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Saturday, January 31, 2015

How to Find and Build a Scholarly Community

So imagine this: You are new to the legal academy, and you are trying to find a scholarly community. Or perhaps you are already part of one but want to make it stronger. Where do you begin? What steps do you take? This past week I spoke to a few of you who are experts in buildings scholarly communities. And I would like to share some of your ideas and advice with our readers here.

Scholarly communities are different from many of the communities that exist in the world. When we think of the word “community,” we often think of something local. A policeman patrols a local community. He knows other policemen in his city, but a policeman who lives in Boston will not necessarily consider a different policeman who works the streets of Seattle to be his colleague. Lawyers tend to be part of local communities too. A few work for large firms with multiples offices and are staffed on deals with colleagues from other offices, but this is an exception, not the norm. More often, legal practice is a local affair, with courts following local rules, firms servicing local clients, and bar associations networking with local lawyers.

But the legal academy is different. The whole point of the enterprise is to seek out companionship and camaraderie beyond the walls of your institution, the confines of your city and state, and the borders of your country. The whole point is for a scholar who might live in Boston to interact and collaborate with other scholars who happen to be working on the same topic, regardless of whether they live in Seattle, in San Francisco, or in Sao Paulo. Still, how should you go about finding these like-minded individuals who may share your same interests but live in far-flung places? And once you find them, how do you become a part of their community or bring them into yours?

If you are new to the legal academy, or aspire to enter it, or have been in it for a long time but simply want to expand your network, here is a short how-to guide for finding and building a genuine scholarly community. This guide is not exhaustive, and additions to it are welcome. Here it goes.

(1)   Decide What You Are Interested In: People often claim not to know what they are interested in (or not to know what to do with their lives, which is a version of the same thing). In fact, we all know what our interests are, but sometimes we have a hard time articulating them. A person’s interests come from his or her personal experiences. And since all of us have experienced different things, we all have different interests. It is fine to have multiple interests, but the best advice is to pick one, or two, or three. Then stick with them, develop and refine them, and try to figure out how to explain them to others in a thoughtful elevator pitch.

(2)   Publish on Your Areas of Interest: Read what other scholars have written about your areas of interest. You might agree with some of the literature, but hopefully you will disagree with a lot of it too. Here is the key: always read with a critical eye, and be certain to disagree on matters of principle with someone who does not share your views. Next, write up your disagreements in a way that explains why your take is better than the analysis that came before it.

(3)   Go to Conferences and Meet People: There is a lot of ranting on the internet knocking down academic conferences. (I really shouldn't even link to it.) I tend to ignore it because I personally love attending these things. Conferences come in all shapes and sizes, from big tent gatherings to small subject-specific workshops. Every time I go, no matter the type, I come away feeling inspired and renewed. Going to conferences should give you the feeling that you are part of a profession and part of a larger community. Conferences should provide you with new ideas about scholarship and teaching. Conferences also provide an opportunity to meet people. Some of these people will eventually become a part of your community.

(4)   Run for Leadership Positions in Scholarly Associations. Here the trick is often simply to show up and raise your hand. I’m serious. This year at AALS, I showed up and raised my hand at three different section meetings. And there I was, placed on some committee for three different scholarly sections. Most people in the legal academy will meet you and say, “Welcome!” People love new faces, new ideas, and new scholars who are willing to make genuine contributions to communities that already exist. Think of a contribution you can make and speak up for your ideas. This is why you joined this profession in the first place.

(5)   Make an Effort to Identify Mentors: This advice is often easier said than done. And it applies to all work settings, not just to the legal academy. But where the academy is unique is that it allows you to have mentors both within and outside your building. You can have them at other schools, as well as in other fields. However, it can take work to find real mentors. In fact, as you read my post here, stop for a second and take a deep breath. Now take out a piece of paper and write down the names of three scholars who are your mentors. If you can list three, great. Send each an email right now, just to check in. If you cannot list three such people, do not fret. Instead, write down the names of three people whom you would like to have as your mentors. Now send each of these individuals an email. Send each person on your list your latest article or work-in-progress, or whatever half-baked idea you may have had today. Ask each for one piece of advice. Or ask each out to coffee. Do it before you get to the end of my post. If they happen to be at different institutions, call them up. Just do it. People often tell me that they don't know how to find a mentor. If you’re an extrovert, it's as easy as saying to someone senior in your field, “I am looking for a mentor. Would you be that person for me?” I promise that no one will ever turn you down. And if you’re an introvert, here's my advice: Find the person you want to have as your mentor and say, “I read this blog post about how to find and build a scholarly community. I'm not sure where to find a mentor. Can you give me some advice?’ I promise you will have a new mentor before you know it.

(6)   Ask For Help When You Need It: I admittedly find this piece of advice the most difficult to follow myself. It's also probably the most important. Community building is a community effort. No one can be a community of one. Asking someone for help is the same thing as asking to join that person's community, and offering help to others is equivalent to inviting them into your own. 

(7)   Be Generous With Your Time: Collegiality can be very time-consuming, but it is also immensely rewarding. And those who are generous with their time ultimately reap large rewards. Ask people to join your community. Take the time to recommend other communities when you know of one that a colleague may enjoy. And always, always be generous to those who are coming up the ranks. At Danny's memorial service at SEALS, I'll never forget the stories that so many of you told about how Danny always brought new people into his community. You don't have to be well-known to be part of a scholarly community. You just have to have a few new ideas and to show some enthusiasm.

That’s at least how you find a scholarly community. But then how do you maintain it? Here, the key is to have with a vision, to create a structure to support that vision, and to pour substance into that structure. Your structure should be an institution. It could be any institution, such as your law school or a scholarly association in your area of expertise. It can even be an online institution, such as a blog. There is a school of thought in the social sciences called new institutionalism. Its adherents believe that social and political outcomes result from the institutional settings in which they take place. In other words, if you build a structure and invite people to join it, you will be pleasantly surprised by the community that results.

Those of you who are reading this post probably know that you are part of the Prawfsblawg community. While it is an online community, it is also very real. Some of you are active members of this community: you faithfully read this blog and post in the comments. Some of you are passive members: you lurk here, though you don't say much. There is no denying that this is a community for which Danny had a vision, for which he created a structure, and into which he ably poured so much substance. On this occasion, here's what I'm going to ask the members of this community to do: please make yourselves known. Say hello. "Welcome!" Go into the comments and announce that you are a member of this community. And if you have some thoughts about how scholarly communities should be built and nurtured, let us know what they are. 

Posted by Eugene Mazo on January 31, 2015 at 03:02 PM in Life of Law Schools | Permalink | Comments (1)

Standing’s Lujan-ification

Standing doctrine has been in flux in recent decades, and one aspect of that change has to do with the rise of the tripartite constitutional standing test that is now most closely associated with Lujan v. Defenders of Wildlife (1992). This post outlines the rise of the tripartite test over the last half-century and begins to explore its implications.

Let’s somewhat arbitrarily start about fifty years ago, with the Court’s widely influential opinion in Baker v. Carr (1962). Here is Baker’s key passage on standing:

Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.

This passage loomed large for a decade or two, influencing such prominent standing cases as Flast v. Cohen (1968) and in Sierra Club v. Morton (1972). Baker’s formulation advances a fairly flexible standard. It identifies a vague trait (“a personal stake”) and expressly links that trait to an abstract functional value (“illumination”). To be sure, there are many considerations that this standard doesn’t direct judges to consider. But it still invites recourse to a fairly loosely defined cluster of first-principles.

Baker’s paradigmatic standard can be contrasted with the corresponding passage in Allen v. Wright (1984). Amidst a paragraphs-long discussion of precedent and constitutional principle, Allen included a crisp sentence: "A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” This is a step away from Baker’s standard-like language regarding functional purposes and toward a rule-like set of absolute demands that must be satisfied in every case, regardless of underlying goals. Yet Allen’s statement is also multifarious as compared with Baker’s. While the “personal injury” requirement in itself seems somewhat more specific than Baker’s reference to “a personal stake,” Allen added two potentially distinct concepts: whether the injury is “fairly traceable” and “likely to be redressed.”

Now consider Lujan. Written by Justice Scalia, that most famous devotee of rule-like law, Lujan synthesized prior standing precedent into a compact passage with an explicitly tripartite enumeration, two demarcated sub-points, and an absolutist lead sentence. Here it is, with some cites and alterations omitted:

The irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be "fairly. . . trace[able] to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court." Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

This was a statement meant to be quoted and cited—and it has been. Here is a quick metric of this passage’s influence. Chevron USA v. Natural Resources Defense Counsel (1984) is widely recognized as among the most influential Supreme Court cases in recent decades. Westlaw reports that Chevron has been cited about 69,000 times, and the Westlaw headnote for Chevron’s famous two-part deference test has been cited about 5,600 times. By comparison, Westlaw reports that Lujan has been cited about 50,000 times, and the headnote for the passage quoted above has been cited a staggering 7,400 times. And that’s despite the fact that Chevron has been collecting cites for eight years longer than Lujan.

What has been the upshot of standing’s evolution from Baker to Lujan?

One possible effect is that standing has become a more potent doctrine, particularly for purposes of invalidating statutes. Lujan is arguably the first case in which the Court rejected a congressional effort to confer standing. After Lujan, the Court did so again in Raines v. Byrd (1997). And, a couple years ago, Hollingsworth v. Perry (2013) found constitutionally inadequate California’s effort to confer standing on initiative proponents. Few can doubt that standing is now a serious (if intermittent) check on legislative efforts to nudge private parties into federal court. That kind of check is made more likely by the adoption of more rule-like legal tests. As Justice Scalia has written in other separation-of-powers contexts: “low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” Lujan offers a test with mettle.

Potentially consistent with the foregoing, standing’s Lujan-ification may have caused standing to become—if it’s possible—even more malleable. Normally, rules are thought to confer less discretion than standards, and the move from Baker to Allen to Lujan did incrementally move closer toward rule-ness. But these changes came accompanied by the inclusion of numerous values under the standing rubric. Three constitutional rules is a pretty substantial number, and Lujan actually includes at least five, since it casts the “injury” requirement as having two distinct sub-requirements: the injury in fact must be (a) concrete and particular, as well as (b) actual or imminent. Particularly because these rules are still fairly indeterminate, as well as interrelated, Lujan turns out to accommodate lots of different outcomes. For example, the Court reproduced the entire Lujan test in Friends of the Earth v. Laidlaw Environmental Services (2000)—before finding standing in a context that left Justice Scalia fuming in dissent. 

Finally, standing’s Lujan-ification may have suppressed considerations that cases like Baker properly felt to be essential, or at least valuable, to standing’s traditional and pragmatic purposes. The 1970s and 80s saw a large number of values swirling around in standing cases. In Allen, you'll remember, the Court offered a pithy statement of the three (then not enumerated) standing requirements, but it also seriously discussed a number of other issues, including remedial issues pertaining to equity. Allen was also fairly explicit—more than once—that the standing requisites “cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise.” Greater clarity would come with time, thanks to “developing case law.” Allen thus leaves the strong impression that standing doctrine was still evolving. Lujan displayed no such uncertainty—perhaps in part due to Justice Scalia’s temperament and the Court’s muscular disposition partially invalidating a federal law. But in eliding both Allen’s tentativeness and its consideration of a broader range of issues, Lujan may have let valuable ideas slip out of the doctrine, even as it crystalized that doctrine in a way that rendered it more fixed. Underlining this possibility, the Court sometimes recites the Lujan test before introducing brand new considerations into the standing analysis.

In later posts, I’ll explore some ideas and values that—for better or worse—standing’s Lujan-ification may have suppressed.

Posted by Richard M. Re on January 31, 2015 at 10:10 AM | Permalink | Comments (6)

Friday, January 30, 2015

LBJ and the Supreme Court

This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary. The conversations touch both on Fortas's elevation and on who should replace him as Associate Justice (Homer Thornberry was nominated, but the nomination was withdrawn when Fortas was rejected as Chief). KC argues that Fortas represents the tipping point on judicial nominations, the point at which it became contentious and partisan and at which a nominee might realistically be filibustered or rejected. (I will leave that debate to others).

Beyond the general enjoyment of listening to the conversations and, in Gerard's words getting to "hear LBJ . . . well . . . being LBJ," I found a couple of individual points of interest.

First, Johnson mentions the possibility of bringing Arthur Goldberg back to the Court (Goldberg had resigned in 1965, at Johnson's urging, to become UN Ambassador and to allow Johnson to put Fortas on the Court), but rejected that idea because "I oughtn’t to have two Jews." (I have written before about how jarring it is to hear "Jews" as opposed to "Jewish people." It sounds worse with a Texas drawl).

Second, Johnson specifically talks about the states represented by the different possible nominees and how "seats" for each state is a consideration. This brings to mind Nancy Leong's JOTWELL essay reviewing Sharon Rush's article on geographic diversity on the federal bench, particularly on a non-regional court such as SCOTUS.

Third, it raises some cute historical counter-factuals. What if Johnson had not pushed Goldberg to resign in 1965? Johnson basically conned Goldberg into believing that 1) Goldberg could make a difference with Vietnam from the UN and 2) It might put him in position to run for President. Neither of those things is remotely true. 

So what happens if Johnson leaves Goldberg alone? Johnson got to make (or at least try to make) two more nominations after 1965--1967, when he appointed Thurgood Marshall to replace Tom Clark, and 1968, when Warren indicated his intent to retire. Johnson wants Fortas and Marshall on the Court and also wants to make Fortas Chief when Warren steps down. So consider:

1) Johnson still appoints Marshall in 1967 because "it's time," then nominates Fortas as Chief from outside the Court in 1968 (back then a Chief without judicial experience was not uncommon). If Fortas has not been on the Court for three years when nominated, does that change the Senate's reaction to him? Certainly some of the problems that killed his nomination go away--he no longer is tagged with what many viewed as the "excesses" of the late Warren Court on criminal procedure and obscenity; there no longer is anything untoward in his having recently advised Johnson on matters; it is at least less untoward that he took money for giving various speeches. On the other hand, as KC describes in his post, by June 1968, everyone expected that Nixon would win the White House, so Republicans (and others) in the Senate wanted to leave the nomination for the new president rather than the lame duck. This concern does not go away.* So which way do things go?

* In the tapes, Johnson several times mentions the age and failing health of Black, Douglas, and Harlan, by way of showing Republicans that Nixon would get to make several appointments fairly quickly even if Johnson got to appoint the Chief in 1968. And, indeed, Nixon got to replace both Black and Harlan by the end of his first term. And but for Watergate, he would have appointed Douglas's replacement in 1975, towards the end of his second term.

2) Johnson appoints Fortas in 1967 to get his friend on the Court, then tries the same move in 1968 of trying to elevate Fortas, this time nominating Marshall as Associate. Does Fortas fare any better with two fewer terms (and decisions) on the Court? Does Marshall draw too much opposition to make the two-fer work (one of Thornberry's virtues was that it was unlikely anyone in the Senate would oppose him)? Does Johnson not nominate Marshall at all because of that opposition? In which case, when does the Court get its first African-American Justice?

Posted by Howard Wasserman on January 30, 2015 at 03:10 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

In Defense of Students, OR: Student “Quality,” Student Engagement, Incentives, and the Fundamental Attribution Error

This is probably my last non-game theory post, and I haven’t picked any really good fights all month! That clearly won’t do.

Jon Hanson, my beloved former torts professor at HLS, has this big project that he calls “situationism,” which is essentially about highlighting the ways that people’s behavior is less caused by their individual dispositions and more about the circumstances they find themselves in. Many psychologists call the opposite tendency the “fundamental attribution error"---the tendency to make, essentially, self-serving attributions of agency. (My successes are all about how awesome I am and how hard I work, and my failures are all about the environment! Your successes are all about the environment, and your failures are about your personal deficiencies!)

Last month, there was a long discussion on this blog about the way in which students allegedly have “become worse” since the economic collapse, essentially because so few jobs = so few people wanting to go to law school = lowered admissions standards across the board = prawfessors at every level observing dumber or lazier or less well-prepared (the most charitable claim in that thread!) students. I confess, that post and the comment thread that followed really cheeved me off. Even though many of us are skeptical of the worth of standardized testing, can highlight all kinds of biases in things like the LSAT, we still seem to think that lowered LSAT scores equals a meaningful drop in competence, and that we can observe this with classroom results.

I, as you might imagine, am highly skeptical about that that hypothesis. Can we be Hansonian situationists about it? Suppose we look for an alternative hypothesis to explain observed declines in classroom results (both exam performance and in-class discussion) as attributable less to personal qualities of the students and more to the situation our students find themselves in. Well, here’s one idea. Students are less engaged/it takes more work on our part to interest them in our courses, because they see them as less meaningful to their long-term well-being. And they see them as less meaningful to their long-term well-being because the job market has been terrible, and so they have lowered expectations for a fulfilling and successful career in which they are to use the knowledge we provide to them. Moreover, because it’s so much harder for them to get a job than it used to be, they prefer receiving information that is directly relevant to getting jobs (“what’s the rule! how do I get a good grade and pass the bar exam!”), and disprefer having their and effort time taken up by information that is less relevant (“what are the policy considerations here! what’s the deep jurisprudential theory in play!”).

It’s about situational incentives. When you have to hustle your butt off to get a decent job, you don’t have the luxury of thinking about “making connections between the various doctrines, engaging in deeper-level thinking, and applying the legal rules to new scenarios in creative ways.” Unfortunately, that’s what we law professors tend to care about most, and what we (rightly) tend to associate with the kind of skill development that will serve lawyers well throughout their whole careers. But in a terrible job market, our students have good, rational, reason to care less about their whole careers and more about getting that first job and paying off the student loans. Not because they’re dumber, lazier, or less well prepared (and even if I'm wrong, shouldn't we pretend that I'm right, because aren't our students more likely to respond well if we have high expectations for them and respect their ability and motivations?). Because the economic environment they find themselves in gives them reason to discount their career futures, and reason to invest more in short-term needs. (This leads to an empirical hypothesis.  Schools with better job placement rates should have better scores on the Law School Survey of Student Engagement, after controlling for LSAT and UGPA. Memo to Indiana folks: run this regression!  Or give me the data, and I'll run it!)

So our job is to find a way to make it rational for them to be willing to invest in the “deeper-level thinking” that they will need to learn in the long term, in a way that will also benefit them for the short term job market. Such a strategy has the potential to improve student engagement, and, thereby, student performance, and thereby, make their lives as well as ours better.

Concrete plans? I don’t have many yet, but it seems to me that we need to at least entertain the idea that we have to do better on the job front to do better on the classroom front; that “deeper-level thinking” cannot be carried out when you’re worried about where the rent money will come from a couple years down the line; and that we have to sell “deeper-level thinking” not just to students but also to the people who employ them. 

Posted by Paul Gowder on January 30, 2015 at 11:09 AM in Life of Law Schools, Teaching Law | Permalink | Comments (7)

Thursday, January 29, 2015

Open Thread: How do we Stop the Madness?

By "the madness," I mean this.  Opaque "submission seasons" and letterhead biases and footnote fetishes and massively multiple submissions (I kinda want to start an MMORPG called "World of Lawcraft," all about getting law review articles published) and all the other crazy pathologies of law review publishing.  

As Your GameTheoryBlogger, this seems to me like a classic strategic problem: nobody likes the system, it means huge amounts of work for the students, work that (time for Real Talk(TM)) probably impairs their educations, and most of the real benefit to them is just victory in an insane status arms race in which law review membership is a signal of smartness that law firms respond to; it also undermines the scholarly enterprise to have (Real Talk(TM)) scholarly reputations and their associated benefits depend (yeah yeah only in part post-publication review sure ok) on the judgment of 2Ls with like three minutes to read a paper.  Yet we are unlikely to be able to just replace the system whole-hog with peer review, because the individual costs of doing so are so high. (I confess I kinda miss the early days of Prawfs, where Kate Litvak was around and leading the mighty charge for peer review in the comments. Yes, I remember those days, back in like 2005---I think I even remember the first e-mail Dan sent around announcing this blog's existence!)

More broadly, we seem to have lots of collective action problems like this in legal education. Think of the pitiful death of the law clerk hiring plan. And of the way that we all bow and scrape to the almighty, but universally loathed, gods of U.S. News. Can we get better at it? How do we improve our institutional capacity for collective action? All ideas, no matter how crazy, welcomed in the comments.

Posted by Paul Gowder on January 29, 2015 at 04:45 PM in Law Review Review | Permalink | Comments (15)

Game theory post 6 of N: the anxiety of rationality

The first five posts have pretty much laid out the basics of functional day-to-day game theory. (Well, I still need to do an information sets post.  Don't let me leave without doing one!)  Together, they amount to sort of the “street law” of the game theory world---the stuff a non-specialist actually tends to use on a regular basis. Now it’s time to delve into some worries that have been tabled for a while, plus a little bit of the fancier stuff. Howard has kindly allowed me to linger a little bit past my designated month in order to finish this series, so more to follow soon.

One of the big issues left lingering is the question of rationality. Most game theoretic research is built on the much-loathed “rational actor model,” according to which, roughly, people are treated as if they have stuff they want to achieve, which they weigh up together in some fashion and then pursue in the most direct way, by taking the acts that yield them the best expected goal-satisfaction. Yet there are many people who worry---sometimes rightly, sometimes not---that actual human decision-makers don’t act that way.

Today, I’m going defend the rational actor model a little bit, by talking about how sometimes, when we criticize it, we misunderstand what “rationality” means.* Onward:

I have to lead this off with one of Hume’s most infamous quotes. This is from the reason-as-slave-of-the-passions bit (danger: casual European Enlightenment racism included). 

Where a passion is neither founded on false suppositions, nor chuses means insufficient for the end, the understanding can neither justify nor condemn it. It is not contrary to reason to prefer the destruction of the whole world to the scratching of my finger. It is not contrary to reason for me to chuse my total ruin, to prevent the least uneasiness of an Indian or person wholly unknown to me. It is as little contrary to reason to prefer even my own acknowledged lesser good to my greater, and have a more ardent affection for the former than the latter. 

What does this mean? The claim Hume is defending here is that rationality is relative to preferences. Judgments of rationality should not be judgments of the goodness or badness of the goals one has (with the possible exception of when they’re internally inconsistent), either for the world or for oneself. Rather, rationality is, in every important sense, means-end rationality. One is rational when one is good at figuring out how to achieve one’s preferences, where we imagine those preferences as exogenously set.

Now, this is actually a non-trivial (by which I mean “controversial”) philosophical view, which goes under the name “instrumentalism.” But---and this is important---the claim is controversial as a matter of philosophy of action, not as a matter of social science. What I mean by that obscure sentence is that it may make sense to say that we can, philosophically, attribute claims of value to people who carry out intentional acts, however, if we’re actually trying to predict what people will do (which, remember, is primarily what we’re trying to do with this game theoretic enterprise), we ought to not judge their preferences. Instead, we ought to try to figure them out, and when we achieve our best guess as what they are, take them as given, and make our conclusions about whether they are “rational” or not by proceeding from those exogenously set preferences to behavioral predictions.

Thus, if, as practical social scientists, people behave differently than how our fancy models predict, that might mean that they’re irrational. Or it might mean that their preferences are just different from what we think they are.

Two famous examples. First, the “ultimatum game.” The simplest possible bit of game theory. Two players, a fixed pot of money. Player 1 gets to decide a split, player 2 then gets to decide whether to accept or reject; if P2 accepts, the split is implemented, if P2 rejects, nobody gets anything. There are two subgame perfect equilibria to this game: a) P1 offers zero, P2 accepts anything offered, and b) P1 offers the smallest possible nonzero amount, P2 rejects zero, accepts all else. (The first of those is only an equilibrium because P2 is indifferent between accepting and rejecting when offered zero; nobody really cares about it.)

The thing with the ultimatum game is that basically nobody plays "equilibrium strategies," if by "equilibrium strategies" you mean "the equilibria I just mentioned, which are rooted in the totally idiotic assumption that utility is the same thing as money." (They are not!  They are not the same!) P1s in experimental context almost always offer more than the bare minimum; P2s almost never accept the bare minimum.

There are two explanations for this failure of prediction: 1) people are dumb, and 2) people care about their pride, fairness, not having to accept insulting offers, etc., more than money. Experimental economists have gone to some lengths to try to tease them out, but it’s actually hard to tease out these kinds of fairness motivations. (The paper I just linked, for example, seems seriously confused to me: it tries to eliminate fairness considerations by delinking ultimate payoffs from round-by-round actions, but fails to consider that the fairness consideration might not be about distribution of ultimate payoffs but about things like not being treated badly in a given round---that is, it ignores the expressive aspect to fairness.) It would be a bad mistake, observing the empirical results of the ultimatum game experiments, to leap to the conclusion “people are irrational, so game theory is useless!” The conclusion “people care about more than just the amount of money they receive” is equally plausible, and matches our experience of things like, well, hell, like trading money for status and self-worth and positive self-and-other impression management all the time. How does Rolex stay in business again? 

Second famous example. Voting. Why do people vote? This is something that political scientists have struggled with for, seriously, decades. (That may say more about political scientists than it does about voting.) On one account, it’s a strategic problem: we have preferences over policy (or over the things we get from policy, like lower taxes and a reduced risk of being thrown in jail/a higher shot at getting the people we don’t like thrown in jail), and voting allows us to influence that policy with some nonzero probability. Basically, this is the probability of being the decisive voter. So, in principle, there’s some equilibrium number of voters, such that those who do not vote would do worse by voting (because the cost of voting, like standing in long lines and taking time off work, is not worth the probability-weighted policy benefit to be gained), and those who do vote would do worse by not voting (for the opposite reason).

The problem of this model of voter motivation is that, given the number of people who actually vote, the probability of being the decisive voter in a given election, in a big country like the U.S., is really really really tiny. (Ok, maybe it’s a bit bigger if you’re voting in the race for town dogcatcher. But who cares?) Yet lots of people vote, even in things like presidential elections. So we’re probably not playing equilibrium strategies based on the model of voting behavior which imagines people motivated by probability-weighted policy outcomes. Are people just stupid?

Well, waaay back in 1968, Riker and Ordeshook wrote a famous (or infamous) paper, which, stripping away the huge amount of math, basically says “yo, maybe people derive utility from voting itself.” They expressed this with a term “D” in a utility function, where “D,” in polisci grad seminars, tends to be summarized as standing for “duty,” but which really captures a whole slew of kinds of non-policy-related preference satisfactions that come from voting, like being a good citizen, participating in shared sovereignty, expressing one’s commitments, etc.

There are two things we might think about Riker and Ordeshook’s D. The first is: “How pointless! This just kills any ambition of models of voter rationality to tell us anything useful or predictive about the world, because anytime we see someone who votes despite our models predicting the opposite, we just get to conclude that they must have had a bigger D than we expected!” (Although, in fairness, experimentalists get cleverer and cleverer every year at coming up with sneaky ways to tease these things out.)

The second thing we might think is: “Duh! Of course that’s why people vote.”

* Not always. Sometimes we’re wrong to criticize it because we fail to understand ways in which people might actually behave rationally---such as when they operate in an environment, like competitive markets, which selects irrational actors out. Sometimes we’re wrong to criticize it because by “irrationality” we just mean “lack of information.” (I really need to write a big omnibus post about information in game theory, actually. It may happen.) Sometimes we’re just right to criticize it, because there actually is a ton of psychological evidence for “bounded rationality,” a set of results about how people behave in systematically ends-frustrating ways, like “hyperbolic discounting.” I’ll write a post about that soon too.

Posted by Paul Gowder on January 29, 2015 at 12:11 PM in Games | Permalink | Comments (0)

Photo Safaris

The following post is from John Sprankling (Pacific-McGeorge) and is sponsored by West Academic.

Pictures are powerful tools.  As Ivan Turgenev observed in his 1862 novel Fathers and Sons, “[a] picture shows me at a glance what it takes dozens of pages of a book to expound.”  Learning theorists have long understood the pedagogical value of images.  Thus, Neil Fleming’s Visual Auditory Kinesthetic learning style model posits that all students benefit from the use of pictures, either because they are predominantly visual learners or because visual learning supplements their dominant learning styles.

When I began teaching property over two decades ago, I was drawn to the Dukeminier & Krier casebook, which included black-and-white photos and other images that related to some of the cases.  Over time, I concluded that this approach was too narrow.  I wanted high-quality photos and other images for every case, in color, which students could access easily, and which I could display in class.  But such photos did not exist.

This goal became a reality when my colleague Ray Coletta and I decided to write a new property casebook called Property:  A Contemporary Approach, which would appear in both hard copy and electronic format.  I planned to travel across the United States taking original color photos of the case locations which could be used both in the book and in the classroom, together with other images such as charts, diagrams, and maps.  Ray dubbed the trip a “photo safari,” and the name stuck.=

My wife and I drove across the country twice, tracking down the original sites of cases included in the book and taking photos of these locations.  Finding the actual site of a case often involved detective work.  Starting with a vague sense about the location, we would explore the region, talk to local residents, and slowly get closer, often with the help of friends or relatives of the original parties.  The grandsons of Oscar Boomer, for example, directed us to the site of the junkyard in Boomer v. Atlantic Cement; the son-in-law of the plaintiffs in Brown v. Lober told us how to find the farm land at issue in the case; and a Greek Orthodox priest helped us explore the disputed tract in Van Valkenburgh v. Lutz.

We eventually took more than 500 color photos of case sites.  They included apartment buildings, beaches, bridges, businesses, churches, condominiums, crops, driveways, factories, farms, fields, a fire station, forests, houses, lakes, oil wells, streets, vacant lots, and other properties.  In the process, we sometimes battled the elements, dodging heavy rain and tornado threats, and not-so-patiently waiting for suitable photography weather.  Ray and I then selected the best photos to illustrate the cases, and developed charts, diagrams, maps, and other visual images to facilitate student learning, all of which went into the electronic version of the casebook. 

For the past seven years, I have been using enlargements of these photos in the classroom.  I typically show one to three photos for each case via PowerPoint, usually leaving a photo on display during the entire classroom discussion.  In anonymous surveys, my students overwhelmingly report that these photos help them to:  (a) understand the cases; (b) remember the cases; and (c) keep their attention focused during class.

Property is a visual subject.  A photo is sometimes useful in helping students understand the context in which the case arises.  Ark Land Co. v. Harper, for example, is a dispute between a West Virginia coal company and an extended family about how to partition the family’s ancestral land.  The photo of the family home, overshadowed by a tall hill of coal slag in the background, illustrates the stakes of the dispute in a manner that words cannot.  Similarly, photos of the Colonial-style homes that surround the site of the proposed “pyramid house” in Stoyanoff v. Berkeley instantly explain the neighborhood opposition to the project.

Photos help students remember content.  In the controversial case of Kelo v. City of New London, the Supreme Court held that taking owner-occupied homes for the purpose of economic development was a “public use” within the meaning of the Fifth Amendment; but after the homes were taken, the project was abandoned.  The photo of Kelo’s home site―now merely a basement filled with debris―serves to embed the case in student memories.  Another example is Deep Water Brewing LLC v. Fairway Resources Ltd., where the construction of new homes in violation of a height restriction partly blocked the lake view from plaintiff’s restaurant; photos of the blocked view make the case memorable.

Photos also focus student attention.  An illustration is Eyerman v. Mercantile Trust  Co., where the testatrix directed her executor to destroy a valuable home, but the neighbors objected.  I display a photo of the house through the discussion, which serves as a constant reminder of the issue:  should the dead control the rights of the living?  In a similar manner, the photo of the dilapidated house at issue in Wade v. Jobe highlights the question of whether landlords should be obligated to maintain residential rental property in habitable condition.

More broadly, using the photos of actual case sites makes the class more interesting for students.  It brings life to the case materials, adding authenticity and connecting students to what attorneys do in the real world.  In sum, my students uniformly report that these photos improve the overall quality of the class.

We have not finished our photo safaris.  In particular, two sites in Hawaii await us…

Posted by Howard Wasserman on January 29, 2015 at 09:31 AM in Sponsored Announcements | Permalink | Comments (0)

Wednesday, January 28, 2015

Primed for Change

It is hard to believe that it was just about a year ago that I blogged here about Prime Health Care's transition from a bit player to a major player in acute care hospital ownership. A lot can  happen in twelve months, especially when you are on  an acquisition binge. 

Prime, you may recall, specializes in the acquisition and turnaround of financially troubled acute care hospitals. Prime operates 29 hospitals in California and eight other states.

I write today about Prime's proposed acquisition of six  hospitals in the Bay Area, a subject that has produced both considerable heat and light.  If California Attorney General Kamala Harris approves the Daughters of Charity acquisition, Prime will become the fifth-largest hospital company in the United States, based on revenue.

The California Attorney General's review of this transaction, as required by California Corporations Code section 5914 et seq.  continues apace. Consistent with the statute, the public hearings have begun. Consistent with California politics, the letter writing campaigns have begun. You can see the public documents here. 

I don't envy Kamala Harris. It could be that there is just no way to please everyone here. I have written another time about the strong reactions provoked by hospital ownership transfers and  closings.

The Daughters of Charity want out of their debt and do not hesitate to assert that a closed hospital -- apparently their view on the likely outcome if the sale to Prime is derailed -- costs lives. The interesting thing about this approach is more isn't necessarily better.  The SEIU opposes all Prime acquisitions. The problem with this is that it contemplates absolutely no place for a turnaround artist like Prime Health Care in acute care hospital markets.

It is important to remember that California is not a certificate of need state. No CON is required to enter the acute care hospital market nor to exit it. This can produce some utterly remarkable outcomes -- my personal favorite has always been the acute care bed arms race that raged in and  around Redwood City a decade or so ago where the largest acute care bed players raced each other to launch their projects to build hundreds and hundreds of new acute care beds in close proximity to each other. Those familiar with the particular torture of a Redwood City to San Francisco automobile commute will appreciate that I used to observe that whoever lost the acute care bed arms raise could convert their million dollar plus per bed facilities to emergency housing for trapped commuters.

The political theater, of course, is outstanding. But do not be distracted from the exponential growth of Prime Health Care, a business model only destined to grow as health care reform's amplification of the movement of health care outside of not for profit acute care facilities continues.

Posted by Ann Marie Marciarille on January 28, 2015 at 03:41 PM in Blogging, Current Affairs | Permalink | Comments (0)

If you say so

Judge Callie Granade of the Southern District of Alabama has clarified her order holding that Alabama's marriage-equality ban violates the Fourteenth Amendment. She block-quotes Judge Hinkle's position--which I previously labeled "unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four"--that the injunction does not apply to anyone other than the Alabama A/G (the only named defendant), but that the Constitution does apply and the Constitution requires the probate judges to issue marriage licenses.

On reading it this time around, these seems a framed example of an advisory opinion. A court is telling someone what to do or not to do, but that person is not a party to a case within the court's jurisdiction and not subject to any valid order of the court. Judge Granade can insist all she wants that the Constitution requires the state's probate judges to issue marriage licenses--if they disagree, no one can do anything about it (unless and until new litigation is brought and a court with jurisdiction--perhaps Judge Granade--directly compels them to do so).

Of course, the news is not all normal, because Alabama Supreme Court Justice Roy Moore is back in the news, insisting that state law remains in place, that he will continue to follow state law, and that the probate judges should continue to do so, as well. This, in turn, prompted the Southern Poverty Law Center to file an ethics complaint against Moore, alleging he violated judicial ethics rules in commenting on a matter that will be coming before him in the coming weeks.*

* Although I am not sure why. I would expect the move for anyone denied a license would be to sue the probate judge in federal court, so I do not see how this is going to make its way through the Alabama courts.

(H/T for all of this: Josh Blackman and Howard Bashman)

Posted by Howard Wasserman on January 28, 2015 at 02:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Alternative Paradigms for Regulating Campaign Finance

Many Americans believe that there is too much money in politics. But what should be done about it? As far as the Supreme Court is concerned, not much. Currently, the Court accepts only one justification for placing limits on campaign contributions, and that is to prevent corruption or the appearance of corruption. However, the Court defines corruption narrowly, telling us that limits on contributions are only justified when they are enacted to prevent quid quo pro corruption. That is when a campaign contribution is given in direct exchange for the official’s vote, like a bribe. Other kinds of influence that donors have on politicians have not been recognized as corrupting.

Limits on campaign expenditures, meanwhile, including the funds that candidates themselves spend when they run for office, or the so-called “independent expenditures” that outside groups spend without coordinating with the candidate, are subject to strict scrutiny. The Roberts Court has been extremely hostile to campaign finance regulation. Just about every single campaign finance law that has come before it has been struck down.

This is probably not the place to get into a doctrinal debate about campaign finance, a complex and intricate area of the law. Suffice is to say that Congress no longer has the stomach to regulate in this important arena. Thus champions of campaign finance reform—a group that includes many prominent legal academics—need to find a new way forward.  

At AALS, I participated in an excellent Hot Topics panel called “Citizens Invited: Scholars and Professors in the Campaign Finance Wars.” It organizers, Jamie Raskin (American) and Richard Albert (Boston College), realized that campaign finance is one area where scholarship actually plays an important role. Law professors-turned-would-be-politicians, such as Zephyr Teachout (Fordham), told us of their experience of running for office (Zephyr published an excellent op-ed on corruption earlier this week in the New York Times). Law-professors-turned-presidential-campaign-advisers, such as Spencer Overton (GWU), explained how the bundling of campaign money worked differently during President Obama’s 2008 and 2012 campaigns. Law professor-turned-campaign-finance-reformer Larry Lessig (Harvard) described the “green primary,” or the cyclical race to raise lots of cash by wooing the wealthy and powerful, and how that works to corrupt politicians. And law professor-turned-FEC-commissioner-turned-campaign finance-reform-skeptic Bradley Smith (Capital) argued that the liberals on the panel were assaulting the First Amendment that we otherwise hold dear.

What struck me most about this panel—and strikes me most about these debates—is the role that academics are currently playing in shaping, criticizing, and, yes, defending the system. I happen to be a skeptic of it. But I also believe that new ideas are desperately needed for how to move forward in this area. At this point, any new reform proposal must have two characteristics. First, it has to be non-statutory. By this I mean simply that any reform effort cannot come in the form of a statute. Second, it has to be extra-judicial. By this I meant that whatever method for regulation is chosen, it cannot be subject to judicial review. Here are some ideas that scholars have proposed for regulating money in politics that satisfy these two criteria:

(1)   Amend the Constitution: Some scholars, like Tim Kuhner (Georgia State), and he is by no means alone, have advocated passing a constitutional amendment to overturn Citizens United, although such an effort recently failed in the Senate.

(2)   Contract around the Problem: As Ganesh Sitaraman (Vanderbilt) recently explained in his article in the Columbia Law Review, an extrajudicial proposal was tested in Massachusetts in 2012 when Scott Brown and Elizabeth Warren entered into a contract to control spending by outside groups in their Senate race. Calling their contract The People’s Pledge, it required each candidate’s campaign to pay to a charity 50 percent of any third party’s advertising costs for any negative advertisements run by third-party groups during the campaign. 

(3)   Get Citizens Involved: Some scholars have proposed granting “vouchers” to citizens to allow them to make contributions to campaigns in small-dollar amounts.  Giving every citizen a $50 voucher would raise roughly $6 billion in an election cycle if all of us chose to give to political candidates and campaigns. This is more than the total that was spent by all candidates in 2010, 2012, and 2014.  The idea for democracy vouchers has been championed by Lessig, and a similar idea—to give out “patriot dollars”—has been proposed by Bruce Ackerman and Ian Ayres.

These are certainly interesting ideas, though they have limits. My own contribution to these debates is not meant to supplant them, but to add to the mix. It calls for the House and Senate to adopt internal rules, not unlike the Filibuster, regulating how members of Congress are able to accept campaign contributions. For example, Congress's ethics rules already regulate gifts and lobbying. They could potentially make it unethical for members of Congress to accept contributions from non-constituents who reside outside of a candidate’s district, too, or they could be used to place a ceiling on contributions. Any elected candidate who violates these internal congressional rules would face the prospect of having an ethics inquiry launched against him and potential expulsion from his respective chamber of Congress.

Tim Kuhner and I are currently at work on a larger project that looks in more depth at alternative paradigms of regulating campaign finance in the United States. We believe that any reform proposal must begin by recognizing that Congress is unlikely to adopt any new major campaign finance legislation because of the possibility that it will be struck down by the courts. The challenge for reform advocates is to come up with a strategy to regulate money without running afoul of the First Amendment.  Today, any law seeking to do this would have to withstand a court challenge.

Given the Supreme Court’s hostility to reforming the system, what should Americans do? The legal academy has played an important role in helping us think of some solutions. Of course, other ideas are needed, too. I’ll leave the comments open for your thoughts. 

Posted by Eugene Mazo on January 28, 2015 at 11:03 AM | Permalink | Comments (3)

#Not all convictions

Sadly, the only lessons anyone will learn about campus sexual assault from the convictions of two former Vanderbilt football players is 1) Don't be so stupid (or arrogant) as to record and share your criminal activity and 2) You cannot get away with as much when you are not the star quarterback at a championship-contending football factory. More sadly, I am not sure what would happen if you have a star quarterback who is stupid enough to record. Still more sadly, we already know what happens if the non-star is smart enough not to record.

Posted by Howard Wasserman on January 28, 2015 at 09:34 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, January 27, 2015

Extending Unequal Second Amendment Rights

Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens.  We can reasonably expect this sort of citizen self-help given that a big part of the case for arming all citizens is that they'll use their guns to intervene before bad things happen.  But given past experience, we can also expect that race will also play a part in whether police officers decide to stop citizens based only on their visible possesion of a firearm. 

We already know that there is a vast privacy gap between African-Americans and whites in the sense that Blacks are far more likely to be subject to a stop-and-frisk than whites.  (And it's hard to make the case that this gap is based on higher frequency of suspicious conduct when, for instance, we see that both New York and Philly police were finding contraband in well fewer than 10% of their street stops.)  Then there's Driving While Black.  I think it's fair to say that African-Americans and whites don't get equal benefit from the Fourth Amendment.

And that's a sticky problem.  Under current law, there isn't much you can do except to change police conduct from within.  Courts don't have a lot of sway.  Evidence suppression doesn't work for people who aren't arrested and nobody can count on getting compensation for a fruitless search.  That's why people like Michelle Alexander are looking to public debate and activism as a possible solution.

With the expansion of the Second Amendment, we have a chance to think more about the problem early on.  Although many states have long provided easy access to carry permits, the new, more muscular Second Amendment will likely lead to an expansion of gun carry rights.  But it seems likely that these new rights will not be extended equally.  First, though the permits themselves will be granted using formally neutral rules, provisions such as prohibiting permits for convicted felons will  embed historical racial disparities in arrest, prosecution, and conviction.   Theres more, however.  In my mind,  the right to carry a gun includes more than the right not be convicted for doing so; it also ought to include  the right to carry a gun and not get stopped and searched for doing so.  In that respect, I fear we won't deliver equal rights.  

And those disparities only reflect the burdens imposed by the state.  It doesn't even touch about the fact that private citizens may be unwilling to tolerate the equal extension of gun possession rights.  As long as people consider African-American + gun as a crime in progress, which was the Wal-Mart case - a gun carry permit will never confer upon African-Americans the same freedom to carry.

So what to do?  One possibility is to say: it's inappropriate to extend rights to one population if every population can't receive an equal benefit.  The contrary view is to see the Second Amendment just like the Fourth Amendment: a right which society will have to struggle to enforce equally but which, given its constitutional basis, ought to be extended as far as possible immediately.  (And of course most Second Amendment advocates will argue that there is no extension going on here - only a much-delayed enforcement of an existing right.)  But is there a third way?  Could we view it as a property right which is impaired when a person is subject to a search?  Might there be a novel Fifth Amendment claim here?  Could we impose a tax on guns that is used to fund a statutory compensation scheme?  Is there a way, other than the exclusionary rule, to disincentive police over-reach?  (Something like Richard  Myers' Fourth Amendment Small Claims Court?)

This is all half-baked, but it's a problem that troubles me.  I'd love thoughts.

Posted by Dan Filler on January 27, 2015 at 11:53 AM in Constitutional thoughts, Criminal Law, Current Affairs, Property | Permalink | Comments (3)

Dispatch from the Eastern Seaboard: we're not all dead.

As many of you know, I am a Californian who teaches at the University of Iowa and is spending this year in Princeton.  This has, as you might expect, given me an odd perspective on weather disasters (other than just hating 'em), and the people who suffer them.  

East coast: weather service predicts apocalypse.  New York City shuts down. Citizens enraged. Subway continues running, empty, through the night by mandate of Higher Authority, while citizens, barred entry to the safety and transportation to be found underground, race home on foot against the doom awaiting them from the heavens.  Roads are barred to traffic.  Stores are cleared of bottled water and canned goods.  Some make their peace with god, others shake their fists and rage against the skies.  Battalions of snowplows and ambulances lie in wait, engines running and crews on DEFCON 1 ready to scramble at the drop of a snowflake. Brooklyn hipsters make incredibly detailed pre-looting strategy maps of record stores, consignment shops. Life insurance companies draft bankruptcy filings in advance, move assets to the Cayman Islands. Martha Stewart releases book of recipes for cannibals.  National guard activates plans to impose martial law.  Anyone who can flees to a bunker in the mountains with gold, guns.  Nothing happens.  
Midwest: weather service predicts nothing.  Apocalypse happens. The weakest immediately die.  Basketball-sized hail rains down from the skies, knocks anyone who ventures outside out cold, then blizzard covers all populated areas in five feet of snow, promptly freeze-suffocating hail victims.  Tornados descend by the dozens, clearing the snow as well as any inconveniently placed buildings.  People notice that frozen corpses appear to be scattered throughout the streets, midwestern tidiness kicks in, they go outside to stack them in neat piles.  Corpse-stackers immediately struck down by lightning, then buried in more snow, floods add layer of ice on top of snow, malarial mosquitos weaken the survivors, who are then dragged off by wolves.  Nobody else notices, survivors somehow manage to walk without slipping across the eternal icy mausoleum of half of their neighbors to give homemade jars of preserves to the other half.  Just because it's the neighborly thing to do.  
If one must have profoundly horribly weather and charmingly absurd people, can I please have the Midwest people with the East Coast weather?  

Posted by Paul Gowder on January 27, 2015 at 10:42 AM in Odd World | Permalink | Comments (6)

Monday, January 26, 2015

Nursing Homes as Guardians of Their Debtor Patients

If you saw today's New York Times article on New York nursing homes seeking guardianship over residents in order to collect outstanding debt, under Article 81 of the Mental Hygiene Law, you may also have questions.

Section 81.19 of the Mental Hygiene Law specifies (emphasis added):

(e) Unless the court finds that no other person or corporation is available or willing to act
as guardian, or to provide needed services for the incapacitated person, the following persons or
corporations may not serve as guardian:
1. one whose only interest in the person alleged to be incapacitated is that of a
2. one, other than a relative, who is a provider, or the employee of a provider, of
health care, day care, educational, or residential services to the incapacitated person, whether
direct or indirect.

If a corporate entity may petition or threaten to  obtain  guardianship over a current resident in order to resolve an outstanding disputed debt owed to the corporate entity and withdraw the petition as soon as the debt is paid in full, what can guardianship law mean in New York?



Posted by Ann Marie Marciarille on January 26, 2015 at 10:29 PM in Constitutional thoughts | Permalink | Comments (1)

Game theory post 5 of N: the joy and madness of repeated games

One thing about strategic interactions is that humans tend to repeat them.  For example, participants in a market may engage in trades over and over, neighbors may make the same decisions with respect to borders, common resources, etc. over and over, even some litigants in a particularly litigious industry may find themselves facing one another in court over and over (ahem, cough, cough, AppleandGoogleandSamsungandMicrosoftandAllTheRest). Unsurprisingly, game theorists have developed a body of knowledge for dealing with repeated games—that is, games that can be divided into subgames which are played over and over.

There are two categories of repeated games: finitely repeated, and indefinitely or infinitely repeated games.  And as it turns out, they behave very differently.  Generally speaking, finitely repeated games tend to behave (at least formally) sorta more-or-less like one-short games; and we would intuitively expect that to be true, for a finitely repeated strategic form game is just the same thing as a longer game written in extensive form.  But things go really wild when you move to the indefinite/infinite category.  

To illustrate, let’s think about the prisoners’ dilemma again.  Here’s one thing you might think about the finitely repeated PD: “hey, wait a minute, maybe now cooperation can be sustained!  After all, if the players cooperate in the first round, maybe they’ll learn to trust one another, and continue to cooperate in future rounds—especially if they both understand that this trust will be destroyed if they don’t cooperate, or, equivalently, if someone stabs the other player in the back, the stabbee can be expected to punish the stabber by defecting in future rounds.  (These kinds of strategies have all kinds of flashy names among game theorists: there’s “tit-for-tat,” the strategy of cooperating except when your opponent/partner has defected in the previous round, then defect; there’s “grim trigger,” cooperating unless your opponent/partner has ever defected, then defecting forever…)

As it turns out, in the finitely repeated PD, that’s just not true.  (Again, people sometimes behave differently in the real world, but we ought to get out our purely instrumentally rational and strategic starting point before we start worrying about when and why observed reality deviates from it.*)  Suppose there’s ten rounds to the game, and imagine you’re a player trying to figure out whether this cooperation strategy will work.  Here’s how your internal monologue could go: 

Ok, there are ten rounds here.  If we both cooperate in the first round, then the threat of future defection should keep everyone on the straight and narrow in the future.  But what constrains us in round ten?  After all, in round 10, there’s no future round in which I can threaten the other player with punishment; accordingly, defection is a strictly dominant strategy in round 10, we should predict it no matter what. If I cooperate in round 10, I’m just a sucker.  So we’ll both defect in round 10.  But then, wait a minute.  If defection is definitely going to happen in round 10, then in round 9 there’s no realistic (credible) threat of punishment either. You can’t threaten someone with an act you’re going to take anyway.  So defection is strictly dominant in round 9 too.  But then what constrains us in round 8?  …

This, of course, is just a more intuitively expressed version of the notion of backward induction, given in the previous post.  And we can see that it’s aptly named, for the reasoning process in cases like this actually looks kind of like mathematical induction: if the conclusion at this point compels the same conclusion at the next point in the sequence, then we’re warranted in making inferences all the way down. Unsurprisingly, the only subgame perfect equilibrium of the finitely repeated PD is mutual defection at every round. And this is a general fact about repeated games with unique Nash equilibria in the one-shot version (see proof on pg. 10 of these lecture slides — which also give an excellent math-ier presentation of the stuff I’m describing here): the Nash equilibrium of the one-shot game is, repeated over every round, the subgame perfect equilibrium of the repeated game.

But when we get into infinitely repeated games, then everything goes out the window.  We don’t need to get into the mathematics of it, but just think about the same logic in the context of the PD again: all of a sudden, there’s no end point to carry out backward induction from.  Because of that small change in the facts, punishment for prior defection (or reward for prior cooperation) is a realistic prospect at every single round: the rounds never stop (or they stop at an unpredictable time), so players always have a threat to make against one another.  Conditional strategies like grim trigger and tit for tat suddenly start to be plausible, and the prospect of sustained cooperation again appears on the horizon.  

In fact, as it turns out, there are a series of results known collectively as “the folk theorem” that suggest that infinitely repeated games have infinite subgame perfect equilibria.  Anything can be sustained in equilibrium, under two conditions: 1) players can’t discount the future too highly; 2) the strategy set in question has to yield single-round payoffs better than those that can be obtained by the one-shot Nash equilibrium.  

On the one hand, this is great.  It allows us to explain how things like sustained cooperation can be possible in strategic contexts where there’s an incentive to defect. For example, it can be used to explain how reputation mechanisms work in markets to keep people honest.  One of the most influential papers in the economic history of law, Milgron, North & Weingast 1990, essentially uses a more complex (because multiplayer) version of the indefinitely repeated PD to model how decentralized commercial enforcement institutions work. 

However, while the folk theorem is useful in that sense for backward-looking explanation, it’s bad news for prediction: given that there are an infinite number of behavior patterns that are supportable in equilibrium in such situations, how do you predict which ones will show up?  It ain’t easy.  (Many game theorists just wave their hands around and say “focal points!”—about which more later.)  If you’re a Popperian falsificationist about your philosophy of science, of course, then blowing up prediction is also a good way to blow up backward-looking explanation…but you probably shouldn’t be a Popperian falsificationist.  

So.  Anyway.  That’s quite enough of that.  I’m writing this post as the blizzard of our nightmares moves into Princeton (where I’m holed up this year), so perhaps soon we’ll see real-life applications of the finitely repeated PD as civilization breaks down, looters descend, hyenas emerge from the woods to drag away the weak, &c. Memo to fellow denizens of the impending weather apocalypse: I have a fixed cooperative disposition!  Honest!  Please don’t eat me! First. 


* Teaser: sometimes players with a fixed disposition to be “irrational,” like to play tit-for-tat or grim trigger, can actually do better when they play with one another.  In a context where doing better is selected for, players with such dispositions can prosper. See Axelrod, The Evolution of Cooperation and Skyrms, The Evolution of the Social Contract (previewed in a freely available Tanner Lecture http://tannerlectures.utah.edu/_documents/a-to-z/s/Skyrms_07.pdf ); also see basically all of evolutionary game theory, which I think I’ll probably post about at some point even though it is more advanced material than most of the stuff in this series, just because I find it delightful.  


Posted by Paul Gowder on January 26, 2015 at 03:29 PM in Games | Permalink | Comments (0)

Epilogue: Moral Panics and Body Cameras

Almost immediately after my essay on body cameras was published in Wash. U. L. Rev. Commentaries in November, stuff blew up--the Michael Brown non-indictment, the Ferguson and national protests, the Eric Garner non-indictment, and the protests from that. The editors were kind enough to publish an Epilogue, now available on Commentaries, discussing those subsequent events and how they further illustrate my points about video, body cameras, and moral panics.

Posted by Howard Wasserman on January 26, 2015 at 01:24 PM in Article Spotlight, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Submission angsting: Spring 2015

The submission window is just about to open and we await Redyip's semi-annual return-- some journals already have announced they are accepting submissions. So let the angsting commence.

If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.

Edit: To get to p.3 of comments, click here. To get to the end of comments, click here.

Posted by Howard Wasserman on January 26, 2015 at 09:31 AM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (1506)

Why Study Athenian Law?

Let’s have a break from game theory.  As some of you may know, I have a research program in ancient Athenian law. I’ve published one big article on the subject, have a book chapter forthcoming, have another paper or two or three in the hopper, and draw on it to understand other things on an appallingly regular basis, even when I write about things like constitutional law and jurisprudence.
But that might seem like odd behavior. Although I do read Attic Greek*---which is the main qualification for being able to talk about anything Athens without classicists mocking you**---I am no historian. And anyway, legal historians tend to focus on systems of law that are either part of our (American) legal tradition and the common law tradition that led up to it, or that are at least part of the traditions of other countries that we care about, such as the civil law tradition from Rome or the Islamic law tradition. 
But Athens?  Athens doesn’t really linger in a legal sense: almost nothing we do can be traced back to them (although I’d be tempted to make a claim for the jury trial and for the adversary process, and Hayek insisted that the Athenian concept of isonomia—legal equality—is the wellspring of the English ideal). Unsurprisingly, there aren’t many American legal academics who work in the area.  I think this is a mistake: we, qua discipline, are leaving knowledge on the table. 
So what is this Athenian law nonsense?  Is it just more Kant in Bulgaria? Have all those trees died in vain? (That cliff-hanger gets resolved after the fold.)
Here’s my defense of Athenian law.  Even though Athens isn’t really at the heart of our legal tradition, it is at the heart of our political tradition. The democratic self-understanding of the (male, native-born, not-enslaved) Athenians is remarkably similar to ours, not least because ours is in part directly traceable to theirs through the tosses and turns of intellectual history. And a lot of the other things they were concerned about were also concerns of ours. They, for example, were also concerned about keeping those with socioeconomic advantages from turning them into political advantages (although the worry ran less to campaign finance and more to coups).  They, too, were worried about balancing popular sovereignty with good decision-making---a fun exercise is to read Plato together with, say, my friend Jason Brennan.
For the legal academic enterprise, there’s a huge advantage to the conjunction of similar ideals and ends with very different institutions. For they give us an idea of the institutional space available with which our ends may be pursued.  Here’s my favorite example (so much so that I published it): in the U.S. and U.K., we go on about “the countermajoritarian problem,” and sometimes suppose that it reveals a tension between full-fledged democracy and the rule of law: we can either have the majority getting what it wants whenever it wants, or we can have a body of constitutional law interpreted by elite judges holding it within bounds. But then we get to Athens, where there was no elite judiciary—the “judge" was a jury of hundreds of totally ordinary citizens, chosen at random, with full and final authority over questions of both law and fact.  Yet the countermajoritarian problem still came up!  What are we to make of that? What was really going on, when the masses in Athens objected to being asked to consider the legality of their own actions, and can we learn from it in understanding our own countermajoritarian worries?
Sometimes, the solutions that the Athenians found to our problems may even be better than the ones we contemporaries use. For example, these days, when we try to “promote the rule of law” abroad, typically this means, among other things, finding a developing country that has just finished having a war and shedding a dictator, and loosing armies of lawyers on that country to professionalize their legal system. Yet Athens had a very amateur legal system, and we might think that amateur legal system was particularly functional when it came time to handle their own effort to rebuild the rule of law after a period of chaos and tyranny—in the beginning of the fourth century, after the Thirty Tyrants. I’ve argued as much in a forthcoming book chapter: the mass jury allowed Athens to reconstruct its legal system in substantial part because it gave ordinary citizens a good way to signal their commitment to legal methods of dispute resolution as well as to the particular commitments their democracy had undertaken.  Do we lose this value when we rush to instill professional legal systems in unstable states abroad?  Perhaps we do, perhaps we don’t, but studying Athens allows us to think about the possibility.

* Badly.
** Legitimately.  Greek is a really wonky language, and there’s lots of indeterminacy in translating from it. But that’s poison for actually using original sources to understand something about the society the source material came from: some translator can produce a perfectly legitimate and sense-making translation of a passage that has multiple admissible meanings, and so it’s easy to get led down primrose paths by taking someone else’s translation too seriously if you can’t consult the original, or if you don’t know enough about how the language and culture works to know when a translation is suspicious enough to make the original worth consulting/when your argument might hinge on a particular word or two. Having said that, don’t let it that deter you from working in the area!  There’s lots of interesting stuff that can be said in a comparative fashion by drawing on the huge secondary literature produced by classicists and such to shed light on modern legal systems.  

Posted by Paul Gowder on January 26, 2015 at 12:34 AM in Law Review Review | Permalink | Comments (1)

Sunday, January 25, 2015

The process of marriage equality, once again

This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.

Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they  framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.

With all that, calling everyone a bigot in a legal document is not particularly helpful.

Posted by Howard Wasserman on January 25, 2015 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, January 24, 2015

Law School Centers: The Good, the Not-So-Bad, and the Largely Unknown

I teach at a law school that does not have any centers. When I arrived, I noticed this and tried to change it. There is currently a large sign on my door that says “Future Home of the Wake Forest Constitutional Law Center.” Last spring, while I was out of the office one day, someone took a piece of paper, wrote the letters “U” and “N” on it in large type, and taped it in front of the word “Constitutional” on my sign. To be clear, I am not the director of any center. But someone out there thinks that the Wake Forest Unconstitutional Law Center exists, or at least thinks that it exists in my office.

Whenever I have visitors, they see my sign and invariably ask me about this non-existent entity. For example, last spring our dean’s office sent a prospective student to speak with me. The student told me that she was interested in election law and that she wanted to attend our law school to work with the Constitutional Law Center. I explained that this “center” was nothing more than a sign on my door. However, my honesty did not do much to sway the young woman, who later sent a thank-you letter to the dean, copying me, in which she explained how much she was looking forward to the opportunity of "participating in the life of the new Constitutional Law Center.”

That’s the power of ideas for you—or, at least, of signs.

So why do law school centers exist? Should law schools continue to have them? Do centers matter for purposes of ranking and perception? How are these centers run? Do the directors of the centers receive a reprieve from teaching? What is the budget of the typical center? And what do centers do for law schools that law schools cannot do all by themselves?

Here are at least some theories as to why law school centers exist:

(1)   To Signal a Specialty: A center can create the perception that a school has a niche in some area in which multiple faculty members specialize.

(2)   To Promote the School’s Name in Another Form: Through its research and publications, a center independently promotes the name of the law school to which it is attached.

(3)   To Help Recruit Faculty: A good way to hire laterally is to offer a potential recruit the directorship of a center, in addition to whatever else is on the table.

(4)   To Help Recruit Students: Like the student who came to visit my office, above.

(5)   Because Other Schools Have Centers: It's the same reason that countries have flags and national anthems and that the states have state birds and state mottos. 

(6)   To Help Create and Advance Specialized Knowledge: This one may seem obvious.

In a small survey of law school centers I did when I proposed the not-yet-existent Wake Forest (Un?) Constitutional Law Center, I found that centers were fairly ubiquitous across legal academia. Most schools had at least one, and many had many. Though they differ in focus, structure, and programming, I also found that most law school centers share some common characteristics. Most were headed by a Faculty Director, who was often supported by an Advisory Board, other Faculty, and Fellows. Most law schools centers perform three functions. They 1) sponsor faculty and student research; 2) bring legal scholars, practitioners, and jurists to campus; and 3) engage in a specialized local or national policy debate.

Among constitutional law centers, I found that several focused their work on a particular aspect of the field. For example, the Center for Constitutional Transitions at NYU works primarily with emerging democracies and assists in the drafting of constitutions. The Center for the Study of Constitutional Originalism at San Diego focuses on, well, originalist thought. However, most centers take a broader approach. They hold conferences on a wide variety of topics, engage in diverse scholarly research endeavors, and seek to invite guest lecturers in different areas of expertise to campus. The varying structures of these centers likely provide unique opportunities to their respective law schools. For example, the impressive Clough Center for the Study of Constitutional Democracy at Boston College serves as a kind of public intellectual's forum for that campus.

Really, centers are a terrific idea. Most centers cost little to run, and they attract widespread student and alumni interest. They can also help in fundraising, for example by providing a vehicle for naming rights. And they have the ability to place a law school on equal footing with its peers. But before I conclude that there is no reason not to open a center, it would be helpful to hear other views. Should we let a thousand centers bloom in the legal academy or not?

Posted by Eugene Mazo on January 24, 2015 at 05:24 PM in Life of Law Schools | Permalink | Comments (9)

Game theory post 4 of N: extensive form games, a deep dive

How about some Saturday game theory over brunch?

The one-round strategic form games of the previous post are the simplest possible presentation of some actual game theory. Now I want to put on my political scientist hat and dig into a slightly less simple, but much beloved, game.

We might call this the “punishment game.” It imagines a boss or a dictator or a parent giving commands to a subordinate or a subject or a child, where the boss prefers her commands be obeyed, and the subordinate prefers not to obey; if the subordinate defies the command, the boss has the power to inflict punishment at a personal cost. The following illustration (now with actual numbers, for clarity!) captures the situation, with the subordinate’s payoffs listed first; discussion is after the fold. (Sorry for the ugliness; remember how I said that I’m horrible at graphics?)

Punishment game0

Let’s look at obedience here. Remember that a full strategy includes a specification of the moves that will be made at every possible decision point, even if they won’t be reached in equilibrium. This fact will be important in a moment.

So suppose the subordinate plays the strategy “always obey” and the boss plays the strategy “never punish.” It’s easy to see that this isn’t an equilibrium: given that the boss is playing never punish, the subordinate can do better by switching the strategy to “always defy.” By contrast, the strategy pair “always obey, always punish” IS a Nash equilibrium: the subordinate does worse by deviating (getting smacked), and the boss is indifferent because no matter what she does, she gets the 10 payoff in the left-most terminus of the picture.

But there’s a certain unintuitiveness to this equilibrium. Suppose you’re the subordinate. You might reasonably think: “my boss has this strategy of always punishing, but it’s irrational for her to have that strategy: if I defy, she does worse by punishing than she does by just letting me slide. So why shouldn’t I just defy?” In other words, the boss’s threat to punish isn’t credible, because it’s too costly for her to actually carry it out. So, intuitively, we ought not to predict that the players will actually end up in the [obey; punish] equilibrium.

The technique game theorists have come up with to eliminate threats that are not credible from our prediction pool is a refinement to Nash equilibrium called “subgame perfect equilibrium.” A loose description of that solution concept is that a strategy set is subgame perfect if it is a Nash equilibrium of every subgame of the original game. Here, the [obey; punish] strategy set is a Nash equilibrium of the subgame that begins when the subordinate obeys, but is not a Nash equilibrium of the subgame that begins when the subordinate defies. Accordingly, it isn’t a subgame perfect equilibrium. (All subgame perfect equilibria are also Nash equilibria.)

The easy way to find subgame perfect equilibria is a process known as “backward induction.” Essentially, what you do is look at the last decision each player can make in each line of play and figure out what is best; then you count the payoffs from that decision as the payoffs for the choice that leads to it in the prior step, and keep going until you’ve solved the whole thing. (We call these decision points “nodes.”)

That’s a little abstract, but it will become clear when applied to the example. Think of the boss’s decision: if the subordinate has defied, she may either punish or refrain from punishing; her payoff from punishing is -1, and her payoff from refraining is 0. She can be expected to not punish. Given that, we can impute the subordinate’s payoff at that node: if he chooses to defy, he can expect a payoff of 10, based on the boss’s most rational response; this may be compared to her payoff if she obeys = 0. From this, we can conclude that the only subgame perfect equilibrium is subordinate always defies, boss never punishes. And that’s the prediction we ought to make.

Note how this is a really interesting problem for lawyers, for it suggests that punishment---like the sort that the legal system deploys---can be irrational. The obvious example is consumer contract enforcement: it can easily be irrational to enforce a consumer contract, because the costs of doing so are so high relative to the small payoffs; a mass dealer in consumer goods and services can in principle look down the game tree and breach its contracts with impunity, at least in the absence of something like fee-shifting, a class action mechanism, statutory demages, etc. to give plaintiffs a sufficient incentive to punish them. This model is a concise explanation of those features of our legal institutions. It’s also a favorite model of political scientists, mainly because of its obvious relevance to, e.g., international relations problems of deterrence.

Standard solutions to the problem: 1) Repetition---if the boss deals with the subordinate many times (an indefinite number, actually), we can sometimes find subgame perfect equilibria in which punishment happens thanks to its deterrent effect (more on repeated games later); 2) precommitment---if, for example, the boss can hand over the job of punishing to an independent agent (like, say, a judge!) who does not incur the costs to do so, this might make the threat credible. But there’s lots and lots to say about credible threat models; this is really just a teaser to show why we might want to say some of it.


Posted by Paul Gowder on January 24, 2015 at 01:41 PM in Games | Permalink | Comments (0)

Friday, January 23, 2015

JOTWELL: Leong on Rush on geographic diversity

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Sharon E. Rush's Federalism, Diversity, Bias, and Article III (Missouri L. Rev.), which explores the role of geographic diversity in the federal judiciary.

Posted by Howard Wasserman on January 23, 2015 at 09:41 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Game theory post 3 of N: some classic (one-shot, strategic form) games

There are a number of classic textbook games that are highly useful, primarily because if you know them well, you can often see real-world situations that have similar payoff structures; doing so, you have a pretty good initial guess at what will happen in those situations. Accordingly, I'll collect some here. (Behind the fold.)

Prisoners' Dilemma

Of course we have to start here. Everyone knows the PD, so I won't belabor it. If you want more on it, a long and deep discussion is here; a shorter summary is here. The key idea is that both players (its standard presentation is 2 players, but it can be extended to more) have strictly dominant strategies of defecting from cooperative play with one another, such that the only Nash equilibrium is mutual defection, but mutual defection is worse for the players than mutual cooperation.

The following image shows a simple example, in abstract form. (This example assumes the game is symmetrical, that is, the players each get the same cooperation/defection payoffs, however, a PD need not be stymmetrical. It's just easier to notate if it is. Here, and thereafter, player 1 will choose the row, and have payoff first; player 2 will choose the columns and have payoff listed second.*)


The PD is so popular because it's an excellent way of representing many situations where there is an incentive to defect from a mutually beneficial cooperative arrangement. For example, there have been many PD models in international relations literature, because an armed standoff can easily be understood as a PD. Imagine it: two countries are facing one another over a tense border, and can demilitarize or retain military readiness. If both demilitarize, they both do well, because they can spend their resources on less wasteful things. If one country demilitarizes and the other does not, the country that keeps its army can quickly conquer the other, and take all the resources. If neither country demilitarizes, they keep all this wasteful tension. Keeping the army is strictly dominant for both parties, that's the only equilibrium, both would be better off if both demilitarized, and you have a model of the Korean Peninsula.

For more legal implications, consider things like property rights (mutually beneficial cooperative relationships where all parties have an incentive to defect, if not adequately enforced), and even judicial corruption.

Also, people don't seem to agree where the apostrophe goes. I say there are two prisoners, who share the same dilemma, thus, prisoners'.

Battle of the Sexes

Some people like to divide the world into two general kinds of games: commitment games, and cooperation games. The PD is an example of a commitment game, in that the key issue is that players are unable to commit to a beneficial course of conduct. The "battle of the sexes" is a classic example of a coordination game.

The backstory that leads to the sexist name (sorry, but it's the language game theorists use, and will help with literature searches, etc.) is a classic piece of gender essentialism: a husband and a wife want to go out, but the husband prefers the football game, while the wife prefers the opera; they both, however, prefer to be together to being separate. How can we predict what they will decide?


The key takeaway here is that there are two equilibria: both at opera and both at football game. The resources of game theory have trouble explaining which one will be chosen; we often appeal to non-strategic ideas (like "focal points"---social background norms, basically) to make a prediction. Real-world situations that resemble a battle of the sexes are situations where the parties have to come to one of several possible mutually beneficial arrangements, as in contracting or the negotiated drafting of regulations, although such situations can often be better modeled using more complex games in which players have threats to execute against one another, different payoffs from deadlock, etc. in order to shift the surplus from cooperation their way.



This is another extremely important classic coordination game, which imagines a pair of hotheaded teenaged drivers playing, as the name suggests, a game of chicken on the roads: any player who swerves loses face, but if nobody swerves, they both die. I say this is a coordination game (contra the otherwise good Wikipedia page, which describes it as an anti-coordination game), for reasons that will hopefully become clear on comparing battle of the sexes and chicken to matching pennies, below. While the players do not want to be doing the same thing, they do want to be coordinating their strategies to get compatible behavioral pairs, just like in battle of the sexes. There are two pure equilibria, each in which one swerves and the other does not. There is also one mixed, which is problematic, because mixed equilibria (that is, ones in which the players randomize their choices) in the chicken game can lead with positive probability to worse outcomes, namely a crash. The problem of the chicken game, then, for sufficiently bad crash payoffs, can be seen as getting the players to choose one of the pure equilibria---that is, settling on who has to swerve.

Another really interesting thing about chicken is the way it gives players an incentive to find ways to precommit to a choice. If one of the hotheaded teenagers can, for example, yank out the steering wheel and throw it out the window, s/he forces the other player (if rational) to swerve. Precommitment was most famously dramatized in the doomsday machine of Dr. Strangelove, although the underlying game there is probably poorly described as chicken (it really makes more sense as a sequential punishment kind of commitment game, perhaps to be described in a later post).

In the legal context, we might model some kinds of settlement negotiations as a game of chicken, where if both parties refuse to back down, they burn up all their utility on expensive litigation.

Matching pennies


This really is an anti-coordination game. The story is that two players are gambling and choose a side of a penny to display; one player wants them to match while the other wants them to not match. This is also a variant of rock paper scissors, and of the soccer goalie problem noted previously. It's also the way that mixed strategy equilibria are traditionally introduced, for in this game there are no pure strategy equilibria, only a mixed strategy equilibrium. In the simplest case, the players weight each option equally, although when we change around payoffs and such this changes (how to figure out mixed strategy Nash equilibria is a topic for, perhaps, another post, although I'm not sure that it is sufficiently useful for the audience of these posts to be worth doing). Even this seemingly simple game, however, can be made endlessly complex by a motivated economist...

Stag Hunt

Today's last game is kind of a hybrid between the PD and battle of the sexes. The story is that two people are hunting, and they may either choose to hunt stag or hare; it takes them both to successfully hunt stag, while either acting alone may successfully hunt hare. But, of course, one stag is a lot more meat than two hare...


The key is that there are two pure Nash equilibria, in coordination game fashion, and while one is better for both players than the other, each player may get a consolation payoff by choosing the strategy corresponding to the worse equilibrium. So if players trust one another (cooperatively hunt stag), they do well; if they do not trust one another, they do less well (hunt hare). If one person trusts, and the other doesn't, then the poor fool who trusts gets a sucker's payoff, and the untrusting one still does a'ight. In lots of cases, stag hunt is a good alternative model to PD. Bryan Skyrms (who taught me all the evolutionary game theory I know) has written a really good book on the subject, although you can also get the heart for free in lecture form. This one is a really rich game, Skyrms's lecture will give you a taste of it, but this post is already too long, so I won't discuss it beyond raising its existence.

I don't think I'll be able to keep up this post-a-day pace for much longer, but more to come!

* These diagrams are all intuitive simplifications, and elide some edge cases where the diagrams given might not constitute the game in question. For the PD, for example, there is a more complex condition that might be added in repeated play, as described in Robert Axelrod & William D. Hamilton, The Evolution of Cooperation, 211 Science 1390 (1981). Finally, I am lousy at graphics---just have zero visual intuition---so my apologies if there are any errors or weird typos in the pictures...

Posted by Paul Gowder on January 23, 2015 at 08:55 AM in Games | Permalink | Comments (1)

Thursday, January 22, 2015

Sutter Health vs. Blue Shield: War of the Gargantuas

When I think about calls for increased consumer activation in  health insurance selection, I think about how much I like the ideas of increased health insurance literacy, price transparency, and the promotion of competition in health care markets. 

But when I see consumers whipsawed as with the current War of the Gargantuas taking place in Northern California, I wonder if consumer activation alone will save us.

In order to have been a savvy purchaser of health insurance  through California's Exchange (or, even, outside the exchange through this fall's most recent open enrollment period for commercial insurance), you would also have to have known something about the the health insurance and health care services contracting world. Can we reasonably expect consumers to master this, to ferret out what they really need to know?

Most Northern California employers have a fall open enrollment period. Covered California's open enrollment for 2015 runs from November 15, 2014 to February 15, 2015.

Here's what your employer (or exchange) surely didn't tell health insurance shoppers  in Northern California this past fall:

1. Blue Shield of California is a huge insurance company, with about three million covered lives in Califonria. 

2. Sutter Health is a huge health care provider with, for example, over 4300 licensed acute care beds in California. 

3. They bargain fiercely right through and past the open enrollment deadline over the next year's contract rates. 

4. Even a behemoth such as Blue Shield of California has, historically, been unable to bring Sutter to heel. Sutter's tremendous market power in Sacramento and the Bay Area is one of the drivers of high health care costs in those areas.  

4. Decisions that are made after the close of your open enrollment period -- such as their contractual terms or, as announced this year, their decision  to maybe not  contract at all, may be  announced once  open enrollment is closed or very near to its closure.

5. The decision by a major provider to exit an established health plan after the close of the open enrollment period is apparently not deemed a qualifying life event allowing for special enrollment under Covered California.  California's largest employers have been conspicuously silent on whether such an announcment is a qualifying event for out of open enrollment insurance plan change.

So the chat boards are lighting up.  Can it be that a change in a health plan's coverage options in a highly concentrated market  such as Sacramento or the East Bay is not a a trigger for special enrollment rights ?   You mean you didn't know all this already?

Watch out where Gargantua steps.

Posted by Ann Marie Marciarille on January 22, 2015 at 06:39 PM in Blogging, Constitutional thoughts, Corporate, Culture | Permalink | Comments (0)

When Agencies Don’t Appear on the SG’s Briefs

When the Solicitor General files briefs in the Supreme Court, the briefs always bear the names of other lawyers from the Department of Justice. In special cases, however, officials from other agencies sometimes sign on, too. For instance, in cases bearing on commerce, national security or foreign affairs, the SG’s briefs might respectively bear the names of officials from the Commerce Department, the Department of Defense or the State Department. The point of this unusual gesture, it seems, is to show the Court that other relevant agencies have been consulted for their expert views and are standing by the Department of Justice in what must be an important case.

But what if a case seems to involve issues pertinent to agencies besides the DOJ, and yet those other agencies don’t appear on the SG's brief? Does that surprising absence mean that officials from the other agency disagree with the position of the Solicitor General? Has there perhaps been an intense debate within the executive branch—an exchange of views wherein a purportedly expert agency has dissented from the litigation position ultimately taken by the United States? These kinds of thoughts can lead jurists to discount or even discredit the position that the Solicitor General has taken. The practice of including extra agency names on the SG's briefs is thus a two-edged sword--and one that seems to have been cutting the SG increasingly frequently in recent years.

Justices sometimes pick up on the fact that SG briefs are missing names and then bring up the point during oral argument. As Will Baude notes over at SCOTUSblog, this just occurred in Armstrong v. Exceptional Child Center, which raises a very important and complicated issue implicating the role of the Department of Health and Human Services. The United States filed a brief, but its cover reveals only the names of DOJ officials—nobody from HHS.

This didn’t escape the notice of Justice Kagan—herself a former Solicitor General. As someone unusually familiar with the workings of the executive branch, Justice Kagan was well-positioned to probe the matter. Here is a portion of her line of questioning directed at the SG’s Office:

MR. KNEEDLER: [...]  If you're income qualified or you get hospital services, you can sue about that. 

JUSTICE KAGAN: Judging from the – the names on the brief, I take it that HHS does not agree with that statement.


JUSTICE KAGAN: Judging from the names on your brief [...] or the absence of names on your brief, I take it that HHS does not agree with that statement.

Mr. Kneedler, the uber-veteran SG attorney at the podium, didn’t take up Justice Kagan’s inquiry, perhaps because he preferred to let the question go without a direct answer.

If deliberate evasion is indeed what happened, you can hardly blame Mr. Kneedler. Judicial inquiry into behind-the-scenes thinking in the executive is at the very least embarrassing, possibly corrosive of candid deliberation, and—in an extreme instance—a separation-of-powers problem.

For an example of an extreme case, consider the blurb below from Alison Frankel’s coverage of Judge Posner’s truly remarkable series of orders last year in Motorola v. AU Optronics:

On May 1, the 7th Circuit panel judges sent a letter to the U.S. State and Commerce departments — which hadn’t specifically signed the Justice Department amicus brief — inviting them to file their own brief to address “the potential effects on foreign relations resulting from the issues presented by this case.”

Solicitor General Donald Verrilli responded with a polite-but-firm letter to the 7th Circuit on May 19. He had personally authorized the amicus brief urging reconsideration of the panel’s decision “on behalf of the United States after appropriate consultation with interested components of the federal government,” Verrilli wrote. “It reflects the views of the United States on the matters expressed therein. Neither the United States nor any of its departments plans to file an additional brief at this stage of the appeal.” 

That was not a good enough answer for the 7th Circuit panel. On May 22, Posner and the other judges issued a quite stunning order directing the solicitor general to name the government officials he consulted before sending the May 19 letter, to describe the nature of those consultations and to explain exactly what he meant when he said that Justice’s amicus brief reflects “the views of the United States." 

Happily, the Seventh Circuit eventually backed down.

All this raises the question of whether it’s actually worth having the practice of occasionally including non-DOJ officials on SG briefs. From the Solicitor General's perspective, the punch of added names in one case has to be weighed against the deflationary effect of having names missing in others. 

Viewed more abstractly, giving other agencies the option to sign SG briefs effectively gives those other agencies a bit of authority over how the US represents itself in the Supreme Court. An agency that has the opportunity to sign onto an SG brief has in effect obtained a significant bargaining chip. Much like a Justice at the Court, the extra agency might demand changes to the brief as a condition of its "join." This might be good insofar as the expert agency actually has expertise that should influence the SG's filings. Needless to say, however, the SG's office is unlikely to be pleased with this non-trivial diffusion power within the executive branch, not least because it weakens the SG's office itself.

There’s also the serious possibility that judges might erroneously infer something from the fact that certain names are absent from briefs. After all, officials sometimes stay off briefs for reasons unrelated to inter-agency intrigue. For example, either the OSG or the other agency itself might not think that the other agency has a significant institiutional interest in the case, even where an outsider might assume otherwise. In those cases, the dog that didn’t bark isn’t a clue but an irrelevance. Yet the SG might have difficulty assuaging even erroneous concerns of this kind, particularly since they are usually aired (if at all) during oral argument.

My sense is that the Solicitor General has gotten more questions about missing names in recent years, possibly because three of the last four Justices to be confirmed served in the SG's office. If there is such a pattern, the SG might have to rethink or re-articulate its policy on extra agency names--even though that policy change would likely come with an institutional cost of its own.

Posted by Richard M. Re on January 22, 2015 at 11:39 AM | Permalink | Comments (15)

Game theory post #2 of ????: Basic Concepts

This is the second post in an indefinite series of game theory for law professors. In this one, I'll describe some basic concepts---the rudimentary language of game theory as a vocabulary list. This page, incidentally, has even simpler definitions of some of the concepts described here, as well as a few concrete examples.

Let us begin, however, by fixing an idea of our task in mind. We have at least two players (where a player can be any entity that makes choices and receives payoffs---depending on the level of analysis, this can be individuals, firms, governments, or a combination of them), each player can make moves, actions that, in conjunction with other players' moves, affect the state of the world (the outcomes experienced by that player as well as others), and each player has a utility function mapping probability-weighted states of the world to a preference ordering. And our goal is to say something intelligent about what the players have incentives to do---often, although not always, with the assumption that they are sufficiently rational that they will do what their incentives will point toward, but let us bracket that issue for the time being. That saying of something intelligent is also known as "solving" the game. Also, I only will be discussing non-cooperative game theory; there's a branch of game theory called cooperative game theory too, but I know it less well and never use it. (Those of you who study things like constitution-making and contracts might look into it though.)

Strategic and extensive form games

There are two classic ways to visualize the problem of a game. The first is strategic form (a.k.a. "normal form"), represented as a chart which displays the possible combinations of moves and the payoffs from each to each player. The second is extensive form, which represents the possible combination of moves and payoffs from each in order, like a tree diagram, with the payoffs at the end. This webpage gives a good example of each. Note that this is merely a representation: it's possible (and often sensible) to do game theory without using these kinds of pictures, but the pictures are a good way of summarizing the issues in play, and you'll see them in most game theory articles.

Simultaneous and sequential play

Consider two different kinds of real-world game. First, consider soccer, and a player racing toward the goalie. A good simplified model of the decisions facing the players there is that each chooses to kick the ball or leap (respectively) to one side or the net or the other. Things happen fast enough that they choose simultaneously---by the time the player with the ball kicks, the goalie needs to have already decided which direction to leap (but obviously not before the former commits to kicking in a direction). Or, and equivalently for practical purposes in most cases, we might imagine the players having chosen whenever they want, but secretly---the goalie might have decided to leap to a given side six months in advance, but we can model it as simultaneous as long as they don't tell one another. (It's actually the secrecy---more precisely, the lack of information---that really matters for modeling purposes; the traditional use of the language of simultaneity is basically just shorthand.) This is a classic simultaneous game, and is most easily represented in the strategic form.

By contrast, think about chess or go. In such games, players take turns: they can see what the other player did before making their own decision. Typically, we represent such games in the extensive form.

Note that it's possible to have elements of both kinds of games in a single complex strategic interaction. For example, in litigation, some elements of players' strategies are concealed from one another, like how much to spend on investigation and research before the initiation of suit, others, like what procedural motions are filed, are visible. There are fancier things we can do to represent these, like specify players' "information sets." We can also imagine a series of simultaneous games played between the same players multiple times, where the players can see what one another did in previous rounds (see below).

As you can see by now, a lot of the action in game theory is in specifying how much information players have about what the other players are doing, their payoffs, exogenously set states of the world, etc. I won't introduce much detail on this here, but might write a future post all about information.


A player's strategy is a complete specification of his or her moves, across the whole game---that is, at every possible state of behavior from other players. (To be more precise, a complete strategy is a specification of a player's moves in at all his/her information sets), where the notion of an information set counts everything that looks the same to the player as identical. Obviously, a player can't have a strategy that generates different actions depending on different states of behavior that the player can't distinguish, given what the player knows. But let's leave that aside for the moment.) A strategy can be simple: "no matter what the other player does, I'll kick to the left," or complex ("at any given point, if the goalie leapt to the left at least three out of the last five times, then I'll kick to the left, otherwise right"). It can also be probabilistic---this is called a "mixed strategy" (I'll always kick to the left with .45, and to the right with .55).


A strategy is dominant if it's always best for the player. The classic case of dominance is in the prisoners' dilemma, with which many of you will be familiar (discussed in a later post): "always defect" is a dominant strategy for each player, in that it optimizes the players' payoffs no matter what the other player does. Dominance is divided into two categories: strict dominance and weak dominance. Strict dominance means that the strategy always does better than competing strategies. Weak dominance means that the strategy does at least as well as competing strategies.

One way to solve a game is known as "iterated deletion of strictly dominated strategies. (Deleting weakly dominated strategies is a dicier proposition.) That means what it says it means. Look at the strategies available to the players. If one is strictly dominated by something else, chop it out. Keep doing this until there aren't any strictly dominated strategies left. If there's only one strategy left, there's your solution. Even if there are multiple strategies left, at the very least you know that no rational player will choose one of the strategies that you removed, because why would anyone choose a strategy that's strictly dominated by some other? (An easy practical way to do this for simple games is to write out each strategy as an ordered set of payoffs corresponding to possible moves by the other player, then just delete the ones that are lower than anything else left standing.)

Nash Equilibrium

Very few interesting games will be solvable by deleting dominated strategies. (You don't need game theory to predict that people won't do obviously stupid things.) However, every game (meeting basic criteria) has at least one Nash equilibrium. It's sort of the ur-solution concept. (There are lots of other solution concepts out there, and I'll discuss a few later, but they are all subsets of the Nash equilibrium---everything that meets one of these other criteria is also a Nash equilibrium.)

A Nash equilibrium is very simple to describe: it's a set of strategies, one for each player, such that for each player i, if nobody else changes his or her strategy, player i can't improve his or her payoff by changing his or her strategy. (Note: most people introduce the notion of Nash eqilibrium by way of the idea of a "best response." I don't really see the need to define a separate term for that, but if you care, read this.)

For predictive purposes, the key point about Nash equilibrium is that it would usually be silly to expect rational players to choose strategy sets that aren't them. If a strategy set isn't a Nash equilibrium, then at least one player can do better by switching, so why would that player not do so?

Many games have more than one Nash equilibrium. Some games technically have an infinite number. This raises a notoriously difficult problem, that of equilibrium selection, about which game theorists have spilled immense amounts of ink.

Repeated games

A game can have as many steps as you like, but sometimes those steps are repeated. An important class of games are those that are just one single-round game (like the soccer example), but repeated. A game can be repeated a finite and known number of times, a finite and unknown number of times (indefinite repetition), or an infinite number of times. Often finitely repeated games are fairly easy to solve. (In a future post: backward induction and subgame perfect equilibrium, the basic tools for doing so.) Indefinite and infinite repeated games are in some sense even easier, and some sense even harder. They're easier because a mad set of proofs known collectively as the "folk theorem" show that a huge class of infinite/indefinite repeated games have a vast number of potential solutions. Above, where I said some games have infinite equilibria? Here's a good place to find some. And that, of course, is the harder sense: there isn't much that can be reliably predicted even for rational players.

Posted by Paul Gowder on January 22, 2015 at 11:27 AM in Games | Permalink | Comments (6)

Wednesday, January 21, 2015

MDL consolidation and appealability

SCOTUS on Wednesday decided Gelboim v. Bank of America, holding that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL. I have an opinion analysis at SCOTUSBlog. And I am happy to say I called this one.

Posted by Howard Wasserman on January 21, 2015 at 04:25 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

The Leaker Whistleblower

Today, the Supreme Court in a 7-2 decision by Chief Justice Roberts affirmed a Federal Circuit decision that government whistleblowers are protected under the Federal Whistleblowe Act unless their disclosures are explicitly prohibited by another statute. Robert MacLean, an air marshal who flew undercover, leaked to MSNBC that the Transportation Security Administration decided to reduce overnight flights for air marshals. His report congressional criticism and led to TSA reversing itself on its budgetary cuts. The disclosure also led to the firing of MacLean disclosing "sensitive security information," which violated TSA rules. 

This is an important ruling for public accountability and disclosure. In my collaborative studies on whistleblowing, Yuval Feldman and I find that protections against anti-retaliation and firing can be more effective than monetary rewards for disclosure and that such protections are meaningful given the default silence of most employees (The Incentives Matrix: The Comparative Effectiveness of Reward, Liabilities, Duties and Protection for Reporting Illegality, Texas Law Review 2010). In another article, Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations. California Law Review, 2009, I describe the deep ambivalence of the law on the role of individual dissent in public and private organizations. I argued post-Garcetti that recent constitutional and private law cases have had the undesirable effect of denying protections to those most likely to identify and report corporate misconduct, especially in the public sector. The decision today is an important step in strengthening disclosure protections. As Neal Katyal, MacLean's lawyer, said during the oral arguments, the whistle-blower law was enacted to restrict government agencies, rather than empower them. Retroactively classifying a previously unclassified text message to fire a whistleblower is the kind of secrecy and agency empowerment we should worry about.

Posted by Orly Lobel on January 21, 2015 at 11:44 AM | Permalink | Comments (0)

Acoustic Separation and Immigration Reform

In Decisions Rules and Conduct Rules: Acoustic Separation in Criminal Law, Meir Dan-Cohen talked about the partial acoustic separation between criminal rules as understood by the public and criminal rules as understood by the courts imposing sanctions.  For example, we believe that in some cases, a person committing a crime under duress is not legally culpable - and her conduct may be excused.  But we don't want people running around factoring in this possibility of  legal excuse into their decisions at the moments they are actually under duress.  We want them to experience the full legal risk of their conduct at that moment so that we can conclude they really were acting under the most extreme pressure.  

I give this background only by way of explaining the concept.  My rumination today has a first cousin relationship to Dan-Cohen's framework.

I was struck by the decision of Republicans to take two approaches to immigration in their response to the President's State of the Union.  To English speakers, Joni Ernst made no mention of immigration at all.  That is the story the GOP wants to tell to its English language base.  But the party also needs support from the Spanish speaking community as well.  So to this pool of voters, Rep. Carlos Curbello stated in his Spanish language response,  "We should also work through the appropriate channels to create permanent solutions for our immigration system, to secure our borders, modernize legal immigration, and strengthen our economy."

I imagine that this separation will be reasonably effective - if, perhaps, not deeply consequential.  Acoustic separation is never complete, but most people don't dig that deeply into law or policy.  While the policy wonks who read Politico now know that the GOP has two slightly approaches to immigration reform - one being silence and the other marking immigration as a priority - most voters will not.  I'm not sure that Curbello's comments would have deeply alienated the GOP base - though I'm guessing that GOP speechwriters thought immigration wouldn't be a galvanizing issue for her English language listeners. Maybe they imagined it might even drive a few voters away.  (Indeed, the GOP later flipped on whether Curbello's statement was the Spanish language response - though that flip itself was presumably largely invisible.)

I know that candidates and parties commonly frame issues differently in media outlets targeted to divergent demographic groups.  Perhaps this was just a case of my own naïveté in thinking that was was such a thing as "the Republican response to the State of the Union".   In any case, it foreshadows and highlights a fundamental challenge for the GOP over the next two years. 

Posted by Dan Filler on January 21, 2015 at 11:34 AM in Current Affairs, Immigration | Permalink | Comments (0)

Experimental Game Theory Series #1 of ???

I'd like to try an experiment: methodological propaganda/skillsharing in a series of blog posts.  I had originally planned a fairly large number of these and essentially an internet course in basic game theory, but then the 20th of the month snuck up on me, and there's very little chance the whole thing gets out before my blogging residency (such as it is) runs out.  So let's get as far as we can, and see how people like these posts; if they prove popular, perhaps they can continue somewhere else.  (I'm also totally hijacking the "games" category" on the blog for this. Because, obvs.)

With no further ado: an introduction to game theory for lawyers/law professors, post 1 of N: why? 

I'm a huge fan of game theory as an intellectual tool. It provides a surprising amount of analytical punch at reasonable, lawyer level, amounts of math---you can make useful models that shed important light on the social world with nothing beyond basic algebra. (It also scales up to math way above my pay grade, including alarming things like linear programming.) And while many involved in the legal enterprise make use of the tool---mostly L&E folks---there are many who could benefit from it but find the jargon and the formalization intimidating, or are put off by the policy agendas associated with many who use the tool ("efficiency!").

So I will spend part of my blawggey bandwith this month setting out some basics of game theory that, I hope, will be suitable for academic readers with no training in the subject to put to immediate use in their own scholarship (with suitable feedback from specialists, of course), and potentially also introduce to students in courses that can benefit from it (e.g., anything with negotiation or regulation on the agenda). The intended audience is academics with no formal training in formal modeling beyond the sorts of references that may appear in undergraduate economics (at the introductory level) and political science courses. Readers with training in the subject will find this series of posts terribly uninteresting. Also, the posts will begin quite elementary and become more fancy over time; today, I will begin with the absolute basics: what game theory is, and why you might want to use it.

1. What is Game Theory?

Game theory is, in essence, the study of rational strategic preference-optimizing behavior. Its space is best carved out in contrast to its counterpart, decision theory, which has the same subject, minus the "strategic."

Decision theory is just math about how to get what you want. More wonkily, it imagines an actor who views a set of probabilistically arranged states of the world, and can rank-order those states in terms of his or her preferences (i.e., I prefer a .5 chance at state A to a certain chance of state B, and so forth). Thanks to the math underlying Von Neumann-Morgenstern utility, we know that a minimally rational ordering of such states allows us to get numbers on an interval scale, which we can call "utility." (Philosophers, economists, and the like have started a bunch of fights about what the notion of utility actually means; we can mostly leave them aside until such time as we want to use it to talk about things like "efficiency.") Then, essentially, decision theory is a fancy set of tools to flesh out the prediction that people will take the actions that lead them to their highest expected utility---the actions that bring it about that the sum of the utility numbers, weighted by the probability of the states that yield them, is largest.

Game theory takes the same actor, with the same properties, and introduces another player---a second agent, also with those properties. It then makes the paths from those agents' actions to the states of the world over which they have preference orderings dependent on one another's behavior. It is this interdependency to which we refer when we say that the subject of game theory is "strategic" action.

To see strategic action, consider the classic tale, "The Gift of the Magi." We all know it, it's the one about the poor husband and wife who give self-sacrifical gifts to one another: the husband sells his watch to buy the wife fancy combs for her hair, and the wife sells her hair to a wigmaker to buy the husband a fancy chain for his watch. In addition to being a heartwarming Christmas love story, yadda yadda, it's also a story of strategic action gone wrong: the outcomes of their gifts depended on what one another did, but neither took that into account in making his/her own decision: some game theory could have helped this couple.


The question "why game theory" is really the question "why (formal, sorta-mathematical-but-not-as-mathey-as-those-weirdos-in-econ) modeling?" The short version is that it generates predictions about how people will behave, and those predictions (flawed though they may be; abstractions from reality always are) as generated by game theory as opposed to by something else can be useful to your scholarly enterprise in several different ways:

1. Sometimes you can just take a game off the shelf.

Surprisingly often, having a basic familiarity with the classic games---the prisoners' dilemma, the battle of the sexes (being invented by a bunch of cold warriors and mathematicians in the 20th century, the legacy of game theory includes some unfortunate names with sexist connotations), the stag hunt, chicken---can spark a flash of insight. You might be considering a policy problem, and notice that the people involved have payoffs that resemble those assumed in one of the classic games. Great: you have a pretty good first-pass prediction about what's going to happen, and a pretty good first-pass idea about what might need to be changed to change the outcome. You might also be able to generate more insight by stating the conditions under which the payoffs actually resemble the game in question. [SHAMELESS SELF-PROMOTION ALERT:] My wonderful colleague Maya Steinitz and I have a paper that does just that in the context of corrupt transnational litigation.

2. Intuitions are unreliable.

We all have intuitions about the incentives that a given institutional structure or policy creates for those who interact with it. More than once, however, I've been pretty convinced that system X created outcome Y, tried to prove it formally, and found that I'm unable to formalize the intuition---sometimes because the result the analysis yields actually is the opposite of what I had predicted. This is obviously important, and shows how modeling can provide a rough and ready way of testing our beliefs about the world.

3. Push the intuitions a step further.

Even if your intuitions are reliable, how far out do they go? You may have an intuition about what happens when people interact once, but are the intuitions as strong or as reliable when they interact multiple times? Sometimes, the math can keep going when the intuitions run out.

4. Generate and refine empirically testable hypotheses

Another advantage of formal modeling is that it allows us to see a variety of candidate causal factors on a given behavioral outcome. By explicitly specifying the utility functions that generate agents' payoffs, we can identify what things to take to our data.

5. Find policy levers.

Back in #1 above, I said that stating the conditions under which the payoffs resemble a given game can add insight to the world. But "insight" is never enough for legal scholarship---we (well, someone---law review editors? tenure committees? John "I hate Kant and Bulgaria" Roberts?) always demand some kind of doctrinal or policy payoff at the end. Here's one way to get it: Now that you know the conditions under which the players have an incentive to do X, you have at least one if not several candidates for places that policymakers can intervene in order to bring about/abolish X-doing. But by having all the different things that feed into the incentives laid out before you in neat mathematical form (as per the previous item), it can allow you to see policy options that may previously have escaped notice. ("Congress will have an incentive to kick puppies so long as the price of tea in China is greater than the number of votes for Scottish independence, so down with the Union!")

So there's my brief for why game theory is worth caring about. The details are for subsequent posts.

Posted by Paul Gowder on January 21, 2015 at 09:58 AM in Games | Permalink | Comments (3)

Tuesday, January 20, 2015

Some thoughts on Holt v. Hobbs

Like Paul, I say "congrats" to Doug Laycock for the win in Hobbs.  And, while waiting for Paul's as-per-usual detailed and thoughtful take on the case, I gathered a few quick thoughts of my own:  

First, it seems to me that the opinion by Justice Alito is exceptionally well crafted.  It should win a Green Bag award or something.  It touches the necessary bases and stops.  The language is clear and functional.  (It reveals no idiosyncratic aversion to adverbs and includes no cringe-inducing attempts at grandeur.)  One knows, at every point in the analysis, where one is.

Second, Justice Alito confirmed (as he had in Hobby Lobby) that RLUIPA (and RFRA) should not be read narrowly so that it reaches no farther than did the more narrow of the Court's Free Exercise Clause decisions.  Here, he rejected the notion (which some earlier cases might have endorsed) that "the availability of alternative means of practicing religion is a relevant consideration" for purposes of deciding whether RLUIPA's protections are triggered.

Third, Justice Alito reminded readers that "RLUIPA . . . applies to an exercise of religion regardless of whether it is 'compelled'" by the claimant's religious beliefs or traditions.  (Put another way, RFRA and RLUIPA do more, as Justice Alito reads them, than protect religious claimants from being compelled to do what they believe their religion absolutely forbids.)  Fourth, and related, the lead opinion insists that "the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is 'not limited to beliefs which are shared by all of the members of a religious sect.'"  So, it would not be relevant to the "substantial burden" inquiry under RLUIPA if not all Muslims believe men must grow beards.

These last three points, together, are very helpful, I think, in helping me think about the idea of "substantial burdens" in the accommodation-of-religion context.  What it is that we are asking about, I think, when we ask about "substantiality" is not the power or weight of the belief, or its centrality, or its orthodoxy, or its plausibility.  We are asking, instead, about the nature, weight, size, etc., of the government's imposition on the sincerely asserted religious belief or practice-obligation.  There is no question, for example, that a Roman Catholic's obligation to worthily receive the Eucharist at least once a year is a very serious one, but a neutral and generally applicable law that, in application, (somehow) increased the cost to Catholics of doing so by $.01  would not impose a "substantial" burden on religious exercise.  Here, in Holt, the question is whether the penalty imposed or threatened by the government is substantial.  And, it is.

Next, the Court was appropriately underwhelmed by the invocation - in broad and general terms -- of a "compelling interest" in prison security and safety. Rather, "RLUIPA, like RFRA, contemplates a  'more focused' inquiry and 'requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'––the particular claimant whose sincere exercise of religion is being substantially burdened."  And, relatedly, the Court meaningfully -- while giving appropriate consideration to the prison context -- engaged the question whether applying the prison-grooming rule to the claimant, without exception, was the least-restrictive means of accomplishing the government's important goals.

In a separate opinion, Justices Ginsburg and Sotomayor clarified (and perhaps qualified) their agreement with the lead opinion.  Justice Ginsburg wrote:

Unlike the exemption this Court approved in Burwell v.
Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating
petitioner’s religious belief in this case would not
detrimentally affect others who do not share petitioner’s
belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2,
7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that
understanding, I join the Court’s opinion.

While I understand why Justice Alito (and others who joined his opinion) would not think it necessary to respond to this statement, I also wish one of the Justices had.  The claim that it violates the Establishment Clause to accommodate religion in ways that impose costs or burdens on third parties is one that, of course, is advanced by a number of very smart people, but I do not think it is correct -- at least, not as a broad, general matter.  As I see it (see more here), the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry.

Finally:  today's opinion offers a very, very welcome counter to the unfair and inaccurate assertion one hears in some quarters that concerns about "religious liberty" are merely "dog whistles" or "fig leaves" for bigotry and prejudice, and so can be dismissed as such.  Some invocations of "religious liberty," and some demands for accommodation, have been, are, and will be insincere, or morally offensive, or simply ungrantable.  Many others will not.  We should take the time to distinguish -- carefully, thoughtfully, reasonably sympathetically -- between the two.

Posted by Rick Garnett on January 20, 2015 at 01:14 PM in Constitutional thoughts, Religion, Rick Garnett | Permalink | Comments (0)

Decision in Holt v. Hobbs

The result in this RLUIPA case was unsurprising: The petitioner won unanimously.  Justice Alito wrote (again) for the Court, in an opinion holding that "The Department [of Prisons]’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs." Justices Ginsburg and Sotomayor filed short concurrences, solo in Sotomayor's case. The opinions are here. Mazel tov to Professor Doug Laycock, who argued on behalf of petitioner Gregory Holt in the Supreme Court. 

Posted by Paul Horwitz on January 20, 2015 at 10:47 AM in Paul Horwitz | Permalink | Comments (1)

Henry Manne, R.I.P.

Henry Manne passed away over the weekend.  Thoughts and condolences to Geoff and the rest of his family.  I expect you will be hearing much more about Manne's contributions to law, law & economics, the market for corporate control, insider trading, and legal education.  We here at SLU Law, where he began his academic career, are happy to claim some small association with his legacy.  Here's an intellectual history by Manne discussing the law & economics movement and his transformational role as dean of GMU Law. 

Posted by Matt Bodie on January 20, 2015 at 10:30 AM | Permalink | Comments (0)

Joachim Prinz, American Jews, and the Civil Rights Movement

This article is a few years old, but I came across it, appropriately, on MLK Day. It is about Joachim Prinz, the most prominent Jewish leader in the Civil Rights Movement and the only Jewish leader to speak at the March on Washington (he spoke just before King). I was personally interested in the story because Prinz performed my Bar Mitzvah in 1981 at B'nai Abraham in Livingston, N.J., where he was Rabbi Emeritus. As students at the Hebrew School, we sort of knew about his involvement with King. But my friends and I were more interested in being outside playing baseball.

Posted by Howard Wasserman on January 20, 2015 at 09:52 AM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The Sleeper Case of the Supreme Court's October 2014 Term?

Over at SCOTUSblog, Will Baude has posted a helpful (and helpfully concise) preview of the oral argument that will take place before the Supreme Court later this morning in Armstrong v. Exceptional Child Center, a case I've blogged about before (and in which I've filed an amicus brief on behalf of former HHS officials and in support of the Respondents--the Medicaid providers). Rather than rehashing the arguments made by the parties or amici (or my prior posts), I wanted to use this post to make a different claim. Specifically, as I aim to demonstrate below the fold, in a Supreme Court Term the headlines from which will almost certainly be dominated by some combination of same-sex marriage, ACA subsidies, and passports for Jerusalem-born U.S. citizens, Armstrong could well be the biggest sleeper--the case that flies under the radar of all but the most ardent Court-watchers (or federal courts nerds), but produces the most significant long-term consequences for the American legal system. 

I.  The Underlying Debate in Armstrong

Among other things, Will's preview for SCOTUSblog does a really nice job of identifying the two very different threads of jurisprudence that Armstrong brings together: (1) the Supreme Court's late-developing but sweeping hostility to inferring causes of action from statutes that don't expressly provide them; and (2) the Court's longstanding practice of allowing litigants to pursue injunctive relief for constitutional violations notwithstanding the absence of an express cause of action authorizing such relief in many cases. Armstrong falls into this gap because the plaintiffs are private parties seeking to enforce a federal statute against a state officer--and they thereby have a federal statutory claim buttressed by the Constitution's Supremacy Clause. In other words, the plaintiffs are seeking to enforce the Constitution insofar as they are seeking to use it to stop a state officer from violating a federal statute.

Thus, Armstrong is different from purely statutory cases--where private parties seek to enforce federal statutes against other private parties--and from more classical constitutional cases--where private parties seek to enforce constitutional rights against government officers. As Will frames it, "[their] claim has both a statutory element and a constitutional element.  This raises the question whether it should be analogized to the statutory cause-of-action cases or the constitutional ones." And although the Supreme Court has expressly recognized the existence of a Supremacy Clause-based cause of action in such cases, it hasn't revisited that line of precedent since its more recent decisions (Alexander v. Sandoval and Gonzaga University v. Doe foremost among them) scaling back implied statutory remedies.

Trying to salvage some kind of middle ground, the federal government, as amicus curiae in support of Idaho, has argued that the Court needn't resolve that larger question because, whether or not any federal statutes can be enforced against state officers this way, the statutory provision at issue--the "equal access" mandate of the Medicaid Act--was never meant to be one of them. But if the Justices are convinced by the contrary arguments about the Medicaid Act offered by the former HHS officials' brief (I'm biased), then the Court is indeed faced with this stark choice--between treating these claims as subject to the skepticism of the Sandoval / Gonzaga line of cases, or as subject to the body of cases unhesitatingly allowing such narrow claims for injunctive relief.

II.  The Douglas Dissent--and Its Potential Consequences

As Will explains, we already have a pretty good idea how at least four of the Justices will vote, since, when this exact issue was before the Court in 2012 (in Douglas v. Independent Living Center of Southern California), Chief Justice Roberts wrote a lengthy dissent on behalf of himself and Justices Scalia, Thomas, and Alito that would have rejected the availability of a Supremacy Clause-based cause of action. In the Chief's words, 

[T]o say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right of action and 42 U.S.C. §1983 jurisprudence. . . . This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause to the exact same effect.

As I've written before at some length, this argument doesn't actually follow; among other things, the plaintiffs in Douglas and Armstrong are seeking injunctive relief against a state officer grounded in the Supremacy Clause--a hypernarrow claim that would be available in a far smaller class of cases (and against far fewer potential defendants) than those foreclosed by SandovalGonzaga, and their progeny. Thus, (1) recognizing such a cause of action would not provide an "end-run" in the vast majority of cases; and (2) in those cases in which it would provide such an "end-run," such an end-run is necessarily grounded in the Constitution (via the Supremacy Clause), which is simply not implicated in the Sandoval / Gonzaga line of cases. 

Separate from its analytical shortcomings, the more serious problem with the Chief Justice's dissent in Douglas is its implications. After all, it's hard to see why the same logic, if it attracts a fifth vote, wouldn't apply to "classic" constitutional claims, as well. Is it somehow less unconstitutional for a state officer to violate a federal statute than it is for a state or federal officer to violate the Bill of Rights and/or the Fourteenth Amendment? If not, why would litigants be allowed to pursue injunctive relief without an express cause of action in the latter class of cases, but not the former? Chief Justice Roberts didn't really answer this question in his Douglas dissent; he merely suggested that his reasoning wouldn't apply to "the pre-emptive assertion in equity of a defense that would otherwise have been available in the State’s enforcement proceedings at law." Thus, as I wrote after Douglas,

The dissenters would have limited Supremacy Clause-based injunctions to situations in which (1) the underlying federal right was itself privately enforceable, or (2) injunctive relief was sought to preempt an impending state enforcement proceeding. Whether or not such a result would be normatively desirable, it would be inordinately momentous, for it would suggest that the Supremacy Clause is only violated by a state’s actual enforcement of a preempted federal law, and not merely the enactment or potential enforcement thereof. In any case in which the underlying federal right could be violated without a state enforcement action, the Douglas dissenters would foreclose injunctive relief unless Congress specifically provided a cause of action.

To be sure, those who agree with Chief Justice Roberts might respond that, for constitutional provisions (unlike statutory provisions), litigants could still rely upon 42 U.S.C. § 1983 to provide a cause of action--and so injunctive relief would still be available to enforce the Bill of Rights and the Fourteenth Amendment (at least, until the Court applies Gonzaga's reasoning to such claims). But, criticallly, that caveat would not apply to claims for injunctive relief against federal officers (§ 1983 only provides a cause of action against state officers). Thus, if Armstrong comes out along the lines of the Chief Justice's Douglas dissent, it will become much harder, overnight, for parties to enforce the Constitution against the federal government.

Even if the Court finds some way to split the difference between Supremacy Clause-based claims and claims to enforce constitutional "rights," five votes for the Chief's dissent in Douglas would still make it all-but impossible to enforce most federal statutes against state officers--and, more generally, for any party to pursue Supremacy Clause-based injunctive relief in the federal courts in cases in which there is no express cause of action. This is so because federal statutes are seldom invoked as defenses to state enforcement proceedings. Indeed, the federal statutes that matter the most tend to be those, like Medicaid, that impose affirmative duties on the states--duties that can be violated through omission or inaction, i.e., by a state not enforcing anything. 

Lest this discussion seem too ethereal, consider the complaint brought by Nebraska and Wyoming against Colorado directly in the Supreme Court challenging Colorado's legalization of marijuana. For starters, it's worth flagging the fact that both Nebraska and Wyoming joined an amicus brief in support of Idaho in Armstrong that categorically argued against allowing suits for injunctive relief grounded in the Supremacy Clause (but see page 1 of their Complaint against Colorado--invoking the Supremacy Clause as the basis for relief). As Jonathan Adler rightly pointed out at the Volokh Conspiracy, such hypocrisy certainly makes these states look like "fair-weather federalists." 

Politics aside, the more important point is that the Nebraska and Wyoming complaint reflects how deeply ingrained the availability of injunctive relief under the Supremacy Clause is--whether the plaintiffs are states or Medicaid providers. If Armstrong reverses that longstanding assumption, it will make it much more difficult for litigants to (1) enforce constitutional rights against federal officers; and (2) prevent state officers from violating federal law. That makes it a hugely important case--and my vote for the potential "sleeper" of the Court's October 2014 Term.

Posted by Steve Vladeck on January 20, 2015 at 05:41 AM in Steve Vladeck | Permalink | Comments (9)

Monday, January 19, 2015

Thurgood Marshall and the limits of the judicial role

Mike Dorf poses an interesting question: Why is Thurgood Marshall never in the conversation about civil rights icon--it is only MLK, with Macolm X as the only possible alternative. Mike offers three reasons, which all seem plausible.

I want to consider a fourth option--the limits of the judicial role. Marshall spent the last thirty years of his career on the bench (with a two-year break as SG, an unusual government-attorney position that is part advocate, part court advisor, part administrative official). As such, he was less of an "advocate" for civil rights than King was or than Marshall had been earlier in his career. While he was a great liberal voice from the Court, he was no longer an advocate. And he was deciding not only civil rights cases, but cases on many other subjects--some of which were at least indirectly about civil rights and racial equality (criminal procedure), others having nothing to do with them (for example, he wrote Shaffer v. Heitner). And even in that role, Marshall was hampered by the fact that by 1971 and certainly by about 1981, he was no longer regularly in the majority on many of these issues; he was a strong voice in dissent, but he, unfortunately, was not directly shaping the law.

Finally, consider Richard Posner's suggestion that Marshall's great strength was as a trial lawyer, not as an appellate judge/justice or as SG. In other words, Marshall spent the last half of a sixty-year career playing to less than his strengths, thus weakening his influence. Perhaps had Marshall remained in a different role--while continuing to have the same success in that role (an admittedly huge if)--he might have been in an even-more exalted space in the civil rights pantheon.

Posted by Howard Wasserman on January 19, 2015 at 12:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Bedside Collections Visits in the Emergency Room

Should acute care hospitals be prohibited from attempting to collect health insurance co-pays and other forms of co-insurance bedside in the emergency room?  

There isn't actually that much to garner a laugh in Steven Brill's new book America's Bitter Pill, but his description of how medical debt collector Accretive Health sells its services to its acute care hospital customers brought a smile to my lips. First, this was because the "Accretive Secret Sauce" is bedside Emergency Room collection and second, because Steven Brill had apparently never heard of this practice until researching this book.

Just where has he been making visits to the ER with his children? It is reported that at least half of acute care hospitals nationwide have been charging upfront ER fees.  We are on the cusp of an era of changing constraints on hospital debt collection practices, including a change to the rules about bedside debt collection in the Emergency Room.  Most of the new rules focus on those who likely would ultimately be eligible for free or reduced care and how they are to treated pending that determination. But what about the Bruce Folkens of the world-- the ones who most likely will not be eligible for free or reduced fee care? Will upfront fees in the ER remain the rule for them? 

After all, could it be that New York Presbyterian, whose expertise in resolving aortic  aneurisms such as the one Steven Brill suffered and describes as the  narrative framework for much of his book, does not engage in this practice? If not, is it because their post-Emergency Room discharge collection numbers are stronger than those of Fairview Ridges Hospital in Burnsville, Minnesota?

We'll never know because, like a great many important topics in Steven Brill's book, we only know the anecdotal, the one off event. So, let's pause and do justice to Steven Brill's account of Bruce Folken's several hour visit to Fairview Ridges Hospital in Burnsville, Minnesota for chest pain where, yes, a hospital employee asked him about his plans to pay the remaining $493 left on his annual deductible.

Bruce Folken's experience at Fairview Ridges Hospital was not unusual in several ways. First, chest pain is one of the most common reported symptoms that drives Emergency Room visits in the U.S. and Bruce Folken's outcome (a diagnosis of indigestion) is also not atypical. Second,  it is further not unusual that ruling out a significant cardiac event does not come cheap for reasons that the rest of Steven Brill's book struggles to explain.

So, once Brucke Folken (described as half way through  his visit and resting in bed with an IV) was ruled-out as an emergency cardiac patient, why the rush to obtain payment? Could it have been that the hospital has been monitoring its collection rate and noted that Emergency Room bad debt is a disproportionate share of acute care hospital bad debt? Of course, the fine line here is between bedside debt collection from those using the ER for genuinely emergent care and those using it for urgent or even routine care and Accretive has, more than once, found itself on the wrong side of that line.  Bruce Folken's situation is right on the line -- perhaps genuinely emergent at the beginning but morphing into urgent by the time bedside debt collection was undertaken.  

If this offends, perhaps it is because of the retrospective determination of  the validity of use of emergent care under the prudent layperson standard or some other standard found in Bruce Folken's policy, but surely not in having a substantial co-pay outstanding at the time of an ER visit.

You see, this is a scenario that will only increase in frequency.  More and more of us are enrolled in high deductible plans and the trendline points upward. So, of course there are now and will be many more Bruce Folkens among those of us with unmet high deductibles and Emergency Room needs. 

Don't forget your wallet.












Posted by Ann Marie Marciarille on January 19, 2015 at 12:09 AM in Blogging, Books, Current Affairs | Permalink | Comments (0)

Sunday, January 18, 2015

Justice Rehnquist, Religious Freedom, and the Constitution

I've posted on SSRN a paper of mine called "Chief Justice Rehnquist, Religious Freedom, and the Constitution."  I wrote it a few years ago, but it's now going to be published in a forthcoming West Academic Press volume called The Constitutional Legacy of William H. Rehnquist.  And, I'll be presenting a version of it in a few weeks at a conference ("The Rehnquist Court:  Ten Years Later") at the University of Arizona dedicated to the work and memory of the late Chief.  Here's the abstract:

It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.

Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.

Posted by Rick Garnett on January 18, 2015 at 05:12 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0)

Sponsored posts, explained

You may have noticed a recent "sponsored post" on our feed, and there were some questions from our valued readers about it. We're happy to provide some information.

We were pleased to reach a sponsorship agreement with West in spring 2014. Occasional sponsored posts, written by prominent law professors, are part of that new relationship, and have appeared intermittently since last spring.

We welcome West on Prawfsblawg. But we should make clear that West provides the content of those posts. They do not necessarily represent the views of the other writers on Prawfsblawg, although their subject matter is consistent with this blog's conversation about law schools and legal education.

If you have any questions, please feel free to contact any of the permabloggers via email.

Posted by Howard Wasserman on January 18, 2015 at 02:31 PM in Blogging, Howard Wasserman | Permalink

Saturday, January 17, 2015

The Little Legal Academy and the Big Idea Book

Why does law insist on remaining an article field? In law schools, many professors never aspire to write books. Perhaps worse, many don’t have a book idea in them. In my view, our lack of emphasis on books—and especially on "big idea" books—is detrimental. When legal scholars get together, their conversations seldom concern big idea books. There are too many articles, opinions, and statutes to discern. Law review articles are the coin of the realm, and, as a result, we face a dearth of big idea books—by which I mean books that try to capture or espouse a grand theory or strategy of life. Without big idea books, we are left with far fewer big ideas.

In other fields, big idea books proliferate. Take foreign affairs, where such books are a fixture. Indeed, they are the only game in town.  From Samuel Huntington’s The Clash of Civilizations, to Francis Fukuyama’s The End of History, to Joseph Nye’s Soft Power, to Henry Kissinger's many home runs, ideas are backed by books. And big ideas by big idea books. Every foreign policy thinker whose ideas have withstood the test of time has written a big idea book. In the think tank world, such books are also ubiquitous. Think of Robert Kagan’s Of Paradise and Power, In many other fields, they similarly abound. Consider Stephen Hawkings’s A Brief History of Time in physics, James Waston’s The Double Helix in biology and genetics, and the many such books in economics. Thomas Piketty’s Capital is a recent example.

I’m not claiming that we don’t have best-selling authors in the legal academy. We do. And I’m not claiming that we don’t have books. That would be silly. Obviously, we have plenty of both. I’m not even claiming that we don’t have big idea books. Rather, what I’m arguing is that we don’t have enough of them. And that we don’t place enough emphasis on them, either. A law professor friend told me recently that he had no time for such books. They took too long to write, did not fit his research needs, and were not available (wait for it ... wait for it) on Hein-on-Line.

Alas, that’s a problem. To me, this kind of thinking makes the legal academy seem small-minded. Its ideas, confined to the four corners of a single document, become inconsequential to the big idea men (and women) of the world. I believe that articles play an important role, don't get me wrong. But they do not provide the proper forum for big ideas—which are better sold through books. These are the most important ideas we want our fellow citizens to understand, ideas that by their very nature draw a simple, common, and shared thread from the legal academy to the greater, outside world. For such ideas to proliferate, it is time for legal scholars to change their view of books. A new generation must stand up for big ideas.

Even our big idea thnkers realize that not all of their ideas are as big as they could be. In Lincoln Caplan's recent profile of Cass Sunstein, Sunstein said of the Chicago economist Richard Thaler, a frequent coauthor with whom Sunstein wrote Nudge, “If you look at his academic articles and his very few books, he tends not to hit singles and doubles, he likes to hit home runs, and that’s just not my style. I have itchier fingers than you can have if you’re only looking for home runs.”

I'll submit that more home runs come from books. I'll also admit that in Paul Horwitz’s excellent schema of the kinds of readers you meet, I’m the Publisher's Agent, though I prefer to call it "the Bookie.” Come see me with an article idea, and I'll likely talk you into turning it into a book. Either that or I will tell you that you should not be wasting your time on the idea in the first place. But who has ever workshopped a book? Well, it's time we start. 

Posted by Eugene Mazo on January 17, 2015 at 06:03 PM in Books | Permalink | Comments (11)

An Interesting Quote from the Supreme Court of Canada on Religious Institutionalism and Pluralism

The Supreme Court of Canada yesterday issued its opinion in Mounted Police Association of Ontario v. Canada. The subject is freedom of association in the context of collective bargaining. But there is a paragraph in the judgment that speaks to the kinds of issues that I, and a number of my colleagues in the law and religion field, have been interested in over the last few years and that has been relevant in cases like Hosanna-Tabor. In particular, it's relevant to the interest of many people in the field in questions of religious institutionalism; it's also relevant to the interest of some of us, like me and like John Inazu (whose book is cited in the opinion!), Abner Greene, Perry Dane, and others, in the current state of religious and other forms of pluralism.

As a matter of interest, I note that sentence of the quote beginning "The Court has also found..." is consistent with arguments, by people like Micah Schwartzman and Rich Schragger, that any kind of institutional or corporate religious rights are at bottom derived from individual rights, not from some kind of inherent valuing of the "entity" itself. On the other hand, that sentence that follows that one is pretty rich--for a judicial opinion, at least--in finding a more structural appreciation for and protection of institutional life. It asserts, quoting an earlier opinion, that "the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection of freedom of religion." [Internal quotations and citation omitted.] 

Here it is:

[64] First, the Charter  does not exclude collective rights.  While it generally speaks of individuals as rights holders, its s. 2  guarantees extend to groups.  The right of peaceful assembly is, by definition, a group activity incapable of individual performance.  Freedom of expression protects both listeners and speakers:  R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 28.  The right to vote is meaningless in the absence of a social context in which voting can advance self-government:  Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, at para. 31.  The Court has also found that freedom of religion is not merely a right to hold religious opinions but also an individual right to establish communities of faith (see Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567).  And while this Court has not dealt with the issue, there is support for the view that “the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection” of freedom of religion (Hutterian Brethren, at para. 131,per Abella J., dissenting, citing Metropolitan Church of Bessarabia v. Moldova, No. 45701/99, ECHR 2001-XII (First Section), at para. 118).  See also Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

Posted by Paul Horwitz on January 17, 2015 at 12:55 PM in Paul Horwitz | Permalink | Comments (0)

Friday, January 16, 2015

SCOTUS Repeaters

Few cases ever reach the Supreme Court, but some get there twice. Recent examples include Bond v. United States (decided 2011 & 2014) and Zivotofsky v. Clinton/Kerry (2012 & pending). The Court may soon add another example: Horne v. Department of Agriculture, decided the first go-round in 2012.

What to make of these “SCOTUS repeaters”? It’s hard to draw strong conclusions from this unusual if regular phenomenon, but a few interesting possibilities present themselves.

First, maybe it's just a coincidence. Some cases may just happen to raise two certworthy issues at two different points in time. But the federal circuit courts alone decide (according to one dated statistic) around 35,000 cases on the merits annually; and, even among cases that generate cert petitions, the grant rate hovers at around 1%. So it’s unlikely that too many sequential grants in the same case would result from a random distribution of certworthy issues nationwide.

Second, some cases may involve such complex or extraordinary facts that they keep throwing off new certworthy issues. One example of this may be the Court's two interventions (in 2006 and 2011) in the long-running bankruptcy dispute pertaining to the estates of Anna Nicole Smith and her wealthy husband. (The court explained that the litigation called to mind the plot of Dickens's Bleak House.) But some SCOTUS repeaters don't seem to involve such remarkable facts.

Third, maybe it’s very good lawyering. If you have a lawyer with the wherewithal to file a cert petition, then you are already fortunate. If you have an attorney (or pro se abilities) that can generate a cert grant, then you are getting way above-average representation. And miracle-workers, unlike lightning, can strike twice. Yet members of the Supreme Court bar can only do so much. Even the greatest SCOTUS advocate needs some pretty promising raw material to work with.

Fourth, maybe the Court feels responsible. Will Baude discusses this possibility in connection with the Court’s “shadow” or non-merits docket.  In Williams v. Johnson, for instance, the Court summarily retracted the erroneous verbiage in its prior decision in the case. Apparently, the Court engaged in this error-correction because the Court itself had made the error. Will's piece also raises the possibility of summary reversals and GVRs that seem responsive to lower-court disobedience. But these aren’t the kind of things going on in merits cases like Bond and Zivotofsky.

Fifth, maybe the Court gets invested, so that the first grant helps with the second. As the Justices review the swarms of cert petitions put before them, maybe petitions from previously decided cases stand out in part because of their familiarity. The Justices and clerks (who study recent opinions) may remember the facts and so take more quickly to a new pitch for cert. Still, the cert process is sufficiently bureaucratized that there has to be a credibly certworthy issue for a repeat petition to get off the ground.

Finally, maybe it’s the second grant that the Court always wanted. A case comes in with a great underlying claim that the Court really wants to hear for one reason or another. But if the decision below ruled on a threshold ground, then the Court might have to clear out that potentially non-certworthy holding before subsequently granting cert on a second pass. Notably, in all three examples that started this post—Bond, Zivotofsky, and Horne—the Court’s first bite at the case involved jurisdictional issues.

Those are my top nominations—are there any that seem better? Also, I'd be curious to hear more examples of SCOTUS repeaters. 

UPDATE: It's not the biggest news from today's order's list, but Horne has now officially joined the ranks of SCOTUS repeaters.

Posted by Richard M. Re on January 16, 2015 at 02:10 AM | Permalink | Comments (16)

Thursday, January 15, 2015

Fair Grading in a World of Curves? Concepts and an Algorithm...

One of the First World Problems of the prawfessoriat is that law school courses tend have mandatory curves, but, of course, student performance never exactly matches those curves, and so some tweaking is required.  In pursuit of improving my code-writing skills (that is, teaching myself up from barely literate to rudimentary), I've been planning to write a script that can take raw scores in numerical form and spit them back out a form fit to (any) curve in a fair fashion.  But, of course, what counts as "fair" is open to question, so I'd love to solicit your feedback on the algorithm below, and the underlying concepts, before I try to implement it in code form.  Is this fair, do you think? Are there ways to make it more fair? I'm sure there's literature on this subject, but I don't know it---do any readers?  
Wonky stuff below the fold: 
The following assumes that grades (both raw and scaled) naturally lie on an interval scale, so that we lose information about variance between a pair of students' performances when we change the relative distances between their scores; the primary notion of fairness then becomes minimizing the amount of information that must be lost to fit the curve.  The interval scale assumption also allows linear transformations to be made without loss of information. But please do question it if you don't think it's realistic.  
There is also underlying assumption that the "natural" grades given by a professor pre-curving are accurate (or at least have only unbiased error). That assumption may be false: it may be that the discipline of the curve eliminates systematic grading bias, and that the best way to grade is not to give a raw score at all, but to scale it from the start by, e.g., simply ordering work product by quality and then assigning points off the ranking to each exam.  I'm definitely interested to hear if anyone believes this to be true, especially if that belief is backed by research. 
A Candidate Algorithm for Fair Curve-Fitting
1.  Accept input consisting of an ordered CSV or similar, with grades in raw numerical format, scale of instructor's choice, plus high and low points of raw scale. Something special may have to be done with endpoint scores at this point, especially zeroes; not sure yet.
2.  Accept input defining curve by number of buckets, high and low point of each bucket, and percentage (or range thereof) of students in each bucket.
3.  Apply linear transformations to reduce raw score to scale defined by curve (i.e., subtract from both as necessary to set origin at zero, divide or multiply as appropriate, then add back in for the scaled score). 
4.  Check to see if there are further linear transformations (here, and below, addition or subtraction will be the key) to be applied to the whole scale that make it satisfy the curve. This is a very happy outcome, permitting no loss of information, and is likely to be the case if the instructor grades roughly on the curve, but is systematically either too generous or too stingy. If so, go to #7.  If not, then things get more complicated, move on.
5.  Search to see if there is a point such that all scores to one side of that point fit the curve, either on their own or with linear transformations to the whole scale, while the other side fits the curve with only linear transformations to the whole thing. If so, go to #7. If not, move on.
6.  Search to find the smallest number G of groups into which the set of students can be divided, such that the curve is fit with either no changes or with a linear transformation to each group. (Steps 4 and 5 are actually just special cases of step 6 with G = 1 and 2, respectively.) 
7.  Test all grade distributions produced by wherever the algorithm stopped to insure that for all pairs of students i, j, if i > j in raw, then i >= j in scaled. (Minimum fairness condition.) Throw out all distributions that do not satisfy that criterion. If no such distributions remain, return to step 6, increasing minimum G by 1. 
8. If there is a unique set of grades produced by wherever the algorithm stopped, apply it, spit out the grades, and go home happy.  If there are multiple such sets, apply them all and report the entire set to instructor, instructor chooses depending on how generous s/he wants to be.
As I am not that skilled a programmer (yet!), the script implementing this algorithm will doubtless be very inefficient when I write it, lots of brute force-ey flinging changes against a vector of scores and then testing.  (Or I may just never write this and leave it as a model for more skilled programmers.) But it seems fair to me, in that its goal is to minimize the loss of information between raw score and scaled score.  
One possible point of disagreement is that, as written, steps 5 and 6 fail to take into account the magnitude of transformation applied. It seems to me that for any fixed G, transformations that minimize the differences between the magnitude of addition or subtraction applied to different groups are to be preferred.  (We ought to prefer a situation where the curve causes clusters of students to get small changes to their grades relative to other clusters over situations where the curve causes them to get big changes to their grades relative to other clsters.)  However, while this could be taken into account holding G fixed without loss of information (and perhaps it should be, as a step 7.5), it is hard to know how it should be traded off while letting G float free.  Should, for example, we prefer five groups with relatively small magnitudes of distortion between the groups, or three groups with relatively large magnitudes of distortion between them?  Or is there a way to sum up the total distortion introduced by both adding groups and increasing the magnitude of changes between them?  (Both are bad: the former means that more students no longer occupy the same places on an interval scale with respect to one another as they did before applying the curve; the latter means that the differences between the students who do not occupy those same places are larger.)
There's probably some highly math-ey way to do all of this, perhaps imported from psychometricians (who do this sort of stuff with test scores all the time), but (apart from the fact that I don't know much psychometrics) the other constraint, it seems to me, is that any method ought not to be a total black box: a non-mathey law professor ought to be able to understand what's going on with the algorithm s/he uses to calculate grades.  Perhaps that is misguided?

Posted by Paul Gowder on January 15, 2015 at 12:45 PM in Life of Law Schools, Teaching Law | Permalink | Comments (20)

Addressing Psychological Distress with Your Students

The following post is from Andrew McClurg (Memphis) and is sponsored by West Academic.

My students appear to be happy and content.  When I arrive at class, they’re chattering and laughing.  Same thing when I see them in the halls or student lounge.  On Facebook, they show that, despite the workload, law students find plenty of time to socialize.

But a less cheerful picture lurks beneath the surface, as I learned researching 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School (West Academic Publishing, 2d ed., 2013). A surprisingly large body of research shows that many law students suffer from psychological dysfunction, including depression and anxiety.  Here are some of the findings:

• As far back as 1957, a study found that psychological distress in law students significantly out-paces not only the general population, but other graduate student populations, including medical students.  (Eron & Redmount, 1957).

• A 1980s study of law and medical students at the University of Arizona found that law students scored significantly higher than both the general population and medical students in nearly every category of psychological dysfunction, including anxiety, depression, feelings of inadequacy and inferiority, hostility, and obsessive-compulsiveness.  (Shanfield & Benjamin, 1985).

• With regard to the chicken and egg question of whether law school causes psychological distress or attracts people who are already inclined toward it, one study found that law students begin school with psychopathological symptoms similar to the general population, but that those symptoms become substantially elevated during law school.  The same study found that 17-40 percent of the participating law students suffered from depression. (Benjamin, Kaszniak, Sales & Shanfield, 1986).  Comparatively, the Centers for Disease Control reports that 9 percent of the U.S. adult population show symptoms of depression, including 4.1 percent who suffer major depression.

• In another study, researchers administered a battery of tests to entering law students to measure their states of happiness, life satisfaction, physical symptoms, and depression.  The scores showed that the students were a mostly contented, normal group on arrival.  By the end of the first year, however, they showed large reductions in positive affect, life satisfaction, and overall well-being, and large increases in negative affect, depression, and physical symptoms.  (Sheldon & Krieger, 2004).

• A 2000 study of University of Michigan law students found that half of the students showed symptoms of clinical depression by the end of their first year, and that these high levels remained throughout their law school careers.  Comparing the law students’ scores on a standard depression scale to scores for other groups subject to extreme stress yielded startling results.  The 50 percent depression rate for law students compared to rates of 40-45 percent for unemployed people, 50 percent for people experiencing the death of a spouse or marital separation in the past year, and 50-60 percent for persons being treated for substance abuse.  (Reifman, McIntosh & Ellsworth, 2000).  This isn’t to suggest, of course, that being a law student is as bad as those events, but law school can push the brain’s depression buttons.

To the extent law school is responsible for causing emotional distress in law students, one doesn’t have to look far for plausible explanations, including the make-it-or-break-it single-exam format, heavy emphasis on grades and class rank, lack of feedback, competitive environment, high student-teacher ratios, Socratic method, and intense workload.  Added to these traditional woes are modern worries about heavy debt-load and finding a job.  Intangibly, the adversarial nature of the legal system in which law students are immersed, the emphasis on objective analytical thinking over personal values and emotions, and strains on personal relationships can all add to psychological dissonance.

My research persuaded me to start checking up on my own students.  Mid-semester, I asked my 1Ls to list their three top emotions about law school and then dumped their answers into a Word Cloud program, which depicts entries by size according to how often the words are repeated.  The results, as you can see from the picture, are not a pretty sight.

1L Word Cloud

I also asked them to play Ernest Hemingway.  You may have heard the legend that Hemingway once made a bet that he could write a complete story in six-words, and proceeded to write on a napkin, “For Sale: Baby shoes, never worn.”  I assigned, as some other professors have done, my 1Ls to write a six-word story about law school.  The majority of their stories reflected stress and anxiety.  Here are some samples:

    • I came.  I studied.  I suffered.

    • Orientation.  Confusion.  Overwhelmed.  Anxious.  Exhausted.  Graduation.

    • Accepted application.  Law school.  Emotional wreck.

    • Started school.  Constant briefing.  Now crying.

    • Socrates meets Bentham under Sisyphus’ boulder.

I make it a point to talk to my first-year students about the issues.  I tell them about the psychological distress studies. I distribute a list of depression symptoms.  I give them the phone number of the university counseling center and encourage them to make an appointment if they’re struggling (word has it that law students are the biggest consumers of the service within our university). 

I tell students to not accept depression or severe anxiety as normal consequences of law school and assure them there is no shame in suffering these conditions, offering the confession that I too have suffered from depression and anxiety.  Each time, some students contact me afterwards to say thanks and share their own experiences.  In many cases, they take me up on my advice to seek help. 

Amidst all the cases and rules, take a few minutes to talk to your classes candidly about psychological distress in law students.  Simply acknowledging the issue can help them.  Students tend to think they’re the only ones struggling.  Many suffer silently, hiding their distress even from their close loved ones.  I felt that way as a student.  Hearing from their professors that they are not alone gives them a kind of permission that it’s okay to feel bad.

Posted by Howard Wasserman on January 15, 2015 at 09:31 AM in Sponsored Announcements | Permalink | Comments (4)

A Further Typology of Draft Readers

I enjoyed Eugene Mazo's post below on different kinds of readers of colleagues' manuscript drafts. In the comments, I added one more category of reader/commenter: "The Bikini, whose advice is always: 'This is really two pieces.'"

That was a joke, but not a joke. Notwithstanding that comment's light tone, there certainly are people who give the "it's really two papers" advice all the time. But just because some readers tend to give the same particular advice or ask the same questions repeatedly and thus fairly predictably, that doesn't mean the advice is not valuable. Provided you give your draft to a range of readers with a range of hobby-horses, it's useful to hear even from readers with marked tendencies to ask the same questions of each paper, because as predictable as that reader's conclusions might be as a general rule, sometimes (ie., almost always) authors don't see their own piece clearly. Moreover, you might be the exception that proves the rule, and that's good to know. When someone who sees almost every piece as a bikini-in-waiting agrees that your paper is a genuine one-piece outfit, you know you're safe on that score. 

Still, anyone who delights in the amusement of seeing types and tendencies in the characters of our colleagues (and ourselves) can enjoy this kind of semi-satirical academic sociology in the paper-reading category too. So here are a few more types, and I welcome others (as long as they're on point) in the comments. Some such readers may include: 

1) The Sullen Adolescent, who asks of most pieces, "So what?" 

2) The Fixer, or perhaps, in tribute, The Markel, who demands some "normative" or prescriptive payoff at the end of each piece; who asks every time whether the piece is "merely" descriptive or whether it has some fix or solution--the inevitable Part IV of so many legal academic papers. Others can disagree with me altogether or modify the description, but it seems to me that this was our friend Dan's favorite question, and a source of endless disagreement and debate with his friends, who if they're like me would gladly have that debate a few more dozen times.

3) The Publisher's Agent. Do such readers take money under the table from the university presses? Knowing what I do about the budgets of those presses, I doubt it. But the advice from this reader is invariably, "This is really a book."

4) The Librarian, whose reaction to each piece is to begin, "Have you read...?" and provide a long reading list of (possibly) relevant cites and sources. (I am often a Librarian as a manuscript reader.)

5) The Careerist, whose advice for papers is aimed at less at encouraging the writer to follow his or her own scholarly muse as such, and more at helping the writer to play the academic game with cunning and skill. I am fairly convinced that I have seen enough smartly shaped and tailored papers from well-trained law school fellows and VAPS to spot the behind-the-scenes advice of a Careerist. One could say much more about this category of advice, and advisor. But I am feeling unusually prudent this morning.

6) The Gamer. Similar to the Careerist but with advice aimed at a slightly different, if overlapping, goal. The Gamer's advice is aimed not at advancing the career of the paper's author, but at passing along all the tricks and tools that may advance a paper's placement chances. (As I say, the goals overlap.)   

7) The Careerist-by-Proxy. A cross between the Careerist and the Librarian. Like the Careerist, the Careerist-by-Proxy advises authors with the hope of career advancement; but the career this reader seeks to advance is his or her own. Like the Librarian, this advisor offers a well-stocked shelf of sources for the author to cite; unlike the Librarian, the stock of the Careerist-by-Proxy consists mainly or entirely of his or her own work. The advisor's own cite count and academic stock rises as a result. The Careerist-by-Proxy may be defined as someone who is adept at buttering his own bread with other people's loaves. Is there a little Careerist-by-Proxy in most of us when we act as readers? I suspect there is. 

Provided they're on point, dealing specifically with types of draft readers, feel free to add your own. 

Posted by Paul Horwitz on January 15, 2015 at 09:21 AM in Paul Horwitz | Permalink | Comments (4)

Chasing the Dragon in the Shadow of the OX

The numbers are in and it is official: deaths from heroin overdoses in much of the United States have doubled in the past two years. Whether the heroin was injected or smoked ("chasing the dragon"), there is some evidence that, in many places, heroin has increased in both availability and purity in the same time period.

How to explain this?

One school of thought -- I'll call it the opiate demand substitutability school of analysis -- tracks the increase in heroin's popularity to the increased difficulty addicts are reported to be having in accessing oxycodone ("OX") in light of state and federal efforts to reduce prescription drug abuse. The street value of OX has increased (at least the street value of original formulation OX has increased, while the street value of OX in the resistant to crushing and snorting format has actually gone down) and there is anecdotal evidence from treatment centers for injectable drug users that the migration from OX to heroin is well underway.

Another school of thought -- I'll call it the progression of addiction through the population school of analysis -- is that prescription drug abuse, particularly in the 18-25 age group, is still rampant but the increase in heroin overdose fatalities demonstrates a cohort of aging opiate addicts moving through the progression of addiction, seeking an ever cheaper and more powerful high.  This might explain the high demand for heroin of a purity previously not well known in the United States.

Whichever theory you subscribe to -- and some thoughtful addiction specialists subscribe to both-- the increased death rate from opiate overdose is data playing out as the back story to our ongoing debate over the wisdom and utility of providing naloxone (the antidote for heroin overdose) for emergency use. Some states have now approved the training of and distribution to  first responders and lay people of naloxone for just this use.

But we are conflicted. Is naloxone a step toward condoning use? If the overdose death rate is lower where heroin is both safe and accessible, is naloxone's arrival just a further expression of our own ambivalence about treatment for addiction?



Posted by Ann Marie Marciarille on January 15, 2015 at 12:30 AM in Culture, Current Affairs, Science | Permalink | Comments (0)

Wednesday, January 14, 2015

The influence of the Justices' religious beliefs

There is posted at the Moment website a symposium on the topic "Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?"   The participants are prominent journalists and writers about the Supreme Court, including (not naming all, but just the first three listed!) Tony Mauro, Lyle Denniston, and Robert Barnes.  

I've addressed this issue several times over the years at this and other blogs -- as have many others! -- often in the course of replying to the suggestion or accusation that the Catholic justices are imposing Catholic teachings, rather than interpreting and applying the Constitution, in abortion cases.  (In the symposium, Lyle Denniston writes that "[i]n his rulings on partial birth abortion, Justice Kennedy has especially been acting out his personal Catholic faith", but this in-my-view unfounded claim seems to reflect Lyle's view that Kennedy's stances in the abortion context are somehow inconsistent with his emphasis in other contexts on "liberty interests.")

Some of the participants observe, and I agree, that it is, if nothing else, interesting that the Court consists at present of six Roman Catholics, three Jews, and no Protestants.  (Here's WSJ thing I did on this subject a few years ago.)  I also think that what Emily Bazelon (and several others in the group) said is basically right (at least with respect to some -- I would say a relatively small number of -- cases whether the relevant legal materials are underspecific): 

[R]eligious beliefs are part of the sensibilities of some judges, and can inform how they approach cases, even if they don’t say so. It doesn’t make sense to think of the Court as Olympian and objective. The justices are just people, informed by personal background and history. Religion is a component of that.

That said, a few things that some of the participants said struck me as not quite right, or at least as incomplete.  (I'm not counting here the symposium editor's report that "[j]ust a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation’s legal system.")  For example, Lyle Denniston -- a widely and rightly respected Court observer -- states that "[i]n the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters."  I am skeptical.  For example, it seems clear to me that in the school-aid cases of the 1960s, 1970s, and 1980s -- cases that some of the participants characterize as "separationist" -- the "values", including the "religious" values, of the justices opposing the aid in question did plenty of work in shaping their views and driving their conclusions about the limits imposed by the First Amendment on allowing Catholic schools and students to participate in education-funding programs.  It does not seem right to say that we moved away from the strict no-aid view simply because new justices, unlike their predecessors, were willing to allow their "religious" beliefs (or, more specifically, their Catholic beliefs) to color their decisions about aid.  It seems more likely that this move owed a lot to a growing appreciation on the Court for the fact that the strict no-aid view owed more to Justice Black's and others' "own values" than it did to the requirements of the Fourteenth Amendment. 

I also thought that Stephen Wermiel might overstate the matter when he says that "the separationist view", which he associates with Justice Brennan, has "all but disappeared" on the Court.  Here, I think we need to be a bit more nuanced about what "separationist" means, and doesn't mean.  For example, some of us think that the Court's 9-0 decision in Hosanna-Tabor is an (appropriately) "separationist" decision, one that vindicates  what Wermiel calls "the essence of [Brennan's] separationist view—that having government involved in your religion demeans your religious beliefs."   And, the strict separationist Justice Brennan supported strongly the idea -- the idea that is operationalized in the Religious Freedom Restoration Act, which was interpreted and applied in Hobby Lobby -- that it is appropriate to exempt religious believers and institutions, when it's possible, even from generally applicable laws that burden religious exercise, an idea that, unfortunately (as Paul discussed the other day), is increasingly regarded as a bigoted, right-wing "dog whistle."


Posted by Rick Garnett on January 14, 2015 at 01:03 PM in Constitutional thoughts, Religion, Rick Garnett | Permalink | Comments (1)

Lubet on Chronic Fatigue Syndrome

At Faculty Lounge, Steve Lubet discusses living withMyalgic Encelphalomyelitis/Chronic Fatigue Syndrome (ME/CFS), a condition with which author Laura Hillenbrand (Unbroken) also lives and which she has talked about recently.

Posted by Howard Wasserman on January 14, 2015 at 12:31 PM in Howard Wasserman | Permalink | Comments (0)

The Market for Comments on Drafts

How extensive should comments on draft articles be? Those of you looking to send out articles in this spring's submission cycle have no doubt circulated drafts to colleagues in the hopes of receiving comments aimed at improving your work. I received several requests to read articles over the break. I enjoy reading the work of colleagues, and I take my role in returning comments very seriously. But being a good colleague is also time-consuming. Someone once told me that the temporal cost of collegiality is the most unexpected aspect of legal academia. Indeed.

You probably know which scholars in your field tend to provide the best comments. You may even have a regular “go to” person, someone who will spend a long time on your draft and return comments that are particularly cogent and perceptive.  Other times, you may want to send your draft to a reader because of his or her status in the field. Or you may want to send it to someone with whom you disagree. so that you can better understand your detractor's perspective. 

Here is my question: What does the market for comments look like? In my experience, it is opaque and little is written about it. Some readers like to give stylistic comments, while others tend to be big picture people and prefer to provide a 30,000-foot perspective. Some readers provide their comments orally, some mark up drafts in track changes, others provide comments in the text of an email, and yet others still will attach a separate memorandum for you. There is probably a market lurking on the commentator's side as well, in terms of prioritizing whose work to read, how closely, and in which order. Surely people value colleagiality, like being acknowledged, and are willing to read drafts in part for that reason.

I’ve created a typology of the different kinds of readers in the market. It consists of the kinds of draft commentators I have come across. My list is not exhaustive, and you are welcome to add to it.

(1)  The Looks Good-er: This is the scholar who gives minimal suggestions apart from saying "it looks good.” Of course, he or she usually still expects to be acknowledged.

(2)   The Schoolmarm Grammarian: This is the colleague who nit-picks at your typos. This can be helpful, though if you are seeking out her services repeatedly there may be a greater issue lurking.

(3)   The Change-It-Around Dude: This colleague insists that you rearrange your whole piece, replacing the introduction with the conclusion and the conclusion with something else.

(4)   The Big-Picture Tinkerer: This scholar doesn't care about language and instead looks at the big picture. This can be very helpful for you to frame your argument better.

(5)   The All-Around Mensch: This is the colleague who takes the time to read your piece with a critical eye over the course of many months, who encourages you to send subsequent drafts of it to him, and who is able to provide both stylistic and big-picture comments. This is rare.

Admittedly, I’m not sure where I fit in my own schema.

When a draft from a colleague arrives, I’ll usually print it, email the person to acknowledge receiving it, and ask for a deadline. I like to spend a long time on a piece. I definitely have my own style of providing comments. First, when I read the printed copy, I tend to write notes in the margins. I’ll then usually send the author a PDF of my mark-up with my hand-written comments in the margins. Second, I’ll usually also send the author a 2-3 page memorandum highlighting what I liked about the piece but pointing out places where I think there could be improvement.

I have no idea if this is the right way to do it or not. That’s because I don’t have a good sense of what the rest of the market for comments looks like. We are all dealing with idiosyncratic experiences and asymmetrical information here, and it’s time to create some norms about how this process should be carried out. This deserves a thread, so let’s start one.

In the comments, please explain what styles for commentary have worked particularly well for you (or, if you are so inclined, which have not). And if there is someone in your field who is particularly known for giving excellent feedback on drafts, please tell us why that’s so and how this person does it. Indeed, feel free to mention him or her by name as well.

Posted by Eugene Mazo on January 14, 2015 at 11:51 AM in Prawf Blogger Census | Permalink | Comments (7)

JOTWELL: Tushnet on the Junior Fed Courts Workshop

The new essay on JOTWELL's Courts Law is a guest piece from Mark Tushnet (Harvard) on the Federal Courts Junior Scholars Workshop. Mark presented his comments at JOTWELL's Fifth Anniversary Conference back in the fall. He offers some interesting thoughts about that conference and about the proliferation of junior scholars conferences.

Our own Steve Vladeck began this program all the way back in 2008 and I had the privilege and pleasure of hosting back in 2011. It really is a great program that has taken on an amazing life of its own.

Posted by Howard Wasserman on January 14, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)