Saturday, October 31, 2015
I just did a public radio interview on my forthcoming essay: When the Apocalypse Comes, Will Anything Change? Black Lives Matter, Same-sex Marriage and the Rule of Law. You can listen to the 3 minute interview here.
I argue that today, just like after the fall of humanity, our rights only matter to the extent they are enforced, often with guns, or voluntarily respected by others. In the essay I apply this "law of nature" to explain why Obergefell was actually effective in giving same-sex couples the right to marry, unlike what happened with desegregation after Brown v. Board, and examine what can be done with the problem of police shootings. The interview itself mostly focuses on zombies.
It's been fun blogging for you. Make sure to read and comment on my far more serious article about the federal trial penalty. https://prawfsblawg.blogs.com/prawfsblawg/2015/10/yes-virginia-there-is-a-trial-penalty-and-its-four-times-larger-than-we-thought.html
New From OUP and Greenawalt: "Interpreting the Constitution"
Thanks to Oxford University Press, I received a copy this week of Kent Greenawalt's new book, Interpreting the Constitution. It looks terrific. As OUP's description of the book indicates, it is one in a series of books by Greenawalt on legal interpretation:
This third volume about legal interpretation focuses on the interpretation of a constitution, most specifically that of the United States of America. In what may be unique, it combines a generalized account of various claims and possibilities with an examination of major domains of American constitutional law. This demonstrates convincingly that the book's major themes not only can be supported by individual examples, but are undeniably in accord with the continuing practice of the United States Supreme Court over time, and cannot be dismissed as misguided.
The book's central thesis is that strategies of constitutional interpretation cannot be simple, that judges must take account of multiple factors not systematically reducible to any clear ordering. For any constitution that lasts over centuries and is hard to amend, original understanding cannot be completely determinative. To discern what that is, both how informed readers grasped a provision and what were the enactors' aims matter. Indeed, distinguishing these is usually extremely difficult, and often neither is really discernible. As time passes what modern citizens understand becomes important, diminishing the significance of original understanding. Simple versions of textualist originalism neither reflect what has taken place nor is really supportable.
The focus on specific provisions shows, among other things, the obstacles to discerning original understanding, and why the original sense of proper interpretation should itself carry importance. For applying the Bill of Rights to states, conceptions conceived when the Fourteenth Amendment was adopted should take priority over those in 1791. But practically, for courts, to interpret provisions differently for the federal and state governments would be highly unwise. The scope of various provisions, such as those regarding free speech and cruel and unusual punishment, have expanded hugely since both 1791 and 1865. And questions such as how much deference judges should accord the political branches depend greatly on what provisions and issues are involved. Even with respect to single provisions, such as the Free Speech Clause, interpretive approaches have sensibly varied, greatly depending on the more particular subjects involved. How much deference judges should accord political actors also depends critically on the kind of issue involved.
Students of the Constitution and constitutional interpretation will want to rush out and grab this book. Kent, a mentor and former teacher of mine, recently celebrated his fiftieth year of teaching and has published about seven books and many articles in the past decade, including this terrific forthcoming book on legal exemptions, especially religiously motivated ones. Wow.
Media-Bashing: Always in Season, But a Strategy of Mixed Effectiveness
This is a particularly timely week to look at media-bashing and to wonder how well it works as a strategy for institutions subjected to unfavorable press coverage. When, as we saw this week, an institution is subjected to negative, critical coverage in the (roughly speaking) conventional/mainstream press, it is quite common for the institution to react by suggesting that the press itself is the problem, not the conduct that was subjected to press scrutiny. Not without reason, of course. The coverage may indeed be inaccurate. It may be slanted, possibly for reasons of some substantive, often political, bias, and even more often because the press tends to favor particular kinds of narrative: populist narratives, such as the big institution sticking it to the little guy; scandal-oriented narratives; and narratives that focus on the negative aspects of a story rather than taking a holistic view of the balance of good and bad, costs and benefits, in the overall story. Anyone who has been the subject of a story knows the frustration not only of specific inaccuracies and a lack of basic expertise on the part of the reporter, but also of the reporter focusing on a "story" or narrative that does not fully reflect reality in all its details and complexities. To be the subject of coverage involves a painful loss of control over one's story.
That said, criticizing the coverage rather than addressing the "issue" is a common public relations move not just for those reactive reasons, but also as a simple matter of institutional strategy. It can be effective, to varying degrees and in varied ways. 1) Where there are clear problems with the coverage, sometimes the storm of criticism of the press can lead reporters and editors to correct the inaccuracies and do a better job going forward. 2) More generally, media-bashing can get the press to back off, to be more hesitant and timid about covering the issue or institution altogether. If the criticism is harsh enough and catches on, it can make the press more pliant and more willing simply to report whatever the subject wants it to. 3) Media-bashing can change the subject of public discussion, from the institution that's being criticized to the press itself. Making the press the story will draw a strong, positive, angry reaction from fervent supporters of the institution under criticism, as well as from those who dislike the press generally. Especially where the institution that was subjected to negative press coverage would like to take the heat off itself and sweep any genuine problems under the rug, putting the heat on the media can be at least a somewhat effective strategy.
But, aside from any normative problems that people might have with such a strategy, it has its costs. Although the press-bashing strategy will, as I said, appeal to strong supporters of the institution under criticism, many others will have a very different reaction. Where they see some institution that has been the subject of negative press coverage complaining about the coverage, they will, if anything, conclude even more strongly that the negative coverage was well-deserved, that there must be both smoke and fire, and that the institution is using criticism of the press as a way of avoiding dealing with its own genuine problems. This set of reactions and conclusions might be problematic too, but they are inevitable--and history suggests that such conclusions are often justified. The problem with Watergate really was Watergate, not the nattering nabobs of negativism. And, at least sometimes, when the press focuses on a particular narrative that the institution thinks is the wrong one, it's the press that's right, not the institution. It's not unfair for, say, the chief executive of a major pharmaceutical company to say in response to a spate of critical coverage, "Why focus so exclusively on that one drug we made that killed a few children, due to poor testing on our part and an eagerness to rush the drug to market so we could realize huge profits? What about all the effective drugs we market, the huge investment we have made in careful testing procedures, and our distribution of lifesaving drugs in poor countries?" The executive may be right, on balance. Perhaps the press should have done a better job of reporting both the good and the bad. But surely many readers will conclude that, whatever the CEO may think, the negligently produced, greed-motivated drug that killed a bunch of children is the real story.
In sum, attacking the press, instead of focusing on the problem that was the subject of negative press coverage, can be a sound short-term strategy. It can "redirect anger away" from the subject of the story and onto the press. Given the press's imperfections, inaccuracies, and reliance on particular narratives, this criticism is rarely without any justification. But many people will react to the media-bashing by concluding that there must have been something to the critical coverage after all. They will conclude that the criticism of the press is a "cynical ploy to rev up the [criticized institution's] base and to give themselves cover." They will end up distrusting the institution even more than they did before the negative coverage began. And, if the institution really does suffer from a substantive problem, the media-bashing will distract it from dealing with the problem, and instead convince it that instead of reform, all it needs is better PR.
All of this is pretty well-known, of course, and media-bashing is a "time-honored and sometimes well-timed tradition," even if it is often short-sighted and, in the long run, unwise. But this was a good week to remember all these lessons. I will leave it to readers to decide whether all this was brought to mind for me this week by the GOP reaction to the candidates' debate on CNBC, or to the bevy of law professors and deans who took to the webs this week to deplore the New York Times's editorial criticizing law schools* and argue that the legal academy should devote more of its resources to criticizing the press and demanding more positive coverage, or both.
*I have only read about the editorial; I have not read the editorial itself. My general rule of thumb is that there is rarely any good reason to pay attention to newspaper editorials at all, and I am surprised when anyone does. It sounds as if the editorial was poor, just as it sounds as if CNBC really did do a so-so job at the candidates' debate. As with GOP criticism of CNBC, however, so with the lawprof reaction to the editorial and to press coverage of law schools more generally: the possibility that the press did a poor job does not tell us whether press-bashing is a useful and/or sincere strategy. Nor does it tell us whether there is nothing, or something, to the press's critical coverage.
Happy Birthday, Immigration and Nationality Act of 1965!
This month marks the 50th Anniversary of LBJ's signing of the Immigration and Nationality Act of 1965. The 1965 Immigration Act is, in a way, (I believe) the most important and effective of the great legislative accomplishments of the Second Reconstruction. Equal voting rights remain elusive half a century after the Voting Rights Act of 1965; of course, the Act was partially invalidated, and faces further challenges. And very few think that the Civil Rights Act of 1964 has more or less eradicated discrimination from employment and public accommodations. But through the 1965 Immigration Act, federal immigration law, which had been a cornerstone of White Supremacy policy in the United States before 1965, put the U.S. on track to be a majority minority nation in little more than a generation from now. The policy change wrought by the 1965 Immigration Act was relatively abrupt, and relatively complete. As Rose Cuison Villazor and I note in a piece on The Huffington Post, three-quarters of immigrants before 1965 where white, and since then, operating on a race-neutral basis (at least in the sense that there are no formal racial preferences or barriers), three-quarters or more have been from Asia, Africa, or Latin or South America. Rose and I edited (and wrote chapters for) a book on the Act, The Immigration and Nationality Act of 1965: Legislating a New America, published this month by Cambridge University Press. On this C-SPAN program, Rose, Deep Gulasekaram, and Jayeth Rathod, among others, discuss the 1965 Immigration Act.
Martian Water Rights
The recent discovery of evidence of liquid water on Mars resulted in a really fun discussion in my water law class. That discussion led to a piece that I wrote that will come out in Slate next week. The reputation of western water law has taken a hit during this drought. Some of the blame of poor water management can be placed on our arguably antiquated first-in-time, first-in-right system. The challenge for western water management is that we are facing a 21st Century climate with 20th Century infrastructure and technology and 19th Century laws. But thinking about water rights on Mars helps us understand how and why 19th Century laws developed and how it could be reformed. Mars right now is similar in some ways to the Colorado River Basin in the 19th Century - remote and arid, but with valuable resources and potential for colonization if the water scarcity challenge could be successfully managed. One part of that challenge was convincing smart, industrious people to move to the middle of the desert. How do you do that? You make development in the desert a race, with the prize to the winner being senior priority to the most valuable resource in the universe. Maybe our approach to water rights on Mars should create similar incentives, but adapted to extraterrestrial exploration. If you're interested in the subject, take a look at the short piece coming out in Slate on Monday.Sometimes an article title, like MARTIAN WATER RIGHTS, gets me really excited about working on a piece. I really enjoy writing titles because it is a fun exercise in crafting a short, punchy, interesting way to frame my work. I have two articles in the hopper I'm particularly excited about because of their titles. The first is LAW IN THE TIME OF CHOLERA. In water law, we generally focus on two agendas - the "Blue Agenda" (water provision) and the "Green Agenda" (water quality). But we sometimes focus on the agendas to the exclusion or detriment of the "Red Agenda" (disease control). For example, we invest in the Blue Agenda in developing reservoirs or irrigation systems, without thinking that we are bringing habitats for disease vectors (like mosquitoes) closer to humans. Additionally, our concern for avoiding pesticide contamination to water bodies sometimes interferes with expeditious response to outbreaks of water-related diseases, like malaria or West Nile Virus. My article will discuss how to integrate the Red Agenda with the Blue and Green.
My other article that I'm excited about because of the title is going to be called THE BIG DAM QUESTION. Since the 2000 World Commission on Dams report, large hydroelectric dam projects have fallen out of favor. Dams unquestionably have devastating environmental impacts, are very expensive, catastrophically dangerous if poorly constructed, and often result in the displacement of communities and the destruction of historic sites and ways of life. But large dams also kill two pretty big birds with one really big stone - they mitigate climate change by providing a low-GHG renewable energy source, and they adapt to climate change by increasing drought and flood resiliency. My article will propose reforms to facilitate the responsible development of large dams where and when appropriate.
Thanks to everyone at Prawfsblawg for a fun and interesting first foray into blogging. I've got to go carve a Jack-o-Lantern and then take Dr. Who (my 9-year-old son), Anna from Frozen (my 7-year-old daughter), and our little lion (my 1-year-old daughter) out trick-or-treating. My 12-year-old daughter is now, sadly, too cool for trick-or-treating (she's still dressing up as a Minion to pass out candy). My wife and I are splitting the baby's candy. Happy Halloween!
Thursday, October 29, 2015
How many lives could PAS save? (PAS V)
[Recall that PAS would allow individuals to prevent their own future gun purchases.]
My first response to this question is always: let's enact PAS and find out. That's not usually a persuasive argument, but because PAS piggy-backs on the existing background check system, it would cost very little.
Short of that, estimating the number is hard, but a few statistics can at least put the potential of PAS into perspective. Gun tracing studies find that between 3% and 10% of gun suicides are committed with recently acquired guns. My own econometric analysis of gun purchase delays mirrors the 3% figure, so let's go with that. Given that there are roughly 20,000 gun suicides each year, that translates into 600 with recently purchased guns. That's the set of suicides PAS is most likely to prevent.
90% of suicides involve mental illness and my survey indicates that a very substantial percentage of people receiving psychiatric care would sign up for PAS. 600 suicides per year times 90% times the percentage from my survey is well over 100 suicides each year. And 100 suicides prevented would be three times the death toll of the worst mass shooting in U.S. history (VA Tech, 32 victims).
To sign the petition, learn more, or contact me, go to StopGunSuicide.com.
Yes Virginia, there is a trial penalty, and it's four times larger than we thought
Last year David Abrams, Penn, stunned the criminal law world with a study concluding that defendants actually receive shorter sentences at trial than they do for pleading guilty. Rather than "penalizing" those who exercise their right to trial, we actually punish those who plead guilty more harshly, turning decades of plea bargaining debates on their head.
Abrams was wrong, and he’s not the only one.
My latest article reveals significant conceptual and statistical errors in the canonical methodology that cause most other studies, including those by the United States Sentencing Commission (USSC), to greatly underestimate the trial penalty. Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study.84 Miss. L. J. 1195 (2015) (Selected through peer review). Where leading researchers report that the federal trial penalty is only around 3-15%, I find that the average federal trial defendant receives sentences around 64% longer than if they had pled guilty instead. In other words, federal defendants cannot exercise their constitutional right to trial unless they are willing to risk a 64% longer sentence, a heavy "penalty" indeed. Where Abrams reports that Chicago defendants pay a similar penalty for pleading guilty, I reveal that his data actually suggests that plea defendants receive shorter sentences than those who go to trial.
Applying these findings, I demonstrate that the federal trial penalty is so large that only a tiny fraction of defendants could ever rationally choose to go to trial. In such a system, the constitutional right to trial by jury becomes less of a “right” and more of a trap for fools.
Why are my findings so different than everyone else's? Glad you asked.
[More after the fold]
The biggest reason prior federal studies underestimate the trial penalty is that they fail to include the effects of the "acceptance of responsibility" discount. Under the Federal Sentencing Guidelines, defendants who “accept responsibility” by pleading guilty automatically receive a 2-3 point discount to their sentences, but lose this discount if they insist on trial. As such, it operates as a statutory plea discount, or "trial penalty," that sets the baseline for all plea negotiations. Because prior studies do not include the effects of acceptance of responsibility, they heavily underestimate the price defendants actually pay for going to trial. Acceptance of responsibility is written into the guidelines and the USSC's data itself, causing prior studies to miss these effects. Indeed, it is impossible to measure the effects of acceptance of responsibility without reverse engineering the data with several hundreds of lines of code, which I think I am the first to do.
I next explain that rather than measuring the "trial penalty" as that term is understood in crim law debates, Abrams asks whether a rational defendant would be better off going to trial. Defendants are better off going to trial if they face a negative "Abrams Trial Penalty," which Abrams claims to find. Abrams is quite upfront that he is not measuring the traditional trial penalty and, indeed, argues that crim scholars should focus on his new metric. The problem is that crim scholars generally do not discuss this metric because it is usually impossible to measure. A positive Abrams Trial Penalty would indicate that the average plea defendant receives a percentage discount that is larger than their percentage odds of acquittal if they went to trial. Because plea defendants do not go to trial, however, we cannot know what their odds of acquittal would have been without a highly expensive controlled experiment. (FYI, I'd be open to grants to explore the question!). As I explain, Abrams' innovative methodologies cannot overcome this fundamental problem. By reanalyzing Abrams' findings, however, I show that the normal "trial penalty" in Abram's dataset is likely positive: defendants do pay a price to go to trial.
In addition, Abrams and many prominent scholars report average sentences as the average sentence excluding defendants that receive probation only. Because probation only is the lightest sentence you can receive, however, excluding those cases artificially inflates the average sentence and produces a metric that is quite misleading and largely irrelevant to crim law debates. Nonetheless, many well known sentencing scholars, including some commissioned by the USSC, persist in reporting the "average incarceration sentence" rather than, or in addition to, the actual average sentence defendants receive. As I explain, this peculiar metric appeared in the 1980's due to fundamental misunderstandings about the nature of censored data and selection effects, and confusion about the proper application of the Heckman 2-step correction factor and Tobit regression to control for censoring. (End stat technobabble). This and other common methodological errors are discussed further in my piece. (I put most of the technical stuff in footnotes).
One major limitation of my study is that, like virtually all sentencing studies, it cannot account for the effects of charge bargaining. Because charge bargaining works to increase the trial penalty, however, it does not affect my final conclusion that for the vast majority of federal defendants, trial by jury is not a "choice" or a "right." It is a "mistake."
Wednesday, October 28, 2015
Multiple sections, multiple professors
This story, about a professor at Cal State-Fullerton reprimanded for not using the department-prescribed textbook (because it costs $ 180), is only tangentially related to the law-school-specific question I want to raise:
How much coordination and identity should there be among multiple sections of a law-school course taught by different professors? Should we be coordinating syllabii, at least to ensure common coverage? Should we be using the same books? The same teaching approach? Is it enough that the students come away from any class with a knowledge base that will enable them to a) go forward in law school and b) pass the bar, regardless of which section or professor they take?
Ideas for Teaching Administrative Law
I love teaching Administrative Law. I love it for a bunch of reasons, but there are two things that I do in my Administrative Law class that make it particularly fun for me, and I hope interesting and challenging for my students. One is an exercise in teaching constitutional and statutory interpretation using Michael Jackson's song "Billie Jean." The other I call "Rule of the Day."
"Billie Jean" and Interpreting Legal Texts: I spend oneearly class session on statutory and constitutional interpretation. Before class, I have my student's read John Manning's What Divides Textualists and Purposivists? I then start the class by explaining to my students that Michael Jackson and Quincy Jones wrote a hit song called "Billie Jean." I then show them a video of Michael Jackson's performance of Billie Jean. I tell them to listen carefully to the lyrics. I point out to them that, despite the upbeat performance, the lyrics tell a very sad story about a paternity dispute. Then I have them listen to a melancholy performance of Billie Jean by Chris Cornell (sadly, most of my students now are ignorant of the awesomeness of Sound Garden). Chris Cornell had nothing to do with the writing of Billie Jean, but his performance seems more in line with the tone of the lyrics. We then have a discussion about who is the purposivist, who is the textualist, and who is the originalist. The conversation is usually one of the highlights of my semester. Some student will say, "Of course, Michael Jackson is the originalist. He wrote the song." But then another student will say, "But so did Quincy Jones, and maybe he would have performed it with a ukelele." Another student will say, "The purpose is to entertain, and that is what Michael Jackson did." But another will say, "No, the purpose is to make you feel something, and that is what Chris Cornell did." I then move the discussion into the relative virtues of interpretive theories, canons of construction, and how agencies and reviewing courts use interpretive theories and canons of construction.
The Rule of the Day: In my second class of the semester, I teach the students about the basics of Notice and Comment Rulemaking. I teach them how to use on-line resources to search for proposed rules, submitted public comments, and how to submit comments themselves. I show them how to subscribe to receive email notices from agencies regarding rulemakings. I tell them that, when I was in practice, the first thing I did every day coming into the office was check my email for notices related to proposed rulemakings that might impact my clients. If I found any, I would write a brief email to my clients, summarizing the proposal and advising them about how it might impact them. It sometimes resulted in billable work, but always showed my clients that I was looking out for them. Each student is then required to complete one "Rule of the Day." Each student must find a proposed rule they think is interesting. They must send me an email summarizing the rule, which agency proposed it, under what statutory authority, and what the comments are saying for and against the rule. The student then gives a brief 3-5 minute presentation about the proposed rule at the beginning of class. Each student is also required to submit a public comment on the rule, that I go over with them individually. Often, the Rule of the Day presentation tees up great discussions, or helps provide context for concepts discussed in class. It also helps my students see another side of practicing law that does not necessarily fit into the common misconception many students have of a binary "either litigation or transactional" practice world.
CFP: Second Annual Civil Procedure Workshop
The following is from the organizers of the second annual Civil Procedure Workshop.
We are excited to announce the second annual Civil Procedure Workshop, to be cohosted by the University of Washington School of Law, Seattle University School of Law, and the University of Arizona James E. Rogers College of Law. The Workshop will be held at the University of Washington in Seattle on July 14-15, 2016.
The Workshop gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our goal is for the Workshop to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary. Confirmed participants for 2016 include Robert Bone, Sergio Campos, David Engstrom, Samuel Issacharoff, Alexandra Lahav, Alexander Reinert, the Hon. Lee Rosenthal, Joanna Schwartz, and Adam Steinman.
We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by January 15, 2016. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 1, 2016. Please send all submissions or related questions to Liz Porter.
The Workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.
Feel free to contact us with questions.
Liz Porter (UW), [email protected]
Brooke Coleman (Seattle U), [email protected]
Dave Marcus (Arizona), [email protected]
JOTWELL: Mullenix on Levens on security class actions
Tuesday, October 27, 2015
Field trips: pedagogical value, just for fun, or it depends?
As a professor who has taken her students on many field trips - with destinations ranging from the Everglades to the Manhattan criminal justice system - I love them. Field trips get us out of the classroom to experience the real world, give me a chance to get to know my students better, and appear to enhance student understanding of at least some aspects of our course substance. The students love them as well.
As a frequent field tripper myself, I am curious about what others are doing. Do you regularly utilize field trips in your law school courses? If so, please share some examples or stories. Do you believe that field trips can be a valuable tool to aid student appreciation of your material? What factors go into whether they do so? Do you lead them yourself, or use expert speakers onsite? How do you bring the experience back into the classroom afterward? Alternatively, are they just a waste of time and money, and if so, why?
Hopeful Thoughts on the Drought
One of my pet peeves (and I am way too sensitive about this) sometimes happens when people ask me, "What kind of law do you teach/study?". When I respond, "Water Law," people will sometimes say something like, "That seems very narrow." Narrow?! Water?!
But that has really started to change as the drought in California has raised general public awareness of the scope and importance of water issues and the role of the law in water management. So I guess that's one silver lining in this whole "devastating drought" thing. There are other silver linings, though. I was talking to a friend who writes on police misconduct. She said, "I feel like your field is even more depressing than mine right now." The drought is awful. It is just as much a man-made disaster as a natural one, as it reflects a failure to plan and adapt. Still, I think there is a little too much gloom and doom on the drought. There are reasons to be hopeful.
A reduction of only 9% in agricultural water consumption in the Central and Imperial valleys would double the amount of water available for domestic and industrial uses in those regions. Improved irrigation efficiency will help farmers achieve those kinds of water savings. But legal reforms are necessary to create the right incentives for conservation. Right now, improved agricultural efficiency could mean farmers risk forfeiting rights to unused water. One possible approach is to establish a state water trust, similar to what the state of Washington uses to maintain stream flows for salmon fisheries. Farmers that conserve water could place that water in trust with the state for in-stream uses, and while in trust, the water would be shielded from forfeiture. New techniques and technologies, like root demand irrigation, make these kinds of water savings possible.
Speaking of technology, other reasons to hope are the advances made in water augmentation. In the early 1980s, desalination plants required about 35 kilowatts to produce a single cubic meter of fresh water from the ocean. This made desalination sensible only for extremely energy-rich, and extremely water-poor nations. Now,a state-of-the-art desalination plant can produce a single cubic meter of water with as little as 2.5 kilowatts. There are still significant economic and environmental costs associated with desalination, but it has come a long way. The future could include using the brine waste stream as the medium for growing algae to use a biofuel - effectively turning desalination's waste into a renewable fuel. The desalination plant in Carlsbad that will be completed soon is planned to produce freshwater at 3.5 kilowatts per cubic meter. The cost per acre foot of Carlsbad's desalination water will be cheaper to San Diego water users that water imported into the city from the Colorado River.
Which takes me to my most Pollyanna-ish hope. Maybe the drought is increasing the political will to address how we share rivers between states, tribes, and countries. The entire law of the Colorado River is based on false assumptions about how much water the river holds. Currently, 7.5 million acre-feet is allocated to the upper basin, 7.5 to the lower basin, 1.5 to Mexico, and we lose another 1.5 million acre-feet annually to evaporation. That's 18 million acre-feet. But we know from recent research that the 1,000 year average amount of water in the river is closer to 13 million acre-feet. We have to change the way we share the river to correspond with reality, and have a system that adapts to changes in the river basin. In my article - Interstitial Federalism - I discuss why states struggle to share transboundary rivers and how to develop a more cooperative system. The biggest obstacle to my proposed approach is that it would require a significant change in the political climate. Well, the changing physical climate might be changing the political climate enough to consider meaningful reforms.
Prof. Paulsen's reprint "letter"
Prof. Michael Paulsen (St. Thomas) gave me permission to post his (I thought) awesome "reprint cover letter (with apologies to Jackson Browne and Glen Frey):
Monday, October 26, 2015
Multiplying Loaves and Fishes: Why Congressional Debt-Ceiling Brinkmanship May Plunge Us into Economic Depression and How President Obama Can Save Us from Going Back to the Breadlines
The following post is by Jessica Berch and Chad DeVeaux (both of Concordia). They will be guest-blogging in December. But the timing of the new debt-ceiling debate made an early post appropriate.
The Gospels tell us that Jesus multiplied “five loaves and two fishes,” providing a bounty sufficient to feed 5,000 hungry souls. Apparently, House Republicans expect President Obama to perform a similar miracle. On November 3, the Treasury will exhaust its funds. If Congress does not raise the debt ceiling by that date, authorizing the Government to borrow money, the nation may face an unprecedented economic cataclysm.
As New York Magazine’s Jonathan Chait has observed, only “the most ideologically hardened or borderline sociopath” would “weaponize the debt ceiling”; to do so, one “must be willing to inflict harm on millions of innocent people.” Bloomberg Business explained that a federal default would be orders of magnitude worse than the Great Recession of 2008: “The $12 trillion of outstanding Government debt is 23 times the $517 billion Lehman owed when it filed for bankruptcy on Sept. 15, 2008.”
Following up on earlier work, The Fourth Zone of Presidential Power, (Conn. L. Rev.), we are writing an article entitled Once More unto the (Fiscal) Breach, addressing the president’s options in this latest crisis.
Federal statutes command the president to implement a myriad of programs and projects. Other laws instruct him to obtain the revenue necessary to subsidize these endeavors by collecting taxes and borrowing funds. The debt-ceiling statute caps the amount of money the Government can borrow at any particular time. Based on the level of revenue the Government is permitted to collect through taxation, basic arithmetic dictates that the president will need to borrow funds exceeding the debt limit to comply with Congress’s appropriation mandates.
If Congress does not raise the debt-ceiling by November 3, the president will face a no-win scenario that Professors Neil Buchanan and Michael Dorf have coined the “trilemma.” He will be forced to choose among three options. He may: (1) ignore the appropriations statutes and cancel spending programs; (2) employ the so-called “nuclear option”—disregard the debt ceiling and borrow sufficient funds to pay for Congress’s appropriations; or (3) unilaterally raise tax rates to produce sufficient revenue to fund Congress’s appropriations. Each of these choices violates an express statutory command.
And each of these choices is also implicitly authorized by the other commands. The power “to execute” a law “impl[ies] many subordinate and auxiliary powers,” including “all authorities essential to its due exercise.” Hamdan v. Rumsfeld, 548 U.S. 557, 591 (2006).
Professors Buchanan and Dorf argue that any choice the president makes will violate the Constitution “because he will have failed to execute at least one duly enacted law of the United States.” As Professor Buchanan recently noted, “He has nothing but unconstitutional choices.”
The true test of the president’s options in the trilemma lies within the labyrinth of Justice Jackson’s seminal opinion in the Youngstown Steel Seizure Case. As the Supreme Court reaffirmed last June, “in considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework . . . .” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083 (2015). Evaluation of the president’s options in the impending standoff constitutes a paradigmatic question of the scope of presidential power.
In Youngstown, Justice Jackson asserted that “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous three-zone template to evaluate the scope of executive power.
In the first zone, “the president acts pursuant to . . . express or implied” congressional authorization. Endowed with such legislative approval, the president’s power “is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” In the second zone, “the president acts in absence of either a congressional grant or denial of authority.” In this “zone of twilight,” Congress and the president possess authority that is either “concurrent” or “its distribution is uncertain.” Zone three involves situations where “the president takes measures incompatible with the express or implied will of Congress.” Here, “his power is at its lowest ebb, for . . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
At first blush, each of the president’s three options appears to fall into the third zone of Justice Jackson’s taxonomy. Short of multiplying loaves and fishes, every conceivable alternative—unilaterally cancelling federal programs, increasing taxation, or borrowing more money—stands in direct conflict with an express congressional command. Article I bestows the powers to “tax,” “spend,” and “borrow” exclusively upon Congress. Thus, such authority is far removed from those plenary powers that the president may wield irrespective of congressional will.
Professor Lawrence Tribe echoed this reasoning, noting that “the president’s power drops . . . to its ‘lowest ebb’ when exercised against the express will of Congress.” So, “if the president could usurp the congressional power to borrow, what would stop him from taking over all [of Congress’s] other powers, as well?”
Again, we disagree. On closer examination, the standoffs do not fit within any of the zones identified by Justice Jackson.
Professors Tribe, Buchanan, and Dorf analyze each of the president’s options and Congress’s corresponding legislative commands in isolation. But this view ignores the more nuanced conception of presidential power implicit in Justice Jackson’s framework. As Jackson observed, “the actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.” For this reason, the Court unanimously recognized in Dames & Moore v. Regan, that in applying Youngstown’s principles, when multiple statutes bear upon the president’s powers, the scope of his authority cannot be gleaned by looking at any single law in isolation, but from careful consideration of “the general tenor” of all of Congress’s commands viewed collectively.
Justice Jackson’s three zones contemplate coherent legislative action falling within “a spectrum running from explicit congressional authorization to explicit congressional prohibition.” Congress may sanction presidential action, it may be silent on the subject, or it may prohibit it. Congressional acts in conformity with any of these three coherent choices will affect the president’s powers accordingly. But in the impending trilemma, Congress’s acts—viewed collectively—present the president with a paradox. Congress has directed the president to take specified action and simultaneously forbade him from taking that very same action. Such contradictory legislative instructions cannot find a home anywhere within Youngstown’s existing taxonomy. As such, the present standoff requires the expansion of Youngstown’s spectrum to accommodate a previously uncontemplated fourth zone of presidential power.
So what principles should apply in this new fourth zone of power?
Dames & Moore recognized that congressional action “evinc[ing] legislative intent to accord the president broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility.’” In cases falling within the traditional three-zone scheme, such legislative conduct is only considered “pertinent when the president’s action falls within the second [zone]—that is, when he ‘acts in absence of either a congressional grant or denial of authority.’” Medellín v. Texas, 552 U.S. 491, 528 (2008). This is so because when Congress commands the president to undertake (or refrain from undertaking) a particular action, the Constitution normally affords him no discretion. He “must confine himself to his executive duties—to obey and execute, not make the laws.”
But when Congress gives the president contradictory commands, the president cannot simply “obey and execute” Congress’s instructions; obeying one command necessarily requires disobeying another. For this reason, zone two’s invitation principle should be applied in the fourth zone of the Youngstown scheme. Contradictory legislative instructions, by their nature, implicitly “accord the president broad discretion.”
The president’s plenary power “to execute” a law promulgated by Congress “impl[ies] many subordinate and auxiliary powers,” including “all authorities essential to its due exercise.” And “it is a flawed and unreasonable construction” to read the Acts of Congress “in a manner that demands the impossible.” Thus, when Congress commands the president to complete a particular task but expressly denies him those powers “essential to its due exercise,” the only way to construe these conflicting legislative instructions in a manner that does not “demand the impossible” is to infer a congressional intent to “accord the president broad discretion”—to entrust him to make tradeoffs to best accommodate the conflicting mandates.
In the trilemma, the interaction between the debt-ceiling statute and the relevant taxing and spending laws render compliance with all three statutory mandates impossible. Congress commanded the president to complete a task—implement specified programs—but denied him the “authorities essential to its due exercise”—the power to acquire sufficient revenue to pay for the mandated expenditures.
Because statutes are not interpreted “in a manner that demands the impossible,” “the general tenor” of Congress’s commands, read collectively, inherently “‘invite’ ‘measures on independent presidential responsibility.’”
Since the president cannot fully comply with all of Congress’s commands, the statutory impasse invests the president with discretion to implement any of the three options addressed above. He may cancel federal programs to reduce spending, direct the Treasury to borrow funds in excess of the debt ceiling, or even order modest tax increases to satisfy the Government’s fiscal obligations. But he should not stand idly by and allow Congress to plunge us into a Global Economic Depression.
Methodological Case Prerequisites and the (Mild, Ironic, but Real) Reproduction of Hierarchy
Michael Dorf and Larry Solum have a very interesting and mutually respectful dialogue on constitutional interpretive methodology, here (Dorf), here (Solum), here (Dorf), and here (Solum). Key to the discussion is a prerequisite offered by Dorf and labeled by Solum as a species of "Canonical Cases" objection to originalism. In Dorf's most recent words:
[T]here is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.
This reminds me of a classic line that can be found in various constitutional law articles (a good overview is provided in Laura Kalman's great book The Strange Career of Legal Liberalism. The line runs roughly as follows, in the words of one of my articles: "Admission to polite legal circles requires one to avow that Brown was wholly correct and Lochner terribly wrong." It's been around for some time but is nicely presented, quoting Cass Sunstein, in Balkin and Levinson's fun article on The Canons of Constitutional Law:
A third reason for increasing interest in the composition of the constitutional canon in particular has to do with the perceived threat to the beloved precedents of the beloved Warren Court . . . . For example, Cass Sunstein, a well-known liberal constitutional theorist, has insisted that “an approach to constitutional interpretation is unacceptable if it entails the incorrectness of Brown v. Board of Education.” This is more than a claim that Brown must be taught to law students . . . . Rather, Sunstein is arguing that Brown is normatively canonical. One can no more criticize it than one can suggest that Mozart is a wildly overrated composer of music for eighteenth-century dinner parties. One establishes oneself as a cultured person by affirming Mozart's genius; one establishes oneself as a properly acculturated lawyer by affirming Brown's correctness.I suppose it bears saying that I approve of the decision in Brown. And I can see some sense in an approach that treats canonical cases as a prerequisite. But I frankly worry about using the canonical case approach as a prerequisite in discussions of constitutional methodology, or of much else--even when the canonical case is the sainted Brown. Partly it is that I worry about starting with the canonical approach. Substantially, I wonder whether one should talk about it being necessary for a judge in particular to say, in reasoned-elaboration fashion, that Brown was "rightly decided." I could more easily sign on to a prerequisite that said that constitutional methodology, or even the general legitimacy of the Constitution, must allow or even ensure that the outcome in Brown happens, but I'm less sure that this means it must happen through judicial review. Someone must interpret the Constitution to allow for Brown, but it might be some other official or it might be the people themselves, and the role of the Constitution itself might or might not be fairly minimal and post-hoc.
I also worry about those possible "few other cases." Brown alone, or Brown and Lochner? Brown and Lochner only, or those two plus Roe and/or Casey? Just them, or them plus most of the Warren Court's canonical cases? A case here and a case there, and you've got some real money, so to speak. These kinds of approaches end up doing a lot of rhetorical heavy lifting that I doubt helps us think afresh, and that really try to stall or freeze the game at a particular point in time or in a particular way. Although individual treatments vary in their skill and persuasiveness, I think this kind of rhetorical/political game figures a lot in current discussions of Lochner and various so-called "new Lochners" or "new Lochnerism." The phrase purports to be descriptive but is equally (or more?) prescriptive and preclusive, using social embarrassment as a lever.
In a broader sense, though, I worry that this kind of thing, which I think still accurately characterizes the general sentiment of the gatekeepers of the legal academy, is less about constitutional methodology and more about the gatekeeping itself. A substantial part of my project in teaching constitutional law to students is to teach them the kinds of methods and arguments that won't get them laughed out of constitutional courts. Learning the modalities of constitutional argumentation is not much of a barrier to presenting all kinds of positions and views or pursuing all kinds of political projects, but it does require them to be translated into the kinds of moves that courts will accept as legitimate legal argumentation. The students learn how to get in the game and stay there. But while I'm happy to teach them something about what polite society demands of them, I don't want to preclude their rejection of polite society, or their individual interests in pushing the boundaries of what constitutes a polite society.
Although overwhelmingly politically liberal, the legal academy is also highly conservative and anti-radical. Indeed, while I find a lot to appreciate in the project of blogs like the Heterodox Academy, I worry that these discussions are too much about making sure that the academy makes enough room for doctrinaire conservatives, or doctrinaire conservatives and doctrinaire libertarians, alongside doctrinaire liberals, and not enough about really widening the scope of our discussions. In the legal academy in particular, I worry that we don't make enough room for, let alone positively encourage, people whose views or approaches or priors are more genuinely radical. I wonder what conversations and possibilities we miss as a result.
On those occasions when radicals slip through, we get some very interesting discussions. They can even include second thoughts about Brown itself, viz. Derrick Bell's thought-provoking "dissent" in Brown. To use Robert Cover's phrase, they can be interestingly and valuably jurisgenerative and not jurispathic. Polite society might fear those imagined legal worlds, but in a highly conservative academic field within a highly conservative profession, polite society will still get plenty of innings, and might occasionally end up learning from the radicals or altering its own views. Moreover, starting with this conservative bent can blind us to the degree to which certain debates about fundamental values are necessarily going to recur and, in new ways and contexts, become new sites of contestation (sorry) about those values. Those contests are social and political, not doctrinal, and legal academics (or even, to a lesser extent, judges) cannot really, or indefinitely, erect doctrine as a barrier to that kind of contestation.
Consider the debate over what was "off the wall" or "on the wall" in the first major round of Affordable Care Act litigation. It may be that the legal academy's conservatism, and its investment of its energy in maintaining the barriers of "polite society," led it to a massive failure to predict the viability of this litigation and some of the ideas presented there. More likely, I think, is that what was going on, when various legal academics treated it as self-evident that some line of argument would be rejected as "off the wall," was rhetorical, political, and performative--an effort to ensure, by declaring implicitly, that certain ideas were unacceptable. Saying "Decent people eat with forks" is not just a descriptive statement: it's performative as well, a way of enforcing social norms--against, say, people who eat (perfectly politely) with chopsticks, simply by declaring those norms with assurance and shaming the norm-violator. The same phenomenon is going on in law and religion right now, with such (silly) rhetorical moves as the placement of "'religious liberty'" in scare-quotes as a way of declaring that certain ideas about what "religious liberty" means are simply not accepted by decent people.
We can and should recognize the many ways in which the legal academy presents, reinforces, and reproduces hierarchy. I tend to think we should resist it, but at a minimum we can try to spot and acknowledge it, and thus reveal to ourselves the ways in which we enact and enforce our own fundamental conservatism. Whatever we think of those cases, let alone their outcomes, we should see the standard "Brown good, Lochner bad" truism as one of those ways. Mild in itself, it bespeaks a larger conservatism about ideas and priors. It is also routinely, easily, and silently extended to a wider range of "polite" views and norms and an effort to reject contestation, even when the contestation is real, unavoidable, and rages outside the university gates. Especially as academics, we should welcome more than we do what Balkin and Levinson call the "perpetual state of intellectual tension" that comes from rejecting such canon-centered approaches. We should acknowledge that contestation--not about racial equality or the evils of segregation, surely, although Bell and others make clear that more can be said about this--about fundamental values is always ongoing; it cannot be resisted by stating formulae, and it should not be resisted by subtle gatekeeping, or by attempting to keep constitutional radicals outside the gates. All this is, of course, pretty far afield from Solum and Dorf's core discussion. It's also probably impolitic for me to say any of this, since I have the usual personal ambitions within our polite academic society. So be it.
Sunday, October 25, 2015
"No, no, thank you for that [awful] presentation"
I want to pick up on two themes from Paul's post on excessive flattering of questioners during job and paper talks.
I recall a SCOTUS case in which the lawyer responded to a question from Justice Scalia by saying, "that's an excellent question," to which Scalia responded (no doubt sarcastically--I never heard the audio), "Thank you very much." From the moment I read that, I made an effort never to use that phrase in responding to questions in talks or in class. I also made an effort to get my students never to use it in class, moot courts, etc. (usually by responding a la Scalia when they do it in practices). I agree with Paul that this is largely a tic, as well as a way to fill dead air while thinking of an answer. It also can come across as obsequious or arrogant or both, depending on the context.*
* For what it's worth, I doubt that "thank you for the question" is a noticeable improvement. There is no reason to thank me for playing my expected role in this common scholarly exercise.
Second, the flip side to the "that's an excellent question" response is the question that begins with 30 seconds of effusive praise for the paper and the talk and the presenter's brilliance and insight, whether warranted or not. This bears the hallmarks of what Paul was talking about, from the other side--a tic, verbal filler, and an overdone effort to be supportive or civil. Dan tried to eliminate such filler at PrawfsFest! under his "no foreplay" rule--commenters must get right into their comments. Yet many colleagues (here and elsewhere) resist such a rule, suggesting that taking out this filler reflects incivility or excess negativity--that in not starting off by telling the presenter how great her paper is, we turn into the worst stereotype of the University of Chicago, where faculty members do nothing but tear down papers and their authors.
Saturday, October 24, 2015
"Thank You for That [Awful] Question"
I am mostly out of the business of giving blog advice for teaching job hopefuls, largely because I've repeated my advice too many times and it's all archived. It can be summarized easily enough: (a) Everyone should read Martha Nussbaum's "Cooking for a Job" article, hopefully with concern rather than as a "how-to"; (b) although it makes sense to direct advice at hiring candidates, hiring faculties are both the least-cost-avoiders and the ones with a greater moral obligation to do it right, so (a) applies especially to them. But I did want to comment on something said in response to Rhett's post. One of the virtues of both tenure and a long stint on a blog is that you can get away with adding a little sour to the sweet, like putting a lemon wedge on a glass of iced tea. I'm not sure this counts as advice, exactly, especially because the faculty members most in need of hearing it are perhaps the least likely to take it. Call it, rather, an observation about what has in my experience become a pretty strong norm at most schools not just at job-talks but in workshops and talks of all sorts, and one I think we need to ease back on.
On Rhett's post, a commenter identifying as "AnonHiringChair" writes:
I would also add a reminder that, during questioning, you always make the person asking the question feel good about herself. I've seen many times when a member of my faculty asks a less-than-great question and the candidate's response makes clear to everyone in the room that it was a less-than-great question. Fast forward to voting and the faculty member in question frequently finds another reason to argue against the candidate. Bottom line: When you make the person asking the question feel bad about herself, it will redound to your detriment (and conversely, when you can make the person asking the question feel good about herself, it will redound to your benefit).
Of course this is perfectly sensible advice for job candidates, and my experience over the last few years suggests that it's been drummed into many candidates, especially those coming out of fellowships. Like many such norms, however, it is not used just by job candidates; many speakers have a frequent habit of identifying many, most, or even all questions they receive as "good" questions.
I am certainly not complaining about civility at job-talks and workshops. But like most such sensible advice, I wonder if this one hasn't been applied too much and too mechanically. I have nothing against "bad" or dumb questions as such, as should be clear from my own long record of dumb questions on such occasions. Self-serving (and self-citing), irrelevant, or pointless questions, yes; we should avoid those. But, as with journalists, it's more important for academic questioners to engage and clarify than to worry about looking smart. Still, since we all know that there is such a thing as a bad or dumb question, and that they make frequent appearances at job-talks and workshops, I wonder whether there aren't better ways to be civil and respectful than to respond promiscuously or automatically with "That's a great question" every time a question is asked. When I ask or am asked a dumb question, I am perfectly happy to give and receive the words "Thank you for the question." In particular, when I ask a dumb question, I think it's not unreasonable to expect courtesy in return, but I definitely don't expect (or want, really) flattery. "That's a good question" risks becoming both excess verbiage and a mere tic. In a sense it may reveal a problem with a good deal of both academic and civic discourse: not enough plain civility, and too much flattery and mutual back-patting, as if people have forgotten that it is quite possible to be polite in a clear and economical fashion without also concerning oneself with the feelings and ego of one's interlocutor. Our society worries too much about feelings and not enough about common courtesy.
There is, of course, an added concern about being too quick to call something a good question. As complaint department staff have long known, it is possible for a polite statement, properly delivered, to mean its exact opposite. The more glaringly dumb or irrelevant a question is, the more likely it is that the statement "That's a good question" will be heard by everyone in the room, with the possible exception of the questioner, as conveying the statement "What in God's name were you thinking when you asked that?" This is another virtue of simple but non-substantive civility: "Thank you" need not be taken as rendering a judgment on the question, and thus mostly avoids the problem of irony. (I actually think the legal academy needs much more irony, but that's a subject for another time.)
And one more problem: I have found, and not infrequently, that "That's a good question" is sometimes followed by an answer that avoids or evades the question rather than make a good-faith effort to answer it. One quite understands the impulse when the question is genuinely irrelevant, although there are more or less effective ways to pivot from such a question. But occasionally the question actually is good, and when a questioner has both identified a question as "good," however perfunctorily, and then not answered it, the exchange is usually underlined for me as especially dissatisfying. That's one more reason that "Thank you" is such a useful phrase. Indeed, it should be possible to be civil, but also to civilly explain how and why a particular question is, in fact, off-base or irrelevant or outside the scope or what have you, or conversely to acknowledge in a polite and responsive rather than defensive fashion that the question is good and requires more thought.
None of this negates the general usefulness of the commenter's advice, especially since, as I observed up front, those faculty who most expect flattery from a speaker are least likely to be satisfied with anything less. But these are the kinds of general norms that all of us who sit through or deliver endless talks should think about at least a little, and like all such norms they require some individual pushes in the right direction. In particular, I don't mean to place the burden on job-talkers; I notice it when a job-talker is too free with flattery, but I don't hold it against him or her.
But there are others who perhaps need the advice to emphasize and expect civility rather than flattery, not to evade questions labeled as "good," and, as a general rule, to avoid calling bad questions good. Habits of this sort, first adopted when one is a supplicant, end up becoming part of one's repertoire even when one is "just" a workshop speaker, with no job riding on the outcome of the talk, and end up being assumed or expected by faculty audiences as well. The legal academy and perhaps most academic fields may well need more civility, but not more flattery. Ideally, workshop speakers who are not job supplicants, and who indeed are already tenured and rooted somewhere, could certainly afford to ease up on this tic. Faculty audiences should train themselves not to expect or encourage it. And advisors to job candidates, especially those who send large numbers of fellows and such out into the world, should certainly carefully consider the costs and benefits of the advice they give, and remind their charges that this advice, like all advice, should be used sparingly and with care rather than heaped upon every question, no matter how bad it actually and obviously is.
Thursday, October 22, 2015
Evolving Law Review Selection Processes (Part II)
Yesterday I blogged about a couple journals who took an unusual approach to publication offers, making multiple authors race to accept one offer, rather than the usual process where we make journals wait to see if we will accept their offer or expedite up. https://prawfsblawg.blogs.com/prawfsblawg/2015/10/exploding-offers-from-law-reviews-a-new-trend.html
The post sparked a... spirited discussion about the fairness and efficiency of the current law review selection processes. So, I thought I'd mention another unusual approach to article selection, this one from Ole Miss's flagship journal, the Mississippi Law Journal. In their own words:
Established in 2014, the Mississippi Law Journal’s innovative peer review process adds a valuable new dimension to the Journal’s tradition of excellence. Like most American law reviews, the Mississippi Law Journal is a student-edited journal. The majority of its articles are selected by student editors—sometimes with input from University of Mississippi School of Law faculty. However, a few of its articles are now selected and workshopped through an alternative process involving formal review by faculty peer reviewers. These articles are published in the Mississippi Law Journal as peer reviewed articles.
The Journal’s peer review process has two major components: (i) peer selection of articles and (ii) peer workshopping opportunities for authors.
The Journal’s Editorial Board selects articles for publication in the peer review forum based on the recommendations of faculty peer reviewers—members of a Peer Review Board staffed by UM law faculty. The Editorial Board forwards a subset of articles from its general pool of submissions to peer reviewers for blind review. The articles are selected for peer review principally on the basis of the peer reviewers’ common areas of scholarly expertise. The Peer Review Board meets each week during the fall and spring submission seasons to discuss articles in depth and endorse a small number as worthy of special peer review publication. The Journal’s faculty peer reviewers are committed to the rigorous review of anonymized articles within their joint areas of specialization. . . .
Full disclosure, my article, Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study, was one of the first articles selected through this new process. (Look for my blog post on the article next week). The peer review aspects and workshop opportunities convinced me, a junior pretenured professor, to accept their offer over other arguably higher ranked journals.
If you wish to comment, please do so on the original thread, https://prawfsblawg.blogs.com/prawfsblawg/2015/10/exploding-offers-from-law-reviews-a-new-trend.html, to maintain the continuity of the conversation.
Fr. Robert Araujo, S.J., R.I.P.
I had the pleasure of learning from, blogging with, and being inspired by Fr. Robert Araujo, S.J. -- a gentle interlocutor, a caring teaching, a careful teacher, a good priest -- for more than ten years. Those Prawfs readers who also had the chance to read Fr. Araujo's posts at Mirror of Justice know that -- whether or not one agreed with him -- he was a model of civil and thoughtful engagement with questions that matter.
If you didn't know him, I'd encourage you to re-read the inspiring "goodbye" he posted, at MOJ (here ), last August, when he went into hospice care. And for those unfamiliar with his story, and with the range of his scholarship, here is the link to his faculty web page at Loyola. Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May he rest in peace.
Wednesday, October 21, 2015
Has Environmental Law Made it?
There are many factors that go into where you place your law review article. We all know that quality counts, as does your institution's U.S. News ranking and your own prior publication record. Many have pondered about how to strategize the details as well - what are the best words to include in your title to impress 2Ls, what is the preferred word count (a moving target as well as a variable one), and how flashy should the introduction be, as just a few examples.
Of course, there are some things we can control (details, and to some extent quality and building a solid publication record to improve future placements), and some we cannot (what U.S. News thinks of us - and strategizing that is a topic for a different post). But what about the field you have chosen to research and write about? While arguably in your control - hey, you picked it - for many of us with careers underway, this is a set reality. Not to say we'd want to change it (if you're lucky, you remain fascinated with the subject), but it is our somewhat fixed reality now. We may make small moves around within it, but these varying subtopics tend to fit together under a larger umbrella (for most of us - we aren't all Sunstein). This, of course, raises the importance of how your given field fares in law review selection, and clearly I mean the general law reviews.
If you managed to choose something like Constitutional Law to write about, or are writing about a currently hot topic otherwise, you should do fine in the general law review process. Environmental Law, however, like many other fields seen as "your thing" and not "everybody's thing," has traditionally not made the cut. The vast majority of our articles get placed in the specialty journals for our field (for example, in 2006 Sunstein published a conlaw article in the Yale Law Journal and a Global Warming article in the Pace Environmental Law Review, so even Cass is not immune). But is the tide turning for Environmental Law, and if so, why?
Recently I've noticed more of my colleagues' articles turning up in general law reviews. A quick set of Westlaw searches (limited by time and context, but perhaps a matter worth assigning an RA to more precisely research) suggests there may be such a trend (although the vast majority of our work remains in specialty journals, which are notoriously undervalued). A small handful have even begun to make their way in to the top journals in the country.
If Environmental Law article placement is moving up in the world, why might that be happening? It could be that it is a topic of increasing real-world impact. Or perhaps it is because law review editors are so young, and the young have been raised to fear environmental harms (especially climate change) in a way those of us who hid under our school desks from hypothetical nuclear bombs cannot imagine. These possible reasons do make sense, but I think there is more to it than that. I suspect that it may relate to environmental scholarship becoming both more theoretical and more interdisciplinary. Whatever it is, we may well be mainstreaming, which could have many other fringe benefits for the field.
Making a Good Job Talk First Impression in 3 Easy Steps
Candidates are now turning their attention to callbacks and job talks. Other than the stakes involved, job talks are not much different than most other presentations of academic papers. Any time I present a paper, I try to focus on making a good first impression. There is no point in ending strong if I lose everyone at the on-ramp. I have many objectives when I present a paper, but I know that I can’t effectively achieve any of those aims if I confuse or bore my audience. So my first priorities are to be clear and to be interesting. And I know that I have to achieve those priorities at the beginning and quickly, or I risk losing my audience. I think there are a lot of ways to do this, but here are three things I try to do that I think generally help me get my presentation off to a good start:
1. "My paper is about...": My first sentence is almost always "My paper is about..." or something along those lines. The point of this sentence is to frame my paper in a way that is interesting and accessible. I wrote a paper about how implementing the human right to water can result in poor cost recovery and fewer incentives for conservation, leading to unsustainable water management. I would begin presentations by saying, "My paper is about how the human right to water can keep humans from getting water." I keep this sentence short, devoid of jargon, and hopefully framed in a way that would interest a non-expert.
2. "For example...": My second sentence almost always begins "For example..." or something along those lines. I always have a story, a case, or a hypothetical that puts the paper into context. It helps everyone to understand better what I’m talking about, and it's easier for them to frame questions when they can just refer to my example. I always try to tell the whole story in a just a few sentences. I don't assume that I can just throw out a case name and everyone will know what I’m talking about. All water law scholars know what I mean if I reference Winters. But I can’t be sure that everyone will know. So if that case is my example, I have to tell the story.
3. "I argue...": I make my main argument in the last few sentences in my introduction. I try to limit it to two or three simple sentences – “I argue that implementation of the human right to water often results in unsustainable water management. I proposed three regulatory reforms that would facilitate a more sustainable approach to the human right to water. First…” My whole introduction is only a few minutes, and the entire paper presentation is between 15 and 20 minutes. The whole point is the Q&A. I never say everything I want to say in the presentation – I know I will work in other points from my paper in Q&A. This is one of the most important reasons for mooting a presentation in front of colleagues or mentors. It gives me a sense of what questions I’ll likely face, and how to effectively work in points from my paper that I didn’t address in the presentation. I only use PowerPoint if pictures or other graphics are essential.
Now you might think "But my paper is too complicated to make clear." I don't think that is ever the case, but if it is, then it's not the right paper for a job talk or a presentation in front of a general law faculty. You might also think, "My paper is about a dry subject, so I don't think I can make it interesting." You cared about it enough to write about it, so it must have interested you. It's worthwhile thinking about why you cared so much, and how you can convey that in the presentation. Finally, you might say, "I'm just not a good presenter - I get nervous, or I'm shy, or just not a dynamic presenter." I'm sympathetic to this concern. Presenting a paper, like teaching, is not acting. You should be yourself. But although it is not acting, it is still performing. That doesn't mean you have to juggle fire or be a stand-up comedian. But you have to find a way to be interestingly genuine (or genuinely interesting - whatever). I'm not sure I have good advice on how to do that, though.
Would anyone voluntarily give up their right to buy a gun? (PAS, Part IV)
Yes. Some of you may have known Cheryl Hanna, a professor at Vermont Law School. Cheryl bought a handgun and used it to kill herself the next day. Aged 48, she left behind a husband, two children, and a successful career. Hanna had been privately battling severe depression. She had twice voluntarily admitted herself to a hospital for psychiatric treatment. In doing so, she gave up much of her liberty in an effort to get better. One right she was not allowed to give up was her right to buy a gun.
“I think she would have signed up for this,” said her husband, Paul Henninge.
Cheryl is not alone. A suicide expert at UAB, psychiatrist Richard Shelton, has written: “Professor Fredrick Vars has proposed a simple and sensible alternative for people who have recurring periods of suicidal thinking: add their names to a gun ‘do not sell’ list. A natural first response might be ‘would anyone really do that?’ As a practicing psychiatrist I see suicidal people on a regular basis. Many of them readily agree to safety measures such as removing guns from their homes, committing themselves to a psychiatric hospital, and securing their medications to protect themselves. It seems likely that people will take the further step of blocking access to firearms in this way. A voluntary and confidential system of ‘opting out’ is a reasonable next step in reducing suicide deaths.”
Sign the petition.
An Important New Fact, or a Report on the Coal Industry From the Newcastle Boosters League?
I admire what I have read of the work of Jean Cohen, a Columbia political scientist--particularly her Regulating Intimacy: A New Legal Paradigm, which discusses and uses "reflexive law" as a means, in the words of the book's jacket copy, to approach debates over "the regulation of intimate relationships" in a way that is "free from the liberal and welfarist paradigms that usually structure our legal thought. This new legal paradigm finally allows us to dissolve the tensions among autonomy, equality, and community that have beset us." It is always useful to escape from the standard prisons of our thought and to think perpendicular to and across the usual and tedious left-right divisions that channel and stymie so much intellectual work in the United States.
I am thus struck by the abstracts to two new papers by Prof. Cohen. I look forward to reading the papers, which are on subjects of great interest to me. But I am surprised by what she chooses to foreground in those abstracts. Here is one:
This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.I think the subject is important and worthwhile. But I am struck by the description of American legal scholars "often working with well-funded conservative foundations and influencing accommodation decisions throughout the US." The other abstract repeats this language almost verbatim, adding the additional description "well-funded conservative foundations like the Beckett Fund for Religious Liberty." Evidently this information was important enough both to place in the abstract and to repeat in both papers.
On the whole, I don't mind and rather favor descriptions of the ways in which legal academics often work hand in glove with well-funded advocacy and/or ideologically charged organizations. Many legal academics, in my view, are not "academic" enough; although I'm something of an institutional pluralist about this and believe that there is room for several models of what the academic or legal academic role involves, including a more normative, goal-oriented, advocacy-oriented model, my first allegiance is to the traditional, Fishian model of "academicizing" the issues one addresses and remaining relatively indifferent to whether one is aiding and comforting the "left" or the "right" in its current struggles.
And there is one respect in which the information in Cohen's abstract might be taken as informative. Neither pluralism, nor jurisdictional pluralism, nor religious accommodationism, are inherently politically conservative activities. Rather, positions of this sort, or contrary positions, tend to tack back and forth across "sides," depending on the issues and context of the day, but sometimes emerge as issues and strategies dear to one side, and take root long enough to affect and alter the surrounding views of that side for a time. So it can be interesting, descriptively and for purposes of sociology and intellectual history, to note when that has happened. Similarly, it can be interesting to note the ways in which strong religious accommodationism has shifted from a mainstream liberal position--the Court's decision in Employment Division v. Smith was, at the time, labeled the most "illiberal" decision of its Term in the Harvard Law Review--to one that is viewed negatively, sometimes outright critically, and even as requiring the strategic use of ironic single quotes to propagandize the view that it has nothing to do with "'religious liberty.'" In recent times, one can witness both that shift, and the way in which it propagates across and between well-heeled liberal advocacy groups and their intellectual water-carriers, with effects on the distribution of funds, the position of groups, and the center of gravity of liberal legal scholarship in that field.
Still, to foreground the (too-frequent?) hand-in-glove relationship between issue-based or ideological advocacy groups and legal scholars seems like something everyone knows about all too well. Is it worth that placement in an abstract, in a way that suggests that the information is unknown or novel and important? Does doing so, and in the language used by Cohen, not carry with it a kind of unwarranted suggestiveness, as if one is revealing something secret and shameful? And is the description and its sotto-voce suggestiveness only partly accurate, thus rendering some of that suggestiveness positively misleading? I have advocated some measure of what Cohen calls jurisdictional pluralism in this area, but I have not worked with the Becket Fund (I interviewed there once long ago, when liberals were allowed to be seen in its presence, but chose not to work there) and do not broadly share the political or substantive goals of "well-funded conservative foundations." Conversely, some individuals whose liberal credentials are at least as good as Cohen's have also worked with the Becket Fund, even if some have taken to misdescribing the political and substantive views of those individuals.
And to do so in what comes off as a one-sided fashion is particularly misleading and unfortunate, lending the air that one group is engaged in some kind of covert and intellectually suborning conspiracy while the other simply involves a happy and fortuitous coherence of positions. Moreover, it is not a little ironic coming from a scholar at Columbia--my alma mater, and one I am perfectly proud to be associated with. The Becket Fund's 2012 financial snapshot shows contributions just under $5 million and assets under $2 million. In the following year, the Center for Reproductive Rights showed contributions of over $17 million and assets of almost $36.5 million. Among its good works is the joint Center for Reproductive Rights-Columbia Law School Fellowship, associated with Columbia's Center for Gender & Sexuality Law. This is not a condemnation. I presented my paper on Hobby Lobby at Columbia and faced many good and fair questions from the faculty there, including several fellows and/or faculty associated with the center; I was grateful and enjoyed meeting everyone. Its fellows do good work there and have gone on to do more good work. But it makes the unidirectional nature of the language in Cohen's abstract all the more odd.
Writing descriptively about alliances between advocacy groups and legal academics is not a bad thing. Neither is trying to tease out its implications for intellectual work by those academics and, perhaps, worrying about, or at least debating, whether legal academics are rather more affected by the "legal" part of their job description than the "academic" part. The actual work produced can, of course, still be judged by its own merit, and one hopes that at least some of that work will cut in interesting ways across the same old tired divides. But surely everyone recognizes that in the nature of things, given the generally liberal political priors of most legal academics, there will be countless examples on the liberal-left side of the same phenomena put forward by Cohen, with the same general implication of coordination and/or a potential influencing or distorting effect on independent legal scholarship. Maybe Cohen did not foreground those alliances in her abstract because everyone already acknowledges their existence, importance, and strategic and intellectual effect, so much so as to take this all for granted. But the one-sided focus still seems odd to me.
Can a school increase citation count?
Last month, Gregory Sisk and others updated for 2015 their study of scholarly impact by the top 1/3 of law faculties. They use Brian Leiter's methodology of counting total Westlaw citations by all tenured faculty, then apply a formula of (mean x 2) + (median) to get a weighted score.
So here is a question: Is there anything a law school can do, individually or institutionally, to improve its citation counts? (let's assume hiring a senior well-cited scholar is not an option) Is it just a matter of telling people "write more and place well," which means your stuff should get cited more? Is it about picking topics to write about, such that some topics are more likely to be cited in future works? Are there publicity efforts that the school can support, such as supporting the mailing of reprints to authors in the area? Other things?
Tuesday, October 20, 2015
Is It Unconstitutional to Apply Erie to D.C. Law?
Last December, I wrote a post about the strangeness that arises from the applicability of Erie (pursuant to which federal courts in diversity cases apply the state substantive law dictated by the choice-of-law rules in the state in which they sit) to the District of Columbia. Although it's strange to apply Erie in the federal territories at all, it's especially strange in D.C., which is the only one of the six federal territories in which the court receiving deference under Erie was created (and is controlled) by Congress, as opposed to the territorial legislature. Thus, as my post last December noted, when they follow Erie, the Article III D.C. district court and D.C. Circuit are necessarily deferring to an Article I court's interpretation of federal law (to wit, the D.C. Code). And although this result is not remotely compelled by the Rules of Decision Act, the (Article III) D.C. courts have nevertheless chosen to adopt it for purposes of convenience and litigation efficiency, if nothing else.
The more I think about this issue, the more I wonder if this approach isn't just "strange," but also one that raises constitutional concerns. After all, it's well settled that Congress may not give non-Article III actors (whether non-Article III judges or Article I or Article II entities) supervisory authority over Article III courts, but the application of Erie to D.C. at least theoretically gives the D.C. Court of Appeals a supervisory power over some federal law within the District vis-a-vis their Article III brethren, even if it lacks authority over the latter's decisions. Thus, could Congress really compel a lower Article III court to follow an Article I court's interpretation of federal law (whether in general or as limited to the "local" federal law of D.C.)? This surely goes much further than Chevron, since, among other things, there's no room under Erie to set aside the Article I court's unreasonable interpretations of ambiguous "local" law...
But even if you don't find that argument compelling, what if the Supreme Court were ever presented with a question of D.C. local law? Wouldn't there be a serious problem under Article III with following Erie in such a case, given that the Supreme Court would, insofar as it applied Erie to the District of Columbia, necessarily be deferring to an inferior Article I federal court on a question of federal law (as compared to deferring to an independent state supreme court on a question of state law)? Although I'm somewhat ambivalent about the constitutional problem with applying Erie in the Article III D.C. lower courts, the constitutional problem with applying it in the Supreme Court seems manifest.
To be sure, an obvious rejoinder is that, unlike the D.C. district court and D.C. Circuit, the Supreme Court has never chosen to follow Erie in such a case, and so the constitutional question hasn't arisen. And in an appropriate future case, the Supreme Court could certainly choose not to follow Erie then, too. So if the constitutional problem only arises at the Supreme Court level (and again, I'm still not sure it's that limited), it can easily be avoided by the Justices if and when it presents itself.
But insofar as a refusal on the part of the Supreme Court to be bound by D.C. law as interpreted by the D.C. Court of Appeals would solve the constitutional problem, it seems to me that it also undermines the pragmatic justification the Article III D.C. lower courts have advanced for adopting Erie, since it suggests that, in fact, there will be cases in which the Article III courts will be constitutionally bound to reach an independent interpretation as to the meaning of D.C. law--and that those cases will come through the very courts voluntarily choosing to defer.
The Perfect Letter of Recommendation
I often find myself staying in the office late and coming in on weekends to finish writing recommendation letters for students. Writing these is often one of my favorite parts of my job, especially when I am writing for a student whom I know well and in whose future I really believe. Often, my letters will be long - 3-4 pages is normal for me - and filled with details. The more I can tell the reader about a student, the better. I try to make each recommendation into a story about a person's life, hopes, and dreams. Though we only see a snapshot of a person in a letter of recommendation, that snapshot is all about convincing the reader of a life's trajectory. I really enjoy writing such letters.
I'm less knowledgeable, however, about what the market for letters of recommendation looks like. I have no idea what kind of letters my colleagues write - how long they make them, how many details they include, how they begin, or how they end. I have no idea if they agree to write a letter for everyone who asks, or if they turn down some requests. And I have no idea if they focus only a student's performance in class, on attributes of the student about which they learn outside of class, or on a combination of both. Obviously, different norms and standards apply for different purposes. And different kinds of letters are appropriate for different students. All of that is given.
Still, what does the market for a strong letter of recommendation look like? What should the letter's length be? Should the law professor writing it include information about him- or herself too, and if so, what kind of information is most pertinent? And at what point should a letter go beyond academics to focus on the applicant's other attributes? The Internet, of course, is awash with recommendation advice. Here is some advice that I am cribbing from a website about writing the perfect letter of recommendation:
1. Explain how you know the applicant.
2. State your own qualifications. Why should the reader be interested in your recommendation?
3. List the applicant's exceptional qualities and skills.
4. Emphasize key points that you want the reader to note on the resume or application.
5. Give your value judgment of the applicant and his/her qualifications and potential.
6. Give specific examples to back up what you have said in the recommendation letter.
7. Don't be too brief. One or two short paragraphs are death. But be succinct. Make every word count.
8. Make the ending strong without overdoing it. Undue praise can be viewed as biased or insincere.
9. List your contact information if you are willing to receive follow-up correspondence.
10. Proofread! The letter of recommendation represents both you and the applicant.
Whenever I read such advice online, it seems too general to me - and much too obvious. And it doesn't provide any sort of comparative perspective. The Bok Center for Teaching and Learning at Harvard provides more specific recommendation advice here (it is geared toward TAs and fellows). The Atlantic ran a story a year or so ago about the art of writing the college recommendation letter here. Other advice abounds all over the Internet.
However, I'm curious to hear what law professors think: Is there something unique about the letters that legal scholars write? Is there something unique about letters written for those seeking legal employment (as opposed to other kinds of employment)? What is your recommendation-writing process like? And what, if you have an opinion on the matter, makes for the perfect letter of recommendation?
The rival of my rival is . . .
This defies words. (H/T: Josh Blackman). Westboro Baptist yesterday picketed outside the Rowan County Clerk's Office in a protest of Kim Davis, for her sins of being divorced and of failing to obey her oath to follow the law. Apparently "all sin" is "awful," so adultery, same-sex marriage, and oath-breaking all stand on the same footing.* I wonder what LGBTQ groups are thinking right about now.
* Never mind that Davis does not violate her oath by not following SCOTUS precedent--I do not expect the Westboro folks to understand the precedent/judgment distinction).
Argument preview: Three-judge courts and 12(b)(6) dismissals
I have a preview essay at SCOTUSBlog on Shapiro v. McManus, which considers whether a single judge can dismiss a claim under FRCP 12(b)(6) in an action that is subject to resolution by a three-judge district court. The argument is scheduled for Wednesday, November 4.
Exploding offers from law reviews: a new trend? (Part I)
We all know the standard practice when it comes to law review submissions: we get an offer from a journal with a deadline to accept. Then, we frantically go back on ExpressO to expedite to higher ranked journals. If we get a better offer before deadline, we drop the original offer like a bad habit and hopefully expedite our way all the way to the top. The practice is often tough for lower ranked journals, who have to scramble to find new articles, but it's the way the process has worked for years. What if the students switched it up on us?
This fall I've heard two reports of authors who received "exploding offers" from student law reviews. The journal told the authors that they had given more than one offer for their publication slot. The authors were given a deadline, but were told that the offer would be revoked before the deadline if a different author accepted the slot first. True to their word, offers were revoked, before the deadline.
According to the faculty advisors of one journal, the students decided to do this in response to "exigent circumstances," after receiving the short end of the stick from the process we're used to. Over the course of a month, the students had made fifteen separate offers to authors to fill one slot, and each time the author declined their offer after expediting upwards. They felt their unusual solution was necessary to make sure the students could start editing on time. The students were upfront about the process when they made the offers to the authors, and the faculty advisors emphasized that this was NOT the journal's standard practice.
I am torn on my feelings about this practice. On the one hand, it puts authors, whose careers often depend a lot on getting the best placements they can, in a very hard situation. On the other hand, the standard process can be very difficult for students, especially those at lower ranked journals, and getting good articles to start editing on schedule is central to the pedagogical function of law journals. On yet another hand, exploding offers could ultimately be self-defeating, as it could discourage authors from submitting to those journals in the first place.
Is this the wave of the future, or a creative mistake by a couple journals?
Because I've heard some strongly negative responses to exploding offers and the faculty advisors say this will not be their standard practice going forward, I think it makes sense to keep the names of the journals out of this blog, and the comments, for now. I won't delete any comments that offer to share the names offline.
Please let me know if you've heard of any other student journals that have done this, or similar practices. I promise to handle any such reports with the utmost discretion.
Monday, October 19, 2015
If Congress refuses to pay its bills, can the President do it for them?
Here we go again, another debt ceiling crisis. Congress passed lots of laws spending more money than it takes in, but they also passed a law saying we can't borrow more than a certain amount. So, as has happened so many times before, we face a potential government shut-down unless Congress votes to raise the debt ceiling, which would allow the government to actually pay what it promised.
This standoff, if unresolved, threatens to confront the president with a no-win scenario that Neil Buchanan and Michael Dorf aptly coined the “Trilemma.” Any action the president might take—be it unilaterally cancelling or reducing programs, increasing taxation, or borrowing more money—stands in direct conflict with a congressional command. Professors Buchanan and Dorf posit that any choice that the president makes will violate the Constitution “because he will have failed to execute at least one duly enacted law of the United States.”
My colleagues, Jessica Berch and Chad DeVeaux, disagree. Because the Supreme Court “refers to Justice Jackson’s familiar tripartite framework from Youngstown” to resolve “claims of presidential power,” they argue that the Court must look to Jackson’s taxonomy to determine the president’s options in the event Congress pushes the economy over the fiscal cliff. Last year, Chad published The Fourth Zone of Presidential Power, 47 Conn. L. Rev. 395 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2423404)—addressing the 2013 standoff—which argued that the standoffs require the expansion of Jackson’s taxonomy to include a fourth zone of presidential power. In Youngstown, Justice Jackson asserted that “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous 3-zone template to evaluate the scope of executive power.
In the first zone, “the President acts pursuant to express or implied” congressional authorization. Here, the president’s power “is at is maximum.” In the second zone, “the President acts in absence of either a congressional grant or denial of authority.” In this “zone of twilight” Congress and the president possess authority that is either “concurrent” or “its distribution is uncertain.” Zone 3 involves situations where “the President takes measures incompatible with the express or implied will of Congress.” Here, “his power is at its lowest ebb”—only exercises of plenary Article II powers (e.g., pardons) may be sustained.
Each of the president’s 3 options in the standoffs appears to fall into the third zone. Article I bestows the powers to “tax,” “spend,” and “borrow” exclusively upon Congress. But on closer examination, Chad posited that the standoffs do not fit within any of Jackson’s zones. His 3 zones contemplate coherent legislative action. Congress can sanction presidential action, it may be silent on the subject, or it may prohibit it. Congressional acts in conformity with any of these coherent choices will affect the president’s powers accordingly. But in the standoffs Congress directed the president to take specified action and paradoxically forbade him from taking that very same action. Such contradictory legislative instructions cannot find a home anywhere within Youngstown’s existing taxonomy. As such, Chad argued that the standoffs require expansion of Jackson’s spectrum to accommodate a fourth zone of presidential power.
Here, Chad asserts that Congress actually increased the president’s power. Irreconcilably conflicting legislative commands necessarily invest the executive with a measure of discretion that resembles law making. Congress cannot—in the guise of “legislating”—direct the Executive Branch to complete an impossible task and then claim that it is the president who is delinquent in his constitutional duty to faithfully “execute” the law when the assigned goal goes unfulfilled. By commanding the president to implement particular programs, while explicitly denying him the funds necessary to pay for these endeavors, Congress tacitly afforded the president the discretion to take any of the corrective actions suggested above—(1) cancelling programs, (2) borrowing funds, or (3) raising taxes.
But in the present standoff, Congress has changed the rules of the game. House Republicans have proposed a bill styled the “Default Prevention Act,” which would direct the president to borrow funds in excess of the debt ceiling—but only for the limited purpose of paying principal and interest due to federal Treasury bond holders and social security recipients. The bill would tacitly instruct the president to default on all other federal obligations.
Chad and Jessica have proposed a panel for the upcoming AALS Annual Meeting (along with Mike Abramowicz, Gillian Metzger, former Congressman Brad Miller, and Austen Parrish) addressing the president’s options in the looming standoff. Chad and Jessica are also writing a new article, entitled Once More unto the (Fiscal) Breach, addressing the impact the new bill may have on the scenario. The central question is whether, under Youngstown, a vetoed bill can impact the scope of presidential power. Chad and Jessica will be blogging on PrawfsBlawg about this and other issues in December. Stay tuned.
Does PAS violate the Second Amendment? (PAS, Part III)
(Recall that under PAS, individuals could prevent their own future gun purchases by adding their own names to the "do not sell" list.)
No. Law professors Ian Ayres at Yale (here) and Joseph Blocher at Duke (here) have both argued that the right to bear arms includes the right not to bear arms. Critically, my proposal is completely voluntary. The government is not taking away anyone’s right to buy a gun. Rather, the government is merely providing a new avenue for citizens to exercise their right not to buy a gun.
Here’s an excerpt from Ian’s endorsement of the proposal, titled “Libertarian Gun Control”: “Vars’s proposal is one that every card-carrying libertarian should endorse. It’s the kind of voluntary gun control that even the NRA can support – especially as it comes with self-chosen methods for subsequently removing yourself from the list.”
An explanation about the name removal options. There would be two, selected by the individual when signing up: (1) removal after a seven-day delay; or (2) removal after a judicial hearing finding no elevated suicide risk. These removal options negate Second Amendment challenges even for individuals whose waiver of the right to buy guns was not knowing and voluntary. If a person has an elevated risk of suicide, then a ban on firearm purchases is narrowly tailored to the compelling government interest in preventing suicide. A more complete explanation of the constitutional arguments appears in an article by me and Angela Selvaggio forthcoming in the Harvard Journal on Legislation (here).
Sign the petition.
Merits and mootness
In my writing here and elsewhere, I have argued that much of what is labeled as subject-matter jurisdiction, sovereign immunity, and standing are all better understood as being about the merits of a claim rather than Article III adjudicative thresholds. (I discuss standing in a forthcoming essay on next month's arguments in Spokeo v. Robins). And ripeness has somewhat been absorbed into standing. But that I thought the one threshold that might survive and make jurisdictional sense was mootness.
The issue is whether a case becomes moot when a defendant makes an offer of judgment that gives the plaintiff everything he asked for in the lawsuit and how that affects his status as representative plaintiff of a still-to-be-certified class. Counsel for Gomez and for the U.S.in support of Gomez both framed their arguments in the difference between a court entering (or even forcing) a final-and-enforceable judgment based on the parties' agreement and a court dismissing an action for want of jurisdiction as moot. The former gives the plaintiff the judicial relief he requested when he filed the lawsuit, just as if the court had decided the merits.
Counsel for the U.S. described the practice of district courts (which I recall following as a clerk): Upon notification of a settlement, the court would enter a consent decree (in a prospective case) or dismiss a damages claim while retaining jurisdiction to enforce the terms of the settlement. No one ever thought to describe this as mootness. Both attorneys explained why what the Justices were talking about in Article III terms as an absence of adversariness could easily (and in some cases, more properly) be recharacterized in merits terms, as the end of a present dispute that gave the defendant an affirmative defense and justified the entry of judgment. When the plaintiff has received everything he asks for, the defendant has a defense against any finding of liability, since the injury (which exists) has been remedied.
This is an unusual case in which to discuss mootness, since the plaintiff was primarily seeking retrospective relief for past harm. Mootness generaly occurs where an ongoing real-world injury has somehow ceased. With retrospective relief, however, the injury already has occurred and the judicial remedy sought is merely compensation for an already-completed injury; it does not cause the injury to cease.
But even with prospective relief, the merits characterization makes more sense. Take, for example, a constitutional challenge to a repealed statute. The plaintiff's rights are no longer being violated and he no longer is being injured by the defendant's conduct, since there is no longer a threat of enforcement. But it makes more sense to say the defendant wins on the merits because the plaintiff's rights are no longer being violated and the defendant is no longer subject to liability, just as it makes more sense (under the Fletcher model) to say the defendant wins on the merits because it cannot be liable when the plaintiff's rights were never violated in the first place.
I have to give this some more thought, especially once the Court decides the case.
Sunday, October 18, 2015
Law School Hiring, 2015-2016, Thread Two
For the most recent comments, go here.
Please leave comments on this thread regarding whether you have received:
(a) a callback from a law school and/or accepted it; or
(b) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Five miscellaneous things:
1. If you don't want your contact information displayed, enter [email protected] or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
4. The year's first hiring thread is here. Comments to that thread are now closed.
5. In each of the last five years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at slawsky *at* law *dot* uci *dot* edu, and I will get you set up.
Update: We once again have an aggregator! Below is the spreadsheet, which you can view and download here.
All information should come in through the comments. Our aggregator will use the spreadsheet to aggregate the information. Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below.
The aggregator will update the spreadsheet approximately once a week.
You can reach the aggregator at aalsaggregator (at) gmail (dot) com.
Originally posted October 18, 2015; edited October 22, 2015, to add aggregator information.
In praise of lectures
Friday, October 16, 2015
Number of Schools at FRC Over Time - 2015
In 2012, there were 142 AALS member or approved schools at the FRC.
In 2013, 94 schools.
In 2014, 81 schools.
In 2015, 89 schools.
(Say +/- 2 for each year due to vagaries of counting.)
Wednesday, October 14, 2015
"The Marriage Moment" Is a Good Time to Fix a T&E Problem
I have an essay forthcoming in the Temple Law Review Online that proposes a solution to the following problem in trusts and estates law (exacerbated by Obergefell):
“[S]uppose an elderly person is completely dependent upon a nurse. The nurse pressures the patient into executing a will leaving everything to the nurse. After the patient dies, the family challenges the will on undue influence grounds, and likely wins. But suppose instead the nurse pressures the patient to marry. Marriage too can be set aside on undue influence grounds, but in most jurisdictions not after a spouse has died. The unscrupulous nurse keeps the ill-gotten spousal share.”
The solution draws on equitable principles and long-forgotten case law: "a person who procures a marriage solely to receive advantages at death and through misconduct that would support a will contest should not be treated as a spouse for purposes of intestacy, the elective share, or other death benefits."
Kevin Walsh has coined the term to perfectly capture the precedent/judgment/departmentalism distinction I have been drawing and that Josh Blackman and I make: "Judicial Departmentalism." (H/T: Rick, in a comment to my prior post). The idea is that SCOTUS precedent and vertical stare decisis control what happens within the judiciary.* But they do not control the actions of anyone outside the judiciary, particularly officials in the other branches of government, who remain free to act on their own constitutional understandings in terms of the legislation they propose, the way they enforce laws, etc. At bottom, Kevin argues, the American Principles Project is rejecting judicial supremacy in favor of judicial departmentalism.
* The APP statement acknowledges the supremacy of the Supreme Court over the federal judiciary, although does not mention state judiciaries. I default to James Pfander's argument that a state court deciding a federal issue is a "Tribunal inferior to the Supreme Court," thus part of the federal judiciary and bound by vertical stare decisis to the same extent as a federal district court.
Of course, judicial departmentalism inevitably morphs into judicial supremacy, because the actions of public officials contrary to binding SCOTUS precedent will eventually find their way into court, where vertical stare decision and judicial departmentalism will compel the court to issue a judgment compelling the officer to abide by the precedent. And the executive cannot act contrary to a judgment directed at him--stated differently, the specific judgment pulls the officer into the judicial department. Moreover, a number of rules that the judiciary applies functionally enforce, or at least incentivize, judiciary supremacy: 1) FRCP 11 requires lawyers and parties to bring cases that are supported by existing law or a nonfrivolous argument for overturning that law, meaning law as established by SCOTUS; 2) qualified immunity is lost and damages possible against a public official who disregards SCOTUS precedent; and 3) the knowledge that an official will certainly be enjoined by a court applying SCOTUS precedent may cause the official to fall in line. [Ed: I guess I should add state Rules of Professional Responsibility, although I know less about these; based on comments to my earlier post, it sounds as if they limit lawyers' freedom to advise their government clients not to feel tied to judicial supremacy]
But the fact that we (likely, if not certainly) reach the same result at the end of the does not mean there are not multiple steps involved, that everyone is bound everywhere by what SCOTUS says about the Constitution, or that our system is, in fact, one of judicial supremacy.
Tuesday, October 13, 2015
Lawyerly obligations, precedent, and judgments
A group of conservative academics, under the name "American Principles Project," has issued a statement calling for constitutional resistance to Obergefell and calling on presidential candidates to refuse to treat it as binding precedent. The statement essentially relies on a comparison between Obergefell and Dred Scott--that is, between a decision allowing same-sex couples to enjoy the same benefits and protections as any other couple and a decision categorically denying rights to a group of people based on their race.
I have not blogged about this before, finding both the rhetoric in the statement and the rhetoric of the responses absurdly over-the-top (even while agreeing with the basic idea that public officials can act contrary to Obergefell if believing it wrong). But Lyle Denniston has this post at the National Constitution Center Blog arguing that lawyers who sign and follow the call are acting contrary to their ethical/professional-responsibility obligations. In particular, Denniston insists that a lawyer fails to show "respect" for precedent in arguing that it should not be treated as binding or controlling in similar cases. He also points to Kim Davis as an example of what happens when a public official refuses to treat a decision as binding.The point about ethical obligations cannot be right. Denniston analogizes to a Michigan lawyer disciplined for calling a panel of judges "Nazis" and "jackasses." Accepting that decision as consistent with the First Amendment, a personal attack on judges is a far cry from the sorts of legal arguments and positions lawyers can take on matters of public concern, including the state of the law and what the state of the law should be. It also cannot be that a lawyer can be sanctioned for arguing that a court disregard or overturn even binding precedent. Arguing that Obergefell is wrong, even egregiously, abuse-of-power wrong, is not the same as personally attacking the judge.
The reference to Davis at the end of the post is even more off-base, as it again misunderstands the meaning of precedent and the difference between judgments and precedents. Davis was not held in contempt for arguing that Obergefell was not or should not be binding precedent. She was held in contempt for ignoring a court order, aimed directly at her in a case to which she was a party, that applied Obergefell. But prior to the entry of that order, she did nothing that would subject her to contempt. And one cannot be in contempt of precedent. Denniston is right that "it is now accepted, very widely if not universally, that a Supreme Court decision . . . dictates the outcome when the same issue arises in a new case." But that still requires a new case in which the precedent dictates the outcome. And until that new case comes along, no one is in contempt. And no lawyer who signs the form or advocates resistance to Obergefell, in or out of court, can possibly be subject to professional sanction.
Job Talk Advice - From the Archives
This post excavates two "job talk advice" posts that aren't tagged with "Getting a Job on the Law Teaching Market" and so might escape notice. These posts are old (in Internet time) but not dated.
I've closed comments on this post to try to minimize proliferation of comment threads; if you have thoughts or comments on these posts, please share them over at this year's Clearinghouse for Questions.
Edited 10/19/15 to add:
Another post by Orin, this one candidates' choosing whether and how to specialize in a particular area of law--the comment thread is also very good.
The first episode of C-SPAN's Landmark Cases covered Marbury. It was an interesting program, mostly a discussion between Akhil Amar and attorney Cliff Sloan, who has written a book on the case. The discussion tells the full historical and political context of the case.
I was struck by a few things. And as to all, I recognize that this program is not pitched at lawyers and law students. But if the purpose is to elevate the conversation, perhaps some better editing was in order.
First, in interview excerpts, both Chief Justice Roberts and Justice Ginsburg entirely conflate judicial review and judicial supremacy, stating that Marbury recognized that the Court can review constitutionality and its word on that is final. The second does not follow from the first, of course. Amar pushed back; while insisting that he is not a Kim Davis supporter,* he pointed to Andrew Jackson vetoing the bank and Jefferson pardoning those convicted under the Alien and Sedition Acts. How do those who espouse judicial supremacy explain those actions? It seems to me there are only two possibilities: 1) Both presidents acted unconstitutionally (because inconsistent with the Court's interpretation), but in a way not subject to judicial review or 2) Both presidents acted constitutionally, in which case the Court does not have the final say on constitutional meaning. I presume both Roberts and Ginsburg know this and were using shorthand for a lay audience.
* As I have argued, Davis only begins as a story about shared constitutional interpretation, but ends as being about the finality and exclusivity of judgments.
Second, there is an interview excerpt with Rep. Bob Goodlatte, the Chair of the House Judiciary Committee, who says the problem is that there is often too much judicial review. He then complains about two situations: 1) the Court using judicial review to make up the Constitution where there is nothing to be found and 2) the Court refusing to recognize in the Constitution what "most people" know is there. For those of you scoring at home, # 1 is Roe, # 2 is NFIB. But the good or bad of judicial review should not be about decisions you happen to think are wrong. Again, I know I should not expect more from a member of Congress.
Third, even crazy people listen and try to call into C-SPAN. One of the callers started rambling about two religions that want to impose their law on everyone else: "the Jewish law and the Sharia law." To the caller's credit, when the host asked what this had to do with Marbury, the caller said "nothing."
How do YOU feel about guns on campus? Deterrence and academic freedom
Eight states, including Oregon, Texas, Arizona, and my own state of Idaho require public colleges to allow licensed students to carry concealed weapons on campus. The issue’s popped up a lot in just the past couple weeks. A few highlights:
- A student at Umpqua Community College killed 10 of his classmates on campus. link
- At least one UCC student, an Air Force veteran, was legally armed that day and, probably wisely, chose not to get involved because he was worried the police would mistake him for the shooter. link
- University of Texas students and professors are protesting over the new campus carry laws. link
- One of those protests is #CocksNotGlocks. Pretty much what it sounds like. link
- Four more people were shot at Texas Southern University last week. link
- Another four students were shot at Northern Arizona University last week. link
On the one hand, there’s the argument that students with weapons can shoot the bad guys, limiting the damage and deterring attacks. Indeed, as Eugene Volokh emphasizes, civilians with guns do stop bad guys sometimes. See also, David B. Kopel, Pretend ‘Gun-Free’ School Zones, 42 Conn. L. R. 515 (2009) (campus carry can deter). At the same time, as we saw at UCC, there’s limits to how much armed civilians can do to stop an active shooter because the second they pull out their own gun they risk being mistaken for the “bad guy.” See also, Shaundra Lewis, Bullets and Books by Legislative Fiat, 48 Idaho L. Rev. 1 (2011) (deterrence value of campus carry is minimal).
Also, most shootings, like those at Texas Southern and Northern Arizona, are not premeditated mass shootings, but the kind of things that arise out of arguments on campus. Campus carry laws mean more guns on campus, increasing the chances a random argument could turn deadly. It seems that the deterrence effect of concealed carry on these kinds of shootings would be minimal.
Teaching/Free Speech/Academic Freedom
One argument that is growing in prominence is that campus carry is bad for teaching. As the UT petition states, “The University must be a safe place for people of all views and backgrounds to express their views WITHOUT FEAR.” See also, Lewis, Bullets and Books by Legislative Fiat (campus carry interferes with professors’ academic freedom) The argument, in essence, is that it’s harder for a professor to express their views and maintain discipline if they are worried that students might shoot them if they get upset.
I’ve spoken with students who I knew were armed before. I can’t say that it bothered me at the time, but they were also friendly conversations. I’m pretty sure I’d feel differently if a normally unarmed student showed up with a handgun to talk about their grades! Criminal laws and campus rules about threatening behavior might apply in some of these situations, but not all of them. Ultimately, these laws are fairly new: I haven’t heard of any post-campus-carry horror stories of students legally intimidating professors/fellow classmates… yet. Perhaps only time will tell if these campus carry laws will be a pedagogical disaster or just not that big a deal.
Monday, October 12, 2015
New from Cambridge University Press and newly arrived on my desk is Religion and the State in American Law, by the late Boris Bittker, Scott Idleman, and Frank Ravitch. (Individual chapters were also contributed by Jennifer Ann Drobac and Jill Wesley, Angela Carmella, and Cynthia Lee Starnes.) Here is the CUP page for the book. I have unfortunately been unable to post much for the past few months, but it's well worth making the extra effort to bring attention to this book. It seeks to provide, as the book jacket says, "a comprehensive and up-to-date overview of religion and government in the United States, from historical origins to modern laws and rulings." The topics are broad, extending well past the standard narrow treatment of cases dominated by the Religion Clauses to include contracts, torts, family law, and a number of other areas; and the coverage is similarly catholic, ranging deep into the lower court caselaw. It is truly an impressive book and a fascinating and useful treatise. I'm not sure what the authors' or the press's update plans are, but I hope they will keep the enterprise going at least a little bit. It is also remarkably well-priced at some $37 on Amazon and $45 list--highly unusual for a book of this kind.
If I were to recommend a very short list of essential books on religion and American law, I would first recommend my books and then, after an awkward silence, more honestly and accurately would recommend this book, along with Kent Greenawalt's two-volume Religion and the Constitution and perhaps this book on religious organizations in the United States. It looks great and I congratulate the authors on their achievement.
"Older Faculty Keep on Keepin' On"
Here's an NPR piece on the phenomena of (a) the aging of tenured faculty (ed.: um, it's not just tenured faculty who are aging, right? Isn't everyone? RG: Come on, ed., you know what I mean) and (b) what seems to be the lack of interest on the part of most aging-tenured-faculty in buyout-plans and other efforts by universities to move them out. Here's a bit:
This dramatic trend foretells more than a future of campuses populated by white-haired professors in sensible shoes and tweed jackets with elbow patches. Universities say it's making it harder for them to cut costs and improve productivity exactly at a time when students and their families are balking at the high cost of a higher education.
And when those students — not to mention politicians and business leaders — are expecting a better return on that investment, the institutions say the buildup of aging faculty leaves them less able to respond to changing demand for new kinds of majors, or to declining enrollments, and that it's also blocking younger Ph.D.s from entering the workforce. . . .
. . . [O]ne real reason universities want their tenured faculty to leave is so they can be replaced by cheaper faculty who are not on track for tenure, and by part-time adjunct instructors, in the same way that private companies outsource their work to cut costs. The proportion of faculty who are part time has already climbed from 22 percent in 1969 to 67 percent today, according to the Association of Governing Boards of Universities and Colleges, meaning that the full-time tenured faculty who won't leave are already a much smaller proportion of the total than they used to be.
I wonder, would the perception among many faculty of universities' efforts to incentivize older tenured faculty -- some of whom remain productive scholars and good teachers, some of whom do not -- be different if universities were to make clear -- to provide assurances -- that the opened-up spots would be filled by younger tenure-track scholars (rather than untenured adjuncts, special-professional faculty, etc.)? Without such assurances, the universities' efforts might seem to reflect hostility to tenure itself (and the costs it involves and inflexibility it arguably creates) rather than frustration with its possible student-disadvantaging and scholarship-depressing misallocation?
Baseball and viewpoint discrimination?
As students are aware of my baseball allegiances, I am getting many questions and comments from students about the Cubs current position in the baseball playoffs. One student shared this story from last week--a professor at the University of Illinois moved the mid-term exam for a student because the student had obtained tickets to last week's National League Wild Card game in Pittsburgh.
Viewpoint discrimination? What about the Cardinals fans who no doubt are in the class?
In Favor of a Strong Presumption of Testamentary Capacity
Testamentary capacity is required in every jurisdiction to execute a valid will. There is little variation in what that means substantively, but significant variation in standards and burdens of proof. I have argued that someone challenging a first will should have the burden to prove incapacity by clear and convincing evidence (here). A minority of jurisdictions follow this approach, which better effectuates testators’ intent. The majority require a showing of incapacity by a mere preponderance.
Massachusetts is even worse. An appeals court there last month affirmed the denial of probate to a will on the ground that the testator lacked testamentary capacity. In re Estate of Galatis (2015 WL 5227413). In accordance with my position and the majority rule, there is a presumption of capacity in Massachusetts and the burden is on the will contestants to show incapacity. However, in Massachusetts, the burden flips to the proponents of the will to show capacity as soon as the contestants present “some evidence” of incapacity.
The proponents of the will in Galatis were unable to meet that burden. The facts illustrate how this flawed burden-shifting approach can lead to bad results. The evidence on incapacity was admittedly mixed: the panel split 2-1. Leaving the burden on the contestant and requiring clear and convincing evidence of incapacity could well have tipped the scales. And probating the will would almost certainly have better advanced testator’s intent. The challenged will was nearly identical to a draft signed by the testator eight days earlier when his capacity was not disputed. And the will contestants who took by intestacy when the will was thrown out were the testator’s cousins--the testator was a widowed only child with no children of his own.
Sunday, October 11, 2015
Lisa McElroy's "Called On"
Lisa McElroy (Drexel) has published Called On, a novel about law school that Tony Mauro calls "This Generation's One L." Lisa tells me that Dan encouraged her in this project early on and she mentions him in the acknowledgements.
Friday, October 09, 2015
Definitive Answers to Unanswerable Law Review Submission Questions
There is a quote attributed to the screenwriter William Goldman regarding Hollywood - "Nobody knows anything." I increasingly feel like this applies to article submission strategies. Everybody has their ideas about timing and titles, word counts and body/footnote ratios. Nobody knows what they're talking about. Nevertheless, this post will now definitively answer these questions for all time with no more need for disputes or discussion. You're welcome.
1. When should I submit for the Spring cycle? First Friday after Valentine's Day.
2. When should I submit for the Fall cycle? You shouldn't. But if you must, St. Bartholomew's Day (August 24).
3. What is the maximum word count? Never, ever over 25,000. No matter what. No exceptions. And the difference between an essay and an article is that one is long (over 15,000) and one is short (under 15,000).
4. What is the ideal footnote-to-body word count ratio? No one cares, or at least no one should care. But this much is probably true - you have too many footnotes, and they contain too many words.
5. Should my title have a colon in it? No. Titles should be no more than six words long and contain no punctuation.
6. How long should my abstract be? 250 words, tops.
7. If I see on Prawsblawg that a law review is sending rejections to some people who submitted after me, should I get my hopes up that maybe they are considering my article? No. If you try to read the tea leaves, you'll only see the Grim.
8. If I get to final board review, should I get my hopes up? No. You must go into the process like the Millennium Falcon into an asteroid field and bravely say "Never tell me the odds." By the way, for any editors who might be reading this, please never put "Congratulations" anywhere on any email informing an author that they have reached final board review.
9. Is it okay to submit my article to journals that I am not sure I would publish in? No. And while we're at it, the Washington & Lee journal rankings have nothing to do with submitting or expediting.
10. What's the deal with comparing specialty journals to general law reviews in terms of rank and expediting? This question, more than any other question about the law review publication process, gets the widest range of responses. The value placed on specialty journals depends on the field, the views of the individual faculty, the audience you want to reach, etc. And so, having no authority vested in me, I will now arbitrarily and irrationally establish the rule... add 30 to the US News peer ranking of the law school that publishes the specialty journal, and that shall be its ranking for purposes of submissions and expediting. So let it be written, so let it be done.
If at any time in history anyone has ever achieved any measure of success in article placement despite ignoring this advice, that success can only be attributed to witchcraft.
"The Rise of Corporate Religious Liberty": Pre-order yours today!
This book, "The Rise of Corporate Religious Liberty" -- to which I contributed this chapter on "The Freedom of the Church" -- can be preordered (in paperback, even!) now. Just in time for Alascattalo Day!
The book was edited with skill and heroic patience (toward me) by Micah Schwartzman, Zoe Robinson, and Chad Flanders. More than a few Prawfs guests and bloggers are among the contributors, who include Sarah Barringer Gordon, Paul Horwitz, Nelson Tebbe,Douglas Laycock, Christopher C Lund, Liz Sepper, Frederick Gedicks, Ira Lupu, Robert Tuttle, Robin West, Jessie Hill, and Mark Tushnet.
Here is the abstract for my chapter:
This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article responds to several leading lines of criticism and attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
Picking our free speech stories and heroes
Interesting discussion by James Wimberley (RBC) about Giordano Bruno, a Dominican friar burned for heresy in 1600. Bruno espoused all manner of contrarian ideas--often without proof--including that the stars floated in infinite space surrounded by their own planets and life. Bruno has been somewhat lost to history, overtaken by Galileo, who was convicted by the Inquisition 30 years later, as the great story to illustrate the importance of epistemological humility and of defending ideas that run contrary to those of the governing authorities. (The first episode of the Cosmos reboot, with Neil DeGrasse Tyson, told Bruno's story).
Wimberley argues that "Galileo is far too easy a test case for freedom of speech" and that the real challenge is a case like Bruno. Galileo was "demonstrably right" on a matter of scientific fact, meaning the censors were demonstrably wrong. Bruno was a "brilliant crank" who happened to be right about one thing, albeit without actual proof (Wimberley compares him to the people we regularly meet on the internet). Thus, the argument for defending Bruno's speech is different than for defending Galileo's--we defend Bruno "not on the grounds that he was right by chance on one thing, but simply that he was entitled to express opinions that were his own and not those of approved authorities." Moreover, Galileo suffered a forced and formal abjuration (Eppur si muove?) and a "fairly open" house arrest (among his many guests over the years was John Milton, who discussed the meeting in Areopagitica). That is nothing compared to being executed for the ideas one espoused.