishing cases, not expressly establishing a bright-line rule for the future. True, the majority asserts that, in the relevant cases, police officers' reasonable mistakes about the Fourth Amendment "could not change" the Fourth Amendment result. And the majority cites the same party briefs that Justice Kagan does. However, the majority opinion doesn't actually say that reasonable mistakes about the Fourth Amendment will always be irrelevant to the Fourth Amendment analysis. In future cases, police might make novel errors about what the Fourth Amendment generally requires, and, in reviewing the specific officer's action, the Court might not "assume" or "already" have found a violation. In such a situation, it is unclear whether the majority's statement applies.
In sum, Justice Kagan's concurrence seems like an attempt to narrow the majority, rather than neutrally interpret it. Put another way, Justice Kagan's goal is to inject clarity into the majority opinion's ambiguities. On its face, however, the majority leaves open some issues that Justice Kagan hopes to resolve. And some of Justice Kagan's attempted clarifications actually raise new questions. It will be interesting to see whether Justice Kagan's reading of Heien prevails in the circuit courts and, eventually, in later Supreme Court decisions.
The above is cross-posted from Re's Judicata.
Tuesday, December 16, 2014
But can I wear my "Fuck the Draft" jacket?
From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:
No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.
Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?
Dodson on Twombly Creep
The following is by Scott Dodson (Hastings):
Yesterday’s Supreme Court’s opinion in Dart Cherokee held that a notice of removal need not be accompanied by evidence of the amount in controversy in a CAFA-removal case. The Court split 5-4 on the nerdy question of whether the Court could even review the issue itself because the Court of Appeals declined, in its discretion, to hear the appeal from the district court. That latter issue got quite a bit of play at oral argument, and coverage of the opinion’s resolution of that issue has overshadowed the Court’s decision on the merits, which pretty much everyone—myself included—thought fairly obvious.
But there’s something funny, and potentially important, in the merits part of the decision that people seem to be overlooking.
Section 1446(a), which sets the standards for a notice of removal, requires the defendant to file a notice “containing a short and plain statement of the grounds for removal.” This language mirrors Rule 8(a)(1), which sets the standards for pleading the jurisdictional basis for a claim filed in federal court, requiring a complaint to provide: “a short and plain statement of the grounds for the court’s jurisdiction.” The parallel language is not coincidence. In drafting the removal standard, Congress meant to borrow and incorporate the liberalized pleading standard from Rule 8(a)(1), which contains the identical language “a short and plain statement of the grounds for,” and focuses on allegations of jurisdiction. Removal, after all, is concerned primarily with jurisdiction rather than the merits of the claim.
The Court has interpreted these standards before. For jurisdictional allegations, both in cases filed in federal court and in cases removed to federal court, the amount-in-controversy alleged in good faith by the plaintiff controls unless contested by the defendant. Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 276 (1977); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). Thus, the standard for a “short and plain statement of the grounds for” the jurisdictional allegation of the amount in controversy for diversity jurisdiction is “good faith.”
This standard of a good-faith allegation leaves no room, at least prior to contestation by the defendant, for an evidentiary requirement. Dart was surely correct, then, in holding that a notice of removal requires no evidence beyond the good-faith allegation of the jurisdictional amount.
But, oddly, the Court did not phrase the question that way. The opinion sets the question presented a somewhat different way, with my emphasis added:
To assert the amount in controversy adequately in the removal notice, does it suffice to allege the requisite amount plausibly, or must the defendant incorporate into the notice of removal evidence supporting the allegation? That is the single question argued here and below by the parties and the issue on which we granted review. The answer, we hold, is supplied by the removal statute itself. A statement “short and plain” need not contain evidentiary submissions.
The answer is correct: A “short and plain statement,” at least without other requirements, need not contain evidentiary submissions. But the italicized language is perplexing. It suggests that, though evidence is not required, the standard does require that the removal notice allege the requisite amount “plausibly.”
And, later, the opinion concludes (my emphasis added): “In sum, as specified in § 1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Evidence establishing the amount is required by §1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s allegation.” Again, last sentence is clearly correct. But the Court also seems to hold that the removal standard requires a “plausible” allegation of the amount in controversy.
Where in the world did the insertion of the “plausibility” standard come from? The Court offers neither citation for it, nor textual support for it, nor reasoning for it. Further, the Court’s reasoning repeats the proper standard of “good faith.” What’s up with plausibility?
The answer must be the infectious case Twombly, which established a new pleading standard of plausibility under Rule 8(a)(2) in federal court. This plausibility standard had never before been a part of any pleading regime; rather, Twombly imported it from the substantive antitrust context.
But importing plausibility to removal makes little sense. For one, removal already has a perfectly fine standard that has worked for 75 years: good faith. It is possible that the Court thinks that “plausible” is a useful, clarifying synonym for good faith. But it’s far from obvious that “good faith” and “plausible” are synonyms in this context. And there’s no indication that the standard of “good faith” was unclear (as if the gloss of “plausibility” would be helpfully clarifying).
For another, Twombly grafted plausibility onto Rule 8(a)(2), which has a different standard from either the removal standard or the Rule 8(a)(1) standard. True, all three standards use the same preliminary language requiring “a short and plain statement.” But the removal and Rule 8(a)(1) standards go on to use the phrase “of the grounds [for jurisdiction],” while the merits pleading standard of Rule 8(a)(2) uses the different language “of the claim showing that the pleader is entitled to relief.” In developing the “plausibility” standard, Twombly focused on Rule 8(a)(2) and its unique concluding language: “The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’” Twombly’s textual support for the plausibility standard—such as it is—has no bearing on jurisdictional allegations under Rule 8(a)(1) or § 1446(a).
For yet another, the rationale of Twombly maps poorly onto plausibility for removal allegations. Twombly foisted plausibility on merits allegations to guard against excessive discovery costs imposed on defendants at the behest of an implausible claim for relief: “Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no ‘“reasonably founded hope that the [discovery] process will reveal relevant evidence”’ to support a . . . claim.” Removal, of course, merely shifts the forum; discovery cannot be avoided simply by defeating removal. And, in removal, the notice is filed by the defendant, the putative beneficiary of the plausibility standard. Applying the plausibility standard to removal turns Twombly on its head.
So, in Dart, it appears that, without citation or, frankly, any reasoning at all, “plausibility” has snuck in to yet another place where it doesn’t belong: removal. If so, this opens the door to arguments that Twombly’s standard is even more broadly applicable than previously thought.
Erie and/in the District of Columbia
An otherwise routine decision this morning from the D.C. Circuit raised a question I must confess to never before having considered: Why do the Article III D.C. district court and D.C. Circuit consider themselves bound to follow the Article I District of Columbia Court of Appeals on questions of "District of Columbia" law? After all, (1) D.C. is not a state; and (2) D.C. is not covered by the Rules of Decision Act (which, unlike plenty of other federal statutes, does not treat D.C. like a state); and (3) the provisions of the D.C. Code (and, presumably, the decisional law of the D.C. Superior Court and D.C. Court of Appeals) are, for constitutional purposes, federal law--such that it's not even clear the Rules of Decision Act would apply even if it did treat D.C. as a state. Thus, not only is a federal court sitting in diversity and applying D.C. law not bound by the Rules of Decision Act to follow the decisions of the D.C. Court of Appeals; there actually is something that seems untoward about an Article III court being bound by a non-Article III court's interpretation of federal law--even where that federal law is only of local applicability.
Fortunately, hours ten minutes of research led me to the following footnote in a 1979 D.C. Circuit decision, which appears to be the originating citation for all subsequent statements that the Article III D.C. courts defer to the D.C. Court of Appeals on questions of D.C. law:
We do not mean to imply that application of District of Columbia law is mandated by Erie R. R. v. Tompkins, 304 U.S. 64 (1938). In the first place, Congress, when [it bifurcated the D.C. courts into separate Article I and Article III tribunals in 1970], did not amend the Rules of Decision Act, 28 U.S.C. § 1652 (1976), to include the District of Columbia within its ambit. Had Congress wished the Rules of Decision Act to govern in situations such as the one before us, it could easily have revised the act after the fashion of 28 U.S.C. § 1332(d) (1976), which denominates the District of Columbia a “state” for purposes of diversity jurisdiction. Secondly, the constitutional considerations discussed in Erie have no force in this context, for the District, unlike the states, has no reserved power to be guaranteed by the Tenth Amendment.
Nevertheless, we have in past diversity cases looked to the District of Columbia's courts to provide the applicable choice of law principles and substantive rules of decision. That seems proper because the Court Reform Act made the District of Columbia Court of Appeals the “highest court” of the District, and thus the principal arbiter of District law . . . . Indeed, were we not to yield a measure of deference to the District of Columbia Court of Appeals, two courts neither of which could review the other's decisions would engage independently in the process of formulating the local law of the District. That would subvert the dual aims of Erie: discouraging forum shopping and promoting uniformity within any given jurisdiction on matters of local substantive law.
Other than the suggestion that the D.C. Court of Appeals should have the final say on D.C. law (a matter which, again, seems to ignore the extent to which D.C. law is federal law, at least for constitutional purposes), this argument seems quite persuasive to me as a normative matter. But what it means in practice is that the only reason today that Article III judges must defer to the D.C. Court of Appeals on questions of D.C. law is because the D.C. Circuit itself has said so--and so stare decisis, and not the Rules of Decision Act or principles of federalism--carries all the weight (and would not bind federal courts outside of the D.C. Circuit in diversity cases in which choice-of-law rules compel application of D.C. substantive law).
Let’s Make a Deal
Negotiation is a skill that every attorney needs to have in his or her tool box, but it is not a required course in any law school of which I am aware. As one who is certified in ADR from one of the best programs in the country, I can honestly say that I use these techniques on a daily basis – on and off the clock. Although this topic is non-doctrinal and is not tested on any bar exam, it is a skill that every law student should learn before entering practice. Should it be a required third-year course? Why or why not?
Monday, December 15, 2014
Pfander on Dart
SCOTUS on Monday decided Dart Cherokee Basin Operative Co. v. Owens; the Court held that a notice of removal need only contain a short and plain statement of the amount in controversy and evidence is necessary only if the plaintiff contests the amount. It was a 5-4 decision, with Justice Scalia, joined by Justices Kennedy and Kagan and in part by Justice Thomas, in dissent, arguing that the Court lacked authority to review a court of appeals summary denial of discretionary review of a remand order. Justice Thomas also filed a separate dissent.
James Pfander and Daniel D. Birk (Northwestern) have a piece called Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisidction (Yale L.J., forthcoming); Dart fits with some of what they wrote there (see, especially, pp. 27-28 and 79-80). Jim emailed the following (posted with his permission):
Dart serves as a nice illustration of the work that a construct of non-contentious jurisdiction can do in simplifying the exercise of jurisdiction over some uncontested matters. As you know, the problem in Dart arose from the one-sided and discretionary application for appellate review of the remand decision. Justice Thomas, echoing a position first articulated by Justice Scalia in Hohn v. United States, argued that the petition in Dart was not a “case” in the appellate court and was therefore not a matter within the Court’s cert jurisdiction. There were no adverse parties joined and nothing was contested.
It’s here that the construct of non-contentious jurisdiction can help. If one recognizes that federal courts have long presided over uncontested applications for the certification or recognition of a claim of right, so long as they require the exercise of judicial judgment (as Brandeis explained in the leading case, Tutun v. United States), then the treatment of ex parte applications for discretionary review (as in Hohn and Dart) presents no real mystery.
(Mis)trusting States To Run Elections
The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law. I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews. But that is unfortunate, because it is both doctrinally wrong and practically dangerous.
As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice. Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny. Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest. But often the state is not really trying to achieve election integrity, at least not principally. There are often partisan motivations behind an election regulation. How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters? Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.
Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face. Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.
After the jump I explain the problems with this approach.
Defering to states substantitively on their interests in an election law and procedurally through as-applied challenges is constitutionally suspect, especially because the Court does not analyze federal election rules in the same manner. This mode of analysis ignores the fact that the U.S. Constitution, through the Elections Clause (Art. I, Sec. 4), gives Congress an explicit oversight role in state election rules. In addition, the various amendments relating to voting provide that Congress may "enforce" those constitutional mandates.
The deference is also dangerous. States know that their laws will not receive meaningful scrutiny and that they need only tie a new rule to "election integrity" in the abstract to pass the first prong of the constitutional test (the state interest prong). This emboldens state legislatures to enact laws with partisan gains in mind because they can gloss over that point by raising the "election integrity" mantra. But partisan motiviations should play no role in how we structure our elections.
The Court should not defer so readily to a state's election process. Instead, the Court should apply a meaningful form of strict scrutiny review to laws that infringe upon the constitutional right to vote and require both Congress and legislatures to justify their laws with a stronger rationale than just election integrity, especially if there is an inference that the legislature really had partisanship in mind.
Here is the abstract of the article, for those who want more on this argument:
Comments are welcome!
Sunday, December 14, 2014
Promissory estoppel in emotionally charged contexts
1) Testing on a legal topic that is part of the course curriculum and is inherently emotionally charged, regardless of the factual context in which you place it. This includes pretty much all of the "what about this" examples that Eugene and I (in comments to my earlier post) offered--testing on the validity of same sex marriage bans or affirmative action or circumcision bans, questions involving sexual or racial harassment in employment, rape shields, campus sexual assault, hate speech, limiting immigration, etc.
2) Testing on a legal topic that is part of the course curriculum where the question arises in some emotionally charged context and the context affects the analysis of the topic. The Ferguson/Incitement question falls here. Incitement is obviously a core part of a First Amendment class; the context and the details of Ferguson are essential to the First Amendment analysis. Asking in my Civil Rights class whether NYPD Officer Daniel Pantaleo is entitled to qualified immunity in a § 1983 lawsuit by Eric Wilson's widow also would fall here.
3) Testing on a legal topic that is part of the course curriculum where the question arises in some cemotionally charged context but the context is more-or-less irrelevant to the analysis of the topic. In this category would be a promissory estoppel question based on the Steven Salaita case (discussed here, here, here, and elsewhere). The emotional charge here comes from competing views over whether Salaita is a victim of an academic-freedom-violative witchhunt for having the wrong views on Israel and Palestine or is instead an unreconstructed anti-Semite whose tweets are undeserving of academic freedom. But none of that has anything (or little) to do with his promissory estoppel claim.
So where does this framework leave us? Category # 1 presents the easiest case--students must be able to grapple with and analyze these questions and we have to be able to test on them. And that does not change if we put the question into a real-world factual context or not. So, for example, if I want to test on hate speech regulation, I should be able to put it in the context of nooses displayed on a a real college campus.
Category # 3 presents the hardest case, because the controversial context can seem most like a provocation. It thus is especially susceptible to the arguments that either a) it is unfair, unnecessary, and too hard for some students to fight through the offense or distraction to get at the legal question or b) if you insist on using Salaita, you can bowdlerize his "crime" to somethinions are beneficial in g other than tweets and views that may be seen as anti-Semitic or that may anger people on one side or the other of the Israel/Palestine question. I would suggest that Category # 3 questions are important to showing the legal side to current events and in making a subject relevant to the real world. But this category also leaves us the most flexibility, as we can give a Salaita question without quoting his texts or detailing his viewpoints (which, again, have nothing to do with the estoppel claim).
Category # 2 is obviously somewhere in the middle, coming closer to # 1 or # 3 depending on the question, the subject, and the circumstances. For example, the Salaita case may demand a different answer in an Education Law or First Amendment class testing on academic freedom.
I still believe all three should be fair game for both class discussion and for exams/essays. Lawyers must not only "get their lawyer on" (as a commenter on a prior post put it) as to the topic, but also as to its application. But for those who want to try to draw some distinctions and workable lines, this may be a place to start the conversation.
Saturday, December 13, 2014
A Few More Cents on the Exam Question Question
My initial inclination concerning the UCLA Law School Ferguson-related exam question fuss was to think that the professor had not acted terribly or outrageously, especially since the question itself was one step removed from direct questions about the shooting or the grand jury process. That said, I ended up more ambivalent about this question than I expected I would be, for various reasons. Some of those reasons are given by Eugene, whose post title--"Exam questions about emotionally charged events"--puts things in the right context. A few observations:
1) The main goal of any exam drafter should be to give a clean question that offers a simple basis for evaluating a student's mastery of the subject matter of a course and grading those questions. Anything that distracts from that goal should be avoided. Sometimes the thing to avoid is the professor's own 'wit.' An exam question, for instance, should not feature parties named Chuck, Chick, and Chet, so that students have to waste time figuring out who's who. A clever question based on a TV show should not assume that students know anything about the show. A professor should certainly avoid using a question as a vehicle for his or her own politics, because students may worry about satisfying those politics.
"Emotionally charged events" may be a distraction too. Thus, questions of future lawyers' "toughness" aside, those questions should be avoided if there is a chance that a number of students will be distracted by them, let alone upset. Although I think we seem to have re-entered an era of concerns over political correctness, and one in which, as a commenter wrote on Howard's post, some students (and some professors) "are generally unable to separate their own political beliefs from principled legal analysis (or even civil, civic discussions)," the view I've offered here doesn't have much to do with that. It's simply a matter of best practices in exam drafting. I do not think the question was outrageous, as I said. But the concern could have been anticipated and avoided.
2) I think some of the arguments I have seen, along the lines that law school is all about training students to deal with controversial issues in a clinical fashion and that students who have emotional responses to such questions show a lack of fitness for future practice, are overstated. There are some valid points here. Eugene points out something important that most commenters have not: even where a lawyer is acting for the side he or she feels passionate about, not against it, that lawyer "will do [his or her] clients no favors by being so zealous in [his or her] opinions that [the lawyer] fail[s] to grasp the best arguments on the other side." Even a lawyer with the good fortune to be representing a person or cause that he or she feels passionate about must still also bring a clinical side to that work.
That said, lawyers are not always required to take on issues that they feel passionate about, on either side of the case. To the contrary, ethical rules recognize that such lawyers may--and sometimes must--avoid such cases. A lawyer with a strong personal reaction to a particular issue may in some cases have a personal conflict of interest--sometimes even a non-consentable conflict. Lawyers confronted by a client who insists on a course of action that is repugnant to them may sometimes be able to withdraw from that case. And in a broader sense, lawyers often avoid whole practice issues that they believe would confront them with too many emotional or political dilemmas, such as criminal prosecution or defense. Again, I think there are some valid aspects to the general argument that lawyers are required to bring a clinical, detached perspective to their work. And I worry that some of the general drift of some of the comments both makes too many class-based assumptions about students' likely emotional reactions and capabilities, and gives too much weight to some of the aspects of our emotional, offense-centric age. Nevertheless, I think the general argument that lawyers are necessarily required to immediately set to work on a case no matter their deeply held personal response to it is overstated and ultimately not that helpful here. And, of course, whatever we think about those general issues, we are still dealing here specifically with an exam question, not class curriculum or discussion.
3) I assume that there will be several general responses to some of the parade of hypotheticals that have been marshaled in defense of this exam question, or more generally in defense of teaching and examining on issues that might upset students. One will be the "Ferguson is different" argument, and some comments have gestured in that direction. Whether it's accurate or not, it is insufficient. We need to know why this case is different. Is it the politics of the issue? The identity-based issues it raises? Its emotional pull? The amount of time that has elapsed since the issue came up? We need to know more, not only to evaluate this particular exam question but to address future questions.
Another might be to privilege students' claimed emotional reactions completely and categorically. There are obvious problems with that approach, both normative and practical. But it's not wholly irrational. The question is how to implement such an approach. Say a professor avoids an issue like Ferguson, on the grounds that too many students might be upset, and instead asks a question about a suit against a tobacco company involving "light" cigarettes. One student in the class lost a parent to lung cancer a week ago. Is it advisable to discount that question for that student? How about a student who lost a relative to lung cancer two years ago, if she says she was still upset by the question? How about a question about the Holocaust? If advisable, is this deferential approach administrable? Finally, does everyone agree that politically sensitive issues should not be categorically avoided, and that asking students to see both sides of that issue is wholly acceptable? For instance, is there anything wrong with asking a student, in an essay question, to provide the best possible critique of Brown or Lawrence or Windsor? Is such a question insensitive? If a student expresses emotional upset at being asked to do so, how should we respond to such a claim?
My sense, after reading through the comments on Howard's post (the comments on Eugene's post were less useful, in my view), is that whatever the answers to these questions are, we will get clearer discussion and better guidance by discussing other cases and hypotheticals rather than focusing solely on Ferguson. I would find it more helpful if commenters would propose other exam questions involving other issues, and give some guidance on how to deal with those questions, both for the class as a whole and for individual students. Even when one decides that some practical question, such as what constitutes an acceptable or unacceptable exam question, requires case-by-case judgment, there is still some kind of incipient rule or principle behind those judgments. That is what needs to be uncovered here.
Friday, December 12, 2014
Where's John McCain?
Much of the debate over the so-called "Crominbus" (a combination Continuing Resolution and Omnibus spending bill), which the House passed late last night, surrounds the last-minute insertion of a campaign finance provision that would raise the limits on individuals donating to political parties. The provision would gut the main portion of the McCain-Feingold law that is still standing after Supreme Court review: the ban on "soft money." Political parties used to raise unlimited amounts of "soft money," in return giving their wealthy donors access to legislators. The 2002 McCain-Feingold law largely put an end to this practice, and the Court upheld the provision in McConnell v. FEC.
The current spending bill would allow an individual to give over $1.5 million, and a couple over $3.1 million, to the Democratic or Republican party during a two-year election cycle. This is more than three times the current limit. The provision was slipped in at the last minute without any public debate. The new rule would fundamentally alter the scope of campaign finance by re-inserting the political parties into the fundraising business, potentially opening the doors to undue access once again.
Rep. Nancy Pelosi, as well as various campaign finance watchdog groups, have been vocally opposed to the measure. But what about John McCain?
Campaign finance reform used to be McCain's signature policy initiative. Partnering with Democrat Russ Feingold, his bill, which he worked on for years, in essence thwarted political parties from providing undue access to legislators in exchange for campaign donations. (The bill also strenghtened the ban on corporations and unions from making independent expenditures, which the Supreme Court struck down in Citizens United.)
As far I as can tell, McCain has been fairly mute on this aspect of the Cromnibus. He apparently said, before it was unveiled, that it would be "disgraceful" and "jammed full of shit." But I haven't found any statements from him since the campaign finance provision was made public.
One might imagine that McCain would be outraged. And his outrage could potentially influence other Republicans to vote against the Cromnibus package, although that of course would lead to the possibility of a government shutdown. Either way, it's curious that McCain has been relatively silent so far on this provision, which would severely gut the major piece of the McCain-Feingold law that is still standing. McCain has been one of the few legislators to understand the problem of entrenchment: the concern of legislators passing laws to help keep themselves in power. The current provision would help both of the two major parties. It is a pro-establishment rule. But it would mostly help wealthy donors and already-wealthy politicians.
Will McCain stick to his morals and speak out against this provision? Or has he become just another Washington insider?
Procedure week at SCOTUS
I have recaps at SCOTUSBlog of this week's oral arguments in Gelboim v. Bank of America on finality in MDL cases and in United States v. Wong/United States v. June on the jurisdictionality of the FTCA's limitations periods.
I do not predict an outcome in either recap and I usually am bad at predicting these things. But I will go out on a limb: The Court reverses in Gelboim and holds that a judgment disposing of all claims in one action within an MDL is a final judgment. The Court affirms in both Wong and June and holds that the FTCA limitations periods are non-jurisdictional and subject to equitable tolling. (Apologies in advance to all three attorneys if I just jinxed your cases).
[Update: Eugene Volokh, Golstein's UCLA colleague, weighs in. He and I are in lockstep agreement (as always, he says it better than I did) about the need for law students to learn how to push through emotional investment and the seemingly boundless scope of the objections being leveled here. He adds two important points: 1) He gives the full question, which was much more detailed and provided students with the relevant facts and 2) Goldstein was not pressured by the administration to discard the question.]
Prof. Robert Goldstein at UCLA asked the following question on his First Amendment exam:
Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision.
And outrage has resulted. Elis Mystal at ATL says Goldstein was asking students "to advocate for an extremist point that is shared by only the worst people in an exam setting," akin to making students "defend Holocaust deniers or ISIS terrorists." Goldstein apologized (Mystal has the text of his note to students) and is disregarding the question, saying the subject is "too raw" to be useful as an evaluative tool.
But what is really wrong with the question? I already have argued that Louis Head (Brown's stepfather) did not commit incitement as understood in Brandenburg, Hess, and Claiborne Hardware. Nevertheless, this seems like a legitimate question to ask a First Amendment class, one that ties legal education into the current world. One of the things I tell my students is that having a legal education means you inevitably look at everything through a legal lens. So why not use significant current event that raises a legitimate legal issue as a way to teach the issue? And the question did not require anyone to take or defend any particular position, much less one equivalent to Holocaust denial; it said to write a memo on the constitutional merits, which plainly leaves room to argue that a prosecution could not constitutionally be brought (which, again, I believe is the "correct" First Amendment answer).*
* If there is a defect in the question, it is that it assumes a detailed level of knowledge of what happened on the night of the grand jury announcement and when Head made his statements, all necessary for the Brandenburg analysis.
Does that much turn on requiring the memo to the DA? (Mystal seems to think so, hightlighted in his responses to commenters on his ATL post.) Does advising the DA mean the student only can say that the First Amendment would not be violated and that a prosecution is permissible--couldn't they also write "no, you will be violating the First Amendment if you try to bring this prosecution, remember your obligations to do justice"? Would we not be having this conversation if students had been asked to write a memo for a criminal defense lawyer or for the ACLU figuring out whether they have a meritorious constitutional defense against any prosecution?
I did not use any Ferguson questions on my Evidence exam this semester, mainly because I used the events (especially the convenience-store video and the alleged theft) in class discussions to illustrate character and other acts. But I never would have thought twice about asking such a question, or about putting the students in the position of having to argue that such evidence is admissible in any prosecution (which, ironically, would have put them in the position of the defendant in that case).
Thursday, December 11, 2014
Video and public opinion
William Saletan at Slate reports on a recent study showing that more whites believe the Michael Brown grand jury was right but the Eric Garner grand jury was wrong. Saletan argues it is evidence, not race, that explains the difference--the "quantity, quality, and clarity of evidence differed between the two cases," namely the presence of "unflinching" video of Garner's death.
This is an important aspect of video evidence. It is not only what video can do in criminal and civil litigation. Video also plays a role in the public conversation over a particular incident or event, which in turn may affect more official responses, both in and out of court. Certainly that video will provide the key push if DOJ decides to pursue a civil rights prosecution in the Garner case.
JOTWELL: Mulligan on Preis on causes of action
The new Courts Law essay comes from Lou Mulligan (Kansas), reviewing Jack Preis, How Federal Causes of Action Relate to Rights, Remedies, and Jurisdiction (Fla. L. Rev.) (forthcoming). Jack's article is terrific (it will be an essential piece if/when I return to writing about jurisdictionality) and so is Lou's review.
Race, Bias, and Doctrine in Warger v. Shauers
This week, the Supreme Court decided Warger v. Shauers, a unanimous decision on the rule against challenging trial jury verdicts based on evidence of jury deliberations. Warger is noteworthy in part because it comes at a time when grand jury decisions are coming under special scrutiny, particularly in cases involving concerns of racial bias. In Warger, the problem of racial bias lurks just beneath the surface—or, more literally, in a footnote just beneath the main text. Warger's elliptical reaction to this problem illustrates how the Court translates constitutional principles into rules for normal cases and exceptions for extraordinary ones.
Here are the basic facts of Warger. After a civil jury verdict found no liability for a traffic accident, one of the jurors claimed that the foreperson had been biased against the plaintiff. The foreperson, it seems, had revealed during jury deliberations that one of her close family members had been at fault in a traffic accident. This led the plaintiff to request a new trial on the ground that the foreperson had been deceptive during voir dire, causing a violation of the plaintiff’s constitutional right to an impartial jury. However, Federal Rule of Evidence 606(b) generally bars challenges to jury verdicts based on evidence relating to jury deliberations, subject to certain exceptions. The question in Warger was whether Rule 606(b) applies in circumstances where a juror may have lied during voir dire. In a crisp opinion by Justice Sotomayor, the Court held that that the jury-deliberation evidence couldn’t be considered.
Given recent events, it’s timely to ask why the U.S. legal system goes to such lengths to protect jury deliberations from scrutiny. Warger doesn’t explore this issue in any detail, except to gesture toward traditional interests in finality and jury independence. The question that most bedevils this area of law is how to know which kinds of juror predisposition are ‘bias’ and which kinds provide helpful local knowledge or democratic insight. In Warger itself the foreperson allegedly had a personal experience relevant to the case. Does that show that she couldn’t neutrally apply the law, or that she had unique insight into the jury’s decision? (For more reflections in this vein, check out Dov Fox’s recent work on the ‘architecture of juror bias.’)
Most of the Court’s decision concerns Rule 606, but the defendant also argued that stringent application of the Rule would raise constitutional difficulties by impairing the right to an impartial jury. Evidence of jury deliberations, after all, could go to show jury partiality. So in applying the Rule, a court is effectively turning a blind eye to evidence of a constitutional violation. That sounds like only a small step away from treating a constitutional violation as constitutionally valid. Therefore, the defendant concluded, the Court should choose to read the Rule in a way that avoided raising this problem.
The Court rejected this argument from constitutional avoidance because it believed that the “plain text” of the Rule unambiguously precluded use of jury testimony in Warger. But that move implicitly raised a deeper question: if the Rule clearly applied in Warger, was it unconstitutional?
The Court accordingly went on to consider and reject the constitutional argument. Here is the key passage, which I’ve broken up into paragraphs:
[A]ny claim that Rule 606(b) is unconstitutional in circumstances such as these is foreclosed by our decision in Tanner.
In Tanner, we concluded that Rule 606(b) precluded a criminal defendant from introducing evidence that multiple jurors had been intoxicated during trial, rejecting the contention that this exclusion violated the defendant’s Sixth Amendment right to “‘a tribunal both impartial and mentally competent to afford a hearing.’” 483 U. S., at 126 (quoting Jordan v. Massachusetts, 225 U. S. 167, 176 (1912)).
We reasoned that the defendant’s right to an unimpaired jury was sufficiently protected by voir dire, the observations of court and counsel during trial, and the potential use of “nonjuror evidence” of misconduct. 483 U. S., at 127.
Similarly here, a party’s right to an impartial jury remains protected despite Rule 606(b)’s removal of one means of ensuring that jurors are unbiased. Even if jurors lie in voir dire in a way that conceals bias, juror impartiality is adequately assured by the parties’ ability to bring to the court’s attention any evidence of bias before the verdict is rendered, and to employ nonjuror evidence even after the verdict is rendered.
This passage may seem like a conventional invocation of precedent, but it is actually a bit more interesting. In Tanner, jury-deliberation evidence tended to show that some jurors were intoxicated. If that was so, then the defendant’s right to an “impartial and mentally competent” jury would have been infringed. So, if credited, this evidence was pretty powerful stuff. Yet the Court didn’t care whether the evidence was credible.
Instead, the Court ignored the evidence on the ground that the relevant constitutional right was “sufficiently protected” by other means of promoting jury impartiality. Warger adopts and extends that reasoning, concluding that the right to jury impartiality (and sobriety) is “adequately assured” by mechanisms unrelated to Rule 606(b). In other words, potentially compelling evidence of a constitutional violation can be overlooked in a particular case because the legal system is generally pretty good at solving the general type of problem at issue.
This kind of reasoning is very common—and perhaps even inherent in judicial precedent—but it is also objectionable. If the defendant in Tanner really had a right to a sober jury, then why should the unusualness of his problem preclude him from having a remedy?
Interestingly, Warger itself seems to recognize that the Court’s normal system-wide perspective must sometimes give way to the particularities of individual injustices. This point arises in footnote 3, which is appended to the Court’s above-quoted discussion:
There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process. We need not consider the question, however, for those facts are not presented here.
So the Court reserved the possibility of “juror bias so extreme that, almost by definition, the jury trial right has been abridged.” As others have noted, the kind of bias that the Court has most vividly in mind here is probably racism—a scenario forcefully raised by the plaintiff and amicus NACDL. Clearly, this point is relevant to issues of current national debate (which centers on grand juries, not the trial juries at issue in Warger). The Court's decision to avoid naming this much-discussed problem may reflect a desire to avoid entanglement with an ongoing public controversy.
Yet the nature of the reservation doesn’t line up with the stated reasons for the rule. Again, Warger's stated reason for finding no constitutional violation was that there are lots of other mechanisms that protect against jury bias. That reasoning might suggest a different result if, from a system-wide perspective, the normal mechanisms became less effective at checking jury bias. And it might also suggest a reservation for individual cases where the normal impartiality mechanisms aren’t faithfully applied. But those reservations aren't the one that appears in Warger.
So, what implicit reasoning underlies Warger’s reservation? One possibility is that the Court sees a hierarchy of bias, such that pedestrian bias—like juror intoxication—is unconstitutional but not so bad as to justify supplementing the normal impartiality mechanisms. However, viewing the matter strictly as a jury impartiality issue (and not, for example, as an equal protection issue), it’s hard to see what kind of impartiality could be worse than the unconstitutional kind. This suggests that the hierarchy of bias might rely on other constitutional values, apart from jury impartiality.
Another possibility is that some types of bias, like intoxication, are easier to detect. As a result, uncorroborated jury-deliberation evidence might just be less than compelling evidence of unconstitutional partiality in any given case. If the jurors were really intoxicated, for instance, you might expect some sign of that based on their courtroom behavior or on the drinks that jurors had with them as they went into the jury deliberation room. In that sense, “the usual safeguards” might indeed be “sufficient to protect the integrity of the process.” Racism and other forms of bias, by contrast, might be harder to detect without access to the deliberative record. On this approach, what matters isn't the "extreme" degree of bias, so much as whether it's extremely hard to detect.
Of course, the Warger reservation is just a reservation and so might not come to anything—which is doubtless how it garnered such easy unanimity. But at this particular moment it seems quite possible that a more “extreme” case could eventually arise.
The above is cross-posted from Re's Judicata.
Most large law firms have marketing departments, but the practice of marketing legal services is not always popular among lawyers. We have attorney advertising guidelines, and there are still plenty of ads in the yellow pages, but the idea of selling one’s services can be uncomfortable. Traditionally, lawyers thought their work should speak for itself. It still should, but marketing assists with spreading the word. As David Packard once said, “Marketing is too important to be left to the marketing department.” That being said, should marketing techniques be considered a necessary skill in the modern practice of law? Should they be addressed in law school?
Wednesday, December 10, 2014
Happy Birthday to My Wife, and Happy Wyoming Day!
Not really law related, but I wanted to take this opportunity to wish my wife, Bari, a happy birthday. She's not a law prawf--she's an elementary school teacher, which is a much harder job! If you have 10 seconds, I'm sure she would love happy birthday emails from random prawfs around the country--it will sure make her chuckle. Her email address is baridouglas [at] gmail [dot] com.
In looking for a quasi-legal hook, I learned that the Nobel Peace Prize is always awarded on December 10, which is the anniversary of Alfred Nobel's death.
More up my alley, on December 10, 1869, Wyoming's governor approved the first law in U.S. history granting women the right to vote. To celebrate, every year December 10 is officially "Wyoming Day" in that state. Wyoming is also a pioneer in having elected the first woman Governor, in 1924. Way to go Wyoming! Another reason to go there (it's one of six states I've never visited).
Tuesday, December 09, 2014
Speaking of Non-Competes
I knew this moment would come. In Talent Wants to Be Free I argued quite strongly against the rising and pervasive use of non-competes in a wide range of jobs, positions, types of employment and industries. As academics we are rather free to move around the market; it's one of those last remaining havens where some employees, specifically the faculty, have job security and mobility. A moral hazard for sure, but we tend to agree that the benefits of academic freedom are worth the costs. Most of the time, it's the reverse these days: no job security but also limitations on mobility. Well, today I was asked to sign a speaking agreement for a non-academic conference in which I will be speaking about Talent Wants to Be Free and lo and behold, as I read down the lines, a section entitled NonCompete Clause appeared before my eyes. It reads something like: the speaker agrees to not speak at a related conference within a 100mile radius of the conference in the two weeks prior and the two weeks following. Oh the ironies! At least the time frame is reasonable, not the one, two and three years we are seeing in some employment contracts.
Who Would Hire Kingsfield?
Over the years, it has become widely discussed that seasoned lawyers are continuing to have a tough time with getting hired as law faculty. It seems that many very experienced lawyers who would offer valuable work experience are, surprisingly, viewed as somehow less desirable candidates than the under-35 set. With the myriad discussions currently afoot about the importance of graduating “practice-ready” lawyers, aren’t some of the best teachers the ones who have been out in the world using their law degrees, either in practice or in alternative legal careers? Are seasoned lawyers wasting their time by going on the market? If Charles W. Kingsfield were on the market today, which schools (if any) would extend him an offer?
The New Cognitive Property & Human Capital Law
Intellectual property is all about the bargain, no absolutes. But below the radar, a patchwork of law and contract is operating to expand the types of knowledge and information that become propertized. My new article, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property, forthcoming Texas Law Review 2015 is now up on ssrn. Here is the abstract and as always, I would love to get your thoughts and comments:
Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.
Posted by Orly Lobel on December 9, 2014 at 10:45 AM in Article Spotlight, Employment and Labor Law, Information and Technology, Intellectual Property, Orly Lobel, Property, Workplace Law | Permalink | Comments (0)
Faculty Teaching Loads
This semester I am serving on an Ad Hoc Committee to consider the University of Kentucky's teaching loads. Specifically, we are looking at whether there is a disparity in how much each of us teach.
To that end, it would be helpful to hear what other schools do to allocate teaching resource. In the comments, would you be kind enough to share whether your teaching loads are based on:
-Credit hours taught
-Student contact hours (credit hours times number of students)
I'll start: at the University of Kentucky, each faculty member generally teaches two courses per semester, regardless of credit hours or student contact hours.