Tuesday, March 31, 2015
Armstrong: Is Utterly Disingenuous Statutory Interpretation Ever Worth It?
In a nutshell, a 5-4 conservative majority (the usual suspects, but for Breyer and Kennedy switching sides) held that Medicaid providers may not pursue suits for injunctive relief against state officers who allegedly violate the "equal access" provision of the Medicaid act because (1) the Supremacy Clause itself doesn't provide a freestanding cause of action; and (2) even if such a cause of action has traditionally been available in equity, Congress displaced such remedies when it enacted Medicaid in 1965 (or, at the very least, when it codified the equal access provision in 1989). [Full disclosure: I co-authored a brief on behalf of former HHS officials as amici curiae in support of the Respondents.]
As a result, the only way to enforce the "equal access" mandate--one of the most significant substantive requirements of the Medicaid program--is for the Department of Health and Human Services to withhold Medicaid funding from violating states, something the Department neither has the ability nor the inclination to do. But whereas I had warned in an earlier post that a bad result in Armstrong could mean doom for Ex parte Young (which I elsewhere described as the sleeper Federal Courts case of the Court's October 2014 Term), the hyper-specific focus on the equal access provision in both Justice Scalia's majority opinion and Justice Breyer's concurrence almost certainly reduces the precedential effect of today's decision. The only downside (for anyone other than Medicaid recipients and providers, anyway), is that it does so at the expense of any shred of credibility--reigniting the debate over the virtues (and vices) of "this train only" analyses.
I. Congress's Intent to Foreclose Equitable Relief
The basic thrust of Justice Scalia's majority opinion has three prongs: (1) the Supremacy Clause does not provide a freestanding cause of action; (2) causes of action to enjoin allegedly preempted state laws probably are available under traditional principles of equity; but (3) in the Medicaid statute, Congress intended to displace those principles, much as the Court held with respect to the Indian Gaming Regulatory Act in Seminole Tribe. Federal Courts scholars can (and surely will) debate the significance of (1) in light of (2), but the heart of the matter is (3).
In the key passage of the majority opinion, Justice Scalia invokes two aspects of the equal access provision that, in his view, demonstrate Congress's intent to foreclose traditional equitable remedies: "First, the sole remedy Congress provided for a State’s failure to comply with Medicaid’s requirements—for the State’s 'breach' of the Spending Clause contract—is the withholding of Medicaid funds by the Secretary of Health and Human Services." Second, while "[t]he provision for the Secretary’s enforcement by withholding funds might not, by itself, preclude the availability of equitable relief. . . . it does so when combined with the judicially unadministrable nature of §30(A)’s text." Thus, "[t]he sheer complexity associated with enforcing §30(A), coupled with the express provision of an administrative remedy, shows that the Medicaid Act precludes private enforcement of §30(A) in the courts."
There are two separate, but equally fatal flaws with this analysis:
First, the equal access provision is not remotely "unadministrable." In the immediate wake of the equal access mandate’s enactment, HHS not only acquiesced to judicial administration of the provision; it actively participated in the process. Indeed, from 1989 through Gonzaga (after which private suits to enforce the equal access provision became far more difficult), there were any number of cases in which courts considered whether state Medicaid plans were consistent with the equal access provision. But even if there weren't this history (which Justice Scalia completely ignores), the logic is in any event internally inconsistent. After all, the more aggressive administrative review that Justice Scalia holds out as the alternative to private enforcement would presumably only increase the number of adverse actions taken by HHS--and, as such, administrative appeals by states--which would return the question of state compliance with the equal access provision to the courts.
Second, if the point of this exercise is to divine Congress's intent, how could the creation of an administrative review scheme (in 1965) thereby communicate Congress's view that it means for a provision it enacted 24 years later to not be judicially administrable? Of course, it can't. What matters is what Congress thought in 1989 when it codified the equal access provision. And if the touchstone of Justice Scalia's analysis is Congress's intent, how does he reconcile this analysis with the familiar (if nowhere mentioned) presumption that Congress must speak clearly when it wishes to displace traditionally available equitable remedies? (Needless to say, no such clarity can be found in the 1989 statute.) At a more fundamental level, if congressional intent is so essential to Justice Scalia's analysis, why is there no discussion whatsoever of the history of the equal access provision, or what Congress thought it was doing when it codified what had previously been a regulatory requirement in 1989? (Or how the regulation had been interpreted prior to 1989--and whether Congress was codifying that understanding?)
Taken together, these two flaws suggest that Justice Scalia was attempting to do through the back door what he must not have had five votes to do through the front: To incorporate the deeply skeptical approach to implied causes of action in cases like Sandoval and Gonzaga into the context of Ex parte Young-like suits for injunctive relief against state officers for violating federal law. As in Sandoval and Gonzaga, the congressional intent question seems really to be asking whether Congress meant for the right at issue to be privately enforceable; but if it did, then there'd be no need for implied causes of action--the statute would be read to furnish one expressly.
The difference between Sandoval and Gonzaga, on the one hand, and Armstrong, on the other, is that this inquiry now takes the form of congressional intent for "judicial administrability," and it remains to be seen how skeptically lower courts will approach that inquiry going forward. Whether Armstrong will be a big deal or a little deal depends entirely on the answer to that question.
II. The Resurgence of Westside Mothers
Compared to the flaws documented above, the "plurality" part of Justice Scalia's opinion---Part IV--hardly merits a mention. But it's still alarming that, in a case where it didn't matter, four Justices still went out of their way to dredge up the long-since-discredited "Westside Mothers" approach to Spending Clause statutes, named after a district court decision that held that Spending Clause statutes are more like "contracts" for constitutional purposes than they are Acts of Congress--which, among other things, means they ought not to be enforcable by third-party beneficiaries.
What's more troubling than the revitalization of this idea in the abstract is what Justice Scalia does with it--erecting a presumption that statutes won't authorize private parties to challenge Spending Clause statutes absent some "unambiguously conferred" right to sue (citing Gonzaga). To be sure, this part of the opinion was only joined by Chief Justice Roberts and Justices Thomas and Alito--but it doesn't bode well for future efforts to enforce any Spending Clause statutes against states absent an express cause of action (and, as in Gonzaga, perhaps even then).
III. Justice Breyer's Inexplicable Deference to the Agency
Lots of folks may have been most surprised by Justice Breyer's role here--joining the otherwise conservative majority while Justice Kennedy sided with the dissent. To be honest, I wasn't; many of us who were involved in Armstrong had long assumed that he was the key, and his opinion concurring in the judgment makes quite clear his near-absolute preference to defer to administrative enforcement where complex cooperative regimes are implicated. In his words, "If the Secretary of Health and Human Services concludes that a State is failing to follow legally required federal rules, the Secretary can withhold federal funds. If withholding funds does not work, the federal agency may be able to sue a State to compel compliance with federal rules."
Had Justice Breyer actually read the amicus brief by former HHS officials (yes, I'm biased), he might have understood the naivete of resting on the specter of administrative enforcement here. Indeed, as we explained in detail, it has never been HHS's position that private enforcement of the equal access provision would in any way interfere with the Secretary's ability to enforce Medicaid more generally; it's only been the Justice Department's position. I'm all for deferring to agencies on matters within their expertise, but doesn't that deference also suggest that we ought to listen to them when they say they're not in a position to enforce this provision by themselves? Breyer closes his concurrence by suggesting that "Congress decided to vest broad discretion in the agency to interpret and to enforce § 30(A)." Of course that's true. But if the agency's position is that its enforcement of federal law is aided, not hindered, by private suits, why shouldn't that matter? There may well be an answer; Justice Breyer doesn't say.
IV. Howard's § 1983 Question
Finally, I'd be remiss in not saying a quick word about the question Howard raised in his post--whether, for folks like me (and Justice Sotomayor, in her dissent), the suits in equity we believe are available renders § 1983 superfluous. Candidly, I think Howard has the matter entirely backwards. If one assumes that courts will hesitate to infer causes of action for injunctive relief from background principles of equity when Congress has spoken expressly to the matter at hand, then it's § 1983 that should have rendered the cause of action at issue in Armstrong superfluous--not the other way around.
It's worth reiterating that the equal access provision was routinely enforced through suits for injunctive relief under § 1983 in the 13 years between when it was formally codified and when the Supreme Court scaled back the availability of § 1983 suits in Gonzaga. (One especially poignant case in point is an en banc Third Circuit decision written in 2002 by then-Judge Alito.) Thus, the fact that Howard is even asking this question after and in light of Armstrong shows how successful the Court has been in changing the narrative--from the general availability of causes of action like the one in Armstrong as recently as 15 years ago to their increasing (if not categorical) unavailability today. But for Sandoval, Gonzaga, and a run of other decisions, plaintiffs might not be left with falling back on implied remedies that had previously been overrun by far clearer cause-of-action rules.
To be sure, the Armstrong Court didn't go so far as Chief Justice Roberts suggested it ought to in his dissent in Douglas, and so perhaps did not do as much damage to Ex parte Young and other theories of federal remedies as I (among others) had feared. But is a decision based on an utterly disingenuous interpretation of a critically important federal statute so much better?
Is § 1983 superfluous?
I do not have a whole lot to say about Tuesday's decision in Armstrong v. Exceptional Child Center, although I look forward to reading Steve's (no doubt blistering) comments. But I do wonder about the question posed in the title, as well as whether I need to rethink how I teach Ex Parte Young.
The majority and dissent agreed that Ex Parte Young--formally, an action for "injunctive relief against state [and federal] officers who are violating, or planning to violate, federal law"--is a long-standing creation of courts of equity, rather than a product of the Supremacy Clause. They disagreed over whether the Medicaid Act impliedly limited the availability of such an equitable action--Justice Scalia's majority opinion said it did, Justice Sotomayor's dissent said no. In particular, Sotomayor distinguished this type of equitable action from both § 1983 "and laws" actions and implied statutory actions, insisting that Congress must affirmatively override the former, while the latter are available only if Congress creates and permits them.
How does this affect § 1983? That statute allows for "an action at law, suit in equity, or other proper proceeding for redress" against a "person" acting under color of state law who deprives the plaintiff of a right secured by the Constitution. I generally explain Ex Parte Young, at least in constitutional actions, as an interpretation of § 1983--the state executive officer is a person, enforcing or threatening to enforce an unconstitutional law deprives the plaintiff of a right secured, and the request for injunctive relief makes this a suit in equity.*
* For similar reasons, I have always believed that using Young to enforce federal employment statutes (ADA, ADEA, FLSA) against states (thus easing the effect of the 11th Amendment) was incoherent, since the applicable statutes being enforced only regulated the employer, not the individual state official who would be enjoined.
But the position unanimously reflected today is that an individual could enjoin an executive officer from enforcing an unconstitutional or preempted law without § 1983. So what is the point of the "suit in equity" language if the equitable action predates 1871 and would exist without that statutory language? **This question is placed in sharper relief in the dissent, which acknowledges that § 1983 allows for many different remedies, but then lumps them all together under that statute in distinction to the free-standing equitable action.
** Just to clarify: My superfluousness concern is only as to the "suit in equity" clause, not for actions in law (i.e., retroactive relief), which still requires § 1983.
Atlantic Marine, Forum-Selection Clauses & Erie
I started off this month talking about Erie, so here’s another Erie post to bring things full circle. Back in the fall, I was glad to participate in the Hastings Law Journal’s symposium on last Term’s SCOTUS decision in Atlantic Marine Construction Co. v. United States District Court. Atlantic Marine was a unanimous decision—authored by Justice Alito—on how and when to enforce forum-selection clauses in federal court. It’s a set of issues that only a civil procedure professor could love, and if you teach civil procedure Atlantic Marine may already be on your syllabus.
The symposium issue is now out. You can find links to all of the articles here, including contributions by Andrew Bradt, Kevin Clermont, Scott Dodson, Robin Effron, Linda Mullenix, Steve Sachs, and Brad Shannon. My piece is Atlantic Marine Through the Lens of Erie, and here’s the abstract:
The Supreme Court’s unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito’s opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago.
This article for the Hastings Law Journal’s symposium on Atlantic Marine examines that decision through the lens of Erie, and explores the role that Erie and state law should play in the Atlantic Marine framework. Atlantic Marine may appear at first glance to mandate virtually unflinching enforcement of forum-selection clauses. But Justice Alito’s approach in Atlantic Marine applies only when the forum-selection clause is “contractually valid.” Properly understood, Erie requires federal courts to look to state law to decide this question — at least in diversity cases. To allow federal courts to disregard state law in applying Atlantic Marine would raise several troubling Erie concerns: geographic relocation contrary to what would occur in state court; changing the substantive law that would govern the ultimate merits of the litigation in state court; and overriding state contract law and contractual remedies via the sort of federal common law that Erie forbids.
My thanks once again to the students, organizers, and panelists, as well as to the DJ who was able to find some Rod Stewart tracks without any advance notice. I learned a lot and had a great time.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
A Collection of Thoughts on Depression, Perverse Incentives, and Misunderstanding Mental Illness
Listening to this interview on NPR's Weekend Edition Saturday morning, I was not surprised to hear that Andreas Lubitz, the pilot who may have deliberately crashed a Germanwings plane into the Alps last week, also deliberately hid his depression from Lufthansa (Germanwings' parent company). Mental illness continues to be an embarrassment to people, despite the large numbers of those who suffer from some form of depression/anxiety or other condition.
I was more surprised to hear what the result would have been had Lubitz disclosed during his training that he was seeking treatment for depression. According to Matthias Gebauer of Der Spiegel, Germanwings would have "kick[ed] him out of education and pull[ed] away his pilot license." When Scott Simon [the radio host] pushed back noting that many people suffering from depression are able to be highly functioning members of society, Gebauer's response was that "pilots . . . that is a very special job [with] strict responsibility." While not speaking for the airline specifically, this seems like a weak response for an anachronistic policy. And, instead of deterring those with "mental illness" from becoming pilots, the policy, in this case (and I suspect in others), forced Lubitz underground with the treatment he clearly needed.
The perverse incentives created by the Lufthansa/Germanwings policy arise in the bar admission process too. The Justice Department is investigating the Florida Supreme Court over its questions about the mental health of bar applicants. Among the routine questions posed to would-be-attorneys is whether they have ever been diagnosed with a mental illness such as bipolar disorder, psychosis or depression. Not surprisingly, this question (questionable in its purpose) drives applicants to lie on their questionnaire or, worse, away from seeking treatment. Florida is not the first state to come under fire from the Justice Department for these potentially discriminatory questions. In the past few years Vermont and Louisiana have received letters from the agency criticizing their invasive mental health-questions. In Louisiana's case, Justice threatened to sue before an agreement was reached.
Relatedly, to the extent it reflects our general cultural ignorance about mental illness, in recent months police have come under fire for their inability to peaceably handle the mentally ill, including using lethal force against unarmed, clearly ill people. of A particularly sad instance of this took place in Georgia a couple of weeks ago. Anthony Hill, who began to suffer symptoms of bipolar disorder after returning from his service in Afghanistan, was shot and killed as he, naked and unarmed, approached police despite warnings to halt. Meanwhile, it is well known that a large percentage of those in prison suffer from untreated mental illnesses -- this is both an indictment of our choice to warehouse ill people and a waste of limited government resources. We cannot condemn the criminal justice system's inhumane treatment of the mentally ill, however, without noting that it reflects similarly uniformed decisions made in numerous societal contexts.
Lubitz's suicide mission/mass murder has led to knee-jerk responses by US airlines. Currently, "due to a growing public awareness that common mental disorders like depression are treatable," these airlines have more reasonable policies toward employees' mental health. They are now reviewing these policies to determine if they are not doing enough to "detect" pilots with mental illness. This seems like the wrong lesson to learn from the Germanwings tragedy but given the many contexts in which our culture and polity refuse to acknowledge the reality and complexity of a range of mental illnesses, it is sadly not surprising.
JOTWELL: Mullenix on Robreno and asbestos settlements
The new Courts Law Essay comes from Linda Mullenix (Texas), reviewing The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm? (Widener Law Review) by Judge Eduardo Robreno of the Eastern District of Pennsylvania. Judge Robreno discusses the resolution of the asbestos MDL (feared as a "litigation black hole"), over which he presided.
The US News automatic stabilizer
As I looked through Brian Huddleston's color-coded table of this year's US News data (h/t, TaxProf), I saw something interesting. In this time of gloom and doom, almost every school's overall score went up. Of the ranked schools, ten had the same overall score (not counting Yale -- you can't improve on 100) and nine went down in overall score. But everyone else's overall score went up. Wayne's World! Party Time! Excellent!
In this law school economy, how could that be? If you go through the rest of his chart, you'll see a lot of red (as in, falling numbers in student selectivity metrics, employment, and bar passage rates) mixed in with the yellows and greens. The health of the economy doesn't look as good as the trend in overall scores would indicate.However, one column is noticeably green: the student to faculty ratio. This isn't surprising and has been discussed in lots of places -- schools shrink class sizes quickly to maintain student quality metrics, schools can't shrink faculty as quickly, and so the ratio drops.
Schools also can't shrink staff or brick and mortar as quickly, either, and all of this translates into increased per capita expenditures. According to the published US News methodology, "faculty resources" amount to 15% of the overall score. Within this indicator, 65% comes from expenditures per student on instruction and library and supporting services, 10% from financial aid, 20% from student/faculty ratio, and 5% from volumes in the library. This score is based on a two-year average.
When schools cut class sizes, student selectivity metrics (25% of total score) stay the same or go down slightly, but this metric goes way up (in the short term). And schools get a better overall score.
Essentially, when the economy slumps, these per capita expenditures kick in like automatic economic fiscal policy stabilizers -- the unemployment insurance of the US News rankings, if you will. Only these expenditures don't do anything good for the law school economy -- they just obscure the trends and prop up numbers. This metric is often criticized, and maybe this is another small criticism to add to the more substantial critiques.
Maintaining elevated ratios in this metric isn't sustainable (many in Congress say the same thing about unemployment insurance). After a few years, we should expect that expenditures will return to sustainable levels and the "overall score" column will destabilize. But it is interesting to see the blip in the chart.
Monday, March 30, 2015
Separation of Powers and State-Building: The Leninist Case for an Independent Judiciary
My recent post about teaching U.S. constitutional law in China attracted some skepticism (offline and online) from commenters who doubted that my Chinese students could speak freely on constitutional topics. Surely, the skeptics asserted, those students’ speech is chilled by the prospect that the Chinese Communist Party’s monitors would report any statements hostile to the CCP or favorable to “western” ideas. As support for this inference that my students will be cowed by the CCP, these skeptics cite various Party documents calling for the ideological policing of teaching at Chinese universities.
I guess I never got the memo on ideological policing: No one has said anything to me about what I am not allowed to teach or say. Since half of my students are not Chinese citizens, I am pretty sure that they, at least, also do not care about CCP policies. Moreover, Chinese mainland universities typically rely on a “Party leading group” at the university itself to enforce Central Committee rules. We lack such a leading group at NYU-Shanghai: To whom, then, will the alleged student spies report the misdeeds of their classmates? The argument that PRC students’ speech will be chilled by Party spies also simply proves too much: It would suggest that PRC students cannot speak freely anywhere, even at American-soil universities, because the CCP can presumably send or recruit PRC students to act as spies abroad to monitor their Chinese classmates from Harvard to Berkeley.
But putting aside these reasons to be skeptical about students’ being chilled at NYU—Shanghai, there is one foolproof way to insure that classroom debate will be both robust and Party-compatible: Assign to the students the job of debating topics on which the CCP is itself divided. There are, of course, some issues on which the CCP’s official ideology does not brook dispute. The Party wants a strong state that can overcome any private opposition to Party policy. The CCP is also united around some general notion of Leninist “democratic centralism” under which everyone is supposed to get on board with any policy that the Party adopts after private internal debate.
There are lots of “western” constitutional institutions, from the Philadelphia Convention of 1787 to a SCOTUS conference, that are compatible with this general Leninist idea of a tightly knit leadership reaching consensus after a secret debate and then issuing marching orders to underlings. One of those ideas is separation of powers by guaranteeing that the monitors of the bureaucracy will enjoy some independence from political leadership. . My class, divided into teams of “western liberals” and “left Maoists,” is assigned the task of preparing arguments next week for and against the proposal that Chinese courts should enjoy some sort of Marbury and Article III-style independence from political leaders.
After the jump, I explain why the “western liberals” can plausibly argue that separation of powers would strengthen the Party leadership’s control over the Party cadres out in the provinces – an argument that will not land any student making it in hot water with Zhongnanhai.
The Party faces a problem of agency costs not dissimilar from the problem faced by the framers of the U.S. Constitution. In theory, We the People are sovereign in the USA. In theory, We the Party is sovereign in the PRC. In both cases, however, the agents of the principal (whether People or Party) can betray their master, because those agents, being numerous and possessing more information about their responsibilities than their supervisors, are difficult to monitor. Leaders in Zhongnanhai can hand down edicts, plans, and exhortations. But if the outputs are hard to measure (say, environmental quality, honesty in government, or citizen satisfaction), then how will the masters know whether the servants are really following orders?
One solution to this problem of monitoring is to multiply competing agents and encourage them to inform on each other. Madison’s idea that “ambition will counter ambition” in Federalist 51 was essentially an argument about how competing agents (Presidents, courts, legislators) strengthen the hand of We the People. In principle, the same idea can be deployed in China to strengthen the hand of the Party.
Indeed, this Madisonian idea lies at the heart of an innovation of Wang Qishan, the Central Committee’s Anti-Corruption Czar. Secretary Wang has authorized officials from the Central Committee’s Commission on Discipline and Investigation to investigate allegations of corruption that had previously been handled by the suspect's immediate superior. The justification for this innovation could have come straight out of Federalist #51: In effect, the CCDI has adopted separation of powers by another name. The past complaint has been that party secretaries below the provincial level have suppressed investigations of corruption in which they themselves are implicated. The principle of centralized and unified party leadership has been a huge boon to such corruption, because the investigative authorities within a province all answer to the Provincial Party Secretary. By sending in CCDI investigators who do not answer to the Party secretaries, Wang Qishan is trying to sidestep these local bosses with – well, just don’t call it “separation of powers.” In the grand old tradition of Partyspeak, call it “separation of powers with Chinese characteristics.”
Party theoreticians understand that the CCP is experimenting with intra-party competition as a solution to the problem of agency costs. Li Yongzhong, a Party academic, has long pressed the idea of separation of powers as a cure for corruption. The idea is simple and Madisonian: Multiply the agents (the competing centres of power within the Party), strengthen the principal (the Party). This general idea of ambition countering ambition can easily be extended to judges: By increasing the independence of the judiciary from provincial bosses, the Party could insure that the Party’s own rules can be enforced against often protectionist and corrupt subnational CCP machines. Indeed, the Fourth Plenum of the 18th CCP Central Committee called for precisely such a liberation of judges from the power of provincial party secretaries. As Carl Minzer has noted, it is not in the interest of the CCP that party officials steal land and money with impunity. Empowering some rival entity to turn them in is perfectly consistent with the Leninist ideal of iron Party discipline.
Of course, just because an idea is being debated within the Party does not mean that the party will necessarily endorse it. Carl Minzer has also argued that the CCP is resistant to any departure from unified executive control, because conflict between party rivals could lead to instability. The question is nevertheless debatable, because the relationship between Party control and control by a unitary party secretary at the subnational level is uncertain. Even if one agrees that the CCP must stay in power, it is not obvious that the best way to insure a strong CCP is the conventional CCP organization chart in which the level above maintains total power over the level immediately below. Such “cascading” centralization (to use Zhang Qianfan’s term) gives each level of party government a monopoly on information about lower levels, thereby depriving higher levels of the practical capacity to monitor compliance with commands from Beijing. Independent courts aided by independent litigators can blow the whistle on crooks that otherwise could shut off the spigot of information on which the central party authorities depends.
One might extend the Leninist argument for separation of powers from independent courts to independent private monitors as well. The Party in Beijing needs to be sure that corrupt officials in the hinterland are not spreading tinder for outright rebellion through predatory behavior. It is costly, however, for a relatively small group of Beijing investigators to collect information about official misconduct in 3,000 counties and 40,000 townships. One technique for monitoring corruption in the provinces is for Zhongnanhai to veto the promotion of cadres who govern areas from which citizens file lots of complaining petitions. Such a promotion criterion, however, just encourages the local cadres to punish anyone who submits a petition to Beijing. To prevent such a self-interested stifling of information, therefore, the CCP needs to create mechanisms for assessing public opinion that are immune from subnational retaliation. Wang Qishan, for instance, has promoted the idea of a national website with which provincial officials cannot tamper on which citizens can file complaints. Another idea along the same lines, however, is to allow non-governmental groups to register easily and gain standing to sue crooked officials.
Again, the CCP is internally divided on the idea of enlisting private citizens to make the state stronger. On one hand, the CCP has launched a crackdown on NGOs. On the other hand, the National People’s Congress is debating draft legislation to make it easier to register as a NGO.
In short, I am sure that my students will have plenty to talk about, even if their assigned goal is to stay within the limits of debate laid down by the idea of CCP supremacy.
Why state officials fall in line
If, as I have been arguing for the past two months, an injunction and opinion barring enforcement of a state's SSM ban has no formal effect on anyone other than the parties, the question becomes why state officials ever voluntarily change their behavior absent a binding court order and why they do not instead always force new litigation and a new, directly controlling court order.
One reason is attorney's fees, which can escalate pretty quickly. See, for example, Wisconsin, where the state agreed to pay more than $ 1 million in attorney's fees to the ACLU for successfully challenging that state's SSM ban. True, the fees would be nowhere near this high for an individual Alabama probate judge forcing a new couple to sue him to obtain a license. But even low-level fees may provide an incentive for officials to fall in line, even if not formerly obligated to do so.
An Anti-Agency Mood?
We’re near the end of March, the month of basketball madness, and it seems like a distinctively anti-agency mood has taken hold at the Supreme Court. This assertion is both more and less than it may appear. It is more because the mood I have in mind has arguably been building up for several years. And it is less because a mood can pass uneventfully, without prompting a major decision. Still, as March Madness wraps up, it seems a good time to take stock of recent events.
Earlier this month, Justice Thomas exhibited a dramatically anti-agency attitude in his separate opinion in Department of Transportation v. Association of American Railroads. Repeatedly citing Professor Philip Hamburger’s 2014 book Is Administrative Law Unlawful?, along with a number of other scholarly sources, Thomas presented an originalist argument that “generally applicable rules of private conduct” may be generated only legislatively, not through executive agencies. This conclusion would seem to require a major reduction in the administrative state, which Thomas described as a system that “concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus.”
This month also saw an escalation in the justices’ recent skepticism toward what is sometimes called “Seminole Rock deference” or “Auer deference”—that is, the idea that an agency should receive deference as to the meaning of its own regulations. After several justices, including Justice Kagan, had expressed qualms about it, Justice Scalia came out against this doctrine in 2013—even though he had written the opinion for the Court in Auer. A couple weeks ago, in Perez v. Mortgage Bankers Assn., Justice Thomas wrote his own opinion against the doctrine, and Justice Alito added that he would “await a case in which the validity of Seminole Rock may be explored.”
Also in Mortgage Bankers this month, Justice Scalia one-upped himself by reiterating his critique of Seminole Rock in a way that called into question the absolutely foundational doctrine of Chevron deference, or judicial deference to agency interpretations of statutes. Amplifying a longstanding strand in his writings on agency deference, Scalia wrote: “Heedless of the original design of the [Administrative Procedure Act], we have developed an elaborate law of deference to agencies’ interpretations of statutes and regulations,” including by holding “that agencies may authoritatively resolve ambiguities in statutes. [cites Chevron].” Scalia eventually tried to distinguish Seminole Rock from Chevron, but not before noting that a certain problem is “perhaps insoluble if Chevron is not to be uprooted.”
Scalia’s new discomfort with Chevron is particularly remarkable because Scalia has often been the leading defender of a robust Chevron doctrine in the face of those who would scale it back. For example, in 2013 Scalia wrote the pro-deference majority in City of Arlington, Texas v. FCC. By contrast, the Chief Justice’s dissent, joined by Justices Kennedy and Alito, observed that “Chevron is a powerful weapon in an agency's regulatory arsenal” and that while “[i]t would be a bit much to describe the result as ‘the very definition of tyranny,’ [t]he danger posed by the growing power of the administrative state cannot be dismissed.” This Chevron unease is still in the air.
Also earlier this month, Justice Kennedy exhibited somewhat similar sentiment during the much-watched oral argument in King v. Burwell. Consider the following salient and widely reported remark, which seems somewhat like an extension of FDA v. Brown & Williamson:
JUSTICE KENNEDY: Well, if [the relevant provision of the Affordable Care Act] -- if it’s ambiguous, then we think about Chevron. But it seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here? Hundreds of millions?
True, there are several distinct lines of doctrine involved in the quotes above, and some of the remarks are ambiguous or tentative. That makes it possible that the present anti-agency mood isn’t a single trend so much as a coincidental confluence of trends that could just peter out.
Supporting that possibility, agencies have won some big recent cases, such as City of Arlington (per Justice Scalia) and EPA v. EME Homer City (joined by the Chief Justice and Justice Kennedy). Meanwhile, there have recently been some closely argued pending cases, including the Michigan v. EPA case argued just last week. And it's notable that the more liberal justices, who may have warmer views of the current administration, don’t seem to share equally in the recent shift in outlook.
Alternatively, it’s possible that what seems like an anti-agency mood actually reflects somewhat broader trends. For example, maybe the Court is generally exhibiting greater skepticism of the government, as in recent cases where the Court has perceived overzealous prosecutors. Or perhaps the better way to view these events is that the Court is getting (even) more comfortable with its own supremacy and is therefore less inclined to defer across the board.
So in calling recent events evidence of a mood, I mean to ask, not answer, whether that mood really exists, and whether it will have any effect on the law.
Sunday, March 29, 2015
Why isn't PRSM more popular?
Following the angsting thread this season and reading Dave's thread about professors breaching law review contracts has made me start thinking again about the law review submission process. Everyone, it seems, agrees that the process creates perverse incentives: professors submit to dozens of journals, so that student editors must make decisions on thousands of articles; student editors are forced to make quick decisions in competition with other journals, and so rely on proxies of dubious merit to decide what to read; students at higher-ranked journals rely on the work of students at lower-ranked journals to screen articles. What strikes me, though, is that the Peer Reviewed Scholarship Marketplace seemed to solve all of these problems when it was created in 2009. It incorporates peer-review from subject matter experts (and provides this feedback for authors to strengthen the piece, whether or not they accept a given offer). It takes away the time pressure of the compressed submission season. It protects the freedom of choice for both professors and for student journals; students still decide which pieces to make offers for (after seeing the peer review evaluations), and professors can feel free to decline offers--they are not obligated to take an offer from a journal they don't wish to publish with. When PRSM was created in 2009, I thought it would quickly become the predominant way that law journals select articles. Why hasn't it? Do more journals need to start using it so that authors will submit to it? It seems like they have a pretty good cross-section already, as there are 20 journals listed as members, about half of which are ranked in the top 50 law journals, and some in the top 30. Do more authors need to use it, so that journals will sign on? Or is there something I'm missing--some benefit of the current practice that PRSM fails to replicate?
The Significant Decline in Null Hypothesis Significance Testing?
- (Cross-posted at Co-Op.)
Prompted by Dan Kahan, I've been thinking a great deal about whether null hypothesis significance testing (NHST, marked by p values) is a misleading approach to many empirical problems. The basic argument against p-values (and in favor of robust descriptive statistics, including effect sizes and/or Bayesian data analysis) is fairly intuitive, and can be found here and here and here and here. In a working paper on situation sense, judging, and motivated cognition, Dan, I, and other co-authors explain a competing Bayesian approach:
In Bayesian hypothesis testing . . . the probability of obtaining the the effect observed in the experiment is calculated for two or more competing hypotheses. The relative magnitude of those probabilities is the equivalent of a Bayesian “likelihood ratio.” For example, one might say that it would be 5—or 500 or 0.2 or 0.002, etc.—times as likely that one would observe the results generated by the experiment if one hypothesis is true than if a rival one actually one is.
Under Bayes’ Theorem, the likelihood ratio is not the “probability” of a hypothesis being true but rather he factor by which one should update one’s prior assessment of the probability of the truth of a hypothesis or proposition. In an experimental stetting, it can be treated as an index of the weight with which the evidence supports one hypotheses in relation to the another.
Under Bayes’ Theorem, the strength of new evidence (the likelihood ratio) is, of course, analytically independent of one’s prior assessment of the probability of the hypothesis in question. Because neither the validity nor the weight of our study results depends on holding any particular prior about the [question of interest] we report only the indicated likelihood ratios and leave it to readers to adjust their own beliefs accordingly.
To be frank, I've been resisting Dan's
hectoring entreaties arguments to abandon NHST. One obvious reason is fear: I understand the virtues and vices of significance testing well. It has provided me a convenient heuristic to know when I've "finished" the experimental part of my research, and am ready to write the over-promising introduction and under-delivering normative sections of the paper. Moreover, p-values are widely used by courts (as Jason Bent is exploring). Or to put it differently, I'm well aware that the least positive thing one can say about a legal argument is that it is novel. Who wants to jump first into deep(er) waters?
At this year's CELS, I didn't see a single paper without p-values. So even if NHST is in decline, the barbarians are far from the capital. But, given what's happening in cognate disciplines, it might be time for law professors to get comfortable with a new way of evaluating empirical work.
Friday, March 27, 2015
Breaching a Law Review Contract?
I'm one of Temple Law Review's advisors. Given my views on student-run journals, this is a bit ironic. But the experience so far has taught me how much student editors care about getting it right, and how invested they can be in their journal's success. Or to put it differently, though in theory a goofy academic could generate a hundred more useful ways to spend students hours than law review, it's not at all obvious that any of those alternatives would generate equivalent passion and commitment from students.
The advising process has also recently given me a new perspective on an old problem. Very often, in the insane & dispiriting process that we call the submissions cycle, you hear of professors getting a great (read: higher prestige journal) offer just after they've accepted at a less great (read: lower prestige journal) placement. Counterfactual reasoning sets in -- "if only I'd pushed back against those meddling kids!" - and everyone who hears the story feels a punch in the gut, excepting those who refuse to play the game. Inevitably the question is entertained: what, exactly, is stopping the professor from backing out of the deal with mediocre law review A to accept the offer of awesome law review B? After all, the process is crooked, everyone is just reading expedites, and reliance arguments are weak. Law reviews aren't going to sue for breach of contract -- even if one exists, which might be doubtful. If they did , this is the clearest case of efficient breach possible.
But then norms of professional courtesy typically set in. And, though I've been teaching for over a decade, and heard literally dozens of stories like this, I'd never actually heard of anyone backing out of a law review acceptance until this cycle. Temple just had someone back out. Because that person is junior - and no doubt listening to a more senior mentor's advice - I'm not going to provide more details. I will say that the acceptance/rejection cycle was very dispiriting to the students involved, and it rightly might make them quite cynical. And it did make me wonder whether publication decommitments are more widespread than I'd thought, and whether journals could (or should) do anything to stop them.
Have I just been naive? Is law review conscious decoupling common? Is that behavior, in fact, righteous?
Thursday, March 26, 2015
One of the urban legends of childhood is that individuals get a fresh start when they turn 18. Of course, like many urban legends, it's not entirely false. Policies linked to this fresh start include a separate juvenile court that offers enhanced confidentiality, including sealing records. The unsuccessful litigation by a blogger and the St. Louis Post-Dispatch to force the disclosure of Michael Brown's juvenile records (if there were any) in the wake of his shooting by Ferguson Police Officer Darren Wilson demonstrated that, even in a world where criminal records are increasingly available to anyone, we still strive to protect individuals from the disclosure of their youthful mistakes.
Of course, it was never true in the past that individuals got a clean slate at 18, and is decidedly not true today. Because we all carry pocket-sized cameras and video-recorders around, adolescence will more publicly haunt the young people of today than any other prior group. But it's not just recorded behavior that lives on. Thanks to facebook and other social media, young people say cringe-inducing things that either seemed like a good or funny thing to say at the time, or that don't reflect their beliefs as they mature and learn more about the world.
To minimize the downside of recorded adolescence, California passed a law (SB 568) in late 2013 that came to be called the online "Eraser Button." The law requires operators of websites, online services, or apps to permit a minor to remove, or to request and obtain removal of, content or information posted online. In short, it allows those under 18 to scrub the internet of embarrassing videos and pictures of themselves, or unsavory posts.
It's true that most websites already have a delete button. At the same time, it can be quite difficult to delete content from the internet. Photos spread virally, and the wayback machine has already saved, according to its website, 456 billion web pages. But I'm less interested in the technical efficacy of the eraser button (though it can't be ignored when considering such policies). Instead, I'm interested in whether the ability to erase adolescence in a world devoted to record-keeping is good or even necessary.
In 2014, the Court of Justice of the European Union issues a ruling that, under certain conditions, individuals have a right to have search engines remove links with personal information about them. It's been dubbed the right to be forgotten. I'm no privacy scholar, but a right to be forgotten strikes me as facing a steeply uphill road in the United States.
But maybe youth have a stronger claim to the right to be forgotten than adults. There's the historical commitment to greater (but not absolute) confidentiality for youthful mistakes. There's a continuing,(though diminishing) commitment to a fresh start. And I sense there's a broad recognition that the super-charged informational accountability imposed by the internet exceeds the appropriate amount of accountability for young people, even for things that people willingly post to the internet themselves (thus, the Eraser Button law in California).
This deserves much more space and thought than it's getting here, but it strikes me that were a right to be forgotten develop here, it will probably start (and possibly end) with adolescents.
Narrowing During Oral Argument in Caulkett
On Tuesday, the Supreme Court heard argument in Bank of America, N.A. v. Caulkett, which substantially concerned the viability of the 1992 precedent Dewsnup v. Timm. The resulting conversation ranged far and wide on the subject of precedent, including reflections about when to overrule and about what I’ve called personal precedent. In this post, I’ll focus on the justices' extensive ruminations on the subject of "narrowing," or interpreting a precedent not to apply in a situation where that precedent is best read to apply. (Many of my points stem from my recent article on the subject.)1. Scalia on Narrowing and Ambiguity
Justice Scalia got the ball rolling:
JUSTICE SCALIA: Ms. Spinelli, I – I dissented in Dewsnup, and I continue to believe that dissent was correct. Why should I not limit Dewsnup to the facts that it involved, which is a partially underwater mortgage?
MS. SPINELLI: Justice Scalia, I don’t think that can be done coherently given the reasoning of the Court in Dewsnup. ....
JUSTICE SCALIA: Yes, I understand that, but I think the reasoning was wrong, and – and very often, we – we adhere to a prior decision that, on the facts of that case – and Dewsnup did – did say, you know, we’re just limiting it to the facts of this case, and we’re not saying what these terms means elsewhere in the Bankruptcy Act. So let’s take Dewsnup at its word and just limit it to what it involved, which was a partially underwater mortgage. Now, why shouldn’t I do that?
Later, counsel pressed statutory stare decisis as a reason to adhere to Dewsnup, and Justice Scalia responded:
JUSTICE SCALIA: I’m not talking about overruling. I'm saying [that Dewsnup should] subsist as far as partially underwater mortgages are concerned. The issue before us is whether we should extend it to totally underwater [mortgages].
In this passage, Justice Scalia is talking about narrowing precedent. To wit, Scalia repeatedly says that, instead of “overruling” Dewsnup, he wants to “limit” it “to the facts that it involved.” Now, when people talk about “limiting a decision to its facts,” they often mean that the precedent is limited to the precise circumstances in which it arose, such that it will basically never have future application. But that isn’t how Scalia is using the expression. Instead, he envisions that the erroneous precedent would continue to operate within a significant range of factual scenarios--namely, "partially underwater mortgages." If Scalia is indeed using the phrase “to its facts” to mean “to a relatively small range of situations,” then he might as well leave out the phrase “to its facts” and just say he’s talking about narrowing, full stop.
Justice Scalia also emphasizes what I have argued is a rule-of-thumb condition on legitimate narrowing—namely, the presence of ambiguity in the narrowed precedent. In the passages above, for instance, Scalia emphasizes that “Dewsnup did – did say, you know, we’re just limiting it to the facts of this case . . . [s]o let’s take Dewsnup at its word . . . .” Scalia and other justices made additional comments in this vein during the argument. I’ll have more to say about this in point #3 below, but for now I just want to note Scalia’s effort to find precedential ambiguity before narrowing erroneous cases.
2. Alito versus Scalia on Narrowing Cautiously
Justice Scalia’s views on narrowing are fairly nuanced, as evidenced by the fact that—despite his remarks above—he has written several famous opinions vehemently objecting to narrowing. Perhaps the finest of those opinions appeared in the 2007 Establishment Clause case Hein v. Freedom From Religion Foundation. Writing the lead plurality, Justice Alito limited the principle of taxpayer standing adopted in Flast v. Cohen, noting (for example) that Flast “has largely been confined to its facts.” Scalia then wrote a concurrence in the judgment blasting Alito’s opinion as unprincipled. In Scalia's view, the Court should cut it out with half measures and just overrule Flast already.
Scalia’s sentiment in Hein seems a bit out of synch with his open support of narrowing in Caulkett. As the target of Scalia’s Hein opinion, Justice Alito was well-positioned to detect this tension. He accordingly offered counsel a suggestion:
JUSTICE ALITO: There is a dissenting opinion in a different area of the law on taxpayer stand[ing] under the Establishment Clause, a brilliant dissenting opinion that you might want to rely on in this context.
It's revealing--and understandable--that Justice Alito remembers Scalia's blistering concurrence in the judgment in Hein as a dissent. (It's also notable that Alito's rather esoteric joke generated a laugh line; clearly, that was a room full of court watchers, in more ways than one.)
Scalia might deny that there is any tension between his positions in Hein and in Caulkett. In Hein itself, Scalia offered the following explanation of his views:
[The lead opinion by Justice Alito] offers no intellectual justification for this limitation [of Flast], except that “[i]t is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic.” That is true enough, but since courts purport to be engaged in reasoned decisionmaking, it is only true when (1) the precedent’s logic is seen to require narrowing or readjustment in light of relevant distinctions that the new fact situation brings to the fore; or (2) its logic is fundamentally flawed, and so deserves to be limited to the facts that begot it. Today’s plurality claims neither of these justifications.
In other words, narrowing can be OK, at least when the narrowing Court clearly states that the narrowed precedent is "fundamentally flawed." The point of this clear statement requirement, it seems, is to ensure that the erroneous precedent, once narrowed, can never grow again. In Hein, for instance, Scalia criticized Justice Alito’s opinion for allegedly “pick[ing] a distinguishing fact that may breathe life into Flast in future cases.” By contrast, Scalia appears to believe that narrowing would be appropriate in Caulkett—assuming that the Court’s opinion makes clear that Dewsnup was wrong.
My own view is that Scalia is being too rigid here. As I suggested in my paper: “[A] judge who believes that a precedent is wrong might reasonably want to stem the precedent’s damage right away, while also leaving open the possibility of reassessment based on new information at a future time.” So it should be possible to narrow a precedent today without foreclosing the possibility of its future expansion tomorrow.
3. The Chief and Arbitrary Narrowing
Apart from concern about a precedent’s being erroneous, there’s another important factor to consider before narrowing: whether the narrowed precedent makes sense. We’ve already seen that Justice Scalia obliquely raised this point: as Scalia pointed out, Dewsnup itself suggested that its precedential scope was limited to the facts there at issue. But does that kind of generic disclaimer really mean that Dewsnup can be limited in any imaginable way? Enter the Chief Justice:
CHIEF JUSTICE ROBERTS: I mean, I understand the notion and agree with it completely that if you have a decision that's wrong, you don’t extend it in any way. But there are factual distinctions and there are factual distinctions. I mean, Dewsnup may have been decided on a Tuesday, and this case could be decided on a Thursday, but you would not say, you know, we're not extending it you know, we're simply not going to extend it to other cases.
The Chief then went on to question whether it was rational to narrow Dewsnup according to the rule put forward by Justice Scalia.
In the past, Scalia himself has inveighed against efforts at narrowing that, in his view, were unsustainably arbitrary. In Planned Parenthood v. Casey, for instance, Scalia “confess[ed] never to have heard of this new, keep-what-you- want-and-throw-away-the-rest version” of precedent and “wonder[ed] whether, as applied to Marbury v. Madison, for example, the [plurality’s] new version of stare decisis would be satisfied if we allowed courts to review the constitutionality of only those statutes that (like the one in Marbury) pertain to the jurisdiction of the courts.”
The Chief didn't offer a test for when narrowing becomes unsustainably arbitrary, but my paper suggested that a good rule of thumb is that narrowing is legitimate when it accords with a reasonable reading of precedent and doesn't contradict background legal principles.
4. Justice Kagan on Narrowing and Reliance
Finally, Justice Kagan had some thoughtful remarks on the role of reliance interests in cases concerning narrowing. Here’s her main discussion:
JUSTICE KAGAN: ... I find myself in the same position as Justice Scalia. I read the two Dewsnup opinions, and it seems to me that Justice Scalia clearly has the better of the argument. And then –
JUSTICE SCALIA: Yes.
JUSTICE KAGAN: And then the question is, what do we do about that and where do we go from there.
And it does strike me that if you know, these are the most sophisticated parties that can possibly be imagined, Bank of America and other banks, and it seems to me that they would be making essentially a bet on and they would, you know, think about all the things what is the probability that Dewsnup will be extended to completely underwater mortgages.
And presumably, they discounted all their various calculations in order to take into account the probability that another court would say, you know, Dewsnup is not very persuasive, and we’re just not willing to extend it any further.
And I think that's probably what Bank of America and other banks did, is they said, you know, we think there is X percent chance that Dewsnup will be extended and Y percent chance that it won't, and they made their cost and pricing calculations based on that calculation.
So if that's the case, why should we worry about reliance?
What Justice Kagan is effectively saying here is that reliance interests might operate differently in cases involving narrowing, as opposed to overruling. The reason for this is that narrowing isn’t always or even usually a surprise. For instance, narrowing can be predictable when a case is known to be out of favor at the Court. And as suggested above, legitimate narrowing generally means narrowing along a preexisting precedential ambiguity. From a reliance perspective, this matters (I've argued) because "persons who rely on reasonably disputable interpretations of precedent do so while accepting the risk that fallible courts might reasonably go the other way."
Justice Kagan was able to take this line of thinking one step further by focusing on the actual nature of the affected parties in Caulkett. In some cases, Kagan suggests, unsophisticated parties might not appreciate precedential nuance and so might be caught off guard by narrowing, making their reliance costs a serious concern. But in Caulkett, Kagan surmised, “sophisticated” banks were perfectly situated to engage in precedential analysis and so factor that into their “pricing calculations.” So, as Kagan put it, “why should we worry about reliance?” While I don’t think these points make reliance irrelevant, they do significantly mitigate reliance concerns.
I might have more to post on this remarkably rich argument, but this post is too long as it is.
The surprise in the Bergdahl charges
Yesterday, the Army formally charged Sergeant Bowe Bergdahl for leaving his outpost in Afghanistan (here is a link to the press conference, h/t CAAFLog). Shortly after he left, he was captured by the Taliban and spent five years in captivity before President Obama swapped him for some prisoners we were holding at GTMO.
The decision to charge Sergeant Bergdahl isn't particularly surprising, and there are reasonable arguments both for going forward and for exercising restraint.
The first charge, desertion with the intent to avoid hazardous duty, is pretty straightforward and there shouldn't be any real issues with that one. (The offense was complete the moment he quit the unit with that intent, so the fact that he was in Taliban custody and it was impossible for him to return does not matter.)
However, the decision to charge him under Article 99 of the UCMJ is surprising. Basically, this is the cowardice statute. You violate it if you are "before the enemy" and you run away; shamefully surrender your position; cast away your arms or ammunition; act cowardly; willfully fail to "do his utmost to encounter, engage, capture, or destroy any enemy troops" (as in, fight); or fail to come to the aid of your comrades when they are in contact with the enemy, among other things. This is a serious offense. Technically, the punishment could be death (although that probably would not survive constitutional scrutiny).
The fear of the shame that is associated with these acts is more powerful than the fear of death. This fear is what gets soldiers out of foxholes and into the fight. Service members would rather leave a safe position and face certain death than experience this shame.This charge is rarely used. Charging someone under this statute is the military's way of formally leveling that shame on someone, and my guess is that the person who made the charging decision in this case wanted to make that statement. This certainly runs counter to the narrative that the President is calling the shots on these types of cases and wants his subordinates to do damage control. The Army didn't cut Bergdahl any slack. They just called him about the worst thing that someone in the military can say about someone else in the military.
The Army charged him with, while before the enemy, committing misconduct that endangered the safety of his unit. At a minimum, the Army can argue that he endangered the safety of his unit by decreasing their fighting strength by one. There was now one less soldier to guard the perimeter of a combat outpost.
The Army might also be saying that he endangered his unit by initiating a sequence of events that resulted in his comrades venturing out into dangerous places to look for him, possibly then resulting in the deaths of several service members. This creates an interesting proximate cause issue. Bergdahl placed himself in danger by his own wrongful act. Was it reasonably foreseeable that American soldiers would respond, and then Taliban fighters would kill some of those soldiers?
If that is the factual theory advanced at the court-martial, then the Army is clearly trying to shame him. They would be saying that because of his misconduct, American service members died.
The next step is the Article 32 preliminary hearing, where we will learn the details of the Army's factual theory and see if that shame is warranted, or if there are mitigating factors in this case that make that shame inappropriate.
Better Call Saul does law
As I have written, I waited anxiously for Better Call Saul, the Breaking Bad prequel that focuses on criminal lawyer Saul Goodman in his early days as Jimmy McGill. And the show has not disappointed.
Medical shows regularly feature actors spouting off medical and scientific lingo and I always wonder whether what they were saying made any sense. This week's episode of BCS, "RICO," gives law that treatment--cases, rules, and statutes are bandied about and lawyers are asked to look things up on Westlaw and to Shepardize.
Jimmy discovers that an assisted-living facility is surreptitiously charging its residents (including his client) for various supplies (such as $ 14 for a box of tissues). He and his brother start putting together a case involving claims for elder abuse, fraud, unfair trade practices, and RICO (hence the title).
I went back through the episode to hear all the law talk and try to figure out how much of the law made any actual sense.FRCP 11: Jimmy serves a "demand letter" (this is not necessarily a thing, even under New Mexico procedure, although many states require a plaintiff to serve a "Notice of Suit" letter) on the facility, which gets relayed to the facility's high-powered lawyer. The lawyer calls Jimmy and insists that "the best response would be to send a Rule 11 letter and have [McGill] sanctioned," because McGill had "no good-faith basis to threaten any litigation."
This one is clearly wrong. Rule 11 applies to papers filed with the court, not to something sent to counsel before litigation has even commenced. Plus, who would they ask for sanctions--no court actually has jurisdiction, since no lawsuit has been filed. Moreover, according to every court of appeals except the Seventh Circuit, Rule 11 cannot be triggered by a letter, only by motion (this was the very point of the Rule 11 essay I assigned this semester).
Jimmy's brother says they need to "start pulling case law--any precedent dealing with 18 U.S.C. §§ 1961-68": This is RICO, so they got the statute right. But pulling "any precedent" on all of RICO may kick back kind of a large amount of stuff; perhaps they should narrow their search a bit.
Cases to be read and Shepardized include:
Sedima v. Imrex: This is a major case loosening up the availability of civil RICO, holding that actionable conduct need not have resulted in a criminal conviction or produced a "racketeering injury."
Holmes v. SIPC: RICO requires proximate cause
Slesinger v. Disney: This could be any of several lawsuits in state and federal court over licensing rights for Winnie the Pooh, none of which involved RICO. My guess is that this one is an inside joke.
Statutes to be researched include:
30-47-1 NMSA: State statute concerning criminal offenses related to abuse and neglect of residents in health-care facilities
57-12-1-24 NMSA: State statutory provisions on unfair trade practices.
On the RICO question: The show makes a big deal about invoices showing that the fraudulently charged supplies crossed state lines, thus providing the interstate commerce hook. But is that necessary to make the RICO claim? Wouldn't it be enough that the facility itself substantially affects interstate commerce (as all such facilities do) and that it committed fraud? Does RICO require that the fraudulent act itself have an interstate hook?
Two other exchanges worth noting:
• Jimmy's brother says they should start with class cert., trying to get a conditional certification that will hold long enough to start discovery.
Whatever. It was never that quick or easy to get into discovery, even in 2002 (when the show takes place), the pre-historic days before Twiqbal and Wal-Mart. They are going to spend six months fighting over 12(b)(6) motions, regardless of class cert, before sniffing discovery.
• The ALF will not allow Jimmy onto the grounds. Jimmy's brother says they need to "quash this prohibition against you--some injunctive relief, maybe a TRO."
What other kind of injunctive relief is there besides a TRO when time is of the essence? Plus, "quash" seems an inappropriate term when there was no court order, but simply a private property owner controlling who has access to its property. But this raises an interesting remedies question--Would/Should a court of equity issue a TRO requiring that Jimmy be given access to a facility that he is suing, given that his client(s) live there? Or would the clients need to make the motion, arguing that they are entitled to have their lawyer visit them in their homes? Or would a private ALF be allowed to keep their residents away from their attorney when the residents are suing the facility through that attorney?
All-in-all, not bad. And a lot of fun to listen to.
Finally, check out The Legal Ethics of Better Call Saul, a blog operated by New York attorney Nicole Hyland that analyzes just how unethical Jimmy/Saul is being, at least under New York (as opposed to New Mexico) law.
Wednesday, March 25, 2015
Fair-weather color-blindness in the Alabama Redistricting Case?
Have the Republicans on SCOTUS gone all squishy on color-blindness? In Alabama Black Legislative Caucus v. Alabama, the Republicans, minus Kennedy, dissented from Breyer’s five-vote majority opinion holding that the Alabama legislature must have a better reason for a rigid racial quota than obedience to a federal law that does not, in fact, require such quotas. The Alabama legislature had followed a self-conscious and explicit policy of insuring that majority-minority “safe” districts never dropped below 70% black population, claiming that the Voting Rights Act made them do it. One would think that Republican justices’ famous adherence to the color-blind constitution would make them suspicious of such a quota and eager to construe narrowly a federal statute proffered to justify such a practice of super-safe Black districts . Remember the Chief's crisp catchphrase? “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race”? Yet Roberts joined Scalia’s dissent along with Alito and Thomas in proclaiming that the Alabama legislature was allowed to use a rigid racial quota, because the plaintiffs had not sufficiently pled how race had shaped specific gerrymandered districts. Thomas wrote separately to explain that, much to his dismay, the Voting Rights Act’s anti-retrogression provision required “max-black” districts.
A cynical Realist might be forgiven for suspecting that the Republican justices pulled their color-blind punches to benefit Republican state legislators. Republican state legislatures in the South have benefited enormously from packing Black voters into a few super-safe districts that notoriously hurt Black voters and racially polarize elections by reducing the number of seats that they can influence and splitting apart black-white coalitions. The Alabama legislature’s simple 70% solution was a nakedly partisan effort to hide behind the VRA for electoral gains. Had Thomas cared to do so, he could have adopted a savings construction of the VRA to curb such efforts, because neither the notoriously vague “predominant motive” test nor the equally vague VRA section 5 unequivocally sanctioned such behavior. Likewise, Scalia could have adopted a charitable reading of the plaintiffs’ pleadings that would have kept the the plaintiffs in play – a reading that would especially acceptable given that the underlying doctrine is so incoherent. What else but partisan loyalty, then, could cause them to pull their color-blind punches?
Of course, one could easily imagine Thomas’ and Scalia’s asking a similar question of Justice Ginsburg, who dissented in Miller v. Johnson back in 1995 with the complaint strikingly similar to Justice Thomas’ now -- that the “Court's disposition renders redistricting perilous work for state legislatures.” Scalia and Thomas might reasonably wonder whether Ginsburg has now more of a stomach for imposing such perils now that the state legislatures are Republican. Why, they might reasonably ask, does the Court stretch to enforce the murky “predominant motive” test only now, when the beneficiaries are Republicans?
The problem is not that one side or another has not stuck with constitutional principles. The problem, instead, is that neither side will rationally stick with a principle that it suspects its rivals will ditch when the ideological value sign of the case changes. This is a problem of signaling credible commitment -- the heart and soul of all constitutions -- not a problem of moral failure. After the jump, some thoughts on how to make commitments to doctrine stick.
First, recognize that constitutional doctrines are much like contracts defining the contracting parties’ sequential performance: They help overcome the problem of credible commitment by reassuring those who suffer from a doctrine today that they will benefit from it tomorrow. The conservative businessman might not like the application of the principle of free speech to protect Communists today, but they will grudgingly accept such protection for the sake of safeguarding, say, campaign expenditures tomorrow.
Second, recognize that doctrine cannot provide this reassurance as effectively if the doctrine consists of mushy, case-by-case, ad hoc standards. Such doctrine has been praised as wisely practical under-theorized agreements. But nothing is so impractical as a contract that is so mushy that it provides no reassurance to the parties that the bargain will be honored. Adherence to vague agreements are difficult to monitor, and so is adherence to n-part tests and totality-of-the-circumstances balancing. If the point of such a bargain is to facilitate cooperation in the advancement of some mutually beneficial goal (e.g., federalism, free speech, racial equality, etc.), then the absence of clear lines and hard edges defeats the purpose of the agreement. Why should I vote for a result that I dislike now for the sake of a principle will melt away when I want it to yield a result that I prefer? As Thomas and Scalia must have been thinking, the doctrine against racial gerrymandering seemed to give constituencies favored by Democrats all the cake (in the 1990s and naughts, when the districts were mostly upheld), while the Republicans are now getting the kale in return.
Third, credible commitment might, therefore, require the loss of doctrinal subtlety to make adherence to the doctrine easier to monitor. It might sound crass to suggest that the point of constitutional principle is to facilitate vote-trading across cases. If constitutional stability requires coalitions that cross ideological lines, however, then adherence to constitutional principles ought to be easy to monitor, so that I can vote for a result I dislike today knowing that I will be repaid with votes of colleagues who dislike the result of tomorrow. Under-theorized agreements that simply resolve the case before the court threaten such stability by threatening such vote-trading. Crisp, hard-edged doctrines that are hard to evade facilitate such deals across time.
In light of these considerations, the “predominant motive” test might need some harder edges, akin to “one person, one vote.” Maybe buried in Breyer’s majority is the hint of one such rule – the idea that a state legislature may not set as a districting goal the maintenance of particular “racial percentages in each majority-minority district, insofar as feasible.” Breyer’s attack on “mechanical racial targets” suggests that five votes – a slender coalition but, with Kennedy, a cross-ideological one – might be declaring such rigid racial benchmarks categorically out of bounds. If so, then the Miller “predominant motive” doctrine has a new island of clarity, albeit still surrounded by the swamp of Miller’s well-nigh incoherent idea that racial considerations can be a but-for cause for the location of a district’s boundaries just so long as it is not “too much” of a cause.
The Sweet Briar Legal Challenge
The alumnae group Saving Sweet Briar has hired the law firm of Troutman Sanders LLP to represent the group in its attempt to oust the current board and prevent the school's closure. The law firm sent a letter to the board's counsel outlining its legal position. Its first argument makes a breach-of-fiduciary-duty claim, asserting that "[a]s directors of a non-stock corporation, your clients [that is, the board members] are required to promote the College’s best interests, and your clients have good faith duties of care, loyalty, and obedience toward the College."
As I said before, however, I don't know that the Board's fiduciary duty in fact runs to the institution--I think the duty runs more broadly to the institution's mission. In good times, those duties would be congruent; in less good times, however, the two may conflict. What if, as some have posited, Sweet Briar could be saved by going co-ed? Or by lowering academic credentials? I'm not sure how well the school's mission is defined; it was explicitly founded to educate women, and perhaps less explicitly, founded to educate women from a relatively elite social class. (Perhaps not so much less explicitly--social class seems to come up often in discussions of the college's past and present, and a recent New York Times article points out that "both Mr. Jones [the interim president] and Paul Rice, the board chairman, said Sweet Briar’s rich-girl days were long gone").
Changing that mission might be a good idea, but the challenge raised by the letter isn't a question of what policy would be best--it was explicitly stated as a legal question, and I think it is an interesting one. Brad, a commenter to my prior post, pointed out that the March of Dimes changed its mission from polio eradication to the prevention of birth defects once polio was eradicated. From a legal perspective, I think that such mission changes probably fit within a reasonable cy pres distribution of charitable assets. The Sweet Briar board, like the March of Dimes, would likely have been on strong legal footing if it had modified its mission to become sustainable. But, as Brad points out, the harder question is does it have to?
It appears to me that Saving Sweet Briar is arguing that the board in fact had a duty to sustain the organization--even if doing so meant modifying the school's mission. To be fair, this is not stated explicitly in the letter, and the letter also raises other issues of financial secrecy and lack of decision-making transparency. But some of the language, I think, hints that the group thinks the Board should have considered mission-changing options like going co-ed; it mentions a failure to "consider other methods of meeting the College’s needs" and a "failure to explore all possible options." The group's FAQ page is explicit that its focus is keeping the college open: (Q: "What are your plans to turn the college around?" A: "At this time, we are focused on halting the school’s closure and keeping the college open.").
I'm interested to see how these arguments develop. I do fear, though, that the cost of litigating those arguments might very well consume so much of the remaining resources that there is not enough money left either to soften the transition of closure or to restore the school to sustainability.
Ceci N’est Pas Un Taxi: Definitional Defiance as Innovation in the Platform Economy
This weekend I attending the second annual Innovation Beyond IP Law conference at Yale Law School. Last year I presented at the inaugural conference an article about human capital law, The New Cognitive Property, which has just been published in the Texas Law Review this week (and stay tuned for comments on the paper to be published in Texas Law Rev See Also by Brett Frischman & Mark McKenna). The conference was very helpful in shaping that paper and I look forward to the same kind of rigor with a new article I am writing about the Law of the Platform.
Over 10,000 new platform companies have sprouted and mushroomed in less than a decade and they continue to pop up daily. The platform economy, while not easy to define or quantify, was valued in 2013 at $26 billion with predictions of an exponential growth to $110 billion in the next few years. A recent Price Waterhouse report predicts that globally, revenues from the platform sectors could hit $335 billion by 2025.
So what’s your business? You don’t need to open a restaurant to host cooking events; you don’t need to become a taxi driver to offer paid rides; you don’t need to open a hotel to be a lodging host; you don’t need to start a moving company to get paid for helping someone relocate. Platform businesses are challenging conventional industries in every realm, including hotels (Airbnb, Couchsurfing, Homeaway, VRBO), office space (Liquid Space, ShareDesk), parking spaces (ParkingPanda, Park Circa), transportation (Lyft, Sidecar, Uber), restaurants (Eatwith, Feastly, Blue Apron, Munchery), used clothing (ThredUp), household tools (Open Shed), outdoor gear (Gearcommons), capital (Zopa; Prosper, Kickstarter, Bitcoin), broadcasting (Aereo, FilmOn.com), co-developing (Quirkly, Etsy), legal services (Upcounsel), medical services (Healthtap), academic tutoring (Uguru), everyday errands such as grocery shopping and laundry (TaskRabbit, Instacart, Airtasker, Washio), and specialized errands, such as flower delivery (BloomThat), dog-walking (DogVacay) and package delivery (Shyp).
New digital technologies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. It’s been called the sharing economy, the disaggregated economy, the peer-to-peer economy (P2P), human-to-human (H2H), the community marketplace, the on-demand economy, the app economy, mesh economy, gig economy, and the "Uberization of everything."
Each of these terms represents an aspect of the digital platform revolution, but none fully captures the entire scope of the paradigmatic shift in the ways we produce, consume, work, finance, and learn. A new wave of starts-ups, relying on digital platform technology, are connecting people and transforming behavior and relationships outside of the digital world, closing down on underutilized human, social, and real capital. The life cycle of products is being dramatically extended; dead capital resurrected, the time unit of access is vastly shortened; and connectivity exponentially expanded. The platform economy is radically changing the traditional equilibria of supply and demand, lowering transaction costs, blurring the lines between owners and users, producers and consumers, workers and contractors, and transcending the spatial divides of business and home, market and leisure, friend and client, acquaintance and stranger, public and private.
Unsurprisingly, new platform companies are facing challenges from a broad range of regulatory fields, including consumer protection laws, safety and health regulation, permitting and licensing of businesses, property and zoning laws, tax law and financial services regulation. In my new article, "The Law of the Platform," I pose a foundational inquiry: Do the regulations we have carry over to the platform economy? By unpacking the economic and social drives for the rise of the platform economy, the article develops a new framework for asking whether digital disruptions comprise loopholes akin to regulatory arbitrage in the tax field, circumvention akin to controversial copyright protection reforms, or innovation-ripe negative spaces akin to design-around competition in patent law.
Bringing together these different bodies of law, the article offers a contemporary account of the relevance of regulation for new business models. The article shows that more often than not, legal disruption by the platform economy should be viewed as a feature---not a bug---of regulatory limits.
/cross-posted from Balkinazation
If not Holmes, then Kennedy?
Ron Collins discusses a new book by First Amendment scholar Burt Neuborne, Madison's Music: On Reading the First Amendment. NYU Law hosted a program on the book last week, featuring Justice Sotomayor. In the book, Neuborne refers to Justice Kennedy as "the most important First Amendment Judge that has ever sat on the Supreme Court."
When his book The Great Dissent was published in 2013, Thomas Healy had an exchange with Mike Dorf in which he wondered who might have led the charge on free speech had Holmes not changed his mind in Abrams; Healy ran through a number of names but found all lacking. In my new article, I argue that Justice Brennan (who Healy did not mention in his blog post) would have been the justice to take that lead, discussing the various areas in which Brennan set out (or tried to set out) a uniquely speech-protective First Amendment vision and often succeeded in pulling majorities with him.
Neuborne's book and his comments at NYU present Kennedy as another answer to that question. In the paper, I refer to Kennedy as Brennan's "speech-protective heir," particularly once he had been on the Court for a few years. So could/would Kennedy have been that First Amendment leader without Holmes or Brennan before him (put to one side the impossibility of the counter-factual)? In many areas--notably corporate speech and campaign finance--Kennedy outstrips Brennan in protecting expression. Quantitative studies (one by Eugene Volokh and one by Ashutosh Bhagwat) reveal Kennedy's voting record to overwhelmingly favor free-speech claimants.
I did not think of Kennedy when I was writing the paper. Partly this is because the paper focuses on the First Amendment connections between Holmes and Brennan. Partly this is because Kennedy remains on the Court, so it is more difficult to assess him within the bigger historic picture.
More problematically, Kennedy's First Amendment near-absolutism gets lost in the unfortunately simplistic liberal/conservative rhetoric used to describe the Court, which overlaps with the newish trend that protection of free speech is not the automatically liberal position (as it generally was in Brennan's day). And there is the even-more-simplistic view of Kennedy as the swing vote who tips the balance in every case and at whom the attorneys all direct their arguments (this notion is captured in the line, which I have heard over and over from a practicing attorney, that "you don't count to 5, you count to Kennedy"). Whatever the truth of that view in many constitutional cases, it simply is not true in First Amendment cases. Kennedy is a sure thing for the free-speech claimant; lawyers need to worry about people like Justice Breyer.
Tuesday, March 24, 2015
SCOTUS Decision on Agency Determinations and Issue Preclusion
Today the Supreme Court decided B&B Hardware, Inc. v. Hargis Industries, Inc., a case about the preclusive effect of determinations made by the Trademark Trial and Appeal Board (TTAB) when reviewing trademark registrations. Writing for a seven-Justice majority, Justice Alito concludes that “a court should give preclusive effect to TTAB decisions if the ordinary elements of issue preclusion are met.”
Going forward, parties in trademark litigation will likely continue to litigate whether “the ordinary elements of issue preclusion” are, in fact, met with respect to any given TTAB decision. As Justice Ginsburg emphasizes in her brief concurrence, the Court recognizes that “for a great many registration decisions issue preclusion obviously will not apply.” Ginsburg explains that “contested registrations are often decided upon a comparison of the marks in the abstract and apart from their marketplace usage,” and that, if so, “there will be no preclusion of the likelihood of confusion issue in a later infringement suit.”
What may be of broader interest is the Court’s discussion of “whether an agency decision can ever ground issue preclusion.” The answer: yes, it can.Quoting a number of earlier decisions (citations omitted), Justice Alito writes:
“[B]ecause the principle of issue preclusion was so well established at common law, in those situations in which Congress has authorized agencies to resolve disputes, courts may take it as given that Congress has legislated with the expectation that the principle of issue preclusion will apply except when a statutory purpose to the contrary is evident. This reflects the Court’s longstanding view that when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”
The Court then addresses – and dismisses – potential constitutional concerns with agency preclusion. Although Justice Alito finds that Hargis did not present any direct constitutional challenge, he discusses the Seventh Amendment and Article III in the context of Hargis’s “statutory argument that we should jettison administrative preclusion in whole or in part to avoid potential constitutional concerns.” Alito writes that “the Seventh Amendment does not strip competent tribunals of the power to issue judgments with preclusive effect; that logic would not seem to turn on the nature of the competent tribunal.” And he rejects the argument that “it might violate Article III if an agency could make a decision with preclusive effect in a later proceeding before a federal court.”
Justice Thomas writes a dissenting opinion, joined by Justice Scalia, that is much more skeptical of agency preclusion. His opinion begins:
The Court today applies a presumption that when Congress enacts statutes authorizing administrative agencies to resolve disputes in an adjudicatory setting, it intends those agency decisions to have preclusive effect in Article III courts. That presumption was first announced in poorly supported dictum in a 1991 decision of this Court, and we have not applied it since. Whatever the validity of that presumption with respect to statutes enacted after its creation, there is no justification for applying it to the Lanham Act, passed in 1946.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
I wrote a review essay about Force Majeure (now available for streaming at Netflix) for Tikkun. The film was an excuse for me to meditate on performances of masculinity, bourgeois feminism, monogamy, and marriage. Something to provoke just about anyone.
"The Theocracy Brief"?
At the Crime and Consequences blog, which is a project of the Criminal Justice Legal Foundation, there is a post by Kent Scheidegger called "The Theocracy Brief," which takes issue with the amicus brief filed by the National Catholic Reporter in Glossip v. Gross (the SCOTUS case involving Oklahoma's lethal-injection procedures). Here's the primary part of the post:
Some briefs are just downright weird. In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus briefpurporting to explain the teachings of the Catholic Church on the subject. I have no opinion on whether what they say is correct. I know nothing about it. I do have an opinion on whether what they say has any relevance. It does not.
Last time I checked, the United States of America was not a theocracy. Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.
If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment? Of course not. So why would the teachings of the Catholic Church have any greater relevance? Because five of the current Justices of the Supreme Court happen to be Catholic? I am quite sure all five have the integrity not to let such an argument influence them.
* I don't know if they do, and truth of the "if" is not necessary to the point being made.
As it happens, the amicus brief has an entire section dedicated to explaining why the teachings of the Catholic Church with respect to capital punishment are, or at least could be, relevant to the particular question presented in this case. It seems to me that Mr. Scheidegger's "theocracy" charge is misplaced.
Obviously, the Church's teachings as such are not binding or authoritative on the Court when it answers legal questions and, generally speaking, whether or not the Church approves of this or that has nothing to do with questions about what the Constitution says (or doesn't) about this or that. But, in this particular context, the Court's own precedents and doctrines seem to make relevant "the evolving standards of decency that mark the progress of a maturing society" and so there seems to be nothing particularly strange -- and certainly nothing "theocratic" -- about an amicus brief that says, in effect, "given that you have told us you are interested in what people think about the matter, here's what a whole lot of us think about the matter, and here's why. Just FYI."
Monday, March 23, 2015
A few posts ago, I discussed one of the teaching models that the Army uses: crawl, walk, run. Within that model, at each level, the Army uses another model: talk-show-do-test. The basic idea is that you talk to the students about the skill (these can be manual skills or thinking skills); you then show them how to do what it is that you want them to do; you then have them do it; and then you test them on it.
This year, I am teaching a "foundational" course (criminal law) for the first time. As I thought through how I wanted to evaluate my students using the talk-show-do-test model, I was struck by the disconnect between the skills that we tend to focus on in foundational classes and the skills that we actually test.In the foundational courses, many of us use some form of the case method to teach the skill of argument deconstruction. The students break the appellate argument into its pieces and find the blackletter, and we explore the left and right limits of that blackletter when we modify the facts a little bit. After students have done this enough, the effect is as Kingsfield put it, "You come into here with a head full of mush and leave thinking like a lawyer."
If we look at Bloom's revised taxonomy, we see that the case method focuses on higher order thinking skills. We are asking the students to analyze: can they "compare, contrast, criticize, differentiate, discriminate, distinguish, examine, experiment, question, test". The skill of outlining (or organizing) also falls in here (finding coherence, integrating, outline, parsing, structuring). And when we question the public policy reasons for the rules, we are asking the students to evaluate: "appraise, argue, defend, judge, select, support, value, evaluate".
In the foundational courses, we should be working on these skills in class and I think we do a good job with the "talk-show-do" on these skills. (Notice here that Kingsfield "shows," after first demoralizing the story's hero). One of the reasons why the 1L year may be so hard is that as undergrads, our students spent most of their time on the lower order thinking skills (remember, understand). On the first day of law school, we jump them several steps up the pyramid.
We "talk-show-do," but I'm not sure we "test" these skills very well. We tend to use cold-call roulette to hold each student accountable for case deconstruction, but that isn't a very accurate way to measure whether the student has mastered the skill. Nowadays, students can (and do) download case briefs (there is one online for every case in pretty much every major casebook) and they can use those to survive the moments when they lose the roulette game. We may be measuring their Google skills and not their ability to take a case apart.
Further, if they don't do well in that in-class moment, the consequences generally aren't that significant (compare the weight of in-class participation to the weight of the final exam).
Instead, in final exams, we tend to drop back down Bloom's pyramid to see whether the students can "remember" the blackletter rules and "apply" those blackletter rules to new situations.
For those skills, we "test," but we don't "talk-show-do." We don't use our class time to teach the students the skills of issue-spotting, rule application, and how to write up that application (itself a skill). Then we get frustrated when students "remember" blackletter rules that we never covered in class (and so they must have gotten from a commercial outline) or can't write a coherent answer.
I don't think I can blame the students for going to commercial outlines to get blackletter rules. They know that "remembering" is heavily-tested and they want to remember as much as possible. And I don't think I can blame them for not living up to my standards for exam writing if I don't engage in "talk-show-do" on that skill.
If that set of skills (issue spotting, rule application, and write-up) is important, and I think it is, then maybe we should invest some time into the "talk-show-do." What I have in mind is low-stakes, in-class or out-of-class problem solving where students get feedback on whether they have mastered that skill -- well before an all-or-nothing final exam.
And if those higher order thinking skills are important, (of course they are), then we may need to come up with ways to test those skills.
I decided to sample those higher order thinking skills by having my students turn in a case brief. I looked behind the curtain and I was surprised by what I saw. They still needed significant work on this skill.
The case brief isn't the actual goal -- the case brief is just one format for memorializing the precise thinking that goes into case deconstruction. The repetition of that thought process through structured practice is what causes the brain to reformat. At some point the thought process becomes internalized, but to get there, the students have to repeat that process, correctly, over and over. My sense is that they were doing it over and over, but not correctly.
I decided that I would have them "do" case briefs, about one per week, for low-stakes. And I started "showing" them examples of my own case briefs for the cases that we covered in class but which I did not assign. As they continue to practice, they are getting better.
So that covers "talk-show-do," but I still don't have a "test." I'm thinking that next year I may include this skill as a separate, take-home part of the final, where the stakes are higher. One of my colleagues, Louis Schulze, thought about giving the students a new case, where they would have to deconstruct it to get the relevant rule, and then have them apply that to a new set of facts, all in an exam setting.
Any thoughts or suggestions?
A Texas bill that is both stupid and unconstitutional
There are stupid laws, there are unconstitutional laws, and then there is this bill introduced in the Texas House by Rep. Jason Villalba. The bill would define "interruption,disruption, impediment, or interference" with police (already a crime) to include a person "filming, recording, photographing, or documenting the officer within 25 feet of the officer," 100 feet if the person is carrying a handgun. The bill includes an exception for mainstream news media (defined in the bill). Breitbart Texas has a story, including reactions from various advocacy groups and Rep. Villalba's efforts to defend his creation on Twitter by insisting that it protects police without prohibiting recording or efforts to hold police accountable.
Assuming that recording public events is protected First Amendment activity (the Fifth Circuit has yet to decide the issue), this law would be in an immense amount of trouble. Where to begin?It is not clear how the simple act of filming, recording, or documenting from 22 feet away, without more, can constitute "interruption, disruption, impediment, or interference." Certainly, a general prohibition on interference could be applied to expressive activity and need only survive intermediate scrutiny under O'Brien. But defining expressive activity as interference raises different constitutional issues. The only interference/impediment from recording alone is that the act of being recorded will cause the officer to change his behavior lest he be caught on camera doing something wrong. If that is the goal, the law would have to satisfy strict scrutiny.
The bill treats expressive conduct differently than non-expressive conduct that implicates the same government concerns. A person who is not "filming, recording, photographing, or documenting" can be within the 25-foot mark, even if he has a handgun. In other words, where I can go depends on whether I am engaging in expressive activity. But if being within 25 feet of the officer interferes, it interferes whether the person is recording or just watching the events. A 25-foot buffer zone around police officers probably might be permissible; limiting that buffer zone only to those engaged in expressive activity is not. That makes the law underinclusive. And worse, it is underinclusive in a way that singles out expressive over non-expressive conduct.
The differential treatment of the mainstream media from non-traditional media and individuals cannot survive strict scrutiny (I doubt it could survive rational basis review), which applies when a law regulates based on speaker identity. Again, no way it survives strict scrutiny, because there is no reason that MSM recording is different from individual or blogger recording in terms of the government interest.
Finally, the real effect of this bill is less on bystander witnesses than on suspects or those in immediate contact with suspects. People directly involved in confrontations with police--themselves or their friends--will not be permitted to record when the police initiate contact. In other words, no Eric Garner video. The cynic in me says that is Villalba really is trying to do.
This has no chance of surviving constitutional scrutiny. It should have little chance of passing. The question is how much this guy wants to stick to his guns. The interesting question is, based on the Breitbart piece, it is Republicans/Libertarians/conservatives who are pushing back on this.
Upcoming Conference on Gang Injunctions, Enhancements, and Databases
The Center for Juvenile Law and Policy at Loyola Law School, Los Angeles, where I teach, is holding a 2-day conference about gangs on April 24-25 that may be of interest to Prawfs readers. The conference plans sessions on California's Street Terrorism Enforcement and Prevention Act (STEP Act), which is a sentencing enhancement law, the use of gang experts at trial, anti-gang injunctions, gang prevention and outreach, and gang databases. The conference registration page is here
The topic of gang databases is one I cover in my forthcoming article Databasing Delinquency. The article describes the vast extent of modern data collection about juveniles by the criminal justice system (gang databases, sex offender registration for juveniles, DNA databases, schools as informants, and more) and the debilitating short and long-term harms it inflicts on youth. Data collection by itself is not the main problem (though there are harms caused by its mere collection). It’s the retention and sharing of the information that raise concerns. Much of the information collected by law enforcement (which goes far beyond charges and convictions) is retained indefinitely and shared beyond law enforcement, finds its way to the internet and the databases of private commercial background check vendors, and comes back to haunt individuals as they make the important transition to adulthood and seek employment, higher education, and housing.
I argue that, consistent with developmental science, a separate juvenile justice system, Supreme Court jurisprudence, and the purpose and meaning of childhood, there should be limits on the amount of information that the criminal justice system can gather, store and share about juveniles. This would add appropriate restraints so that public safety gains from databasing do not come at the expense of juvenile privacy, juveniles’ life chances, or childhood itself. I’m not arguing for an automatic clean slate at 18 or any other age, but even Santa Claus, who keeps one of the most important lists of who has been naughty and nice, only looks back 12 months.
Two Interesting SCOTUS Cert Grants Today
Today’s order list from the Supreme Court includes grants of certiorari in two cases.
DIRECTV v. Imburgia (No. 14-462) will ask the Court once more to address arbitration agreements and the Federal Arbitration Act. The question presented is:
Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.
Montgomery v. Louisiana (14-280) involves the retroactivity of the Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment forbids sentencing schemes that mandate life-without-possibility-of-parole sentences for juvenile homicide offenders. The question presented in the cert. petition is:
Whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?
But the Court also asked the parties to address whether it even has jurisdiction:
Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller?
[Cross-posted at the Civil Procedure & Federal Courts Blog]
The First Amendment and the Redskins trademark, Part I: Government speech
The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is the first several guest posts on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog
The ACLU recently filed an amicus brief in the Washington Redskins trademark case, arguing that the Patent and Trademark Office’s (PTO) cancellation of Redskins registrations constitutes viewpoint discrimination contrary to the First Amendment, and urging the federal court to strike down those portions of Section 2(a) of the Lanham Act that prohibit the registration of “immoral,” “scandalous,” or “disparage[ing]” marks. We are deeply concerned with the ACLU’s position. Its proposal to thrust First Amendment law into an area of commercial regulation in unprecedented ways would wreak havoc with trademark law’s careful balance of concerns for property rights, economic exchange, and consumer protection. We believe that the ACLU’s fundamental misunderstanding of trademark law has caused it to misapply First Amendment doctrine.
In this first post, we wish to focus on the ACLU’s invocation of two First Amendment doctrines: viewpoint discrimination and unconstitutional conditions (we leave for a separate post whether the commercial speech doctrine might be appropriate). The ACLU’s position erroneously elides the various forms of government regulation and their contexts, treating trademark law like criminal law, municipal ordinances dealing with protests, laws creating public fora, and public subsidies. But the strongest First Amendment doctrines designed to ensure robust public debate simply don’t map on to trademark regulation without creating a major upheaval in trademark law. First Amendment doctrine requires strict scrutiny whenever there is a direct, content-based regulation of private speech. The federal trademark registry, however, does not operate like a direct regulation of private speech, nor does it create a forum for the expression of private speech.Congress’s power to regulate trademarks flows from, and is constrained by its constitutional authority over interstate commerce. Federal registration of a mark confers certain benefits (e.g., registration is treated as prima facie evidence of validity and ownership of a mark, gives a nationwide priority over subsequent users, and offers access to certain remedies), but it does not create rights. These advantages are more procedural in nature than substantive, closer to internal court rules than criminal laws, permit ordinances, or public subsidies. Trademark rights are instead established by common law from the actual commercial use of the mark; these rights can be asserted in federal court without a registration. It is in this crucial sense that the Lanham Act does not directly regulate expression as such—certainly not in the same way that a criminal law preventing offensive speech, a regulation banning parades without a permit, or even laws that subsidize private speech do. Section 2(a) does not prohibit the utterance of the word “Redskins” or attach any conditions on anyone’s use of that term.
This provision simply refuses to confer the benefits of registration on the Washington football team. The team would still retain the right to assert itself as the first and exclusive user of the term for commercial purposes under federal law. Consequently, the provision offers the Native American challengers in this case only the possibility of a symbolic victory—there would be no need for the team to change its name as it may still use and enforce the mark. Section 2(a) neither chills the free expression of ideas nor inhibits robust public debate.
Unable to point to a public forum or a direct inhibition of expression, the ACLU contends that the PTO registry imposes an unconstitutional condition on speech. In support of this proposition, the ACLU cites Legal Services Corporation v. Velazquez, where the Supreme Court struck down a federal law that prevented publicly-funded legal services lawyers from challenging “existing law.” As Robert has discussed elsewhere, this restriction of subsidized advocacy was tantamount to a ban on anti-government speech. But there is nowhere near the same threat to freedom of expression entailed by Section 2(a) of the Lanham Act—it is not even in the same ballpark. After cancellation of its registration, the Washington football team remains just as free to use the Redskins marks, in commerce or political discourse. Moreover, the fact that registration is cancelled in no way inhibits the mark user’s legally-oriented expression or distorts the normal operations of the legal system, two findings central to the Velazquez ruling. Section 2(a) does not restrict what lawyers can say in court and does not even prevent the mark’s owner from relying on statutory and common law trademark doctrines. It imposes no condition whatsoever on non-commercial expression. As Adam Cox and Adam Samaha have shown, truly unconstitutional conditions are rare, and virtually every constitutional issue can be reframed as an allegedly unconstitutional condition (as the ACLU has done). It is a mistake to do that here.
Closer examination of the idea of viewpoint discrimination shows that it doesn’t really capture how Section 2(a) of the Lanham Act actually works. That concept has been invoked in cases where there is a serious fear of chilling of political speech, i.e., when one side in a debate has to fight with an arm tied behind her back. But there’s no serious concern that anyone’s ideological message is hampered or distorted by the Lanham Act.
Section 2(a) does not turn on a speaker’s actual perspective on an issue. It instead permits an objective determination that a mark, regardless of the owner’s viewpoint, will be perceived as disparaging by the referenced group when used in commerce. Someone who wishes to coopt a disparaging term for positive ends may be barred from registry just as someone whose intended use is to disparage. Thus, Section 2(a) operates without regard to the ideological intention of a speaker. For example, the PTO refused the registration of the mark “The Slants” finding it was disparaging to Asian Americans despite the fact that the applicant was a band whose members are Asian and who intended to take on stereotypes about Asians. The applicant’s viewpoint was irrelevant.
Moreover, enforcement of Section 2(a) does not prevent the utterance of noncommercial pro-Redskins speech, just as it does not prohibit the utterance of non-commercial anti-Redskins speech. Decisions like Rosenberger v. Rectors of Virginia and R.A.V. v. City of St. Paul are simply inapposite.
We think that the best analogue for this type of government regulation is government speech. Under that body of caselaw, the PTO registry constitutes “government speech” rather than regulation of private speech. The doctrine permits government-wide latitude to design its own programs and express its own views, consistent with Congress’s mix of commercial and ideological goals. Reliance on this doctrine would recognize that the PTO registry simply is not a forum created for the exchange of private ideas; rather, it is a tool to facilitate Congress’s goals of regulating interstate commerce and protecting a diverse population of consumers from business practices that foster racial discrimination and stereotyping. These core programmatic goals place Section 2(a) well within the reasoning of two government-speech rulings by the Supreme Court: Rust v. Sullivan, where Congress barred government-funded doctors from advising about the availability of abortion, and FCC v. Pacifica Foundation, which permitted Congress to protect listeners from “obscene, indecent, or profane” broadcasts.
Accepting the ACLU’s invitation to apply First Amendment law maximally to the PTO registry would improperly convert the registry into a free speech forum. It would force the PTO to register all manner of marks, interfering with the government’s delicate balance of regulatory objectives.
A ruling in this case against the football team does express the government’s belief, after careful fact finding, that the term “Redskins,” as used by the Washington football team in commerce, is disparaging to an entire group of people. Under the government speech doctrine, Congress is free to express the view that racially-inflected commerce is wrong, that certain ideas harm consumers in a pluralistic marketplace, and that government sanction of the trademark’s usage might inhibit commercial activity. The PTO, relying on Section 2(a), has expressed that view here, leaving private actors at liberty to agree or disagree.
Finally, consider what actually happens when the PTO refuses to register a mark on the ground that it is “disparaging.” It means that the mark owner cannot claim that the federal government has endorsed or supported that expression for commercial reasons. But he or she can continue to use it in public debate. Moreover, to the extent that the benefits of registration hinder the mark owner from excluding others from using the term in commercial activity, the absence of a registration guarantees a more robust public debate. That result seems far more consistent with ensuring wide-open conversation on matters of public importance than a federal court ruling invalidating this portion of Section 2(a).
The emergence of political hate
An interesting take on hyper-partisanship and deeper political commitments from Keith Humphreys at RBC. But is he right about this being a new phenomenon? I am not so sure.
People hated Lincoln so much they tried to leave the country. Some of the rhetoric directed against, say, Jefferson or Andrew Jackson or FDR was as hateful and hate-filled as anything directed at Clinton, GWB, or Obama, or that will be directed at Hillary. And as for the niche press, the image of the impartial press dates, at the earliest, to the mid-19th century. If we go back to the Founding, there was a Federalist press and an Anti-Federalist press and the lines between them were clear and the rhetoric emerging from them was hostile much in the way Keith describes--that is why John Adams wanted the Alien and Sedition Acts.
Biased Police Dogs
One surprising revelation of the Justice Department's report on Ferguson's police department was that:
"[C]anine officers use dogs out of proportion to the threat posed by the people they encounter, leaving serious puncture wounds to nonviolent offenders, some of them children. Furthermore, in every canine bite incident for which racial information is available, the subject was African American."
The obvious takeaway from this startling information is the one drawn by the Justice Department, that "race may play an impermissible role in officers’ decisions to deploy canines." But a short and interesting article in the New Yorker suggests another, equally upsetting, reason that these dogs may have attacked only African American suspects: they are affected by "the hidden racial prejudices of the police officers who deploy them." It is hard to draw this conclusion from the Ferguson case alone but the article's author cites several other examples of how a trainer's biases can impact their canine charges.
The author also questions the received wisdom that dogs are particularly useful aids to law enforcement more generally. This is not an area I have looked into but am now curious about the police's use of dogs, when it is appropriate, and whether the resources spent on their training and care is the best way to spend limited police budgets.
Sunday, March 22, 2015
NYU's Fight Against Isolationism in Shanghai: The Analogy to Iran
Recently, I engaged in a (I hope) good-natured fight with Steve Diamond over whether NYU’s presence in Shanghai is beneficial or harmful to the cause of Chinese civil liberties. You can read the points and counterpoints in the comments on my blog post. There is, however, one question that I did not ask Steve and the rest of the critics of “NYU-Shanghai,” NYU’s partnership with East China Normal University to provide a NYU-style education to Chinese students in China. Does it worry them just a little bit that their most vociferous allies in China are the Left Maoist enemies of “western values”?
Although Steve and others claim to speak on behalf of workers, feminists, farmers, and others abused by the Chinese Communist Party, they have yet (to my knowledge) been able to cite a single Chinese victim of the CCP who wants NYU to leave China. My own conversations with Beida academics who are also civil rights advocates in China suggest, indeed, that the people in China standing up for liberty are happy that NYU is in China. By contrast, Chinese nationalists denounce the presence of western academics in China, treating even on-line college courses from western sources as a dangerous virus. Like Steve, they seem to want us to leave. I would think that this neo-Maoist endorsement of the idea that westerners should get out of the business of educating Chinese would make people like Steve a bit uneasy. If NYU’s program here in Shanghai makes no contribution to liberty, as Steve asserted, then why do the enemies of liberty dislike it so much? They want to throw us out, Steve want us to leave: Should he not feel just a bit uncomfortable at having such strange bedfellows?
That last question can also be directed against my fellow Republicans who want to scuttle the Obama Administration's negotiations with Iran. When the result you hope to obtain is fervently desired by the people you claim to oppose, then does not this coincidence of aims suggest reason to doubt the goal?
Republican objections to negotiations with Iran follow roughly the same script as Steve's objections to NYU-Shanghai's educating kids in China. In both cases, the the attack on American engagement with repressive regimes is rooted in the general notion that such engagement does not do enough to stop the repression. I do not share these reservations, perhaps because I start from a different baseline of expectations: I do not see how the victims of repression be made worse off by American engagement. But, if I did shared such suspicions of engagement, I surely would start second-guessing them when they were endorsed by the most reactionary mullahs at Friday prayers. If the enemy of your enemy is your friend, then should not Republicans be a bit more friendly towards the current negotiations with the incumbent government of Iran, negotiations which are plainly reviled by the most repressive factions in Iran?
It seems to me that American academics’ opposition to ties with China resemble Republican opposition to negotiations with Iran in two respects. First, both try to punish a repressive regime by adopting a stance of isolationism that wins support from the most repressive factions within that regime, without any support from the victims of such repression. Second, neither have a plain answer to the question, “how does cutting off ties between the USA and the repressive regime help make the latter less repressive?” Opponents of NYU-Shanghai cite the Chinese government’s human rights abuses as as a reason for U.S. universities to withdraw from China without any explanation for how such withdrawal is supposed to reduce such abuses. Republicans denounce the Obama Administration’s engagement with Iran without any argument about how lack of engagement is supposed to help the victims of mullahs and purity police. Given that the Revolutionary Guards and Left Maoists alike hate engagement with the West, one might imagine that American opponents of such engagement would, at the very least, offer some sort of argument about why the advocates of repression and illiberalism somehow do not know their own self-interest.
The truth, I think, is that advocates of repression are very rationally also advocates of isolation. Unlike NYU’s American opponents, they understand the link between isolationism and repression. From the Middle East to China, those who are suspicious of liberty are also suspicious of Americans’ investment of educational resources in their countries. The American University in Beirut has never been a hit with reactionary Islam. The Maoists don’t like NYU-Shanghai. Putin is trying to chase foreign-funded NGOs out of Russia. Reactionaries just do not like competition, and, within its very limited province, NYU-Shanghai provides a different and competing model of education than that espoused by the heirs of the Cultural Revolution – a model based on debate and free inquiry, not on indoctrination and obedience.
Of course, there are limits to what we can do in China, but it is completely mystifying to me why those limits constitute reasons to do even less. We cannot sponsor a strike at a factory or file a lawsuit in Chinese court on behalf of an aggrieved farmer. But … so what? Why are these limits on our mission reasons not to teach what we know? The only response I ever hear is (to my ears) the obviously self-refuting dogmatism that any freedom less than total freedom is no freedom at all. When such an apparently weak argument is made on behalf of a result that advocates of repression applaud, then I am inclined to feel for my wallet and count my change: Surely, isolationism should win a bit of skepticism from the friends of liberalism as a consequence of its illiberal friends.
Friday, March 20, 2015
Unusual SCOTUS Line-ups
When it comes to civil procedure, the Supreme Court has had its share of sharply divided 5-4 decisions. In many cases, we get the voting alignment attitudinalists would expect: Iqbal, Wal-Mart, Concepcion, Comcast, Clapper v. Amnesty Int’l, Genesis v. Symczyk, to name some recent examples.
Sometimes, though, the Justices split in surprising ways. This Term’s decision in Dart Cherokee divided 5-4 over the whether (and by what standard) the Supreme Court could review a Court of Appeals’ refusal to hear a discretionary appeal under the Class Action Fairness Act. The majority—Roberts, Ginsburg, Breyer, Alito, and Sotomayor—concluded that review was proper. Scalia, Kennedy, Thomas, and Kagan dissented.
Another intriguing 5-4 split was Shady Grove. After analyzing Erie, FRCP 23, and the Rules Enabling Act, the majority concluded that federal courts were not bound by a state-law prohibition on certain kinds of class actions, even though Shady Grove was a diversity case arising under state law. In the majority were Roberts, Stevens, Scalia, Thomas, and Sotomayor. The dissenters were Kennedy, Ginsburg, Breyer, and Alito.
I’ve written elsewhere about why a case like Shady Grove might have generated such an unusual line-up. But the Shady Grove split also has a fascinating (if trivial) feature that I don’t recall seeing in any other Supreme Court decision. All of the Justices whose last names were in the second half of the alphabet were on one side, and all of the Justices whose last names were in the first half of the alphabet were on the other. I can’t think of an easy way to confirm whether this sort of voting pattern has ever happened before, so I figured I’d take advantage of my time on PrawfsBlawg to crowd-source it. Are readers aware of any other cases where the Court has split 5-4 along alphabetical lines?
Justice Alito on the Constitutional Oath in American Railroads
Last week the Court decided Department of Transportation v. Association of American Railroads, which asked whether Amtrak runs afoul of the separation of powers. Of special note, Justice Alito’s concurring opinion offered some brief but thoughtful remarks on the constitutional oath of office. In Alito’s view, the oath plays an important role in identifying officers, installing them, and (most interestingly) ensuring their accountability. This is a welcome discussion, as the oath’s legal role is (in my view) seriously underrated. Below, I question and expand on Alito’s various points.
Here is the relevant portion of Justice Alito’s concurring opinion in American Railroads, with a paragraph break added:
I begin with something that may seem mundane on its face but that has a significant relationship to the principle of accountability. Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See Art. VI, cl. 3 (“[A]ll executive and judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution”); Art. II, §3, cl. 6 (The President “shall Commission all the Officers of the United States”).
There is good reason to think that those who have not sworn an oath cannot exercise significant authority of the United States. See 14 Op. Atty. Gen. 406, 408 (1874) (“[A] Representative . . . does not become a member of the House until he takes the oath of office”); 15 Op. Atty. Gen. 280, 281 (1877) (similar).* And this Court certainly has never treated a commission from the President as a mere wall ornament. See, e.g., Marbury v. Madison, 1 Cranch 137, 156 (1803); see also id., at 179 (noting the importance of an oath).
Both the Oath and Commission Clauses confirm an important point: Those who exercise the power of Government are set apart from ordinary citizens. Because they exercise greater power, they are subject to special restraints. There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.
Here, respondent tells the Court that “Amtrak’s board members do not take an oath of office to uphold the Constitution, as do Article II officers vested with rulemaking authority.” Brief for Respondent 47. The Government says not a word in response. Perhaps there is an answer. The rule, however, is clear. Because Amtrak is the Government, ante, at 11, those who run it need to satisfy basic constitutional requirements.
*It is noteworthy that the first statute enacted by Congress was “An Act to regulate the Time and Manner of administering certain Oaths.” Act of June 1, 1789, ch. 1, §1, 1 Stat. 23.
There’s a lot here. Let me focus on three points.
1. Identifying Officers. Justice Alito is using the “Oaths and Commission Clauses” to establish a criterion for service as an “officer of the United States.” In doing so, Alito seems to equate officers with people who “exercise significant authority of the United States.” That phrasing is no accident. As Buckley v. Valeo put it: “[A]ny appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of” Article II.
Justice Alito then goes further and posits that the Oath and Commission Clauses together provide a complete basis for identifying officers, at least if those Clauses are being followed. As Alito puts it, “There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.”
This statement seems a bit too quick. For one thing, there’s always “a question” about how to apply legal tests. For another thing, it seems possible for someone to have taken the oath and obtained a commission without exercising significant federal authority or (equivalently) being an officer. This possibility suggests that courts must be prepared to look beyond the often-helpful formalism of the oath and commission and to consider functional realities.
2. Installing Officers. Next, Justice Alito cites OLC memos in finding “good reason to think that those who have not sworn an oath cannot exercise significant authority of the United States.” This kind of thinking explains why President Obama re-took his oath of office back in 2009. When the President and the Chief Justice garbled the constitutionally prescribed words, there was a credible threat of litigation. Only after taking the precise presidential oath set out in Article II (the argument would go) could the President-elect exert the power of the Presidency.
But it’s important to note an analytical leap here—and one that Justice Alito seems aware of, given his express caution in advancing this position. The general Article VI Oath Clause says that officers “shall be bound by Oath,” and the Commission Clause says that the President “shall Commission” all officers. But one or both of those duties can be read to presuppose that someone has already become an officer, even without the oath and/or the commission. On this view, an officer’s lack of oath or commission might transgress the Constitution without affecting an officer’s status or ability to exert federal authority.
3. Making Officers Accountable. Focusing just on the Oath Clause, I agree with what Justice Alito rightly calls an “important point”—namely, that “[t]hose who exercise the power of Government are set apart from ordinary citizens” and “are subject to special restraints.” Alito briefly grounds officers’ unusual restraints in the fact that, as compared with “ordinary citizens,” officers “exercise greater power.” That expression calls to mind Peter Parker's timeless lesson that “with great power, comes great responsibility.” Surely that’s true, but it doesn’t fully capture the “special” duties incumbent on officers.
Officers don’t just have unusual power to do good or ill. They have also assumed a distinctive role marked by a personal commitment to law. A person with de facto power might think that a certain action is morally good regardless of the law and so might feel obliged to perform that action if given the chance. But an officer bound by oath has “special” reason to consider the law. That moral reason is rooted at least in part in the oath—a paradigmatic source of promissory obligation. Some might respond that “ordinary citizens,” too, have a general moral duty to adhere to the law; but even if that is so, the oath confirms that officers recognize their legal duty while also affording the duty added moral force.
That brings us to Justice Alito’s basic conclusion: Amtrak's leadership must take the oath so as to further "the principle of accountability." Alito could mean that the oath reflects formal obedience to constitutional text, or a convenient means of identifying officers for Appointment Clause purposes. But there is another, more compelling possibility: the point of the oath is to create or intensify officers’ sense of moral obligation to law. The relevant form of accountability, on this view, is internal to the officer. (I have a forthcoming paper on this topic and so would be especially grateful for readers' thoughts.)
As Justice Alito notes, the oath “may seem mundane,” but it isn’t. And I suspect that most actual officers don’t view it as mundane either.
Is it legitimate to compromise on academic freedom abroad? The case of NYU in Shanghai and Abu Dhabi
Is it legitimate for an academic institution or individual to compromise academic freedom in order to gain access to a population otherwise controlled by an authoritarian regime? The question is posed not only by my own personal situation of teaching at NYU-Shanghai during this Spring Term but also by NYU’s public relations fiasco with Professor Andrew Ross, a sociologist who was barred by the United Arab Emirates from entering UAE to do research while on Spring Break at NYU-Abu Dhabi. NYU’s critics predictably used the UAE’s exclusion of Ross as a reason to castigate NYU for maintaining a campus in the territory of a regime that severely limits freedom of expression. (For Ross' views, see the Baffler. For an interview with Ross, see NY Magazine).
In my own view, however, the question of whether or not to compromise on academic freedom for the sake of a physical presence in authoritarian turf does not have any categorically correct answer. It all depends on what one must give up and what one gains. Insisting on academic purity unsullied by any compromise with repressive governments is like Pontius Pilates’ hand-washing: It may give its adherents a pleasantly self-righteous feeling, but the withdrawal from engagement with the real world may leave the world less free in the name of freedom. Indeed, if taken seriously, such zealous purism would bar NYU from doing business in any regime that protects freedom of expression less rigorously than the USA -- excluding NYU from launching a campus in (for instance) the UK or Canada.
In particular, it seems to me that NYU would be right to accept an “inside-outside” deal from the Chinese Communist Party in Shanghai. Under such a deal, NYU’s faculty and students would be free to teach and learn whatever they please inside the classroom but they cannot lobby, kibitz, incite, persuade, organize, or otherwise participate in local politics outside on the street or in cyberspace. (Not being privy to the internal negotiations between the university and the Chinese authorities, I am not saying that NYU expressly struck any such a deal but only that this seems to me, based on my own experience, to be the actual ground rules practically governing students and faculty at NYU-Shanghai).
Why accept such a pact with the devil? Because such an agreement can enlarge the total amount of freedom above that which faculty and students would otherwise enjoy in the absence of compromise.
If NYU is able to offer Chinese nationals a freer education than that which they would otherwise have at a Chinese university, then NYU’s rigid refusal to compromise leaves those students less free. If NYU were to insist that its constituents must be able to pursue in Shanghai every expressive activity that they are entitled to pursue at Washington Square, then the Chinese government would simply refuse to allow us to teach in the PRC at all. Such an uncompromising posture would leave students worse off, depriving them of the benefits of an education that Chinese eagerly seek. Any theory of academic freedom that actually diminishes real freedom strikes me as a dogmatic pose, not a sensible policy.
How much of a compromise of academic ideals should a university or professor make to gain access to the territory controlled by an authoritarian regime? There is no easy answer to this question: It all depends on the details of the deal. Denunciations of NYU that suggest such an easy moral answer strike me as morally obtuse.
Individual professors agonize over these tough choices all the time, regardless of whether their home institution opens a campus abroad. Take, for example, academics’ decision about whether to testify about China before the US-China Economic and Security Review Commission. As Donald Clarke, an old China hand, has noted, some academics most knowledgeable about China decided not to testify in order not to offend the Chinese government and thereby lose their access to a visa to enter China. Are these silent professors guilty of some Faustian bargain? If their work is improved by their being physically present in China, then I say: Good for such Fausts. It is a tough balancing act to decide whether the price of a visa is too high, but the notion that one always strikes the right balance by straight talk that forfeits the visa at least needs some defense. What if such professors actually learn more and thereby provide more information to the world by maintaining contacts with the CCP at the price of keeping silent before the USCESRC? Why is it necessarily the right answer to uncompromising refuse to trim one’s sails, exclude oneself from China, and thereby deprive the world of the information that one could obtain by being more discrete?
Half of my students in my course at NYU-Shanghai on Constitutional Law are PRC citizens. The discussion in my class is uncompromisingly free. We hold weekly debates on politically sensitive topics like judicial review of legislation by independent courts or “shanggui” (the judicially unreviewed executive detention of party officials accused of corruption or other crimes). We all know that we cannot hold rallies on these topics outside on Century Avenue in Pudong, Shanghai. I would be deported, and they would be arrested. It strikes me as bizarre to suggest, however, that my students would be freer if I “self-deported” myself before even teaching the course by telling the Chinese authorities that I would insist on the same freedom of expression that I enjoy back in New York. Whose freedom, exactly, would be enhanced by such rigidity? My students would lose the classroom discussion but not gain the right to rally outside the classroom. Everyone would left less free, all in the name of freedom.
What is true of individuals also applies to institutions. There is no simple, bright-line formula defining whether to accept limits on what an institution’s students and faculties can preach on the streets as the price for freedom in the classroom. It all depends on what the institution gains by a physical presence in the territory of a repressive regime. I cannot speak for NYU-Abu Dhabi, but, after two months’ teaching in Shanghai, I can say that NYU-Shanghai has hosted a completely free-wheeling discussion among a multi-national student body and faculty about everything from Xi’s corruption purges to the Cultural Revolution. Should NYU sacrifice this boon to freedom because the students cannot hold a public rally outside the doors of 1555 Century Avenue? Why? NYU’s leaving would not enlarge the students’ power to rally: It would just prevent those who do not want to leave China of the ability to gain an American-style university education.
Taken to its logical extreme, rejection of all such compromise on freedom of expression would bar American academic institutions from ever sponsoring classrooms or research outside of the United States. No nation in the world constitutionally guarantees the level of free expression enjoyed in the USA. Canada’s laws censor hate speech, for instance, while the UK’s tort law classifies as defamatory statements that, if published in the USA, are immune from liability. Must NYU piously foreswear sponsoring any campus in Toronto because the students there cannot yell with impunity anti-gay epithets that are protected speech in NYC?
Such a posture is absurdly dogmatic to my mind. It assumes that freedom can only exist under American rules. Lots of regimes, however, protect lesser degrees of freedom. The restrictions such regimes impose do not vitiate the freedom that remains. From personal experience talking with Chinese academics and students not only at NYU-Shanghai but also at Tsinghua, Beida, and Fudan, I would say that “private” speech in China (that is, speech in the academic workshop, classroom, or café) is basically unfettered, even as speech on the street and in cyberspace is vigorously pruned and sometimes punished. What exactly is gained, as aside from a smug feeling of moral self-righteousness, by striking the pose of virtuous libertarians and piously refusing to join in the private conversation in China because one cannot hold a public rally?
The question of acceptable compromise strikes me as one of degree. It depends on costs and benefits, not rhetoric and postures. If China insisted – as it does not – that NYU endorse the Chinese regime, then the game might not be worth the candle: The marginal benefits for our Chinese students would be outweighed by the misinformation that NYU would spread through its coerced endorsement. Likewise, I would not teach constitutional law in Shanghai if the government could edit my syllabus to suit its ideological priorities: The students would gain little for yet another bland course that they could just as easily take elsewhere, and I would resent the interference more than the experience would be worth. China, however, leaves me free to teach what I please: Why, then, is it somehow an unacceptable price for a visa that I cannot also march up and down the streets yelling anti-government slogans?
Wednesday, March 18, 2015
Youth and Miranda Invocation
I mentioned previously that advocates and courts are considering how far the Supreme Court's "children are different in a way that matters" criminal justice jurisprudence should extend. One of the Supreme Court cases was J.D.B., which held that a suspect's age is relevant to determining whether an individual is in custody for purposes of Miranda. That is so even though the custody analysis is an objective inquiry. So long as the youth's age was known or would have been objectively apparent to a reasonable officer, his age (and the developmental vulnerabilities that accompany it) must be considered.
Just last month, a California Court of Appeal held that the same applies when deciding whether a juvenile has made an unequivocal request for an attorney after waiving Miranda. The case involved a 13-year-old eighth grader who was suspected in a shooting. Thirty pages into the transcript of the videotaped custodial interrogation, and after being shown a surveillance video of the shooting, the 13 year-old said "Could I have an attorney? Because that's not me." The police said no and continued the interrogation. Relying on J.D.B., the court held that the police should have considered the suspect's age in deciding whether that statement was an unequivocal request for an attorney. Moreover, it found that the youth's lack of maturity and sophistication were objectively apparent to a reasonable officer, and that the statement by the 13 year-old was an unequivocal request for an attorney, as opposed to a mere inquiry.
Briefly, this seems right to me. While it's true that it may be hard for police to decide whether the youth they are interrogating feel free to leave, or whether they are unambiguously and unequivocally requesting an attorney such that the interrogating must immediately end, the point of this recent juvenile jurisprudence is that law enforcement must pause when confronting youth. If they're unsure whether their presence and training are overbearing the young person, the best result would be to warn them of their Miranda rights and respect their attempts to invoke their constitutional rights.
I'm proud to add that this case was argued and briefed by staff and students at Loyola Law School, Los Angeles's amazing Center for Juvenile Law and Policy.
Sweet Briar a Victim of Predatory Lending?
As the Sweet Briar situation continues to unfold, a policy analyst from the Roosevelt Institute digs deeper into the school's financial statements, and discovers troubling information:
"[P]redatory banking practices and bad financial deals played an important and nearly invisible role in precipitating the school’s budget crisis. . . . A single swap on a bond issued in June 2008 cost Sweet Briar more then a million dollars in payments to Wachovia before the school exited the swap in September 2011. While it is unclear exactly why they chose 2011 to pay off the remainder of the bond early, they paid a $730,119 termination fee. . . .
Just how big a deal are these numbers? The school has a relatively small endowment even among small liberal arts colleges: currently valued at about $88 million, with less then a quarter of that total completely unrestricted and free to spend. But in 2014, the financial year that appears to have been the final straw for Sweet Briar, total operating revenues were $34.8 million and total operating expenditures were $35.4 million, which means that the deficit the school is running is actually smaller than the cost of any of the bad deals it’s gotten itself into with banks."
Unlike most victims of predatory lending, however, Sweet Briar would have had access to high-level legal and financial advisors. If the financial deals were as bad as the report suggests, something went very wrong in the college's decision-making process.
Floyd Abrams responds
In this February post, I posited that one reason the ACLU's 2015 Workplan had no First Amendment issues among its 11 "major civil liberties battles" was that, in the ACLU's view, there were no major systematic threats to free speech. In a speech at Temple Law School on Monday, Floyd Abrams responded, identifying two such areas--campus speech and the political left's abandonment of the First Amendment.
First, I am obviously flattered to be on his radar, especially for a blog post. Second, I fear that I was not clear enough in my original post that I was not endorsing the "we won" position, but only proferring one explanation/justification that the ACLU might have been thinking about; on re-reading the post, I do not think that came across as well as it should have or as well as I would have liked.
Third, I agree as to both areas Abrams identifies as systematic problems (I mentioned campus speech codes as one problem area in my post--and that was before Oklahoma and UCLA). Note that they sort of overlap, to the extent many on-campus censorship efforts are directed by the left against right-leaning speech.* And to bring it back to the ACLU Workplan: They share the common feature that the national ACLU and local affiliates may be quite at odds internally and with one another over both issues. And neither are issues that the ACLU is going to use to spearhead its fundraising efforts.
Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)
I was glad to see Dave get the Twombly/Iqbal train rolling this month. Whatever the debate surrounding the empirical impact of Twombly and Iqbal, federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.
These issues were on display last Friday (the 13th, by the way) as a divided Fourth Circuit panel affirmed the dismissal of an employment discrimination claim in McCleary-Evans v. Maryland Department of Transportation (No. 13-2488). The majority opinion by Judge Niemeyer rejected the plaintiff’s reliance on Swierkiewicz, emphasizing that the Supreme Court in Swierkiewicz had “applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.” In dissent, Judge Wynn argued that the majority had improperly “ignore[d] the factual underpinnings of the Swierkiewicz holding, looking solely to the Supreme Court’s 2009 decision in Iqbal to guide its decision,” and noted that lower federal courts “have no authority to overrule a Supreme Court decision no matter how out of touch with the Supreme Court’s current thinking the decision seems.”
Twombly and Iqbal are problematic decisions in many respects, and diagnosing their flaws is important. Even more important, though, is the question of how courts should be applying Twombly and Iqbal, especially in relation to pre-Twombly Supreme Court case law. Properly understood, Twombly and Iqbal can and should be read to preserve the notice-pleading approach that the Supreme Court repeatedly employed during the half-century before Twombly. I’ve laid out this argument here and here, and explained how the basic framework Iqbal articulated can be applied in a way that is consistent with notice pleading and pre-Twombly precedent. This understanding of Twombly and Iqbal is confirmed by more recent Supreme Court pleading decisions—especially the 2014 decision in Johnson v. City of Shelby—which cast doubt on the presumption that the Court’s pre-Twombly case law even is “out of touch with the Supreme Court’s current thinking.”
I may have more posts on pleading as March marches on, but for now I wanted to address the one—and only—instance where the Twombly and Iqbal opinions directly call into question any aspect of pre-Twombly case law. That, of course, was Twombly’s “retirement” of Conley’s statement that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
“Twombly overruled Conley” is a great sound bite if you prefer the maximalist reading of Twombly and Iqbal that one sees in Judge Niemeyer’s McCleary-Evans opinion. But it’s a huge oversimplification, especially when Twombly explicitly quoted and embraced the language from Conley that enshrined notice pleading into federal practice: “All the Rules require is a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
As for the decision to “retire” the “no set of facts” language itself, it’s important to pay attention to Twombly’s actual reasoning on this point. Justice Souter’s concern was that a “focused and literal reading” of that phrase would preclude dismissal “whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery.” OK, let’s pretend that courts actually applied this “focused and literal reading” of Conley. And suppose I file a complaint that alleges:
1. [Jurisdictional statement]
2. The Earth is round.
Therefore, I demand judgment against one or both defendants for $ <_____>, plus costs.
One can imagine any number of facts that are consistent with both (1) the Earth being round, and (2) me having a claim for relief against the defendants. Thus, this complaint would “le[ave] open the possibility” that I “might later establish some set of undisclosed facts to support recovery.” Under the reading of Conley that Twombly retired, my complaint should pass muster.
Obviously this is not at all what Justice Black meant when he penned the “no set of facts” sentence in Conley. Nor was that nonsensical reading of Conley ever the foundation for classic notice-pleading precedents like Scheuer, Leatherman, or Swierkiewicz. But it was only this straw-man reading of Conley that Twombly “retired.”
Once Twombly’s handling of Conley is clarified, this reality remains: there is not a single meaningful aspect of pre-Twombly case law that is explicitly rejected by Twombly or Iqbal. From the standpoint of the lower federal courts, at least, any approach to pleading that would defy pre-Twombly Supreme Court precedent is highly suspect.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Contextualizing Civil Procedure: Teaching Through a Semester-Long Simulation, With a Twist
The following guest post is by David Oppenheimer (Berkeley) and is sponsored by West Academic.
Civil Procedure is the first-year course that most lacks a familiar context. Our students arrive with some understanding, however faulty, of the role of contracts, the existence of property, the problem of crime, and the phenomenon of personal injury. But Civil Procedure is a great mystery to them, and pleading and motion practice are at the heart of the mystery.
My response is to provide context by organizing the course around a semester-long simulation, with a twist.
The simulation is Oppenheimer, Leiwant, Schonberg, and Wheeler, Patt v. Donner: A Simulated Casefile for Learning Civil Procedure(Foundation Press 2014). (Leiwant, Schonberg, and Wheeler are the former students/RAs who helped me develop the casefile.) The case begins on the first day of class, with a fourteen-minute videotape of a client interview. Paula Patt is an Anthropology graduate student who just arrived in Berkeley. She applied to rent an apartment, and believes she was rejected because she has a five-year old daughter. She has come to the Berkeley Law Clinic for advice.
To watch the interview, go to: https://www.youtube.com/watch?v=KOIZccJlR0U.
Over the course of the semester the students, working in rotating groups with the casefile materials and on-line videos, will: draft a federal housing discrimination complaint; switch sides and move to dismiss the complaint as insufficient; move for a preliminary injunction when another apartment in the building becomes vacant; move to dismiss the absentee landlord/defendant for lack of personal jurisdiction; oppose the motion; move to amend the complaint to add a supplemental claim; move to intervene; move to compel discovery, or for a protective order; and negotiate a settlement. (A motion for summary judgment will be added next year.)
So, what’s the twist?
Each of the exercises is 90% complete when assigned. The students don’t spend time trying to figure out what a pleading or motion looks like, formatting the table of cases, or drafting the preliminary matters. They complete a nearly finished pleading or brief by drafting the key argument, thus applying the cases we’re studying in class to the facts provided in interviews and documents found in the file.
To learn more about the materials, and to download the videos and sample exercise answers, go to: See www.civilprocedurecasefile.com
Tuesday, March 17, 2015
JOTWELL: Tidmarsh on Zimmerman on presidential settlements
The new Courts Law essay comes from Jay Tidmarsh (Notre Dame) reviewing Adam Zimmerman's Presidential Settlements, which explores the power of the President to resolve large-scale disputes, even at the expense of the rights of individual claimants.
Scope of injunctions
A recurring problem in the marriage-equality litigation--not only in Alabama, although it has obviously reared its head there--is confusion about the scope of a civil rights injunction and declaratory judgment. The constant refrain from me and many others is that any injunction applies only as to the named defendant(s) and as to the named plaintiffs. The injunction--as opposed to the court's reasoning and the power of precedent--does not legally compel anyone else to do anything or for the defendant to do anything as to any person not named as a plaintiff. But there has been pushback (particularly in a Con Law prof listserv conversation), particularly over the lack of SCOTUS precedent explicitly establishing this point.
In both cases, multiple people wanted to engage in particular conduct but were prohibited from doing so by a state or local law--handbilling outside a shopping center in Steffel, perating nude-dancing establishments in Doran--that arguably violated the First Amendment. Also in both cases, one person was a defendant in an ongoing state criminal prosecution. And in both cases, SCOTUS held that Younger did not bar the action by those people who were not parties to those ongoing state proceedings. The key was that the federal action (and resulting injunction or declaratory judgment) would not interfere with any ongoing state proceeding, since the federal plaintiffs were not involved in any such proceedings, so there were no comity problems.
But implicit in both decisions is that the federal injunction also would not interfere with the pending proceeding against a different person, even when instituted by the same government official. In other words, enjoining Doran from prosecuting Salem Inn did not prohibit him from continuing to prosecute M&L (the bar that had violated the ordinance and been issued a summons) and enjoining Thompson from prosecuting Steffel did not prohibit him from continuing to prosecute Steffel's friend (who already had been charged with criminal trespass). This must mean that the injunction binds only the named defendant as to the named plaintiff. At most, the federal court's reasoning might convince the official to drop the state case. But he would not have been "ignoring" or "defying" the federal court to continue with the state proceeding against someone other than the federal plaintiff because he carried no legal obligation as to any other person. If enjoining Doran as to Salem also would have enjoined him as to M&L, then the Younger analysis would have changed, because the injunction as to Salem would have interfered with the ongoing state proceeding.
We can see the parallel to the federal litigation in Alabama. A federal court has enjoined Probate Judge Don Davis from enforcing the state's SSM ban as to the four or five couples in Strawser, just as the federal court enjoined Doran not to enforce the nude-dancing ordinance against Salem. But that injunction cannot prohibit Davis from enforcing the ban as to any other non-party couple (by not granting them a license), just as the injunction could not prohibit Doran from enforcing the ordinance against M&L, which no longer was a party to the federal action.
Again, SCOTUS did not speak about the scope of injunctions in either Doran or Steffel. But it clearly understood injunctions in this way. And that, it seems to me, resolves at least this part of the shouting in Alabama.
One Last Post on Omitted Variables: CompStat, Politics, and Immigration
I’d like to return now the Brennan Center report on incarceration and crime. In my previous string of posts, I’ve looked at the problems that could arise from its failure to include variables the writers themselves described as potentially important. I’d like to draw attention to one more glaring OVB problem with the city-level model which sadly renders it basically unusable, and then look at some terms that could matter which the report does not even touch on.
First, the city-level regression. The goal of the city-level regression was to gain some insight into whether CompStat matters. I talked a bit about the problems with this variable before, but reading the report more closely, I noticed another major flaw with the city-level regressions. This is their model:
CityCrime = b0 + b1CompStat + b2NumberPolice + e
In other words, the paper regresses city crime on whether the city has CompStat and the number of police. That’s it. As far as I can tell—see p. 107 and tell me if I am missing something (that’s not sarcasm: I genuinely feel like I must be missing something)—there are no other terms in the model.This is surprising, because the report consistently—and correctly—points out all the factors that shape crime rates. Cities differ in lead content, in abortion rates, in wealth, in unemployment, in percent black and percent young, etc., etc., etc. But none of these variables appear to be included.
If these variables matter at the state level, they must matter at the city level, since crime is concentrated in cities, so state models are, more so than not, just picking up aggregate urban effects. This is a majorly underspecified model.
It is impossible to figure out how this biases the CompStat variable. Too many terms with too many effects are missing. But it does mean that whatever effect the model reports can’t tell us anything about what CompStat does or does not do.
* * *
Now on to the missing omitted variables. Perhaps the most obvious missing variable is anything related to politics. The connection between politics and incarceration is clear, if somewhat misunderstood. The conventional wisdom is that the redder the state, the more willing it is to lock someone up. The more nuanced view appears to be that more-Republican legislatures are more willing to lock people up, but only when their majority is more at risk. It’s a defensive reaction more than a positive political goal.
But regardless, politics influences incarceration. What, though, is the effect of politics on crime, after accounting for its impact on incarceration, policing, etc.? Michael Tonry, for one, has suggested that trends in both crime and incarceration track underlying political values: as society becomes more stable, that social stability pushes down crime rates but also pushes up the distaste for any sort of deviance.
In other words, tougher-on-crime rhetoric could reflect underlying changing social values that both push against crime and push up incarceration.* If true, this omission actually works against the Brennan Center’s hypothesis, since it makes incarceration look more effective than it is.
(Note, as a total tangent, that Tonry’s theory could also provide the causal mechanism for Bernard Harcourt’s well-documented asylum/prison/crime finding.**)
There could be other links as well. The main idea is that it is likely that whatever attitudinal shifts change incarceration rates surely have some effect—either directly or via other terms that are omitted from the model—on crime.
Another missing variable here is immigration. There is a growing body of literature indicating that immigrants generally reduce crime. They move into higher-crime areas (since those are more affordable) but do not engage in crime themselves, or at least not as similarly high levels.
So the immigration-crime link is clear. How about the immigration-incarceration link? This one may be a little trickier. But so long as either (1) legal immigrants consistently vote more left or more right in ways that directly shape a state’s willingness to incarcerate or (2) an increase in the number illegal immigrants*** changes the voting electorate’s overall desire to punish, a sort of immigrant-threat theory, then the correlation exists and bias is here.
I’ll stop there. I think the point should be clear by now, though. Not only did the authors overlook variables that they admitted were potentially important, but they failed to think about other critical terms that could have, and likely do, matter. All of which adds up to a simple point:
Given the number of biases hammering at the incarceration variables, many (but not all) of them likely leading to the model understating the effectiveness of incarceration, we should be very, very careful before claiming that incarceration now has no effect on crime. Its effect could be diminishing (I’d be stunned if that weren’t true), and it could no longer be cost effective (on the margin, I’d be really surprised if that weren’t true too). But to say its effect is zero is to put far too much weight on a model that is far, far too weak.
* Keep in mind that simply comparing crime rates in redder and bluer states tells us little about this theory’s accuracy. Even if redder states have higher crime rates than bluer states, their crime rates may have been higher still but for the social shift, and that’s the relevant counterfactual comparison.
** Harcourt’s well-known studies define “total confinement” as the incarcerated population plus the asylum population, and he finds that (1) the “total confinement” rate in the 1950s rivaled that in the 1990s and 2000s, only by locking people up in asylums, not prisons, and (2) murder rates and “total confinement” rates move in closely inverted way (more confinement, less murder, regardless of whether we are locking people up in prisons or asylums).
What makes these results so strange is that the population locked up in asylums in 1950s was generally older, more female, and more likely to be white that locked up in prisons in the 1990s: it was a population less likely to commit murder. So why did murder decline even when locking up older, white women? Maybe we’re looking at this wrong. Maybe when things are “more stable” crime is low but our tolerance for deviance is low as well. The low tolerance for deviance drives down crime, but also encourages greater confinement. Where that confinement takes place and who is confined is less important than the underlying social norm shift that drives that change.
*** Or undocumented workers. I’ve long wondered if there is a way to refer to illegal aliens/undocumented workers in a way that avoids appearing to take a side in immigration debates. I haven’t come across a “neutral” term yet.
Judge Granade refused to stay the preliminary injunction against Probate Judge Don Davis ordering him not to enforce the state SSM ban in deciding on marriage licenses. The linked story insists that this now creates a conflict for Davis, as he remains under both the state mandamus declaring the SSM ban constitutionally valid and prohibiting him from issuing licenses to same-sex couples and a federal injunction declaring the ban invalid and ordering him to issue licenses.
But is there actually a conflict? Granade has not yet acted on the plaintiffs' motion to amend and certify a class action. Without that, what we have against him is a federal declaratory judgment of constitutional invalidity that is persuasive-only and an injunction that he already has satisfied as to the currently named plaintiffs (there are four or five at this point, all of whom have been granted licenses). So Davis is under no current federal obligation to issue a license to anyone who does not already have one, thus he faces no conflict with the mandamus prohibiting him from issuing licenses to same-sex couples. Judge Granade's opinion by itself imposes no obligation on him to do anything, so it alone does not create conflicting obligations. That is the fundamental mistake everyone is making.
Fortuitously, here is Will Baude (Chicago) making a similar argument in The Times,* not as to marriage but as to the Affordable Care Act. Baude argues that, if the plaintiffs prevail in King, the administration can comply with the Court's judgment as to the four named plaintiffs, but continue granting subsidies to everyone else, since the Court's order does not apply to them and nothing requires the government to extend the reasoning of an opinion to other people. (H/T: My colleague Tom Baker, who refers to this as the "Dred Scott Move"). In essence, the state mandamus is forcing Davis to do the same--not extend Judge Granade's reasoning to other couples.
If the administration can legally (even if not politically) do this with a Supreme Court opinion, then certainly Don Davis can legally do this with an opinion from Judge Granade.
* On a different note: The headline on Will's op-ed--Could Obama Bypass the Supreme Court--perfectly captures the media's fundamental confusion about how judicial decisionmaking operates. Will's very point is that Obama would not be bypassing the Supreme Court at all in doing this, that he would be complying with the Court's order but not extending its reasoning, which typically is done only as a matter of convenience (to avoid getting sued again and again), not legal obligation. So in no way would this be "bypassing" anything. The headline writer clearly missed that point.
Fiduciary Duty, Higher Education, and the Zone of Insolvency
Questions continue to emerge about the situation at Sweet Briar and the decision-making process that led to its closure, and the situation seems destined for litigation. One of the issues that seems to run through the discourse, though, is one I’ve been thinking about for a few years: to whom do the college decision-makers owe a fiduciary duty?
A letter from Virginia State Senator J. Chapman "Chap" Petersen to Attorney General Mark Herring raises the question explicitly. The letter questions the legality of the announced closure, asks for an opinion on the legal status of restricted donations, and asks “Does the Board have a fiduciary duty to protect the interests of donors and students, as well as the mission of the College?”
The issue of fiduciary duty presents an interesting question, and I would add a follow-up: does that fiduciary duty change (or should it) when a nonprofit institution is operating in the so-called “zone of insolvency”?In recent decades, colleges and universities have attempted to act more like businesses (the so-called “corporatization” of higher education) and, in doing so, may have acted in ways that are inconsistent with nonprofit principles. In particular, I suspect that the increasing spiral of rising tuition and concomitant discounts is one of the leading causes of financial distress in higher education—and it may well be that prior Board decisions underlie Sweet Briar's current financial crisis.
But regardless of how Sweet Briar got to this point, whose interests should now be paramount? I think there is no doubt that the Board owes a duty to the “mission of the College.” But how is that best served? The stated mission of the College is to educate women—but there are far more options for women’s education now than there were at the college’s founding, making it appear less important that that mission be served by Sweet Briar College. I also think there is a strong argument that colleges and universities have a fiduciary duty to act in the best interest of their students. I suspect that there is a contractual duty (though I am doubtful there is a fiduciary one) to donors; restricted funds probably should and will go back to donors or be distributed under cy pres principles.
There may be some conflict between the interests of educational goals, students, and donors. Nonetheless, I think that the main source of tension and potential conflict arises from an idea not actually stated in Senator Peterson’s letter—the idea that the Board could also have a duty to the institution itself. When a nonprofit institution is financially solvent, it may be reasonable to think in terms of a trustee’s duty to protect the institution and its future; ideally, the interests of the institution would be aligned with the interests of the institution's mission. When the institution is not financially solvent, however—and when strategies to gain solvency would seem to conflict with the institution’s mission—then there is a significant potential for a conflict of interest. The restriction of nonprofit status (exchanged for some nice tax breaks) suggest that the interests of the institution (and its management, including faculty) have to take a back seat in the face of such a conflict. I don't know if the Sweet Briar board made the right call, and I am troubled by a reported lack of transparency in its decision-making. For Sweet Briar, questions of power, duty, and potential conflicts will likely get hashed out in court.
Monday, March 16, 2015
The Step-Ahead Scholar
I am a birder. I regularly go outside, with a pair of binoculars, and look for birds. Many birders keep a list of all the bird species they've seen. The internet has enabled birders to announce sightings of birds instantaneously, which leads to chases from those who have never seen the reported species. Sometimes you find it, sometimes you don't. Sometimes you go looking over and over again, and don't see it. Those birds becomes your "nemesis birds." They aren't rare, but every time you go look for one, you can't find it.
There's an opposite experience I have sometimes when it comes to scholarship. I'll get an idea, play with it for a couple of days, and then hit Westlaw. But instead of going to look for something and not being able to find it, I go out hoping not to find something that I suspect is probably out there. Several times, I've found that something I didn't want to find, and more than once it's been the same scholar who not only had already had the idea, but had already written a paper.
One could think of these people as nemesis scholars, but that's the wrong connotation for me. These are scholars who are reliably productive and thoughtful, with their fingers on the pulse of their fields. They don't foreclose our writing, but instead they provoke us with their ideas and challenge us to keep up. I prefer to call them Step-Ahead scholars.
One accolade for writing scholarship might be to be named as someone's Step-Ahead scholar. So in the spirit of celebrating those who've beat us to the punch before, I'll name one of mine: Tamar Birckhead. It seems like every time I turn around, Tamar has written a comprehensive, persuasive and wonderful paper. She's done it with juvenile interrogation, she's done it with childhood, and she's done it with solitary confinement.
Of course, despite their prescience (I imagine Tamar is already planning quesadillas for dinner and beginning a re-read of Bill Stuntz's The Collapse of American Criminal Justice, because that's what struck me as a good plan for tonight) it's rare that someone has said just what you'd like to say about a topic. And if an idea is good enough, it's good enough to say twice. But still, I'm not alone in finding these folks, am I? Anyone else wish to confess a step-ahead scholar?
Recently a call for nominations came out on the civil procedure listserv: what's the worst civil procedure case ever. Nominations poured in--even as Pepperdine's excellent symposium on this worst topic was all-but-ignored. Sadly, recency bias trumped careful thought, and a plurality of respondents focused on Twiqbal. In some ways this is an unsurprising result. Twiqbal hit a sweet spot for modern scholars. The decisions together appear to be politically conservative (fitting modern progressives' newfound suspicion of the Supreme Court); they cry out for empirical examination (fitting modern scholars' newfound love of counting things); and they produce a test whose indeterminacy makes socratic dissection easy.
But here's the thing: dozens of scholars have spent enormous effort on these problems, and have found essentially no observable effects on party and judge behavior, whether in or out of Court. In that way, Twiqbal is a black hole for scholarship -- its sucks in quants and non-quants alike in, but nothing comes out.
Consider two recent papers -- one by Jonah Gelbach, forthcoming in Stanford, and one by Roger Michalski and Abby Wood, under review. As a part of a dazzling empirical & game-theoretic analysis, Gelbach points out that "a reasonable observer could conclude that the heated debates over the empirical evidence on Rule 12(b)(6) motion grant rates haven’t—couldn’t—shed any light at all on the actual effects of Twombly and Iqbal." (Emphasis added.) Michalski and Wood, studying state adoption of Twiqbal, conclude that whether "at the federal or state level, attorneys and judges are either not as attuned to procedural changes as many commentators think they are, or plaintiffs were already pleading with factual specificity so as to negotiate earlier and more favorable settlements." And yet, as they point out, "many academics, practitioners, and commentators simply refuse to believe that the switch from notice pleading to plausibility pleading would not have an empirical effect."
What's going on? Is this motivated cognition by progressive proceduralists, who can't admit that the worst cases of their generation (or any!) had no measurable effects? (That's not to say that Twiqbal hasn't had an effect in the world - just not one that is observable.) Because their priors are so strong, later evidence is discounted. As such, Twiqbal is quickly becoming a progressive proceduralist's shibboleth: to belong to the academy community (and to be welcome at conferences), one has to agree that plausible pleading is implausible, evil, and otherwise wrongheaded. Defending the decision is like defending Lochner. It can be done, but you really ought to teach at Mason.
Or is it something else? Maybe Twiqbal has attracted attention not because it actually represents a change in practice today (after all, no one was truly engaging in notice pleading) but rather because the cases represent a watershed in procedure - the beginning of a return to a pre-1938 code or fact pleading regime. Like Dole or Printz, it's a signal of a revolution that's coming. My colleague Craig Green has worked over the last several years to identify certain cases as iconic, particularly retrospectively -- will Twiqbal be such an icon in another few generations?
Defending the barely defensible
This weekend, I published two guest commentaries for JURIST defending some reprehensible folks. First, I argue that Oklahoma's expulsion of the SAE members over the racist chant on the bus probably violates the First Amendment. Second, I try to bring some procedural sanity to the discussion of same-sex marriage in Alabama (this puts together everything I have been writing here for the past month or so).
The Chief Justice Reads Law Reviews
Several years ago, Chief Justice Roberts offered some thoughtful remarks on the substance of law review articles. Some have pointed to the Chief's comments as evidence that law reviews are generally worthless. In the past, I’ve questioned that conclusion by noting that the justices regularly cite scholarly work. In this post, I approach this issue in a somewhat different way by showing that the Chief Justice himself regularly cites law review articles in his judicial opinions.
Here are the key remarks from the Chief Justice:
Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.
If the academy wants to deal with the legal issues at a particularly abstract, philosophical level, that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.
Commentators have responded to these remarks in a number of ways. Some have agreed with the Chief Justice’s suggestion that scholars do and perhaps should pursue valuable goals other than being useful to judges. (The Chief seems to have had something like this in mind when he said: “that’s great.”) Others have pointed out that abstract research today can indirectly lead to practical doctrinal applications tomorrow, somewhat like the way that basic scientific research contributes to future innovations in applied science. And still others have suggested that "90% of everything is crap" (or carp), and we shouldn’t expect anything else of law reviews.
Instead of comprehensively addressing the law review debate, I just want to make a simple point: When considering the Chief Justice’s critique, it’s worth keeping in mind that the Chief Justice himself is in fact a consumer of law review articles and regularly cites them in his judicial opinions. (Orin Kerr collected several of these examples back in 2012.)
Here is a non-exhaustive list of examples taken from opinions that the Chief has authored during his tenure at the Supreme Court.
1. Sanchez-Llamas v. Oregon (2006)
- Bradley, Mapp Goes Abroad, 52 Case W. Res. L.Rev. 375, 399–400 (2001)
2. Jones v. Bock (2007)
- Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 533 (1947)
3. Baze v. Rees (2008)
- Denno, Getting to Death: Are Executions Constitutional? 82 Iowa S 42L.Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution)
- Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L.Rev. 49, 105, n. 366 (2007) (collecting cases in which claimants cited the Lancet study)
4. Beard v. Kindler (2009)
- See Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L.Rev. 1128, 1140 (1986) (‘‘[R]efusals to exercise discretion do not form an important independent category under the inadequate state ground doctrine’’)
5. Herring v. United States (2009)
- Judge Friendly wrote that ‘‘[t]he beneficent aim of the exclusionary rule to deter police misconduct can be sufficiently accomplished by a practice outlawing evidence obtained by flagrant or deliberate violation of rights.’’ The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L.Rev. 929, 953 (1965) (footnotes omitted)
6. District Attorney’s Office v. Osborne (2009)
- Garrett, Claiming Innocence, 92 Minn. L. Rev 1629, 1719 (2008) (surveying state statutes)
- Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 159, n. 87 (1970).
7. Northwest Austin Municipal District v. Holder (2009)
- See Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum. L. Rev. 1710 (2004)
- Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174, 208 (2007) ("The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would ... disrupt settled expectations")
8. Miller v. Alabama (2012) (dissent)
- Alschuler, The Changing Purposes of Criminal Punishment, 70 U. Chi. L. Rev. 1, 1–13 (2003)
9. Filarsky v. Delia (2012)
- Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 598–599, n. 121, 619
- Sklansky, The Private Police, 46 UCLA L.Rev. 1165, 1210 (1999) (footnotes and internal quotation marks omitted)
10. Hosanna Tabor v. EEOC (2012)
- McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L.Rev. 1409, 1422 (1990)
11. Kiobel v. Royal Dutch Petroleum (2013)
- See Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 494 (1986).
- See Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587, 641–642 (2002)
12. Marek v. Lane (2013) (statement respecting denial of cert)
- See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L.Rev. 617, 653–656 (2010)
13. City of Arlington, TX v. FCC (2013) (dissenting opinion)
- Monaghan, Marbury and the Administrative State, 83 Colum. L.Rev. 1, 27-28 (1983) (“the court is not abdicating its constitutional duty to `say what the law is' by deferring to agency interpretations of law: it is simply applying the law as `made' by the authorized law-making entity”)
- Our “task is to fix the boundaries of delegated authority,” Monaghan, 83 Colum. L. Rev., at 27; that is not a task we can delegate to the agency
- Sales & Adler, The Rest is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L.Rev. 1497, 1564 (2009) ("if delegation really is antecedent to deference, as Mead insists, it cannot be that courts should defer to an agency's views on whether a delegation has taken place").
- See Merrill & Hickman, Chevron's Domain, 89 Geo. L.Rev. 833, 910 (2001)
14. Riley v. CA (2013)
- See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403, 404-405 (2013)
15. McCullen v. Coakley (2014)
- See Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L.Rev. 413, 451-452 (1996).
Many of these cites go to points of fact about the current or historical state of the law, while others make more analytical or argumentative points about how best to understand abstract legal issues. To be sure, some of the cites are to classic works that might transcend any critique of current law reviews. (Justice Frankfurter's and Judge Friendly's writings most clearly fit this bill.) But most of the listed examples are to works of a relatively recent vintage.
The listed cites likely understate the Chief’s interest in law reviews, since he presumably considers many materials that, for one reason or another, don’t actually end up appearing in his published opinions. And, to repeat, the above list is not exhaustive. Indeed, I may have overlooked some cites in the very opinions listed above. (Please feel free to add other examples in the comments.)
The fact that law review citations regularly appear in the Chief Justice’s judicial opinions casts the Chief’s famous critique of law reviews in a different light. Instead of taking the position that law reviews are generally irrelevant to the Court’s business, perhaps the Chief meant to convey that law reviews could or should be relevant to courts even more often than they currently are.
It’s also worth noting that the Chief often cites other scholarly sources, such as historical treatises written by scholars of previous generations. Those obviously aren’t what the Chief was talking about in his critical remarks, but it’s worth considering the possibility that a lot—not all—of today’s scholarship will be useful to later historians who want to know how those strange people of 2015 thought about things.
Also omitted from the above list are a number of cites to books written by legal scholars, such as the Chief Justice’s cite in Baze v. Rees to my colleague Stuart Banner’s book The Death Penalty: An American History. And the list of course also omits cites to scholars’ amicus briefs, wherein academics apply their scholarly work to particular cases. Those briefs often build on prior scholarly work while eliminating the need to cite the underlying work directly.
None of this resolves the debate about law reviews or proves that we live in the best of all law review worlds. (We don't.) But it does seem notable that perhaps the most salient recent critique of law reviews came from a regular consumer of those very materials.
[UPDATE: I've added the Sales & Adler cite pointed out by a commenter. UPDATE2: I have now noticed and added the Merrill & Hickman cite.]
Saturday, March 14, 2015
NYPD and Social Media
On Wednesday, I remarked that I was pleased to see technology included as a major feature of the President's Policing Task Force Report. Today, a follow up on the police's use of social media. Two interesting items have come to my attention in the past couple of days involving the NYPD's use of social media, one unofficial and ugly, one official and promising.
First, many readers have probably seen the article in Capital New York discussing the edits made from IP addresses at One Police Plaza (NYPD headquarters) to Eric Garner's, Sean Bell's, and Amadou Diallo's Wikipedia pages. An example of an edit from Garner's entry: “ 'Garner raised both his arms in the air' was changed to 'Garner flailed his arms about as he spoke.' ” Quite a different story.
Such partisan editing is not only problematic from a truth-seeking perspective, but also violates Wikipedia's policy of discouraging users from making edits that promote their own self interest.
The second, less reported, but equally interesting use of social media was a tweet from the official NYPD Twitter account. The tweet linked to an official response put out by the NYPD to an op-ed in the New York Post, usually a bastion of police support. The op-ed claimed that Commissioner Bill Bratton has blamed a rise in New York homicides on marijuana-related violence. It also implied that decreased arrests for marijuana sales may be to blame for the uptick in murders. The NYPD's response made clear that it did not believe the two were causally linked. This rapid, fact-based response to a speculative op-ed in a widely read New York newspaper is a great example of the way social media can be used by police departments to get ahead of unfounded stories and to disseminate information to the public quickly.
Friday, March 13, 2015
More categories: training v. teaching, and profession v. trade
In this post, I gave a quick overview of Linda Edwards' recent article in which she discusses various categorical approaches to the doctrine-skills debate, advancing a "foundational, bridge, and capstone" model. This discussion is important because we can't start talking about the proper allocation of resources to each category (a controversial question) until we understand the categories themselves.
I thought I would discuss a couple of more categories that she didn't cover but which I often heard discussed in the halls at the Army's law school.
There, the "are we a trade school or a law school" debate regularly came up. The school offers an LL.M. but also hosts a lot of CLE courses. Within the LL.M., when "skills" (or things that looked more like CLE) encroached upon the traditional "doctrine" ground, the debate would flare up. Variations of the debate included, "are we teaching or are we training?" My general response was, "Well, that depends on what those labels mean."The primary category is "adult education." The definition of this category is planned learning for adults (more formally, "activities intentionally designed for the purpose of bringing about learning among those whose age, social roles, or self-perception define them as adults," from Sharan B. Merriam & Ralph G. Brockett, The Profession and Practice of Adult Education (2007). This is the source for most of what follows).
This category excludes what you learn when you read on your own. And this excludes the teaching of children (the art and science of teaching children is pedagogy; the art and science of teaching adults is andragogy).
Within this category, we can make subcategories based on the goals of that particular program of adult education. Generally, the goals of adult education are to meet the needs of individuals, institutions, or society (or a combination of those). When institutions conduct adult education just to meet the needs of that institution (say, the Army conducts adult education to meet the needs of the Army, or IBM conducts adult education to meet the needs of IBM), then adult education theorists call that "training."
The education that occurs in most law schools does not fall into this category -- most law schools are educating students to meet the needs of broader society. The education that occurs at the Army's law school would fall into this category, though. The goal of that education is to meet the needs of the military institution. At the Army's law school, they are teaching and they are training. Training is a subset of teaching. So asking, "Are we teaching or training," doesn't make much sense. ("Are we eating fruit or apples?")
When it comes to resource allocation, as in "We are doing too much training and not enough teaching," I'm not sure that this category does much work. Unless I have the power to change the institution's goals, it doesn't really matter if I call this training or teaching.
Going back to the larger category of adult education, we can make different subcategories for "profession" and "trade." Earlier, I provided James Burk's definition of "profession," which is a "high status occupation whose members apply abstract knowledge to solve problems in a particular field of endeavor." In contrast, according to Webster's, a trade is "an occupation requiring manual or mechanical skill."
Where many people get uncomfortable is when the teaching shifts from the abstract law to the concrete, "mechanical" skills. Geoffrey Millerson provides a refinement of the definition of "profession" that helps with this discomfort: "A profession is higher-grade, non-manual occupation. Non-manual, in this context, implies that the intellectual, or practical, technique involved depends on a substantial theoretical foundation." That is what we find in law (cross-examination or negotiation techniques, for example) and medicine (incision or bedside manners techniques, for example). These "mechanical" skills are still professional skills, not trade skills.
Based on that, the Army's law school -- no matter how many resources are devoted to skills -- is still a professional school. By definition, it can't be a trade school.
Like the "training" category, when it comes to resource allocation, as in "We need to avoid stuff that looks like "trade craft" and focus on the "law," this categorization scheme doesn't do much work. Just about everything we do is professional, not trade. (Maybe law office management is trade?)
In contrast, the "foundation, bridge, and capstone" model does seem useful when it comes to resource allocation. Linda Edwards does not tells us what she thinks the proper allocation should be -- she is just trying to get us to reframe the problem -- and resource allocation is where the controversy resides. (Maybe Bloom's taxonomy pyramid is close. Anything that pretty must be right.)