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Friday, July 31, 2015

Silicon Valley, Meet Labor Law

I worked on Google’s Global Ethics & Compliance team from 2007-2010 and at that time the thought of labor law having anything to say about the happenings of the Bay Area tech scene seemed unimaginable to most people – including those practicing law. Employment, sure, but not labor. (I’ve found this to be a bit true in academia as well – labor conjures up visions of coalminers or public school teachers but definitely not anybody working at tech companies.) Well, the other day a friend sent me a Wired article titled, “what happens when you talk about salaries at Google” and it reminded me of why that view can get companies into some real trouble.

The article itself is just a string of tweets from a former Google talking about what happened when she decided to conduct a salary transparency experiment at Google. Long story short, she and some coworkers got talking about salaries on the internal social network (I take it she’s talking about one of Google’s many internal email list, like misc), decided to make a spreadsheet where employees could add their own salary information, and then posted a link to the form on her internal profile.

The thing took off. Other people built the spreadsheet out to include fields on gender and a bunch of other stuff that made it possible to get even more out of the data, as it wont to happen when a bunch of smart people get going on something they find interesting (this quality is also a big part of what makes working at Google great). The next week the Googler who started the project was “invited” (I love that) to talk with her manager. Apparently her manager and the higher ups weren’t happy about the project. And, according to this Googler, her manager said “don’t you know what could happen?” And then something else interesting happened, though it takes a second to explain.

At Google, Googlers can give each other what are called “peer bonuses.” Basically, if someone else did something cool and you want to recognize them for it, you can easily click a few things, say a few words about why they’re great, and bam – the person gets $150 in their next paycheck. It’s pretty cool and, though my memory is hazy, people give them for all sorts of reasons. Someone helped you with a work project? Send away. Someone organized a fun bike ride or group outing? That can be peer bonus worthy, too. While the manager of the person receiving the award has to approve it, it was basically a sure thing. (NB: like the Googler writing, I also didn’t realize until reading this article that there was any manager approval of peer bonuses at all. No doubt because I, too, had never heard of one being rejected.) Anyway, while this Googler was receiving peer bonuses for creating this salary sheet, her manager was rejecting them all. Interestingly, while the Googler in question, a (I believe) black woman, was having her peer bonuses denied by her manager, a white man who was also involved in setting up the sheet was getting peer bonuses and those were all approved. Meanwhile, the spreadsheet continues, people use it to talk to their managers about getting raises, and some actually succeed in getting them.  

This entire story is full of labor law (and internal compliance training) issues, some easier than others. Here are a couple:

  • Could the company prohibit employees from using the internal system to talk about salaries? From creating a spreadsheet, using internal tools, that discusses that? What about prohibiting employees from putting up status messages that direct other employees to the spreadsheet?
  • Can a manager call an employee in for a meeting about her promotion of salary transparency? And if so, can the manager say “don’t you know what could happen” about it?
  • If the company has a peer bonus system where bonuses are virtually automatic though have nominally required manager approval, can a manager start rejecting bonuses if they are tied to the employee promoting salary transparency? What if bonuses are supposed to be given only for work-related activities (even though that hasn’t been enforced much, if at all, in the past)

Whether tech companies realize it or not, Section 7 rights are alive and well. And with the unionization of tech shuttle drivers and 140 Google Express workers seeking the same, I wouldn’t be surprised if labor issues start coming up more and more in the Bay Area – including, perhaps most interestingly, for those who we often forget might have them at all. 

Posted by Heather Whitney on July 31, 2015 at 12:49 PM | Permalink | Comments (1)

The End of Ambition?

60-days-green-white-mdI hear that sixty is the new forty.  I hope so.  It's the end of the month, and I'm thinking about ends.  And if the bromide is true, I'm premature.  But here's a trigger warning anyway: what follows is about "ought" fading into "is" or "becoming" fading into "being." It's also hopelessly self-indulgent, but my excuse is that I just got the schedule of faculty meetings for the next year.

By a quirk of career fate, I'm a bit older than most of my professional cohort (in this incarnation).  Next year  will be the fortieth anniversary of my first day of law school, something that flips me out, but also means that I was puzzling through Groves v. John Wunder before the majority (I suspect) of the readers of this blog were born. And it means that most of you will have no conception at all of the inner sense of being closer to the end than to the beginning. There's a hint of it in somebody like that young whippersnapper, President Obama, realizing that he has run his last campaign, but he really does have a whole career ahead of him still.  (On January 20, 2017, he'll be 55, which is only a year older than I was when I got a full time permanent faculty position.)

Running the last campaign is a nice metaphor, because campaigns are about becoming. Careers are a continuing series of campaigns - getting a job, making partner, getting tenure, getting promoted. NPR just ran an interview with Woody Allen, who turns 80 (!!!!) on his next birthday. To the extent that professors create through their writing, those pieces, like the movies that Woody keeps making, are becomings. But those are slightly different becomings, more like unfoldings, and not like steps up a ladder.

UnknownMy friend, the philosopher Susan Neiman, has a new and neat little book about becoming and being, entitled Why Grow Up? Subversive Thoughts for an Infantile Age (New York Times Book Review by A.O. Scott here).  Susan is a fabulous translator of Enlightenment philosophy (particularly Kant) into practical wisdom. I don't necessarily share her outcomes (she's a lot farther to the left than I, a passionate moderate) but given her fundamental message, there's a lot of room for reasonable differences.  That's because adulthood is (to quote Scott's pithy summary) "the endless navigation of the gulf between the world as we encounter it and the way we believe it should be." Or as Susan says, it "requires facing squarely the fact that you will never get the world you want, while refusing to talk yourself out of wanting it."

So adulthood is also a mediation between simply being, on one hand, and continuing to become, on the other. Maybe being closer to the end than the beginning means that you have to be more selective about your becomings. The practical translation of that thought is the expression "life is too short," something that takes on more quantitative meaning the older you get, and particularly during faculty and committee meetings.

Even this blog post is a little becoming, because when I'm done with it, I've made the world a little more like it ought to be than it was (at least for me).  Each paragraph, each article, each book, each lecture, each student one influences is a little becoming.  But is accepting that as the rest of one's career also the end of ambition?

Posted by Jeff Lipshaw on July 31, 2015 at 08:46 AM in Blogging, Deliberation and voices, Lipshaw | Permalink | Comments (1)

Thursday, July 30, 2015

Law-of-Baseball Bleg

I already have the title for a future paper--"Tie Goes to the Runner" and Other Myths of Baseball Rules. The paper will explore baseball rules that everyone believes/assumes are one way and that often are captured in a common, pithy cliche; in fact, they are entirely different, if not the precise opposite, from what everyone thinks. For example, the one from the paper title. As kids, we always yelled "tie goes to the runner" to justify having a runner be safe when the play was too close to call; in fact, the runner is out unless he affirmatively beats the throw--in other words, tie goes to the fielder (Bruce Weber's As They See 'Em has a great discussion of this).

Now I just need some content. So far, I have identified five rules that fit the bill, thanks in part to suggestions from participants in a SEALS discussion group earlier this week: 1) Tie goes to the runner; 2) Infield Fly Rule only applies to balls on the infield; 3) "One base on an overthrow"; 4) "Hand is part of the bat" (so getting hit on hand when hand on bat is a foul ball); 5) The runner cannot run out of the baseline (this rule, and the common misunderstanding of it, came up during the 2013 World Series).

Can anyone think of others? Suggestions welcome in the comments.

Posted by Howard Wasserman on July 30, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (17)

Wednesday, July 29, 2015

SEALS thoughts

For a variety of geographic and other reasons, my SEALS participation this year involved just two days of driving the 50 miles to the Boca Resort. And I will have to miss the MarkelFest! Happy Hour. I did have two random thoughts after the jump.

1) I was struck by what I thought was the rise of the discussion group and an initial sense that discussion groups now outnumber panels. It turns out there still are more panels, although the numbers are almost even (excluding the New Scholars panels), but that still reflects a pretty significant increase in the number of discussion groups. And I see the benefits of having more discussion groups--they allow us to hear from more voices about more things and create more of a conversation than a panel of often-unrelated talks. Even the one panel I did (the SCOTUS Individual Rights Review) was conducted as more of a discussion format and was, I think, a lot of fun for just that reason.

2) Kudos to SEALS on the two-sided name tags, so that the name is showing no matter which side the plastic card is facing. Nothing worse than trying to place someone but their card is flipped over.

Posted by Howard Wasserman on July 29, 2015 at 05:51 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The Virtues and Vices of Casebook Supplements

My co-authors (Bill Banks, Steve Dycus, and Peter Raven-Hansen) and I have just put the finishing touches on the 2015-16 supplement to Aspen's (or is it Wolters Kluwer's?) National Security Law and Counterterrorism Law casebooks, which checks in just under 500 pages this year. Some of that length can be attributed to (1) the seismic changes that these fields have encountered in recent years (thanks, Obama!); and (2) the elapsed time since the last complete editions (2011 for the NSL book; 2012 for the CTL book). Indeed, we're already hard at work at the next editions of each of the books, which, if nothing else, should be ready in time to defeat the need for a 2016-17 supplement.

As pedagogically useful as putting together an annual supplement is, though, it got me thinking about the virtues and vices of casebook supplements more generally. And so I thought I'd sketch out, below the fold, what I see as some of the principal advantages and disadvantages of these enterprises--from the perspectives of authors, adopters, and users. But more than anything, I'm curious if folks agree with my lists--or think I'm missing obvious pros and cons to the world of the casebook supplement.

I.  The Virtues of Casebook Supplements

  1. Current-ness. This is the easy one: Like pocket parts in the good ole' days, supplements help to ensure that the classroom materials are current. In some fields, the value of current-ness may spring almost entirely from piquing student interest and curiosity by covering current "hot" topics. In others (like national security and counterterrorism law), current-ness is a virtual necessity, given how much the entire structure of the field can change in a short period (see, e.g., Edward Snowden), and not just how much individual aspects of the relevant doctrines can evolve. 
  2. Efficiency. It's certainly true, of course, that individual teachers can and should provide their own materials to satisfy the current-ness values noted above. But supplements are, from a market perspective, deeply efficient. Rather than having dozens of individual professors creating their own excerpts of overly lengthy opinions (I'm looking at you, Second Circuit), supplements centralize the labor.
  3. Continual pedagogical reassessment. It would be one thing, of course, if supplements were merely collated excerpts of new materials. But supplements also allow casebook authors to constantly revisit pedagogical choices made in the last edition--and to decide whether certain materials should be taught differently, whether in light of intervening developments or just further reflection. To that end, adopters and users of supplements benefit not just from the primary source materials excerpted and collated in the supplement, but from the pedagogical choices the authors make about which materials to include, how much those materials should be annotated with introductory discussion and/or notes and questions, and so on. As with everything else on this list, not all supplements are alike. But the more a supplement reflects a conscious choice about which (and how much of the) new materials should be included, the more pedagogically valuable it is as compared to DIY case excerpts.
  4. Making the next edition (somewhat) easier. Related but distinct from this last benefit, the work that authors put into the supplement should also, in theory, make the next edition of the book at least somewhat easier. After all, if the authors use the supplement as an annual opportunity to ensure that individual chapters are up-to-date and pedagogically coherent, it should be somewhat easier to produce a new edition once a critical mass of new material has accumulated. To be sure, the new edition of a book is likely to be more than just the sum of the previous supplements--but, based upon personal experience at least, it feels like a far lighter lift to plan a new edition when many of the updates have already been contemplated.

II.  The Vices of Casebook Supplements

  1. Cost to students. The vice of which I am the most mindful is the cost of supplements to students, especially in proportion to the supplement's utility. I've long thought that supplements are priced even more aggressively than the casebooks themselves, and have, at various points, declined to assign supplements because I was using too little of the material to justify the cost. My usual rule of thumb is that I need to assign at least 1/4 of a supplement before I'll ask my students to buy it, and even then, the supplement needs to do more than just excerpt cases. Of course, the increasing move toward electronic materials may mitigate at least some of these costs--but not get rid of them.
  2. Shelf-life. Related to the sticker price of the supplement is its terribly limited shelf-life. Although every book is different, over two-thirds of the material in our 2015-16 supplement, to take just one example, is new this year. Thus, supplements have zero resale value--and are, in many ways, a sunk cost to students.
  3. Labor costs. Given the above vices, along with information deficits (publishers aren't always on the ball about publicizing supplemental materials), the percentage of adopters who also adopt the supplement is never 100%, and may, in some cases, be far lower. And the lower that # is, the harder it is to justify the (often substantial) labor costs that go into producing a supplement. Again, every field is different. But speaking just for me and my co-authors, it took the better part of the past two months for the four of us to put together this year's edition--labor that we certainly enjoyed, but that is a fairly substantial investment. 

III.  Closing Reflections

I'm sure I've missed some obvious pros and cons in the above description, and would welcome folks' thoughts in the comments. I also suspect that the choice whether to assign a casebook supplement is deeply field- (and even casebook-) specific. And supplements play an increasingly interesting role in the potential transition to electronic course materials--perhaps providing real-time updates online will come to replace the annual print supplement (we already do both for our adopters). But insofar as these considerations can be generalized, the real question I keep grappling with is how we can maximize the upsides of supplements while minimizing their downsides...

Posted by Steve Vladeck on July 29, 2015 at 11:19 AM in Life of Law Schools, Steve Vladeck, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (28)

MarkelFest! at SEALS Thursday night

The annual MarkelFest! at SEALS will take place at 9:30 p.m. this Thursday, July 30,  at the Palm Court Bar at the Boca Resort. Steve (unfortunately, the only PermaPrawf who will still be there on Thursday) will be your host.

Apologies for the late notice. But spread the word around SEALS and thanks to everyone for helping maintain this SEALS tradition.

Posted by Howard Wasserman on July 29, 2015 at 09:00 AM in Blogging, Howard Wasserman | Permalink | Comments (1)

Tuesday, July 28, 2015

A Failure in the Market for Altruism

Earlier this month it came out that Whole Foods had been systematically overcharging for pre-packaged food, at least in New York. And that wasn’t the first time. Back in 2012, an investigation led by city attorneys in California also uncovered overcharging and Whole Foods ended up paying $800,000 in penalties in addition to starting a new internal compliance program to ensure it didn’t happen again. The company’s recent issues also rekindled criticism (originally raised back in 2014) that some of its fancy cheeses are the product of prison labor, though that fact is not disclosed to consumers.

At least in response to the pricing issue, the CEOs issued a video “apology,” stating that “straight up they made some mistakes” but those mistakes were unintentional, evinced by the fact that, “the mistakes are both in the customers’ favor and sometimes not in the customer’s favor.” And they were going to fix it first and foremost by giving workers more training and hiring a third-party auditor to make sure their practices are improving.

At first I found all this frustrating. The New York Department of Consumer Affairs did not find just pricing mistakes, where about half were under-charged and the other over. No, it found, as best as I can tell, systematic overcharging. So the CEOs reasoning for why customers should believe it wasn’t intentional is, at least without some actual evidence, misleading. And moreover, given that, the chances that the pricing issue was a result of employees lacking proper training strikes me as improbable. The stores seem to have had a policy of not weighing their pre-packaged products. That’s not a training issue at all. So in short, the whole thing smelled bad.

But there’s another question here. Whole Foods isn’t just any company. Its CEO, John Mackey, literally wrote the book “Conscious Capitalism.” (For those with shorter attention spans, he also wrote a HBR article on the same). The whole idea is that Whole Foods and others like it are “galvanized by higher purposes that serve, align and integrate the interests of all their major stakeholders … They endeavor to create financial, intellectual, social, cultural, emotional, spiritual, physical and ecological wealth for all their stakeholders” where the ultimate goal is to “create lasting value as the world evolves to even greater levels of prosperity, helping billions of people flourish and lead lives infused with passion, purpose, love and creativity – a world of freedom, harmony, prosperity, and compassion.”

Given all these moral platitudes (platitudes, to be clear, at least some customers buy into), shouldn’t Whole Foods be held to a higher standard? And if they are not – if between the prison labor and pricing issues not a single customer changed their purchasing habits, what are we to think about the possibility of consumer activism (seen through buying things that are fair trade or union made or sustainably sourced or green or from a “clean” supply chain, etc.) as a means to making the world better in any real sense?

In short: what are people who are trying to buy not just a product but a product made in conformity with other moral commitments doing? Are they paying more money simply so they feel the warm glow of being a do-gooder, irrespective of whether they actually are doing good? Or are they attempting to manifest in their purchasing decisions a commitment to substantive moral ends?

Consumer activism has unquestionably been a part of American history for quite some time. Quaker abolitionists promoted the buying of slavery-free cotton. I’m reading a great book right now about consumer organizing during the Seattle labor movement of 1919. This stuff can be real. But is it today? And if it’s not, how might we correct that market failure? Should we?  

Posted by Heather Whitney on July 28, 2015 at 01:12 PM in Corporate | Permalink | Comments (4)

The Art of Lawyering and Beyond

PkosuriPraveen Kosuri (left), the director of Penn Law School's entrepreneurship clinic, has a neat new piece, Beyond Gilson: The Art of Business Lawyering.  Here's the abstract:

Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients. Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.

What Professor Kosuri captures is that it’s a complex world out there, and trying to distill the essence of business lawyering through one particular science (rather than art) is going to be radically incomplete.

Nevertheless, his approach continues in an analytic tradition of identifying characteristics from the outside, and suggesting essentially that others, for want of a better word, mimic those characteristics. My view ups the stakes even more, because I think being a great business lawyer is not only beyond the acquisition of technical skills, it’s also beyond the acquisition of art. Stated more plainly, to learn the art, to acquire the characteristics Professor Kosuri describes, you have to want them first.

Which raises the question of teachability. I’m pretty sure we instill this affect, this emotional predisposition, more through our modeling of behavior than we do by way of teaching through our words.  There's been a lot of discussion of Atticus Finch in the last few weeks, and who knows how many people Harper Lee inspired to be lawyers through To Kill a Mockingbird (and, hence, the downer of finding out that he may not have been as godlike as previously thought). I confess that I have never read To Kill a Mockingbird, and have only seen parts of the movie. My lawyer hero was Henry Drummond from Inherit the Wind, the fictionalized Clarence Darrow, and his cross-examination (taken in large part from the Scopes trial transcripts) of Matthew Brady, the fictionalized William Jennings Bryan, was the apotheosis of lawyering.

Well, you grow up and it turns out that making a living as a litigator in, say, 1979 or 1985 isn't (for most of us) like trying the Scopes case. But that doesn't diminish the impact of "be like" as the source of one's desire to learn a particular way of practicing one's craft.

And isn't the hardest place either to teach or model "be like" from behind a podium in a lecture hall?

Posted by Jeff Lipshaw on July 28, 2015 at 08:02 AM in Article Spotlight, Corporate, Lipshaw | Permalink | Comments (1)

Monday, July 27, 2015

Call for Papers: "Doing Justice Without Doing Harm"

Call for Proposals

“Doing Justice without Doing Harm”

Pepperdine University School of Law, Malibu, California

March 11-12, 2016

 

We hope you will join us for the conference discussed below.  Mark your calendar, submit a proposal, and forward this message to blogs, list serves, and people who might be interested. Speakers already confirmed include the following: 

 

Barbara E. Armacost, Professor of Law, University of Virginia School of Law.

Rabbi Elliot Dorff, Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy, American Jewish University

Brian Fikkert, Professor of Economics and Community Development and the founder and President of the Chalmers Center for Economic Development at Covenant College.

Richard W. Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, Notre Dame Law School

Gary Haugen, founder and president of International Justice Mission.

Richard H. Sander, economist and Professor of Law, UCLA School of Law

Nicholas Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology at Yale University and Senior Research Fellow in the Institute for Advanced Studies in Culture at the University of Virginia

 

Their topics and bios are at the end of this message.   

 

Justice is a central theme in most secular and religious moral traditions, though there are significant disagreements about its content.  As Alasdair McIntyre has asked, “Whose Justice?”  During some periods of history there has been great optimism that the world was moving in a more just direction, generally followed by periods of great injustice and great disillusionment.  (We seem now to be experiencing the latter.) 

 

Our conference themes have ancient roots—“do justice” (Micah 6:8) and “do no harm” (Hippocrates).  The first theme is a call to do justice and to serve a hurting world.  What do our traditions say about justice to the 21st century?  What are the great injustices and causes of suffering in our world?  How might they be addressed by individuals, religious congregations, NGOs, and governments? 

 

A second theme (raised powerfully in Steve Corbett and Brian Fikkert’s book “When Helping Hurts”} will be how individuals, groups, and laws might avoid doing harm as we attempt to do good.  Attempts to help can generate dependence or harm bystanders.  The work of governments and NGOs can undercut local institutions like religious congregations and businesses that might address local problems.  Laws can have unintended consequences that do greater harm than good.  We need to make a difference, but to do so wisely.

 

Please join us for the conversation.  Panels of academics and people from a wide variety of organizations will address theory and practice--what works and what does not work. 

 

Questions to be addressed might include: 

-           What do our secular and religious traditions teach about justice and its place in the 21st century? 

-           What is the relationship between justice and love?

-           How can the law best be used to promote the ideals of justice.

-           What is social justice and what is its relationship with other forms of justice? 

-           What are the greatest injustices in our world and what can we do about them? 

-           What are the greatest injustices in our neighborhoods and what can we do about them?

-           What are examples of attempts to help the poor which have harmed them?

-           How can attempts to do justice lead to injustice?

-           How might we help those in the greatest need without harming them? 

 

If you would like to present a paper or organize a panel that fits within this broad range of themes, please submit your proposal by September 15, 2015 via email to[email protected]. Proposals should be two pages maximum and should include a short abstract and a bio.  

If you have questions about the substance of the conference, contact Bob Cochran[email protected] or Michael Helfand[email protected]  For questions about the details of the conference, contact Jenna Anderson [email protected] or (310) 506-6978

For information on the conference as it becomes available and to view details of past conferences, see:

http://law.pepperdine.edu/nootbaar/annual-conference/

The conference will be co-sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and its Glazer Institute for Jewish Studies. 

 

All our best,

Bob Cochran & Michael Helfand

Robert F. Cochran, Jr.

Louis D. Brandeis Professor of Law and

Director, Herbert and Elinor Nootbaar

      Institute on Law, Religion, and Ethics

 

Michael A. Helfand

Associate Professor of Law and

Associate Director, Glazer Institute for Jewish Studies

 

Pepperdine University School of Law

24255 Pacific Coast Highway

Malibu, California 90263-4611

Posted by Rick Garnett on July 27, 2015 at 04:08 PM in Rick Garnett | Permalink | Comments (3)

Sunday, July 26, 2015

Did Cosby's Lawyer blow the Attorney-Client Privilege?

Monique Pressley, a Public Defender Service alum, among other distinguished credentials, is one of Bill Cosby's new lawyers.  In an appearance on CNN, she explained that, on the one hand, "I'm not going to reveal client confidences. I'm counsel for Mr. Cosby and anything that he says to me is said in confidence."  But in the next breath she explained: "when his attorneys speak we are speaking for him. So when we speak and say that he denies all of the allegations and accusations then that is the statement of Bill Cosby."  I wonder if she might have blown the attorney-client privilege with that sort of statement. 

Many courts hold that "[t]he attorney-client privilege does not apply to communications that are intended to be disclosed to third parties or that in fact are so disclosed. It has been held that the disclosure of any meaningful part of a purportedly privileged communication waives the privilege as to the whole."  United States v. Rockwell Int'l, 897 F.2d 1255, 1265 (3d Cir. 1990).  If a statement "was intended for public relations purposes rather than legal purposes" it "is not privileged." Burton v. R.J. Reynolds Tobacco Co., 200 F.R.D. 661, 677 (D. Kan. 2001).  I have no doubt that an attorney legal review of client information to be sent to a public relations firm could well be privileged.  But if, as apparently happened here, a client engages attorneys to directly perform public relations rather than legal functions--or in any event to be a media representative--the client's statements to them are not privileged.  So, Ms. Pressley, do tell--what else did Mr. Cosby say?

UPDATE:  Thanks for the comments.   I agree with BDG and others that a lawyer trying a case speaking to the press, even about client testimony, would not operate as a waiver.  What I consider critical is that Ms. Pressley was apparently performing "public relations rather than legal functions," which I believe to be true based on the following. 

As of July 27, the two cases in ED Pa on PACER involving a William H. Cosby Jr., Green v. Cosby, 2:15-mc-00144-JP and Constand v. Cosby, 2:05-cv-01099-ER, reflect neither a notice of appearance nor a motion for pro hac vice admission of Ms. Pressley.  Green v. Cosby is related to two D. Mass. cases.  Ms. Pressley does not appear on the counsel list for either case.  She is not listed as counsel in Huth v. Cosby in the California Court of Appeals or Supreme Court.  Cosby's lawyers filed a major motion on July 21 in Constand v. Cosby; Ms. Pressley's name was not on it.   

Based on her non-involvement in the actual litigation of the cases, I take her precisely at her word when she was quoted as saying: "'My primary focus is to try to ensure that the reporting by the media is paying attention to the facts' in Cosby's latest legal filings, Pressley told USA Today this week."  That is, her job is to shape the media coverage, not to deal with the litigation as such.  Accordingly, there is strong authority that her work is not privileged:

Case law makes clear that “[a] media campaign is not a litigation strategy.” Haugh v. Schroder Inv. Mgmt. N. Am. Inc., 2003 WL 21998674, at *3 (S.D.N.Y. Aug. 25, 2003) (“Some attorneys may feel it is desirable at times to conduct a media campaign, but that does not transform their coordination of a campaign into legal advice.”). Thus, to the extent BGR was performing public relations functions, its participation in attorney-client communications resulted in a waiver—even if those functions were related to the various litigations in which Egiazaryan was embroiled.

Egiazaryan v. Zalmayev, 290 F.R.D. 421, 431 (S.D.N.Y. 2013).

his efforts have been concentrated heavily in media and public relations, lobbying, and political activism. But communications, even between lawyer and client, are not privileged unless they are made for the purpose of rendering legal advice or, to use another formulation, unless they relate to the rendition of “professional legal services.”

In re Chevron Corp., 749 F. Supp. 2d 141, 165 (S.D.N.Y.), aff'd sub nom. Lago Agrio Plaintiffs v. Chevron Corp., 409 F. App'x 393 (2d Cir. 2010).

JPMA asserts the privilege with respect to advice regarding lobbying, public relations, dealing with the media, and other non-privileged matters. Advice on these topics is not privileged, even if the advice comes from an attorney.

In re Bisphenol-A (BPA) Polycarbonate Plastic Products Liab. Litig., No. 08-1967-MD-W-ODS, 2011 WL 1136440, at *3 (W.D. Mo. Mar. 25, 2011).  As Mark Lamont Hill, Morehouse Professor of African American Studies, explained, she was hired to create credibility as a spokesperson.  Talking to the press about a case might well be a J.D.-preferred position, but certainly one does not have to be admitted to the bar to do it.  I mean, she's a minister, too, but her managing a media campaign is not covered by the clergy privilege.

Her hiring is ironic, because Ms. Pressley's twitter feed  contains an exchange which seems to support the victims.  On July 12, perhaps before she became involved in the case, she responded to a tweet asking: "If you could say one encouraging thing to a bullied victim, what would it be?" She answered: "Silence is not your friend.  Seek a safe space and speak up NOW.  There is strength in numbers."  I quite agree; I have not heard a theory on how the dozens of women could be lying.

Posted by Jack Chin on July 26, 2015 at 11:09 AM | Permalink | Comments (10)

Friday, July 24, 2015

Liability for Lifesaving Inventions?

I saw that Evenflo has produced a new car seat (which will be sold by Walmart), which is designed to "jingle" when a child is left in the car seat after the ignition turns off.  In light of the seemingly increasing number of horrific deaths of children accidentally left in carseats, this new car seat could be an important, lifesaving device.  And, yet, the lawyer in me found myself immediately wondering about the liability issues, and accompanying normative questions.  Walmart's director of corporate communications has apparently advertised that "this car seat will eliminate the chance of a baby being forgotten in a car."  Of course, that is only true if the car seat is used properly, in a compatible car, with compatible technology, and if the device doesn't malfunction (among other things).  The actual car seat and instructions will no doubt contain such warnings in bold print all over the place.  And yet, despite such warnings, will a product that is designed precisely to ameliorate inattention (which, thereby, may reasonably encourage more of it), and which is advertised publicly as "eliminating the possibility of a baby being forgotten in a car" really be able to escape liability if some slight inattention in the use of the product causes it to malfunction?  In this regard, if this particular product does not work as a result of misuse, it seems that the legal issues may be different than a run-of-the-mill product that fails to function properly because of misuse.  Since the very purpose of the product is to protect against inattention, does it somehow bear a heavier burden to work despite inattention in use?  In assessing such a claim, would a court take into the positive externalities (for the poor, helpless children otherwise trapped in car seats) from the product (in the cases in which it works)? Although I have not thought about torts in a rigorous way in quite some time,  I do not believe there is a formal, doctrinal way to consider such positive externalities in assessing a liability claim regarding the carseat.  And yet, it seems that normatively it should matter that an overly sensitive liability regime may discourage the production of this lifesaving product, and the positive externalities for the otherwise trapped children.  What do others think? 

Posted by Leigh Osofsky on July 24, 2015 at 01:38 PM in Books | Permalink | Comments (2)

Thursday, July 23, 2015

Hiring Notices, University of Alabama School of Law

I'm happy to pass along these hiring notices for my law school. Feel free to email me if you have any questions, and of course first and foremost to contact Dean Brandon or Professor Hill, per the notices below. 

D. Paul Jones & Charlene A. Jones Chair in Law

The University of Alabama School of Law seeks nominations and applications for a University level Chair-holder. The School of Law has achieved a high level of excellence in the quality of its faculty, students, administration, and staff. We seek to build on our standing as one of the leading public law schools in the United States through recruitment of a Chairholder with a national or international reputation for scholarship and teaching of the highest caliber. We welcome nominations and applications in all fields of law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarship related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from and nominations of persons who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. The School of Law will treat all nominations and applications as strictly confidential, subject only to the requirements of state and federal law. Interested candidates should apply online at https://facultyjobs.ua.edu/. Nominations should be e-mailed to Dean Mark E. Brandon at [email protected] The position will remain open until filled. Please refer any questions about the hiring process to Dean Brandon at [email protected]

Assistant Professor / Associate Professor / Professor

The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at facultyjobs.ua.edu. The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: [email protected]).

Posted by Paul Horwitz on July 23, 2015 at 04:58 PM in Paul Horwitz | Permalink | Comments (0)

Clemency Project 2014

Notwithstanding some of Dan Markel's views about clemency in his Against Mercy, I think he'd have been very supportive of this effort from NYU's Rachel Barkow:

President Obama is interested in using his clemency powers to commute the excessive sentences of nonviolent drug offenders, but he can’t do it without your help.  Clemency Project 2014, the organization devoted to helping sort through the more than 30,000 requests for legal assistance with filing clemency petitions, desperately needs more lawyer volunteers.  Volunteers prepare petitions that outline why the individual meets the stated criteria of the Department of Justice. You don't need to have experience in federal criminal law. There's a two-hour training video that gives you all the info you need, not to mention resource counsel to answer any questions that come up. Please consider volunteering for this important pro bono work and encouraging all the lawyers you know to do the same. We all know mass incarceration is a problem, and this is an opportunity to take individual action to do something about it and target some of the most deserving cases for relief.  The link to sign up and volunteer is here.  And more info is here and here.

 

Posted by Ethan Leib on July 23, 2015 at 01:59 PM | Permalink | Comments (0)

God Doesn't Play Dice, Spooky Action at a Distance, If You Have a Hammer, Everything Looks Like a Nail, Ships Passing in the Night, and Other Metaphors For Belief and Debate

Canstockphoto12155245This is a reflection about disciplines and theory, in particular, law and economics.  I preface it by saying that I think economics is a fascinating subject, I took a lot of econ classes in college (mostly macro), and I was an antitrust lawyer for a long time, which meant that I had to have some handle on micro as well.  What provokes this particular reaction is a new piece by Bob Scott (Columbia), a far more distinguished contract theorist than I, on the same subject, contract interpretation, on which I've been writing and blogging this summer.  Bob and I aren't just ships passing in the night. (If we were, he'd be the aircraft carrier in the photo at left.) We are sailing in different oceans. I have been thinking the last few days about why. (I should say that Bob and his frequent co-author, Alan Schwartz, have acknowledged my previous critiques in print. The sailing metaphor is about our concepts, not the fact of the dialogue!)

I'll come back to the specifics later. What I want to consider first is those circumstances in which reasoned discussion is or is not even possible. A couple years back I read a fascinating article by a philosopher named Brian Ribeiro, in which he assessed truly hard cases of conflicting belief, i.e., those instances in which the interlocutors disagree but are not ignorant of critical facts, are sufficiently educated, and are under no cognitive disabilities. A perfectly good example is religious belief. If you are a Mormon or a Catholic, you are going to believe things about which no amount of reasoned argument will change my belief. Rather, a change has to be the result of a conversion.  To quote Ribeiro, "If reconciliation is to occur, then one of us must forsake reason-giving (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute."

It's pretty easy to see that issue in the case of religion, but my contention here is that it happens all the time in academia, i.e., we are ships passing in the night because we begin with an affective set of foundational beliefs upon which we base our sense-making of experience, and the affect is simply not amenable to anything but a conversion experience if there is to be a change.  The first part of the title is a reference to Einstein's famous quip about quantum mechanics, and has to do with something very fundamental about how you believe one event causes another (like particles influencing each other simultaneously at distances greater than light could travel in that instant - the issue of "entanglement" that Einstein called "spooky action at a distance").

I'm not saying that one can't be converted. I suspect there would be some experiment that could have brought Einstein around, just like Arthur Eddington's experiment brought Newtonians around to Einstein's general relativity. The issue arises at a meta level, when you don't believe that there can be evidence that would change your belief. Sorry, but I don't think even my believing Christian friends whose intellects I  respect beyond question are going to get me to believe in the divinity of Jesus Christ.

I'm pretty sure that there's no bright line that cabins off the meta issue of belief solely to matters of religion, however. My friend and next door neighbor, David Haig, is an esteemed evolutionary biologist at Harvard. He and I occasionally partake of a bottle of wine on a Saturday or Sunday afternoon, and come around at some point to the "hard question of consciousness." This is the unresolved scientific and philosophical question of the phenomenon of consciousness. At this point, the debate is not so much about whether there is a reductive explanation, but whether there can ever be one (that's why it's still as much a philosophical as scientific debate). David and I pretty much agree to disagree on this, but my point is that reasoned discussion morphs into belief and conversion at some point.  That is, if presented with a theory of consciousness that comports with the evidence, I'd be pretty stupid not to be converted (just as if Jesus showed up with Elijah at our next Passover Seder and took over reading the Haggadah). But for now, he believes what he believes and I believe what I believe. (There's a philosophical problem of induction buried in there, because usually the basis of the belief that we'll solve the problem is our past experience of solving heretofore unresolvable problems.)

How this ties back to something as mundane as contract law after the break.

First, I owe it to Bob to plug his forthcoming Marquette Law Review article, Contract Design and the Shading Problem, the abstract of which is as follows:

Despite recent advances in our understanding of contracting behavior, economic contract theory has yet to identify the principal causes and effects of contract breach. In this Essay, I argue that opportunism is a primary explanation for why commercial parties deliberately breach their contracts. I develop a novel variation on opportunism that I identify as “shading;” a behavior that more accurately describes the vexing problems courts face in rooting out strategic behavior in contract litigation. I provide some empirical support for the claim that shading behavior is both pervasive in litigation over contract breach and extremely difficult for generalist courts to detect, and I offer an explanation for why this is so. In contrast to courts of equity in pre-industrial England, generalist courts today are tasked with the challenge of interpreting contracts in a heterogeneous global economy. This has left generalist courts incapable of identifying with any degree of accuracy which of the litigants is behaving strategically. I advance the claim that ex ante design by commercial parties is more effective in deterring opportunism in litigation than ex post evaluation of the contractual context by generalist courts. I illustrate this claim by focusing on the critical roles of uncertainty and scale in determining how legally sophisticated parties, both individually and collectively, design their contracts. By deploying sophisticated design strategies tailored to particular environments, parties are able both to reduce the risk of shading and to cabin the role of the decision maker tasked with policing this difficult to verify behavior. I conclude that judges and contract theorists must attend to the unique characteristics of the contracts currently being designed by sophisticated parties because it is the parties, and not the courts, that reduce the risks of opportunistic shading in contract adjudication. 
What Bob is wrestling with is how to fit the problem of contract language into the law and economics of contracts.  "Theory" would predict that contracts are a check on opportunism, and therefore we ought to see a reduction in opportunistic behavior, particularly as between sophisticated parties who write complex agreements. But we see LOTS of opportunistic behavior and so how do we explain it? Well, it must be because somebody is acting opportunistically, and pushing an ex post interpretation of the language that couldn't realistically have been what it meant when the parties agreed to it ex ante.
 
Economic theory of contract law - i.e., the relationship of contracting behavior to the reduction of opportunism - demands a causal relationship between the act of making a contract and the application of that contract to resolve a dispute that occurs later in time.  Moreover, if the contracting parties are rational, they ought to trying to make their contracts as "complete" as possible, that is, to anticipate as many "state contingencies" as they can. To quote Bob Scott: "Faced with this wide gap between theory and reality, the answers to a critical empirical question remain elusive: how do sophisticated parties adjust ex ante to the prospect of breach ex post?"
 
Bob and I don't disagree that the world is rife with opportunistic behavior, and it occurs as much in the case of sophisticated market actors as with anybody else.  Why we are ships passing in the night has to do with our respective orientation to theory and causation. I'm being presumptuous here, but I think for an economist to delink the ex ante contracting behavior from the ex post opportunism is, like Einstein, to accept spooky action at a distance. The theory is the hammer and, if you have it, the problem looks like a nail.
 
As I've written (ad nauseam, but at least here and here), I have a completely different view of the causal connection (or, to put it more bluntly, the lack of one) between the creation of ex ante contract text and ex post contract opportunism.  All law and economics scholars would (I think) agree that "complete contracts" - i.e. contracts that can in theory anticipate every state contingency - don't and will never exist in the real world. I think the concept, as a matter of fundamental belief, is so ephemeral and fantastical that I can't accept it even as the basis from which to begin an argument. Similarly, I believe the phrase "mutual intention of the parties" is right up there with "the present King of France" in terms of nominally coherent descriptions of non-existent things.  On the other hand, I can understand if an economist would look at my view as saying, in essence, God plays dice with the world, or as contending that I've reduced the behavior to something like spooky action at a distance.
 
What's interesting about all of this is my suspicion (confirmed by my exchanges with Bob offline) that we'd probably face practical problems as pragmatic lawyers in very similar ways. The dialogue is really about fundamental orientations to making sense of the world.

Posted by Jeff Lipshaw on July 23, 2015 at 10:21 AM in Article Spotlight, Legal Theory, Lipshaw | Permalink | Comments (2)

Wednesday, July 22, 2015

How Marriage Bans Harmed Children of Same-Sex Parents

In Obergefell v. Hodges, state defendants argued that marriage bans and non-recognition laws (hereinafter "marriage bans") were justified  because they were good for children.  Put another way, excluding same-sex couples from marriage was beneficial to children of opposite-sex couples.  As explained in a previous post, marriage ban proponents' critical error was their failure to recognize that gays and lesbians have children too.

In an amicus brief on the Constitutional Rights of Children filed in Obergefell, Lauren Fontana, Susannah Pollvogt, Tanya Washington and I analyzed marriage bans from the perspective of children of same-sex couples.  The exclusion of these kids from the states' own characterizations of the benefits of marriage flew in the face of logic and equal protection law.  As to the harms, we explained:

Marriage bans harm children because they: (1) foreclose the central legal route to family formation; (2) categorically void existing legal parent-child relationships incident to out-of-state marriages; (3) deny children of same-sex couples economic right and benefits and other legal protections; and (4) inflict psychological and stigmatic harm.

I offer a brief summary of each below:

Marriage bans foreclosed family formation.  In most states, both parties to a heterosexual marriage are presumed to be the legal parent of a child born into the marriage, even if the child is not biologically related to both parents.  For same-sex couples in marriage ban states, biology (or adoption) established a legal relationship between a child and one of her same-sex parents; however, bans precluded the formation of a legal relationship between the child and her other non-biological (or non-adoptive) parent.  In many marriage ban states leading up to Obergefell, it was impossible for a child of same-sex parents to have a legal relationship with her non-biological (non-adoptive) same-sex parent; they were permanent legal strangers.

As the Obergefell majority recognized in describing the legal conundrum of Michigan plaintiffs April DeBoer and Jayne Rowse who were raising three adopted children, "Michigan permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent."

Marriage bans voided existing legal parent-child relationships.  In addition, non-recognition states created uncertainty for a child of same-sex parents when her family traveled or moved from one state to another by voiding existing legal relationships with one parent (and the parents' relationship to each other).  In a marriage equality state, a child's relationship to both her parents would be legally recognized; in a non-recognition state, the child's relationship to her non-biological (non-adoptive) parent would be void.

Marriage Bans denied children economic rights and benefits.  In marriage ban states, because the child and her non-biological parent were legal strangers, she could be denied countless benefits in relation to the parent, including workers compensation benefits, state health insurance, civil service benefits, social security benefits, inheritance, and wrongful death proceeds.  Marriage bans also deprived the child and her parents of the settled expectation that they would be treated as a family when unexpected events happen in their lives.  Once again, in discussing the DeBoer and Rowse family, the Obergefell majority got it:  "if an emergency were to arise, schools and hospitals may treat the  three children as if they had only one parent.  And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the child she had not been permitted to adopt."  Further, if the same-sex parents separated or divorced, the absence of a legal relationship created uncertainty for a child and her non-biological (non-adoptive) parent's standing as a legal parent with rights and responsibilities.

Marriage Bans Inflicted Psychological Harm.  States excluded same-sex couples and their children from the rights and benefits incidental to marriage to symbolically express the superiority of opposite-sex unions as "optimal."  The reciprocal message broadcasted that same-sex unions and the children within those unions were inferior and unworthy of recognition or the rights and benefits of the institution.  Many same-sex couples and their children internalized this state-sanctioned message of inferiority.

Marriage bans were driven by purported state concerns for what is good for only some children, however, children of sam-sex couples could not be treated unequally in the absence of a valid justification.  The blatant unequal treatment of similarly situated children reveals the real reason that state defendants sought to exclude gays and lesbians from the institution of marriage -- to control adult conduct.   In my next post, I will discuss how penalizing children to regulate adult conduct goes against well-established equal protection law.

For greater detail on how state marriage bans harmed the children of same-sex couples, go herehere and here.  For an analysis of how DOMA harmed children you can find our amicus brief in Windsor here.

 

 

 

Posted by Catherine Smith on July 22, 2015 at 09:45 AM | Permalink | Comments (3)

Tuesday, July 21, 2015

Abercrombie Settles: Interesting Consumer Discrimination Issue Avoided

Abercrombie settled the EEOC claims on behalf of the Muslim woman denied a job because her hijab conflicted with the store’s look policy. As you’ll recall, just last month the Supreme Court ruled 8-1 that the EEOC could go forward on its Title VII disparate treatment claim by showing that the need for an accommodation was a motivating factor in the employer’s decision. Actual knowledge that the applicant would need such an accommodation is not required. 

The settlement means we won't see whether on remand Abercrombie would again raise its undue hardship defense. And, with it, evidence that Abercrombie shoppers are less likely to buy stuff if the sales-floor employees (or in Abercrombie’s jargon, “models”) are wearing hijabs. Imagining for a second Abercrombie customer shopping patterns are negatively influenced by the presence of hijab-wearing workers, would potential consumer religious discrimination be enough to constitute an undue hardship? What would a reasonable accommodation involve in such a case? An attempt to educate consumers about their own biases?

 The law’s treatment of consumer discrimination (that is, discrimination by consumers) is uneven. It is virtually never directly regulated. There’s no law prohibiting an Uber customer from seeing that the driver coming is a woman, canceling the ride, and trying again until she get a man. Instead, the law at best regulates consumers indirectly, through the regulation of company actions. How we decide which sorts of discrimination are left on the table is curious. 

 As raised again in a NYT op-ed the other week, Las Vegas hotels hire only model-looking women as pool-side waitresses and then require them to meet exacting (and gender stereotype reinforcing) grooming standards, all while walking around in tiny bikinis. (Male waiters are in polo shirts and knee-length shorts.) And why? Because we think it acceptable to sell a mostly male clientele the sort of sexual fantasy they want to buy. But then think of consumer racist or sexual orientation preferences. A restaurant cannot deny service to a black woman, even if it were the case that serving her meant losing potential revenue from racists. Not so for refusing service to a lesbian couple on that same basis. If your customers don't like fat people, no problem excluding them either. 

With the settlement we won’t know how an undue hardship defense would go, but comparing Abercrombie’s policy to other areas where consumer preferences for what may be invidious discrimination is interesting food for thought. 

Posted by Heather Whitney on July 21, 2015 at 12:01 PM | Permalink | Comments (5)

Monday, July 20, 2015

Teaching Open Source Civ Pro: My (current) Hybrid Approach

This month I am blogging about my journey to try and teach civil procedure from completely open source materials.  This post is a bit of a confession -- I have not yet made it all the way to completely open source materials.  After the jump, I'll outline why I'm still reliant on a book (although not a casebook), and my plans to eliminate this reliance within the next year or so.

When I decided to undertake the project of teaching from my own materials, I didn't realize quite how big the project would be.  I figured it wouldn't be too time consuming: after all, I was already fairly certain about what cases I like to teach, so I thought that preparing the materials would just be a matter of editing the cases, putting them in order, and adding a few notes and comments where necessary.  Boy, did I underestimate how much work this would be.  (Note:  civil procedure is a five credit course at Brooklyn Law School where I teach, so doing this for a 3 or 4 credit course would, presumably, be slightly less time consuming).

I had a few part time research assistants do the initial work.  They downloaded the text of cases, removed all hyperlinks, and all extraneous information (syllabus, extended captions, parallel citations, unnecessary string citations, etc.).  I then had them take a first pass at editing the cases themselves.  Each RA had copies of a few casebooks to work from, and I told them what I liked and disliked about the editing style in each book.  After they edited the cases, they submitted the documents to me in "track changes" format, and I made the final edits.  I have to say that this process was very instructive for me.  In many cases, this was the first time in several years that I had read the full text of many of the cases that I routinely teach.  This reread was refreshing and made me think very hard about the edits.  It had a very big and, I think, a very positive influence on what I teach and how I teach it.  But that, of course, took a good deal of time.  

As it turned out, it took more or less a whole summer just to edit and format the cases and put together the statutory and rule supplement.  I was able to write notes and comments for one chapter, however, they were still a bit rough and "not ready for prime time."  My RAs had other full time work (work that I insist they prioritize and take seriously -- after all, that is the work that will be much more important to their careers), and I was using my summer to write an article.*

This left me with a problem:  could I really teach the class entirely from cases, statutes, and rules with no other materials whatsoever?  I quickly decided against this.  For one thing, civil procedure (at my institution) is taught to first year students in their first semester.  While I might consider teaching from cases only to upper-level students, I think that starting law school is disorienting enough without the complete "hide the ball" approach that is a stack of edited cases with no commentary.  Short summaries of the history of certain doctrines, and summaries of other decisions provide a vital context for understanding many of the topics.  Moreover, some topics are better taught through pure narrative and explanation rather than the "case method," such as the mechanics of service of process or the mechanics of discovery.

I decided to solve this problem by assigning my students a treatise that I had formerly ordered as a recommended book, Introduction to Civil Procedure (Rich Freer) from Aspen's student treatise series.  On the syllabus I gave two different types of reading assignments from Freer:  One set were the pages that are mandatory.  This served as the notes and comments and contextual material that one might ordinarily get from the text book.  The second set were "recommended pairings," meaning that these were the pages that the students might want to read for extra help and context to go along with the topics we studied.  In my past experience teaching from a casebook, my students had frequently cited Freer as the most helpful text on their course evaluations, and it was based largely on this student endorsement that I felt comfortable assigning this text.  It was already a book that I recommended highly to students and that many of them were already buying.

This, of course, means that I am far from teaching a "free" course.  Currently, students must obtain the course packet, either by downloading and printing it themselves, or by buying a printed copy from the school for $20.  The Freer treatise costs about $70, but is available cheaper if it is rented or bought used.    While this is an improvement over a $200+ casebook and a $40+ statutory supplement (plus a $70 recommended hornbook or outline), it is certainly not free.

I have found that this worked smoothly as a matter of teaching.  The students did not seem to mind switching between the two texts.  In the meantime, I've been slowly writing my own interstitial materials for each unit of materials, and I'm about halfway there.   My hope is to be free of the treatise by the fall of 2016 or 2017, and return to assigning the treatise (and other supplemental materials) as a recommended text.

A final note on teaching more directly from the treatise:  it has enhanced class discussion.  Because a student treatise will be more direct in summarizing cases, their facts, and their holdings, I have been able to use class for a more thorough discussion of reasoning, policy and doctrine.  This is a modified and light form of the "flipped classroom" that has become popular as of late.  I have enjoyed this innovation, and it has influenced how I've been writing the introductory material and notes for my own materials.

*Yes, I do spend my summers writing articles.  It has been debated ad nauseum on this and other blogs whether this is a good or appropriate use of professors' time and compensation.  Suffice it to say that I accept the world as it is: a world in which I am expected to produce scholarship and in which I enjoy doing so.  It was not realistic for me to abandon scholarship wholesale for an entire summer so that I could write a casebook.  But it should also be noted that I have been able to undertake this teaching project without sacrificing the ability to write altogether.

Posted by Robin Effron on July 20, 2015 at 02:53 PM in Civil Procedure, Teaching Law | Permalink | Comments (7)

Remembering Dan

I distinctly remember beginning my work day a year ago and coming across the news of Dan's death.  I was in complete shock.  As so many people have attested to since Dan's death, he was larger than life. Every time I saw Dan, he always had a million pieces of advice, and was overflowing with life.  This was even more unique for me because I actually hadn't spent much time with Dan.  Only a brief encounter with him was enough to make him a part of your life somehow.  After he was gone, I realized that everyone had this experience with him.  He was just so full of life that I can't believe it has been a year since he has been gone.  It seemed only fitting to remember him on this blog, and hope that his two boys grow up thriving as he would have wanted. 

Posted by Leigh Osofsky on July 20, 2015 at 09:36 AM in Dan Markel | Permalink | Comments (0)

Sunday, July 19, 2015

Complicating the "Trolly Problem"

I had thought the Trolly Problem and its many, many variation was becoming yesterday's news but . . . not so fast.  This piece in Wired and this one in Popular Science (HT:  Gizmodo, here) suggest that the coming of robot-cars and the matter of their programming might add new life to the question.   Maybe a film, "Droids on the Mignonette"?  If only Brian Simpson were still among us . . .     

Posted by Rick Garnett on July 19, 2015 at 05:03 PM in Criminal Law, Rick Garnett | Permalink | Comments (0)

Saturday, July 18, 2015

Faculty Lounge Symposium on Go Set a Watchman

Steve Lubet and the Faculty Lounge are hosting an on-line symposium on Go Set a Watchman and they are looking for guest posts offering "takes on Watchman, as well as reassessments of Mockingbird." If you interested, check out the announcement.

Posted by Howard Wasserman on July 18, 2015 at 05:28 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Marriage Ban Proponents Slept Through a Revolution: But Not the One You Think

In his last Sunday sermon, Martin Luther King, Jr. told the story of Rip Van Winkle.  He went up the mountain during the reign of King George III of England and woke twenty years later during George Washington's presidency.  Rip missed out on a lot of change.  Dr. King stated that sometimes, "people find themselves living amid a great period of social change and yet fail to develop the new attitudes, the new mental responses - that new situations demand.  [Like Rip], they end up sleeping through a revolution."

 

Marriage ban proponents did not sleep through the gay rights revolution, they slept through a revolution in the popular understanding and meaning of "family."  In Obergefell v. Hodges, they dogmatically clung to a losing argument.  Limiting marriage to a man and a woman, they insisted, is optimal for children. As explained in my previous post, the Obergefell majority disagreed.  Marriage ban proponents'  error was in their failure to acknowledge that "hundred of thousands of children [are] being raised by same sex couples."

Times have changed.  Today, many communities, not just the LGBT community, understand that "family" does not have to be restricted by notions of marital status (or legitimacy), sex, biology, or proscribed gender roles.  Marriage ban proponents had plenty of notice that the Supreme Court appreciated these societal changes.  Barely two years prior to Obergefell, in striking down DOMA in United States v. Windsor, the majority made clear that the moral and sexual choices of same-sex couples were protected by the Constitution.  The Court, without reference to biology or gender, also strongly emphasized that DOMA harmed same-sex couples and their children.  

The failure of marriage ban proponents to recognize and adapt, or "develop new mental responses," to the changing social understanding of family is why they could not defend their position.  That they offered no new justifications laid bare their simple preference that children of opposite-sex couples would be valued by law over children of same-sex couples.  Their reliance on old tropes -- man-woman biology arguments and responsible procreation theories -- became the rhetorical sheep lulling them to sleep.  And they have been asleep for a long time now. Fortunately, the Supreme Court did not join in the slumber.

 

Posted by Catherine Smith on July 18, 2015 at 08:00 AM in Law and Politics | Permalink | Comments (15)

Friday, July 17, 2015

Big week for the gig economy

For those of us interested in innovation and the future of the on-demand economy and the gig jobs it brings, this week has been a goldmine. Here's some of what's happened. If I'm missing anything, please comment away. 

  • Hillary Clinton gave her first major economic speech Monday and expressly called out the challenges of the gig economy, stating “many Americans are making extra money renting out a spare room, designing websites, selling products they design themselves at home, or even driving their own car. This ‘on demand’ or so-called ‘gig economy’ is creating exciting opportunities and unleashing innovation but it’s also raising hard questions about workplace protections and what a good job will look like in the future.” (NB: I’m a bit baffled by those who find this claim controversial (it is creating exciting opportunities and innovation and a robust gig economy does raise tough questions about the future of work and workplace protections. That said, it’s somewhat odd that she gave a speech in which she identified the challenges facing Americans as the world of fulltime work is eroding at the New School – a school that is simultaneously understood to be uber progressive and yet 85% of its faculty is part-time.)
  • Politico has a nice article discussing how Uber and the rest of the on-demand service companies like it might help the GOP appeal to younger tech and innovation-friendly voters. As Politico succinctly put it, “for the GOP’s hopefuls, Uber offers a perfect political backdrop. It allows them to link their brands with a hip service that’s popular with millennials. It dovetails with the Republican argument against big government standing in the way of innovation. And it gives them an opportunity to court Silicon Valley’s powerful tech industry, which is increasingly donating to national officeholders.” (NB: I do wonder if this is enough of an issue that young voters would actually vote Republican versus continuing to vote for Democrats while feeling, at most, a little liberal guilt the next time they hop in an Uber. Then again, if they understood the history of taxi medallions they might not feel guilt but genuine confusion as to whether Uber is actually any worse for drivers.)  
  • Speaking of Uber, Jeb Bush took one yesterday morning. [NYT article]
  • On Wednesday a California Public Utilities Commission ALJ stated that Uber had not complied with state laws designed to make sure drivers made rides available fairly to all passengers, regardless of who they are or where they live (e.g. those in wheelchairs). It seems Uber refused to provide its data on that issue. The judge recommended a $7.3 million fine and that Uber be suspended from operating in California. [LA Times article here
  • A bit overdue, but on July 8th the Seventh Circuit found a class of FedEx drivers in Kansas to have been improperly classified as independent contractors. The panel had certified the question of employee status to the Kansas Supreme Court earlier and the state court said they were. [Opinion here]. Unless I’m missing something, I think every court presented with this question has found FedEx drivers employees.   
  • On Wedneday the U.S. Department of Labor issued a new Interpretation of the FLSA’s definition of “employ.” Ben Sachs over at OnLabor breaks it down but the short version is: it’s probably not good for Uber. 
  • NPR had a two-part series (one and two) about Silicon Valley Rising, a growing labor movement in Silicon Valley that's working for those who provide services for major tech companies like Facebook, Google, Genentech, and Apple. For those unaware of some of the major developments on this front: shuttle drivers for many of these companies have voted to unionize; two months ago Facebook announced that its service contractors with more than 25 employees had to improve wages (to $15/hr) and benefits for those who worked enough hours, and; back in October Google converted its security guards from contractors to full-time Googlers. Apple did the same in March. 

Posted by Heather Whitney on July 17, 2015 at 11:11 AM | Permalink | Comments (3)

Thursday, July 16, 2015

The Future of Tax Administration

        In my recent posts, I have been discussing the trend in tax law scholarship toward tax administration, and have suggested possible causes and fruitful areas of inquiry.  In this last post on the subject matter, I want to briefly ask: where might this be going?  My hope is that tax administration scholarship has as significant of a run as recent trends in tax law scholarship.  As a variety of tax scholars have recognized in recent years, how the tax system is administered may be as, if not (in some cases) more, important than what the law is.  And there are so many tax administration programs meriting examination.  To take just a few: the IRS has special programs for taxpayers in the Large Business and International Division (the nation’s largest taxpayers), such as collaborative, pre-filing issue resolution. In a different part of the taxpaying world, the IRS can settle tax debts for less than the amount owed with taxpayers who can’t pay their tax liability and who meet other requirements.  Corporate tax executives hang on the IRS’s every word at  ABA meetings to find out how the IRS intends to apply the law.  And the IRS gives tax advice (not entirely sure to be correct) to individual taxpayers on the phone.  Scholars have suggested in recent years that taxing authorities should play a more prominent role in setting defaults, such as by presumptively taxing or presumptively collecting tax.  How does all this comport with administrative law and scholarship regarding administrative discretion?  I look forward to all my colleagues’ work that will help me find out.


 

Posted by Leigh Osofsky on July 16, 2015 at 10:40 AM in Tax | Permalink | Comments (3)

Wednesday, July 15, 2015

Why Don't We Just Have Students Print Out Materials from Lexis and Westlaw?

When I decided to try to teach an "open source" civil procedure class, I had two broad motivations.  First, I am very aware of the high cost of casebooks, and I was interested in minimizing (or possibly even eliminating) these costs for my students.  Second, as a procedure nerd, I wanted more control over how I taught my class. I'll return to that motivation in later posts.  In this post, I'll address one particular facet of the cost question: why not just list cases and leave it to students to find/consume this material? 

Periodically, commenters on this (and other) law blogs will wonder why professors assign casebooks at all. Students could just get the list of cases and statutes from the professor, print them from Westlaw or Lexis, and read them on their own.  This is an argument worth taking seriously.  After all, most of these materials are publicly available.  Some are proprietary to Lexis or West, but students have already paid for this access when their tuition dollars are used to purchase their student subscriptions to these services.  Why pay twice for materials that are often in the public domain?  

There are a few good reasons not to take this approach to open source teaching.

(1)  It doesn't completely eliminate cost.

Printing is not free.  Most schools have limits on how many pages students can print per semester, and asking students to print out dozens (if not hundreds) of unedited cases would quickly exceed that limit.  Students could print the materials at home, but again, the volume of material to be printed would require a high quality printer and lots of expensive toner.  Although some students might be comfortable reading the material from a computer screen or tablet, many students might still have a justifiable desire for hard copies of material, forcing them back onto the cost of printing.  Finally, if the professor wants to give an open book exam, school rules on the use of tablets and computers during a final might mean that students using an e-reader might ultimately need a paper copy anyway.

(2)  Unedited Cases Can Be Difficult and Distracting

Printing a case straight from the source means that students will have to sift through all sorts of extraneous material:  lengthy captions, the syllabus, headnotes/key notes, long string cites with parallel citations, and text and discussions that are not relevant to the specific holding/issue for which a case is being taught.  In practice, students will ultimately need to develop the skill of reading unedited cases.  One place they may learn to do that in law school is in a legal research and writing class, or in an upper level research class.  But in a doctrinal class, where most of us already feel pressed for time to cover material, it does not seem like a great pedagogical choice to force students to direct energy towards sorting the relevant from the irrelevant.  While I could make a detailed syllabus telling my students, "read this, don't read that," I feel that it is my obligation as the professor, and not their obligation as the student to make these microedits as they go along.  Although I do not doubt that there are a few students who would make this trade off, I would not foist it upon all of my students.  There is something to be said for ease of reading, both in terms of content and in terms of visual presentation.  I want to be able to offer that to my students so that they can concentrate on the facts, doctrine, and arguments.  Moreover, it's useful to have a a uniform format so that the whole class and the professor are, quite literally, "on the same page" during lecture and class discussion.

(3) Don't underestimate the value of the interstitial materials and/or notes and comments in the casebook.

I think it is a common belief among students that their course materials are just a collection of cases, and that all other text in the textbook is secondary (or perhaps even unimportant).  I will say that I also subscribed to some form of this belief -- it was part of what led me to think that it would be easy to create my own materials by just providing a collection of edited cases.  Having put the materials together and taught the class for a few times, I can now say how wrong this is.  The context and background that such materials provide -- however brief, is crucial.  Students who skim or ignore this material do so at their own peril.  Students who skim introductory material believing that it is not as important as the cases may be correct in their assessment, but may undervalue the context that such material has given to the subsequent reading.

Many professors differ in how much background material they want to provide, and this is why different casebooks have vastly different approaches to narrative text and notes and comments after cases.  But providing the students with zero context or notes of a few additional decisions was simply not an option for me.  Moreover, there are some topics in civ pro that really do not lend themselves to teaching exclusively through cases.  Take service of process under Rule 4.  The number of cases it would take to illustrate all of the moving parts is way out of proportion to the importance of a topic.  A solid summary of the rules and their applications is sufficient.

In a future post, I'll explain how I've dealt with the problem of interstitial materials while making the transition to open source.  For now, suffice it to say that this is a barrier to a simple "list and print" approach to teaching an open source class.

Posted by Robin Effron on July 15, 2015 at 05:43 PM | Permalink | Comments (18)

"We Begin with the Assumption that Contracts Matter...."

GULATI 0375292One of my reads this summer, because it's relevant to my piece on "lexical opportunism," has been a fascinating little book by Mitu Gulati (Duke, left) and Robert Scott (Columbia, right), The 3 1/2 Minute Transaction: Boilerplate and the Limits of Contract Design (Chicago, 2012). The subject matter is a puzzler: why did sophisticated law firms keep including a particular contract provision (the "pari passu" clause) in sovereign debt agreements when (a) almost nobody could present a credible explanation of its purpose, and (b) a highly publicized case affirmed an interpretation of the clause that threatened to undermine all attempts to restructure sovereign debt? Scott new 9-09

Let me start with words of praise. This is a good read and good work. Anybody seriously looking at issues in contract theory ought to be reading it. But it's refreshing to read the results of an academic, empirical piece where the authors are so frank about their bemusement and their inability to come up with a satisfying explanatory theory. Professors Gulati and Scott come at the problem with a neoclassical economic perspective, and find that "these hard-nosed Wall Street lawyers told us stores about rituals, talismans, alchemy, the search for the Holy Grail, and Zeus." (5)  It's pretty clear 173 pages later they'd agree that the conclusion - sticky boilerplate and herd behavior - is a whimper rather than a bang.

I confess that Ayn Rand's The Fountainhead and Atlas Shrugged were staples of my intellectual youth. I've since come to terms with some of the hokum and inherent contradictions in the philosophy (she hated Kant, and I kind of know why - her response to the limits of reason was to opt for an orthodoxy of logic, including the foundational posits that logic requires), but many of her bon mots come back to me at opportune times.  The apropos quote here is from Francisco d'Anconia to Dagny Taggart: "Contradictions do not exist. Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong."

So.... One of the fundamental puzzles for Gulati and Scott is why sovereigns incur any costs toward lowering the cost of capital by way of contract design, and yet economists seem to think that contract design is irrelevant. The bridge from that to their assessment begins as follows: "In any case, as contracts scholars, we begin with the assumption that contracts matter." (23)

That bothers me.  Let's try these variants.  "As philosophers, we begin with the assumption that metaphysics matter." "As human anatomy scholars, we begin with the assumption that appendixes matter." "As physicists, we begin with the assumption that phlogiston matters." What's going on is a demonstration of the subtle ways in which descriptive theory has a normative component, even if the normative element is as basic as something like "this activity should be amenable to explanation by way of theory." If you start with neo-classical welfare-maximizing as the default in human decision-making - i.e., ceteris paribus, that's how the world ought to operate - no wonder it's a puzzle when it doesn't turn out to work that way. (I'm not sure if old Ayn ever got to the part of the Critique of Pure Reason that works through this - it's buried in an Appendix to the Transcendental Dialectic, beginning at pages A643/B671.)

If we check our premises, maybe contracts don't matter.

Posted by Jeff Lipshaw on July 15, 2015 at 07:44 AM in Article Spotlight, Books, Lipshaw, Science | Permalink | Comments (1)

Tuesday, July 14, 2015

Catalyzing Fans

Just in time for Dan's Yahrzeit (last week on the Hebrew calendar, this weekend on the English), Catalyzing Fans has finally been published in the Harvard Journal of Sports & Entertainment Law (co-authored with Michael McCann and me). The article appears alongside comments by Andrew Schwartz, David FagundesMitchell Berman, and Adam Chodorow.

Given how Dan felt about sports, it is ironic that his final academic word has its greatest application in that arena (Dan was always trying to pull the project into broader applications, where Mike and I saw sports as likely the exclusive province for this idea). The comments fit well together and with the original piece and I think Dan would have been happy with how our article and the whole thing came out. It is a fitting tribute.

Posted by Howard Wasserman on July 14, 2015 at 06:42 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (4)

Teaching "Open Source" Civ Pro -- a Recap and a Revisit

A few years ago, I blogged (here and here) about my plans to teach “open source” civil procedure by using my own materials that students could access at little or no cost to them.  I've now taught the course twice with my own materials, although I have not yet reached my goal of completely open source or completely costless to students (more on that later).

During my guest stint here this month, I’ll write about how that’s been going, highlighting things that have worked well and challenges that I still face.  I’m looking forward to readers’ comments with suggestions for improvements and additions to my efforts.  I’ll also devote a few posts to challenges inherent in teaching specific topics within civil procedure with a call for creative ways to teach some of this material.  

Feel free to start posing questions or thoughts in the comments and I'll try to incorporate that in my posts over the next few weeks.

Posted by Robin Effron on July 14, 2015 at 03:50 PM in Civil Procedure, Teaching Law | Permalink | Comments (3)

Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality

My essay Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace has been published at Northwestern University Law Review Online.

This puts together much of what I have been writing here about the mess in Alabama between January and the Court's decision in Obergefell. I reach the same basic conclusion--obnoxious Roy Moore rhetoric aside, everything that happened in Alabama in those six months was consistent with the judicial process and with the traditional scope of injunctions and district court precedent.

Posted by Howard Wasserman on July 14, 2015 at 09:31 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, July 13, 2015

Irony is dead

IMG_2700Billboard at the Atlanta Airport. I know nothing about EarthJustice; I just question their advertising strategy.

Posted by Howard Wasserman on July 13, 2015 at 03:32 PM in Howard Wasserman | Permalink | Comments (14)

Re-evaluating the constitutional oath

What we do when we make promises and what it means are both interesting and important questions, so when I saw Will Baude’s review of Richard Re’s forthcoming Promising the Constitution had the title “The Power of Promises,” I read Richard’s article straightaway. The short version is I’m a bit more skeptical of Richard’s claims than Will is, but I suspect my skepticism about the larger project (à la Mike Seidman) is doing some of that work.

 Since Will already did a nice job recapping Richard’s piece, I’ll just do a brief summary here.

 What force does the Constitution have on public officials? Why should they abide by it? Uphold it? Ever even look at it? The answer “because the Constitution tells them to” simply begs the question. In Promising the Constitution, Richard argues that the answer lies in the oath public officials take. By swearing to support the Constitution, public officials are making a promise to the public to uphold and confine themselves to the Constitution, as the public understands the Constitution at the time the oath is taken. And, because promises have moral force, such officials thereafter incur a moral duty to abide by “the Constitution” (where “the Constitution” means the minimum public meaning of the text Constitution).

 My first reaction when reading this was one of suspicion. It’s the Constitution (the textual thing) that provides the Oath Clause so to say taking the required oath is what creates a duty for officials to abide by it struck me as either circular or bootstrappy. Richard has at least two related responses. First, the Oath Clause “invite[s] its reader to adopt a particular moral relationship with ‘the Constitution.’ [And] [i]f that invitation is accepted, then the otherwise inert Constitution comes alive with moral consequences.” Second, according to Richard, the public demands officials take the oath, so we should think of the oath as part of the conditional exchange – the official gets power if and only if they commit to uphold the Constitution.

 The first response (nobody makes you promise but if you do there are moral consequences) seems to mean that the public official has made a commitment to herself to uphold the Constitution, as she understands it. The text invited her to commit to uphold it and she did so. There’s no requirement that that commitment be made to someone else. Given that, why understand the official to be promising to uphold a particular public meaning of the Constitution? I take it Richard can respond to this and does so with his second response, but there again I have some questions.

 The second response (the promise is a quid pro quo with the public for power) seems to only work if (1) the public (again, whatever that means) actually does demand officials make an oath to uphold the Constitution and (2) that demand takes place within a democratic system. If the system is not democratic, then there is no actual quid pro quo. And, for those who believe democracy necessary for political legitimacy, the whole project seems to crumble.

 Starting with (2), Richard responds by “situat[ing] the oath within the overall democratic structures of the United States.” A democratic structure that, he believes, is one where “Americans are fully capable of organizing themselves in opposition to what they perceive to be an immoral regime – yet there is presently no significant resistance to the oath.”

 I find this response unsatisfying on two fronts. It seems like Richard assumes we have a well functioning democracy, where the system is responsive to public demands and the public is sufficiently engaged and educated such as to articulate and organize around them. Perhaps this is true but I take it many would disagree and question the democratic legitimacy of our current system. Because I take it Richard thinks democracy a necessary precondition for the oath to be legitimate, or at least to constitute the sort of quid pro quo with the people he imagines, more will need to be said here. Second, for those who think our entire system enacts deep structural inequalities, I’m not so sure they would find it obvious that even when Americans do think a regime immoral they are so obviously “fully capable” of organizing themselves in ways to fix it.

 As for (1) (that the public demands fidelity to the public meaning at the time the oath was taken), this seems a contested empirical claim. Another perspective is that people are committed to substantive ends first and tools (be they theories of interpretation, arguments about the moral force of different promises, etc.) second.  To the extent that’s right, the public does not demand fidelity to the minimal public meaning of the Constitution at the time the oath was taken if that means abiding by that meaning instead of doing what they think would actually be for the good. A slightly modified version of an example Mike Seidman made back in 2012 helps make the point:

 Imagine the President reaches a considered judgment that course of action x is the best for the country. At just that moment, someone bursts in the room with new information. It turns outs that when the President took the oath, the “minimal public meaning” of the Constitution would find that course of action unconstitutional. However, today not only the President but a sizeable chunk of Americans (let’s say the majority) also think x best. Is it even remotely rational that the President should change her mind because of this divination about public meaning?  Do we really think the public would rather the President not x?

 For most people, I suspect the most persuasive argument for the moral importance of promissory fidelity is a consequentialist one. That is, the reason most people want other people to keep their promises owes to the fact – if and when it is a fact – that the institutions of promise-making and promise-keeping conduce to our general welfare and that that promise in particular does as well. If that’s right, the only question officials have to ask is whether (1) the specific institutions of oath-making and oath-keeping which surround the constitution conduce to our welfare or not (which, by the way, might avoid some of the democratic difficulties) and (2) even if the answer to (1) is at least sometimes yes, whether in any particular case the goods achieved by breach justify deviation.

 Nonetheless, for those of us who do take promising seriously and yet think the oath today is understood as more of a formalistic ritual than a real promise, there are reasons to be concerned. A meaningless oath may hurt the institution of promise making. And, we are once again left with the question of why the Constitution, whatever it is, has any grip on us at all. 

Posted by Heather Whitney on July 13, 2015 at 03:18 PM | Permalink | Comments (1)

The "Limits of Religious Liberty": Complicity and Dignity

A few days ago, in the NYT Magazine, Emily Bazelon had this pieceWhat Are the Limits of "Religious Liberty"?  Among other things, Emily gave a nice shout-out to Profs. Reva Siegel and Douglas NeJaime, who have this new article in the Yale Law Journal, "Conscience Wars:  Complicity-Based Conscience Claims in Religion in Politics."  I was a participant in a conference at which this paper was presented, a little over a year ago -- here's what I said -- and think it's definitely an important read.  I also think, though, that some of its primary claims are unconvincing.  I recommend that those who read it consider also reading, among other things, Marc DeGirolami's essay, "Free Exercise by Moonlight," which engages helpfully the claims I have in mind.  

The Siegel & NeJaime article covers a lot of ground.  Among other things, they contend that "complicity-based" conscience claims are distinctive, and raise special concerns, "because accommodating claims of this kind has the potential to inflict material and dignitary harms on other citizens. . . .  Complicity claims focus on the conduct of others outside the faith community.  Their accommodation therefore has potential to harm those whom the claimants view as sinning."  (The quoted language is from the SSRN abstract.)  

It does not seem to me, though, that B is necessarily wronged or demeaned by A's determinations that (a) B's conduct or proposed conduct is or would be immoral and (b) actions and intentions of A that would create culpable complicity with B's conduct should be avoided.  Certainly, it's possible for these determinations to be communicated in an insulting or demeaning way.  And, a determination by A that "B is not the kind of person with whom I want to interact" or "B is unworthy of my interacting with her" could raise, I think, the concerns NeJaime and Siegel raise.  The paper argues, though, that even implicitly calling an act or omission immoral, or a "sin," insults, demeans, and wounds the dignity of the actor.  This sweeping claim seems hard to square with our practices and policies.  (Marc DeGirolami has more on this point, here.)

Relatedly, it strikes me as misguided to insist that the law necessarily demeans or insults B by accommodating (to the extent it is reasonably possible) A's religiously-based desire not to be complicit in what A believes to be B's wrong.  Even if A's moral judgment is, we think, itself wrong or unattractive, the government's accommodation of A's religiously based conclusion is not an endorsement of that conclusion, but only of the general desirability of accommodating, to the extent possible, religious commitments and exercise.  What's more, if a law demeans when it allows an exemption for religious complicity-claimants, then why does it not demean when it mandates, without exemption, the cooperation to which the claimants object?  That is, why shouldn't the law from which the exemption is, for complicity-avoiding reasons, being sought (say, a law requiring pharmacists to provide an abortion-causing drug) be regarded by the exemption-seeker as imposing on her a "dignitary harm", i.e., the harm of having one's moral commitments and reasoning not only rejected-on-balance, but also disapproved and found wanting?   

I question the premise that inquiring into one's moral responsibility for -- or, one's complicity in -- another's act and, as part of that inquiry, evaluating the morality of that act, involves any "demeaning" of the other.  Again, if it amounts to "demeaning" -- and, more specifically, if it amounts to causing a "dignitary harm" that triggers, as some have argued, Establishment Clause limits -- another person to conclude that that other person has engaged in an act that is wrong and so to decide to avoid complicity with that act then we'll have to reexamine a whole lot more than particular applications of RFRA-type laws.  

In addition, I don't think it's entirely right to say that "complicity claims focus on the conduct of others outside the faith community."  As I see it, when we talk about "complicity" (see, for example, the Model Penal Code's treatment) we are asking about the extent to which one person is morally responsible, or morally blameworthy, by virtue of her own conduct and state-of-mind,  for the conduct of another.  The accomplice's responsibility -- her state of mind and her assistance, encouragement, or facilitation -- is, I think, at least as much the "focus" of the inquiry as the action done or the harm caused by the other.  (And, again, it seems to me that the character, worth, dignity, or identity of the other need not be part of the inquiry at all.)  True, the reason we care about the accomplice's responsibility is usually because we have identified someone else's wrong -- or, more precisely, a harm caused or wrong done or wrong attempted by someone else -- but the focus remains, I think, is on the accomplice.   (Sometimes, we even conclude that an actor is morally responsible for another's wrongful act or harm caused although the other is, for one reason or another, not blameworthy for that act or harm.

In any event, read Siegel and NeJaime, and also read DeGirolami.  I remain, for what it's worth, concerned that the emerging focus on the "third-party harms" and "dignitary harms" said to be caused by legislative accommodations of religion threatens to excessively constrain our ability to vindicate the fundamental right to religious liberty in our context of increasing regulatory activity, dissensus, and diversity.

Posted by Rick Garnett on July 13, 2015 at 02:53 PM in Rick Garnett | Permalink | Comments (0)

Hiring Posts - Schedule

An approximate schedule of other posts follows, based off the dates of the first FAR submission (Thursday, August 20) and the AALS conference (October 15-17). 

Monday, July 13 (today): Hiring committee thread posted. Available here.

Thursday, August 27: Law School Hiring, Thread One (reporting interview requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.

Thursday, August 27: Clearinghouse for Questions (last year's thread here). 

Monday, October 19: Law School Hiring, Thread Two (reporting callback requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.

Wednesday, November 11: VAP thread (last year's thread here).

Late February/early March: Begin entry level hiring report data collection.

Posted by Sarah Lawsky on July 13, 2015 at 01:21 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (1)

Hiring Committees 2015-2016

Please share in the comments the following information related to the 2015-2016 law school faculty hiring season:

(a) your school;
(b) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);
(c) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
(d) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(e) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
(f) your committee's preferred way to be contacted (email, snail-mail, or phone); and/or
(g) the number of available faculty positions at your school.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

You can't make changes to the spreadsheet directly, so please post the information in the comments, or email me directly, slawsky *at* law *dot* uci *dot* edu.

Additionally, in 2011, someone very kindly submitted a spreadsheet of addresses of a subset of law schools, if folks want to create their own mail-merge. You can download it here. (If anyone wants to update or expand it and send me a new version, that would be awesome.)

Originally posted July 13, 2015.

Posted by Sarah Lawsky on July 13, 2015 at 01:18 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (55)

Line Drawing and Rulemaking

        As I suggested last post, I think that, as much as scholarship regarding tax law administration will benefit from relying on the (many) decades of administrative law scholarship, having fresh (tax law) eyes interacting with administrative law scholarship might also benefit the administrative law field.  To take one example, I have become fascinated by reading the administrative law scholarship regarding characterizing legislative rules, interpretive rules, and policy statements.  To put the matter simply, legislative rules must comply with notice and comment requirements.  Interpretive rules and policy statements need not.  Notice and comment is thought to integrate important values into the rulemaking process.  However, notice and comment is costly for agencies and, as a result, if it is required, agencies may avoid making rules.  Since it is very hard to distinguish between the three types of rules, many administrative law scholars worry that if too many things are characterized as legislative rules (thereby requiring notice and comment), agencies may reduce the amount of guidance that they issue. 

                One (among many) things that fascinates me about this issue is that, to the tax scholar (very much influenced by the decades of tax law and economics scholarship), this is a classic problem of linedrawing, and how to draw a line as efficiently as possible.  Essentially, we can reimagine the notice and comment requirements as a tax.  Rather than raising tax revenue (as an actual tax would), the notice and comment requirements serve a valuable goal.  However, if the tax (the application of the notice and comment requirements) is too high, people (in this case, agencies) will change their behavior to avoid it (in this case by not issuing guidance at all).  Changing behavior to avoid a tax is inefficient because (1) the tax isn’t raised, and (2) parties have changed their behavior from the optimal behavior they would have preferred in the non-tax world.  In the agency rulemaking context, the imposition of notice and comment requirements is inefficient when agencies simply avoid such requirements by not making rules because (1) the benefits of notice and comment procedures won’t be realized, and (2) the agency will not have issued the guidance it would have liked to issue absent the requirements.

                While it is fascinating to me just to see this problem through the linedrawing / efficiency lens, I think doing so may also yield helpful insights into the administrative law dilemma.  Inefficiencies are just a fact of life with taxes – when taxes are imposed, parties will shift their behavior to avoid them.  Similarly, the existence of notice and comment procedures will necessarily cause agencies to issue less guidance to avoid such procedures.  As a result, the very reduction in guidance shouldn’t cause hand-wringing.  On the other hand, the fact that agencies will inevitably change their behavior also shouldn’t be the end of the conversation.  Rather, the linedrawing scholarship in tax teaches that, while efficiency is not the only relevant criterion, all else equal, taxes should be imposed where behavior is least elastic.  Imposing tax where behavior is least elastic raises the most tax possible while engendering the least behavioral distortion.  Applying this principle to the context of agency rulemaking, then, notice and comment procedures should be imposed when the agency is least likely to change its behavior to avoid such requirements.  The question, then, is when is this likely to be the case?  I wonder whether empirical studies could help determine the likely elasticity of agencies’ responses to the imposition of notice and comment procedures in various situations.  While this may seem like quite a lot to ask as an empirical matter, many years of work in the tax context have revealed quite a lot regarding tax elasticities.  Perhaps merely posing the question at this point might yield some new opportunities for empirical study in the agency context.  At the very least, perhaps the linedrawing lens might be a new, helpful way to conceptualize a seemingly intractable problem in administrative law scholarship. 

Posted by Leigh Osofsky on July 13, 2015 at 11:03 AM in Tax | Permalink | Comments (7)

Sunday, July 12, 2015

"No Contracts"

For all that lawyers and law professors traffic in language, sometimes I think language is to lawyers as water must be to fish. That is, if you live in it, it's kind of hard to step back and realize the universe could be constituted out of some other medium.

Cutie-fish-in-waterUp here, the cable provider is Charter, and it runs a lot of commercials. The actor in the commercial for its business services trumpeted yesterday that one of the benefits of subscribing was "no contracts!"  Well, you and I both know that there HAS to be a contract. God knows Charter will be disclaiming SOMETHING - like, for example, the potential for consequential damages to a business if the internet connection goes down.  

What we all know is that "no contracts" actually means something other than its literal meaning.  "No contracts" means only that the subscriber won't be held to a fixed term, and will be able to cancel its service without much notice to Charter. OMG, the plain meaning is precisely the opposite of the plain meaning!

The particular conceit of the smartest people in our profession - and I mean both practitioners and professors - is that words and sentences are capable, with the right skills, of exactitude that approaches an asymptotic limit. Within a certain school of contract law theorists, this gets expressed as the idea of an "incomplete contract," as though the idea of a complete contract, one that contemplates EVERY possible state contingency, is something any more conceivable than the Kabbalists' notion of God (the Ayn Sof - "there is no end"). I put the term "complete contract" in the same conceptual category as I do non-words like "gruntled," "dain," and "combobulated." 

Below the break, I fulminate on this idea - that plain meaning is like Schrödinger's cat, existing and not existing at the same time - in the context of statutes (i.e. King v. Burwell) and contracts. (Full disclosure: I'm the guy who, when any student in my contracts class says the words "mutual intention of the parties," starts making "woo-woo" noises and acting out the Vulcan mind-meld.)

I don't usually wade into the great issues of the day, but I thought I ought to read the King v. Burwell opinions.  If you put aside the politics, Chief Justice Roberts's opinion is a pretty well-trod exercise in the interpretation of a text: what does it mean for a health care exchange to be "established by the state"? Does that mean state itself  has to put the exchange in place under its law, or does it also mean an exchange that the federal government has established for the state as the default?  

For contracts professors, it's not too surprising.  If you read Justice Traynor's opinion in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., a seminal case in the law of interpretation, it's the same "literal reading" versus "contextual reading" of an indemnity clause. Indeed, if you look at the language in PG&E, it's the equivalent of Charter's "no contracts," and the court says, "Oh no, it can't possibly mean that!"

Two implications come to mind.

First, whether language ever really maps even an individual purpose or intention, much less the elusive "mutual intention of the parties" in a contract or "congressional intent" is the subject of the piece I posted on SSRN several weeks ago: Lexical Opportunism and the Limits of Contract Theory. My point there is that the elusiveness of language as map undercuts attempts to make broad economic or moral theoretical statements about contract law; I suspect it's the same for statutory interpretation. The text is the text and, in any hard case about its application, we are all opportunists.

Second, it's also almost impossible to state a rule for when you ought to abide by the plain textual meaning or look at the context. Sometimes "no contracts" could really mean "no contracts." There are some documents whose very value is in their formalism - letters of credit, negotiable instruments, promissory notes - and you really do do a disservice by allowing a contextual reading of the language.  Hence, Judge Kosinski's criticism of the PG&E rule in the Trident case: it "casts a long shadow of uncertainty over all transactions negotiated and executed under the law."

Personally, I don't know what the hell "established by the State" was supposed to mean, and was relieved to have the ACA once again upheld because I think it's good policy (or better than the non-policy that existed  before). 

But in terms of the language issue, I can't help hearing the debate as though I'm listening to two fish argue how wet the water is.

Posted by Jeff Lipshaw on July 12, 2015 at 08:04 AM in Article Spotlight, Legal Theory, Lipshaw | Permalink | Comments (1)

Friday, July 10, 2015

Mootness spreads

So it seems everyone thought Nebraska had a great idea on how to end marriage-equality litigation while avoiding attorney's fees. Arkansas and South Dakota have joined Nebraska in asking the Eighth Circuit to dismiss appeals as moot and vacate the various injunctions. Kansas is asking the Tenth Circuit District of Kansas to do the same. And now Alabama is asking the Northern District of Alabama (in a recognition suit that had not yet proceeded to even a preliminary injunction) to do the same.

When I wrote about Nebraska's mootness argument, I explained why voluntary cessation from the state agreeing to abide by Obergefell should not be sufficient to moot the case, or at least not sufficient to justify vacating the district court judgment and order. But looking at these new motions, particularly from Alabama, I I think I have identified a more fundamental problem in their arguments. State officials are arguing that Obergefell conclusively resolved the constitutional question of same-sex marriage across the country, so there is nothing for the district courts to do here and no need for a district court judgment and injunction against officials in these states.

But that misunderstands what a Supreme Court opinion does and how precedent operates. The Supreme Court decision established the operative constitutional framework and analysis, but it it spoke only to the laws in Ohio, Michigan, Kentucky, and Tennessee and the obligations of officials in those states. As to any other state, it is necessary for another court to apply that constitutional framework, as precedent, to the laws and actions in that state. Even if the answer is obvious, since the precedent is binding and there is no way to distinguish it, that additional step is necessary, at least so long as there remains a genuine threat that this other state's anti-SSM laws might be enforced (and within the parameters of mootness doctrine).

In a sense, the states are trying to have it both ways. For months, many states and state officials insisted that a decision by a lower federal court was not binding on non-parties, did not require non-parties to do anything, and did not protect non-parties. This argument was, in fact, correct, although it happened to work to the state's advantage. Now states are trying to argue that a SCOTUS decision is, in essence, a nationwide injunction applicable to all bans on same-sex marriage and to all officials in all 50 states. This argument is, in fact, incorrect, although it also works to the state's advantage.

The most ironic example of this is Kansas. After the Tenth Circuit twice declared that the Fourteenth Amendment guarantees a right to marriage equality (in cases from Utah and Oklahoma) the Kansas Attorney General initiated a state mandamus action to stop a Kansas county clerk from issuing licenses to same-sex couples until a judge in the District of Kansas decided a constitutional challenge to Kansas' ban. Clearly, in the AG's view, binding precedent was not alone sufficient to justify compliance; there needed to be a decision by a court expressly addressing Kansas law and its enforcement by Kansas officials. And never did Kansas officials suggest that the Tenth Circuit's constitutional decision mooted the challenge to Kansas' law. But the Tenth Circuit's decision on the meaning of the Fourteenth Amendment is as binding on federal courts within the Tenth Circuit as a decision by SCOTUS. So if the extra step is necessary to apply circuit precedent, it must also be necessary to apply SCOTUS precedent.

Posted by Howard Wasserman on July 10, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Thursday, July 09, 2015

What to read the summer before law school?

Michael Krauss (George Mason) has some suggestions in the WaPo, here.  (I was happy to see the shout-out for my former colleague Pat Schiltz's article on "being a happy member of an unhappy profession.)  A while back, when I was an associate dean, I put together a similar list for our incoming first years at Notre Dame.  (My list, like Krauss's, included The Bramble Bush, but I couldn't resist adding John Noonan's Persons and the Masks of the Law.).  

What would be on your list?   

Posted by Rick Garnett on July 9, 2015 at 03:08 PM in Rick Garnett | Permalink | Comments (22)

Obergefell and the Interests of Children

Thanks to Prawfsblawg for inviting me to guest blog.  I am excited to share my thoughts on Obergefell, which cited the amicus brief on the Constitutional Rights of Children that I co-authored with Lauren Fontana (Denver), Susannah Pollvogt (Washburn), and Tanya Washington (Georgia State).  I am new to blogging and will "just keep it real," as advised by my eleven-year-old daughter, veteran blogger, Zoe Smith-Holladay.

It is historic that Obergefell interpreted the fundamental right to marry to include same-sex couples and recognized that marriage bans can place undue harm on the children of these couples. Although the decision may be viewed as an affirmation of conservative values that privilege married people, it also lays the foundation for a more expansive interpretation of family.  

One of the four principles the majority advanced in support of protecting the right to marry is that marriage safeguards children and families, explaining:

Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry.  Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.  They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.  The marriage laws at issue here thus harm and humiliate children of same-sex couples.

The Court's focus on the impact on children of same-sex couples caused by marriage bans raises many questions, including:

  • What were, in fact, the harms to children of same-sex couples?
  • Does the decision simply privilege children whose same-sex parents marry?
  • Can the decision be leveraged to level the playing field for children of unmarried parents (same-sex and opposite-sex parents) or children in 'non-traditional' family configurations?
  • Do children who face government-sanctioned discrimination because of their parents' conduct or status have independent constitutional claims?
  • Is there untapped legal precedent on the constitutional rights of children that may serve to advance a more expansive civil rights agenda?

My next posts will explore these questions and Obergefell's potential to be a catalyst for a more expansive transformation of family values and of the interests of children.

Posted by Catherine Smith on July 9, 2015 at 11:40 AM | Permalink | Comments (0)

Wednesday, July 08, 2015

AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

The following comes from Tara Leigh Grove, on behalf of the AALS Section on Federal Courts.

The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY. 


The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
 
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School ([email protected]). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.

Posted by Howard Wasserman on July 8, 2015 at 04:15 PM in Article Spotlight, Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sanctions?

Same-sex couples in recalcitrant counties and states have a problem, as illustrated by this case in Hood County, TX. Recall what happened: The county dragged its feet in issuing license to same-sex couples, a couple sued for an injunction compelling the license, the county within a few hours relented and issued the license. As I said previously, the case is now moot, but the plaintiffs are not prevailing parties because they did not obtain a judicial decree guaranteeing that license, therefore they cannot recover attorney's fees (which would be small anyway--just the amount to draft  short complaint and TRO motion and file the thing). But attorney's fees are the driving force for compliance--recalcitrance needs to become expensive in order for officials to fall in line.

One solution would be for the court to impose sanctions on the clerk. But then the question is from what source? Rule 11 only applies to papers and other things presented to the court; here, the case has become moot before the defendant clerk has even appeared, much less presented something to the court. Section 1927 only applies to attorneys, and then only for conduct that "multiples" proceedings. So that leaves the court's inherent authority to sanction, including through attorney's fees, in order to compensate, deter, or punish. So does inherent sanction authority reach the type of (mis)conduct we see here: Pre-litigation refusal to comply with precedent, forcing a lawsuit, and immediately acquiescing before the court has an opportunity to hear the case? (In contrast to forcing a lawsuit in order to argue for overturning Obergefell)?

Posted by Howard Wasserman on July 8, 2015 at 02:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

When Corporations are Good People: Part Two

I want to follow up on my previous post by putting forth one way to solve the puzzle I raised.  I’d love more thoughts on this.

 Again, the puzzle is that A) some people seem to think that corporations have neither religious beliefs nor First Amendment rights while also B) finding it good/desirable when companies support laudable political and/or social causes (e.g. “green” practices, a café that only sells fair trade coffee, a company contributing funds to or otherwise marching in an LGBT parade, a supply-chain code of conduct that holds suppliers to a standard far above what the law requires, etc.).

 These positions are inconsistent if entities that can aim to do good should have constitutional rights. But then that’s the question: why think doing good implies having rights? Two possibilities:

(1) Like any area where we see entities doing normative work, what’s really going on is that individuals are doing it. Individuals have constitutional rights and when they act, through the corporate form or otherwise, those rights remain.  

(2) When we create new entities (for-profit corporations, non-profit corporations, countries, cylons) and those entities are capable of having their own ends or purposes, they get rights. 

 Yet here’s one way I can imagine someone accepting A and B and version (1) above without running into a contradiction. (I haven’t yet thought through ways out for those who adopt (2).)

 Underlying Commitment: The individuals who make up (or own or control or whatever) the corporation have constitutional rights but the price of taking up the benefits of the corporate form includes giving up constitutional rights when acting as the corporation. So by all means promote the better treatment of animals while acting as the corporation today, but if the state passes a law prohibiting corporations from engaging in such speech, there’s no automatic First Amendment issue. (N.B. This view strikes me as not dissimilar from the PTO’s cancellation of trademarks in the Redskins football team – trademark registration is a benefit and if the government does not want to permit registration of disparaging ones, that is the government’s prerogative [at least that’s the argument]) 

Now those who take this position have to answer a variety of questions:

  • Do non-profit corporations also lack constitutional rights? If they do have rights, on what basis does the constitution extend to them but not for-profits?
  • Was New York Times v. Sullivan correctly decided? If so, is the idea that freedom of the Press requires all entities (be them individuals or corporations) that exist for Press purposes get constitutional protections so the fact that a news corporation gets them is neither because it’s a corporation nor because it’s a set of individuals exercising their own rights but because the Press Clause is the independent source? [Though this view may commit one to thinking Citizens United’s holding correct, though wrongly reasoned. See Michael McConnell’s essay in the Yale Law Journal, Reconsidering Citizens United as a Press Clause Case).
  • Could a state extend the benefits of incorporation to only those companies that agree to donate 1% of their earnings to a particular social cause? Others are free to create companies but they’ll have to create de facto corporations through a nexus of contracts. (perhaps a Walker v. Texas Division, Sons of Confederate Veterans, Inc./government speech theory?)
  • Should the government be able to condition public employment in the same way? Public assistance?

Thoughts welcome.

Posted by Heather Whitney on July 8, 2015 at 12:55 PM | Permalink | Comments (12)

A Summer Classic: Moral Panic over a Pier Shooting

It is a reminder of how hard the past is to leave behind (especially when your leading politicians belong to it).  By now the whole nation knows the basic facts.  Francisco Sanchez, a 45 or 52-year-old Mexican national shot and killed Kathryn Steinle, 32 year old resident of a nearby suburb in a chance encounter along San Francisco’s popular and seemingly safe waterfront Embarcadero Boulevard last week.  It had all the makings of what criminologists call a “moral panic” an untoward event, small or large, that becomes a vehicle for vast social and political anxieties over race, class, and national identity.  A low status villain---non-White, poor, non-citizen, long criminal record, multiple incarcerations, kills a high status victim--White, middle class, citizen, mother of children, never been in trouble with the law.   It occurs where it should not, in a place associated with comfort and recreation.  Events like this sometimes stay just local news, but given the right conditions, they can blow up into a policy storm of significant magnitude.  Will this one?

It comes at a time when White anxiety over the growing Latino population in the US has become a dominant obsession with the Republican party.  Indeed Republican politicians have found themselves in something of a dilemma over which to attack among two of their favorite targets; liberal cities like San Francisco, or the Obama administration.  Since the dominant media narrative has focused on the San Francisco Sheriff’s Departments decision to release Sanchez after the marijuana possession warrant he was being held on was dismissed, without notifying ICE (the Immigration Control and Enforcement agency) as requested, Republicans and now Senator Diane Feinstein have decided to focus their rage on the City’s sanctuary policy, which mandates non-cooperation with the aggressive detention and deportation policies of recent years.   Feinstein wrote SF Mayor Ed Lee yesterday, excoriating the City and its sanctuary policy, and all but blaming them for the crime.

The story line is a familiar one to politicians of Feinstein’s generation who rose to maturity and power addressing it.  In Feinstein’s case this was quite literal, as she became mayor of San Francisco in 1978 after the high profile City Hall murders of Mayor George Moscone and Supervisor and civil rights leader Harvey Milk.  According to the logic that became common sense during the high crime eras of the 1970s, 1980s and 1990s, state and local justice systems were overwhelmed by crime and prone ignoring criminal threats by dumping known threats on the streets.  According to this thinking (which I described at length in my 2007 book, Governing through Crime) only tough laws limiting judicial discretion, and federal mandates requiring that felons serve the vast majority of their sentences and protect Americans.  The result: mass incarceration and mass deportation.

A closer look at the narrative surrounding the Sanchez case reveals it for the ideological construction it is.  In fact Sanchez epitomizes why the logic of exclusion and segregation that undergird our wars on crime and terror can never achieve public safety.  Start with the focus on San Francisco’s Sheriff and the City’s sanctuary policy.  It seem obvious and outrageous to Senator Feinstein that Ms. Steinle would not have been killed that night but for the Sheriff’s and the City’s failure to incarcerate him until he could be deported.   But who was really the proximate cause of Mr. Sanchez’s presence in San Francisco? He didn’t start here, but instead in federal prison where he was serving time for repeated unlawful entries to the United States. Nothing in federal law required ICE to bring Sanchez to San Francisco to address a twenty-year-old warrant for marijuana possession.  Such charges are routinely dismissed in San Francisco and other cities, and the feds had apparently deported him five times during that period without feeling compelled to bring him to answer justice in San Francisco.  Most likely the overworked ICE staff found the warrant and realized it would be easier to dump him on San Francisco then complete the paper work necessary to deport him promptly (or even generate the kind of immigration warrant rather than “hold” that would have prevented Sanchez’s release even under the sanctuary policy).

A second phony element is the idea that Sanchez was obviously dangerous because of his seven felonies.  In fact, as the media realized pretty early, all but one of these felonies are for drugs or illegal reentry, one was for assault (the least serious form of crime against the person, the equivalent of a fist fight).  If anything, Sanchez’s record is monument to how stretched the felony concept has become in our time.  Seven felonies sure sound scary, until you actually look at them.  There is nothing about his record that would have signaled to San Francisco Sherriff’s deputies that Sanchez posed a serious threat.  He appeared to be a not untypical inmate in the jail: poor, disorganized, a drug user without a stable family or work life, and probably some mental illness (indeed I suspect he has a chronic mental illness and decompensated for lack of proper treatment during his federal imprisonment).   The shooting of Kathryn Steinle appears to be a tragic escalation of this lifestyle.  The weapon was apparently found on the beach (the latest reports suggest it belonged to a federal agent).  He admits to having been high on cannabis and sleeping pills.  She was shot in the back, consistent with his “accident” defense.   His most persistent deliberate pattern was apparently returning to the United States; not to prey on its citizens ala Donald Trump, but to support himself and perhaps to stay in contact with family here. 

So what to conclude from the Sanchez case?  Trying to protect ourselves from random violence by incarcerating and deporting people on the basis of race and often inflated criminal records is deeply flawed (and far from the slam dunk solution that Senator Feinstein believes).   The underlying theory here is that crime is a product of dangerous people.  Lock up or deport the dangerous people and problem solved.  But criminology now suggests that crime is situational, a product of people with chaotic lives, substance abuse, and chance encounters in environments that provide either accelerants or de-accelerants (think of the gun that Sanchez found).   There is no perfect solution, save for the ideal of fixing all our “broken toys” (and even unbroken ones break in the spur of the moment).  Instead careful mental health screening of the jail population and attentive post-release efforts to keep people with mental health needs and drug abuse histories on the right medications and off the wrong ones could do far better than incarceration for people like Sanchez (what about his previous imprisonments protected us?).  Nor quite clearly is deportation a solution.  For two decades now we’ve been aggressively deporting people we label “criminal aliens”, creating significant gang problems in countries like Guatemala and El Salvador (as many of them have recreated the same gang milieus they used to survive in the US) without doing much to reduce crime here.

I suspect this moral panic will run its course without uprooting San Francisco’s sanctuary policy or placing Donald Trump in the White House.  The general trend is away from harsh and exclusionary policies in both criminal justice and immigration.  Sadly, the punitive storm that has arisen around the Francisco Sanchez and killing of Kathryn Steinle is a reminder of how powerful the hold of crime panic journalism, and hyperventilating crime warrior politicians like Feinstein remains on our public policy and how slow reform will probably be.

Posted by Jonathan Simon on July 8, 2015 at 11:13 AM | Permalink | Comments (5)

JOTWELL: Levy on Huq on constitutional justice

The new Courts Law essay comes from Marin Levy (Duke), reviewing Aziz Huq's Judicial Independence and the Rationing of Constitutional Remedies (Duke L.J.) (forthcoming), which links the use of fault rules limiting constitutional remedies to the judiciary's efforts to protect its institutional interests. Have a look.

Posted by Howard Wasserman on July 8, 2015 at 09:43 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

The IRS's Dual Role (and Other Agencies' As Well)

        In my last several posts, I have explored a trend toward tax law administration scholarship and how the interest in this topic may be connected with recent, important coverage of administrative discretion generally.  As study of tax law administration continues to develop, I think it will be important to keep in mind the connections between the IRS and other agencies.  Recognizing such connections will allow for fruitful cross-pollination of ideas.  To the extent that commonalities exist between the IRS’s exercise of its administrative discretion and other agencies’ exercises of their discretion, studies of each can inform the other.  Tax law scholars newly thinking about administrative discretion can build on the many decades that administrative scholars have spent thinking about these issues, and administrative scholars may benefit from fresh eyes and detailed study of the IRS as a means of thinking about agencies.

        For instance, one aspect of the IRS’s administrative discretion that I think is currently understudied is the IRS’s dual role as a service agency and an enforcement agency, and how the IRS exercises its discretion in its service capacity.  A number of tax scholars in recent years (including myself) have examined how the IRS can exercise its enforcement discretion to change the scope of the law.  This focus makes sense.  I think that, typically, the IRS is thought of as an enforcement agency.  It is, after all, the agency responsible for enforcing the tax law.  However, as the IRS’s own mission statement acknowledges (and even highlights up front), the IRS is also charged with serving the public.  In particular, the IRS is obligated to help taxpayers fulfill their taxpaying obligations.  As Josh Blank and I are exploring in a new project, as a result of this service role, the IRS expends significant resources explaining what the tax law is in plain writing that many taxpayers can understand.  In so doing, of course, the IRS also exercises significant discretion.  As we show, the IRS’s exercise of this discretion gives the IRS a powerful platform to shape taxpayers’ views of the tax law.

        Other enforcement agencies of course also take on a service role.  Take, for instance, OSHA, which has as its mission “setting and enforcing standards” and “providing training, outreach, education and assistance.”   Similarly to the IRS explaining the tax law, OSHA creates best practices guides for employers, such as a recent Guide to Restroom Access for Transgender Workers.  Like the IRS’s explanations of the law, these explanations help regulated parties comply.  And yet, OSHA's role in creating these best practices guides also provides OSHA a powerful ability to shape regulated parties' views of the law in practice.               

        I tend to think that the sheer extent of the IRS’s service task is greater than most (if not all) other agencies’, making how the IRS exercises its discretion in the service context particularly noteworthy.  Whether or not that is the case, however, the IRS certainly serves as a good case-study for an agency that exercises significant, and important, discretion, in its service capacity.  As a result, hopefully further study of such exercises of IRS discretion can help inform work about the discretion, and power, that agencies exhibit in the context of helping regulated parties comply with the law. 

 

Posted by Leigh Osofsky on July 8, 2015 at 09:17 AM in Tax | Permalink | Comments (3)

Tuesday, July 07, 2015

“Machines, Democracies, and Teams” - Metaphors for Academic Governance

Two relatively unrelated events provoked what I was thinking about on the dog walk this morning (possibly the most dangerous forty-five minutes of my typical day). The first was the recent resignation of a law dean owing to “major policy differences with a vocal segment of the faculty.” The second was realizing how “un-Prawf” I am when I looked at our school’s periodic review schedule for tenured faculty: I will not undergo such a review until 2019, when I am sixty-five years old.

Chaplin_-_Modern_TimesLet me be clear that this is a reflection in a blog post and not rigorous theory, even if others have done pretty rigorous thinking on the metaphors I’m about to propose. But I have spent considerable time in at least three organizational models – big law, public corporation, and law school faculty – and a good part of my brief in at least one of them was to think about organizational effectiveness.

I want to propose three idealized metaphors for organizations, recognizing that they are ideals and that no real organization is a perfect prototype of any of them. The first is “organization as machine.” The second is “organization as democracy.” The third is “organization as team.” One of the key differentials in the three conceptions is the nature of accountability of the individual to the organization, and in turn the developmental obligation of the organization to the individual. My thesis is that, for better or worse, the second metaphor is the most powerful one for academic governance. Whether it works (whatever “working” means) is another question.

More follows the break.

Organization as machine. The essence of accountability here is authoritarian command-and-control. You do what you are told to do. You are accountable to the authority. You are a cog in the machine. The organization’s only obligation is to make sure you run well.

This is an Alfred Sloan/Henry Ford/Charlie Chaplin in Modern Times conception. I love listening to David McCulloch’s narration about Ford at the beginning of the movie Seabiscuit: “Of course, the real invention wasn’t the car; it was the assembly line that built it. Pretty soon, other businesses had borrowed the same techniques. Seamstresses became button sewers. Furniture makers became knob turners.” Or the "Henry Ford" song from Ragtime: “Even people who ain’t too clever/ Can learn to tighten a nut forever,/ Attach one pedal/ Or pull one lever.”

“Every worker a cog in motion” (also Ragtime) certainly describes the most deflating aspect of my some fifteen plus years in big law as associate, partner, and “of counsel.” If you lack passion about what you are actually doing as a lawyer, and your primary obligation is to turn out a certain number of billable hours, you really can see yourself as a button sewer or knob turner, albeit well compensated. (There’s a nice critique of organization as machine in a book by a highly regarded organizational theorist, James Champy: Reengineering Management.)

Organizations in which the machine metaphor predominates have the benefit, generally, of being able to accomplish things quickly at the cost of buy-in and engagement. Unless you are at the top of the heap and enjoy wielding autocratic power, I suggest it’s not very satisfying to be part of the organization as machine.

Organization as democracy. There are no accountabilities. There are only factions, interests, and relative power. Whether governance occurs by consensus or beat-down is a matter of culture and individual idiosyncrasy. On one hand, there are no command-and-control authorities. On the other hand, there are no coaches and no developmental obligations of the organization to the individual.

The two best analogs I can come up with other than actual governments (or homeowners’ associations) are law firms and faculties. Citizenship means partnership or tenure, respectively, and accountability and organizational development, if any, exists only in the pre-citizenship years as a means of achieving citizenship. Once you are a citizen, how, when, and if you participate in government is entirely up to you, and your relationship with the organization is roughly equivalent to your relationship with democratic government. (This is, of course, why these are idealized. If you are a worker bee law firm partner and not a rainmaker, your putative citizenship might not be worth much, and you still might feel that it’s organization as machine.) Organizations as democracy accomplish things from time to time (witness: health care reform), but it’s slow and grudging (witness: health care reform). Everybody has a say, but it really takes a long time.

In organizations as democracy, presidents stop being effective when they lose their political bases in the legislature, and deans resign when they get frustrated by major policy differences with vocal members of the faculty (or with the university administration, as the case may be). As to individual development, it’s the YOYO principle (“you’re on your own”).

Organization as team. The essence of accountability in a team is to the team and its other members. I will avoid sports analogies here, and instead focus on something I once called the ultimate team sport: theater. Correct cues are the most obvious example. A less obvious one to the audience is dealing with props. My daughter is the theater professional in our family, but I used to help backstage in her youth and community theater efforts. There is a prop table in each wing, and if you don’t set the prop in the place it’s supposed to be after you use it, it won’t be there for the next actor to pick up.

Are there leaders in the theater? Of course there are. Directors, stage managers, etc. But best leaders in the team context are as coaches, seeking to help develop the team member so as to be most helpful in accomplishing the team’s goals. (My philosophy as a coach was based on the Coach’s Paradox: we develop our team members so well that we run the risk of losing them to somebody else.) The classic study of the transformation of an industry whose primary organizational metaphor is machine to one whose primary metaphor is team is Womack, Jones, & Roos, The Machine That Changed the World, the story of the decline of Sloan and Ford style mass production and the rise of lean production in Japan. I’m not sure I can cite to a source for organizational transformation from democracy to team.

* * *

Let me pose two thought experiments.

1. For years, the first year doctrinal curriculum at the Ginormous State Law School has been a full year of contracts (6 credits), a full year of civil procedure (6 credits), and one semester of torts, property, criminal law, and constitutional law (4 credits each). Someone proposes that contracts and civ pro be cut back to 4 credits each, and that the 6 credits now available in the second semester be devoted to two of the following courses as electives: intro to tax, business associations, criminal procedure, administrative law, accounting for lawyers, or federal jurisdiction.

2. Every year, you meet with the dean for an “annual review.”

How differently, if at all, would organizations as machines, democracies, or teams handle each of these two situations?

Posted by Jeff Lipshaw on July 7, 2015 at 07:25 PM | Permalink | Comments (1)

John Yoo and Me on the Supreme Court and the Separation of Powers

As part of "Celebrate Liberty" month (a joint project of the Federalist Society and the Washington Times), today's Times includes dueling op-eds by John Yoo and me on the separation of powers after and in light of the most recent Supreme Court Term. Here's John's piece; here's mine.

Perhaps not surprisingly, both pieces focus on the marriage cases. John's starts from the premise that "the Supreme Court cannot finally determine any fundamental constitutional dispute," and goes from there to urge popular resistance to the decision from those who disagree--not through disobedience or defiance, but rather "by seeking judicial nominees who will restore primary control over family law and marriage to the states." Thus, as John concludes, "Like the opponents of Roe v. Wade, they can create a political and cultural environment that makes a return to the Court’s proper role possible. While such a campaign could take decades, as has the movement to restore control over abortion to the states, conservatives should work within the bounds of tradition, even when the Court does not." 

My piece takes somewhat of a different view. Seizing upon the Obergefell dissenters' claims about the anti-democratic nature of the decision, I argue that an ambitious Supreme Court is actually a healthy thing for the separation of powers (as Madison argued in the Federalist No. 51), so long as the Court is properly exercising judicial power in the formal sense--by deciding cases and controversies within its jurisdiction. Thus, as I conclude, "it’s long-past time that we learned the difference between rulings that exercise judicial power that doesn’t exist, and those that exercise established judicial power to reach a result with which we disagree." It's one thing to criticize Obergefell for reaching the wrong answer to the constitutional question; it's quite another to criticize it for answering that question in the first place. (And the same works in reverse--progressives might critique HellerCitizens United, and Shelby County on the merits, but it's hard to dispute the claim that the constitutional questions in those cases were properly before the Court, but cf. Fisher.)

Even though we didn't have a chance to see each other's drafts in advance (or, as such, to respond to each otther), I actually think these pieces fit quite nicely--and help to illuminate the ever-ongoing debate over the proper judicial role.

Posted by Steve Vladeck on July 7, 2015 at 10:08 AM in Article Spotlight, Steve Vladeck | Permalink | Comments (15)

Monday, July 06, 2015

What can plaintiffs sue for after Obergefell?

A same-sex couple sued the County Clerk of Hood County, TX in the Northern District of Texas on Monday, after they were denied a marriage license (purportedly because the office did not yet have appropriate forms). With several hours of the suit being filed, the office issued the license. Precisely how it should go.

Here is where it gets tricky: According to the above article, the plaintiffs want their attorneys' fees and say they will not drop the lawsuit "until the clerk’s office agrees to issue marriage licenses to 'all couples, gay and straight, without delay.'" But neither of those things should happen:

1) The lawsuit is now moot and should be dismissed as such, since the plaintiffs got what they sued for--their marriage license.

2) The plaintiffs lack standing to seek relief for all couples, gay and straight. So it sounds nice, but that is not how litigation works. Perhaps if they certify as a class action, although I need to see the complaint to know whether they are trying to do that. Of course, that does not resolve the mootness problem.

3) The plaintiffs probably will not get attorneys' fees, since they are not prevailing parties. The defendants complied without any judicial order or injunction. And even though compliance was obtained because of the lawsuit and the certainty of liability, the Supreme Court rejected the so-called catalyst theory of attorneys' fees, demanding that a party prevails only if they obtain some judicial decree in their favor.

4) The solution for the plaintiffs may be to sue for money damages for the inconvenience and humiliation caused by  delay unique to same-sex couples. Assuming that short delay constitutes a violation, the claim only would be worth $ 1 in nominal damages, but it avoids mootness and prevailing-party issues.

Posted by Howard Wasserman on July 6, 2015 at 02:21 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

When Corporations are Good People

I’m currently in the early days of a larger project looking more closely at corporate personhood and liberal pluralism. One of the first steps is getting clear on what corporate personhood even means and what about it, and corporate influence in politics and society more generally, people find objectionable. So far, it strikes me that there’s genuine tension between the liberal backlash against Citizens United and Hobby Lobby and the seeming endorsement of the following:    

  1. At LGBT Pride parades across the country last week tons of workers marched behind company banners and corporate-sponsored floats. The NYT mentioned Exxon Mobil at the Houston parade but they’re by no means the only one. Apple (with something like 8000 employees marching in matching t-shirts), Google, Facebook, Coursera, Airbnb, Chipotle, Expedia, Uber, and Genentech  – tons of companies participated (you can see some photos here). Employees often take their employer’s participation as a source of pride – they want to march as representatives of their companies. The public seems pleased to see companies march and parade organizers take it seriously. Indeed, Facebook was only allowed to march in SF Pride by a 5-4 vote by organizers (protesters argued Facebook’s real name policy discriminated against those in the LGBT community who use pseudonyms for safety). But note that the protest was about the substance of Facebook’s policies and not about the participation of corporations more generally.
  2. In April 2014 pro-LGBT rights groups called for the resignation of Mozilla’s then-CEO after it came to light that he donated $1000 to Prop 8 back in 2008. OkCupid, another company, went so far as to block Firefox users from accessing its site, presenting those users instead with information about the Mozilla controversy and OkCupid’s commitment to gay equality. OkCupid told users it “would therefore prefer that [] users not use Mozilla software to access OkCupid.” [one story here]
  3. Calls for companies to be “good corporate citizens” and the entire corporate social responsibility movement more generally. [Forbes keeps a list of the top 100 best]  

 

Am I missing something? 

Posted by Heather Whitney on July 6, 2015 at 12:14 PM | Permalink | Comments (11)

Goldman Sachs Programmer Sergei Aleynikov's Saga to Acquittal - EEA and Secrecy Hysteria

Today marks the second time of a dramatic acquittal for Sergei Aleynikov, the Goldman Sachs programmer who was prosecuted and convicted first in federal court for economic espionage, served a year in federal prison, then had his conviction overturned. In my article, The New Cognitive Property: Human Capital Law and the Reach of IP I devote an entire section to the Aleynikov case, which I subtitled, Sergey Aleynikov’s Crime: Secrecy Hysteria as a Control Device. I also talk about the case in my new TED talk, Secrets and Sparks.

For those who have not followed the case, here is a little taste of it, from The New Cognitive Property. Sergey Aleynikov was a star programmer at Goldman Sachs. A month after leaving Goldman Sachs to work for a new company, Teza Technologies, he was arrested by the FBI, and later prosecuted and convicted under the Economic Espionage Act for stealing proprietary technology.  Goldman had accused Aleynikov of stealing computer code and sending himself 32 megabytes of source code. Immediately upon discovering the downloads, Goldman notified the FBI which promptly sent agents to arrest Aleynikov.  Aleynikov was sentenced to eight years in federal prison. Alyenikov worked as a programmer for Goldman’s high frequency trading platform where he, like other programmers, used open source software on a daily basis. Unlike the frequently practiced requirement of putting open source code back to the common pool after use and modification, Goldman had a one-way attitude about open-source. When Goldman programmers took open source, it became Goldman’s proprietary information. Goldman would not return the adjusted code to public domain, likely in violation of the open-source licensing agreements. 

In the introduction of Flashboys, Michael Lewis asks about the zealous prosecution of Alyenikov: "Why exploit the ignorance of both the general public and the legal system about complex financial matters to punish this one little guy? Why must the spider always eat the fly?"

Lewis, who investigated this case, described Alyenikov’s experience at Goldman, where he used open-source components to program new solutions. Alyenikov asked his boss if he could release the repackaged open-source back on the Internet and his boss told him it was now Goldman’s property. As Lewis described:

Open source was an idea that depended on collaboration and sharing, and Serge (Alyenikov) had a long history of contributing to it. He didn’t fully understand how Goldman could think it was O.K. to benefit so greatly from the work of others and then behave so selfishly toward them. “You don’t create intellectual property,” Alyenikov said. “You create a program that does something.”

 

The core logic of the open source initiative is that rewriting code from scratch for every new program is an utter waste of time, analogous to recreating mathematical proofs rather than using a calculator in every market transaction. During Alyenikov’s trial, his attorney presented evidence of identical pages of computer code: one marked with open-source license and the other a Goldman’s copy, with the open-source license removed and replaced with a Goldman Sachs logo.

             When Alyenikov quit his position at Goldman he agreed to remain in his position for six more weeks to help train others at Goldman and teach them what he knew. During that time, he mailed himself source code he had been working on that contained large amounts of the open-source code he had been using for two years intertwined with code he developed at Goldman. His claim at trial was that he sent this code to himself because he hoped to later disentangle the two and have the open source available if he needed a reminder of what he had used.

 There is no doubt that Alyenikov broke Goldman Sachs’ rules. There is also no doubt that employees are generally required to not divulge a company’s secrets. The claim in The New Cognitive Property is that trade secret law, like other areas of intellectual property, is a bargain between encouraging investment in innovation by protecting certain information and stimulating market competition by ensuring the use and dissemination of other information. Traditionally then, trade secret law, like other forms of IP, has boundaries: information deemed trade secret must be confidential, valuable, not generally known in the industry, and the company must exert reasonable efforts in maintaining its secrecy. And yet, while trade secret law like other pillars of IP is designed to promote innovation, it functions to regulate the relationship between firms and individuals. 

Using the lens of human capital, contemporary trade secrets have expanded both in subjectmatter, the type of information that can be deemed trade secret, and protection, the type of activities that are deemed misappropriation. The Alyenikov case illuminates both these trends toward cognitive property through recent developments in trade secret law, raising doubt about whether the original bargain struck in trade secrecy has been abandoned. In several ways, the case points to unbalanced controls over information beyond the actual secrecy of the information at stake. First, the evidence in the case pointed to the little value that the source code would have for anyone outside of Goldman. While Goldman’s system was an archaic patchwork, newer and faster systems were designed differently. Second, there was no actual use of the information taken. The only evidence presented in the case was testimony by Alyenikov’s new employer that he had absolutely no interest or use of the code. Rather, the new employer wanted to build something from scratch and testified that even if he were offered Goldman’s entire high-frequency-trading platform he would not have been interested. Third, much of the code was open source code that Alyenikov had taken from the Internet. He insisted convincingly to the panel of experts who examined the evidence post-trial that he took the code for those elements. For programmers like Aleynikov, the code is analogous to the pocketbook inventors used to carry around everywhere. One of the experts considering the evidence post-conviction explained:

In Serge’s case, think of being at a company for three years and you carry a spiral notebook and write everything down. Everything about your meetings, your ideas, products, sales, client meetings—it’s all written down in that notebook. You leave for your new job and take the notebook with you (as most people do). The contents of your notebook relate to your history at the prior company, but have very little relevance to your new job. You may never look at it again. Maybe there are some ideas or templates or thoughts you can draw on. But that notebook is related to your prior job, and you will start a new notebook at your new job which will make the old one irrelevant. . . . [It enables them] to remember what they worked on—but it has very little relevance to what they will build next.

Fourth, the manner in which Alyenikov downloaded the code was not of an inconspicuous thief as he emailed it to himself from work when he could have easily downloaded the information onto a thumb drive. Fifth, and perhaps most compelling, Alyenikov took very little, “eight megabytes in a platform that consisted of an estimated one gigabyte of code” and nothing of true value namely Goldman’s trading strategies – the secret sauce (“But that’s like stealing the jewelry box without the jewels,” said one of the post-trial experts). Sixth, procedurally, these questions were tried in the absence of actual expertise about the nature of the information and the allegations of its value. Both the FBI investigators who arrested Alyenikov and the jury who convicted him seemed to have little grasp of the world of high frequency trading and its trade secrets. Finally, the harsh consequences: the eight-year imprisonment of a former programmer, a father of three with no criminal record, for the act, common among programmers, of emailing his work to himself. 

In his new book, Flash Boys, Michael Lewis attempted to understand why Goldman fought pugnaciously under such non-threatening circumstances to make sure that a former star programmer would be sentenced to jail. Lewis asked, Why on earth call the F.B.I.? Why coach your employees to say what they need to say on a witness stand to maximize the possibility of sending him to prison?

The best explanation Lewis finds is that Goldman had to send a message to shareholders, competitors, and employees that their code is original and genius. If anyone discovered that 95 percent of it is open-source, it would kill Goldman’s reputation and the high bonuses of Goldman traders might suddenly seem less justifiable.

A year into his imprisonment, the Second Circuit Court of Appeals reluctantly overturned Aleynikov’s sentence on a technicality. The court found that the two statutes used for his conviction had loopholes. The National Stolen Property Act (NSPA) was written to cover only “goods, wares, merchandise, securities or money,” not intangible goods, while the Economic Espionage Act (EEA) covered the misappropriation of trade secrets that were designed to enter into inter-state commerce. Since Aleynikov did not remove anything physically out of Goldman’s offices, the NSPA did not apply. Because Goldman’s code was used internally and not for sale, the court ruled that it did not meet the EEA’s interstate commerce requirement.

 In his concurring opinion, Judge Calabresi called Congress to amend the EEA to cover the kind of information Aleynikov downloaded. Congress quickly reacted and closed the gap with a bipartisan vote and President Barack Obama signed the reform into law in late December 2012. The Act added the word “service” in addition to “product” such that it would include secrets used internally but that relate to activities, like high frequency trading, that involve interstate commerce. A month later, President Obama signed the Foreign and Economic Espionage Penalty Enhancement Act, which enhances the penalties under the Economic Espionage Act.

 Meanwhile, the Aleynikov case was transferred to New York state prosecutors and Aleynikov was criminally charged under state trade secret law, for the “unlawful use of secret scientific material” and “unlawful duplication of computer related material,” based on a signed complaint by the same federal agent who led the investigation of the federal prosecution. In May 2015 he was convicted after a one month trial of "unlawful use of secret scientific material," a violation of a rarely used 1967 state law. Today the judge has overturned the jury conviction, writing while Aleynikov "doubtless acted wrongly" by copying code from Goldman's servers before he left the investment bank in 2009, prosecutors "did not prove he committed this particular obscure crime."

 

 

 

Posted by Orly Lobel on July 6, 2015 at 11:33 AM | Permalink | Comments (7)

More empathy

Paul closed comments on his excellent post on the distinction between empathy and sympathy (and, as a third element, compassion). I will just second Paul's remarks by recommending Thomas Colby's 2012 article in Minnesota Law Review, which I reviewed for JOTWELL. As I wrote here, this exchange between Sen. Kyl and Elena Kagan during Kagan's 2010 nomination hearings both exposed the confusion many have over the terms and had the potential to explain the role empathy actually plays in judging, although I don't think anyone recognized it at the time.

Posted by Howard Wasserman on July 6, 2015 at 10:39 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)