Sunday, January 31, 2016
Donald Trumps the 22d Amendment
have heard of the Twenty-Second Amendment?
The Supreme Court, On Demand
It has become almost a yearly rite: Congress introduces a bipartisan bill to require television cameras in the Supreme Court. The Justices express their concerns about the proposal. High-minded words are exchanged about the dignity of the courts versus the public’s right to know. Eventually the bill dies in committee.
The traditional arguments for cameras, such as public interest in following high-profile cases, or general appeals to transparency, are unlikely to resonate with the Court any more this year than in years past. But there is another case for Supreme Court cameras, and it stems from the federal judiciary’s own highly successful cameras program in the district courts.
In 2011, the Judicial Conference of the United States authorized a pilot program for periodically recording civil proceedings in fourteen federal district courts. The proceedings are then uploaded to the U.S. Courts website, where they are indexed and accompanied by additional information on the case. The entire process is conducted by the courts themselves, without media cameras or external video processing. The result has been a video library of hundreds of proceedings, ranging from pretrial conferences to summary judgment hearings to multi-day trials. The videos have been viewed hundreds of thousands of times.
The success of the district court pilot, which I explore in much more detail here, offers an excellent blueprint for a parallel Supreme Court program.
First, as the district court pilot has shown, both practicing lawyers and ordinary citizens stand to learn a great deal from actually watching Supreme Court proceedings. Watching the Court in action educates those in the legal profession about procedures before the Court, the issues of particular interest to the Justices, and ways in which an attorney might capture the interest and attention of the Court. For the public, watching the Court in action is all the more important: rather than allowing journalists and comedians define the Court’s work after the fact, the public can go straight to the source. Many studies suggest that watching an event on video (whether delayed or through live streaming) carries many of the cognitive benefits accrued from watching a live event. Whether the public would take advantage of this educational opportunity in any serious way is an open question, but at least that opportunity would exist.
Second, a recording (and/or live streaming) program would bolster the Court’s public legitimacy, by openly demonstrating the court’s commitment to transparency and accountability. Public support for the Supreme Court has been hovering at or below 50% for much of the past decade. At the same time, the public is increasingly seeking information through screen time. Watching the Court in action can demystify the judicial process and reduce public reliance in the messaging of politicians, reporters, and editorial writers. Supreme Court Justices, like all federal judges, are public servants. If they are proud of their work, they should welcome public viewing.
Finally, it suggests how the courts can achieve these educational and transparency goals without relying on the news media—the primary public concern of the Justices. Just as cameras have been placed in unobtrusive locations within district courtrooms, and the final recordings made available on the courts’ website, so too can recordings of Supreme Court proceedings be made available on its website, accompanied by rich contextual matter. The Supreme Court can also easily provide live streaming of oral arguments and case announcements without threatening the dignity or solemnity of the proceedings. Indeed, it may avoid the alternative, John Oliver-style, treatments. If the Court really wants to have some control over its own message, it cannot close its eyes and ears to the realities of the twenty-first century.
At least, we can hope.
N.B. -- The district court program has been an excellent resource for my teaching, and I recommend it highly for others whose students cannot as a practical matter visit the courthouse to observe proceedings.
Friday, January 29, 2016
Even Wiseguys Need Health Insurance
Goodbye to Vincent Albert "Buddy" Cianci, Jr. -- a man who, whatever you think of him, certainly left his mark on the City of Providence. I would say that he was a Providence original if I didn't recall that though he was born in Providence he was a true son of Cranston and then, only later, the Mayor of Providence.
My absolute favorite excerpts from the eventual trial transcripts of "Operation Plunder Dome" (essentially, a RICO tapes case) were the parts discussing the selling points of various "no-show" or "low-show" jobs distributed by then Mayor Cianci. Steven Antonson, a Cianci-appointed City of Providence Building Board member, wasn't quite lucky enough to get that no-show or low-show appointment, however. Apparently, then Mayor Cianci really wanted him to show at Building Board meetings involving Providence's University Club and to wholeheartedly oppose all University Club petitions for building variances necessary for a pending re-model unless and until Mayor Cianci was offered a free lifetime membership in the University Club. What made it pure Buddy Cianci was not the apparent extortion but the ironic twist that the chief value of free lifetime membership in Providence's University Club appears to have been as payback for a rejected Buddy Cianci membership application to the Providence University Club in the early 1970's, decades earlier.
My favorite part of Buddy Cianci's sell of the Building Board appointment was Mayor Cianci's schooling of Steven Antonson on why it would be a smart move to accept it: "Remember, I appoint people to this board. You get Blue Cross. You get a check. You always said safety was important. Well, this is it."
Yes, Steven Antonson was among several would be appointees who chased the Mayor of Providence relentlessly for health insurance. Even wiseguys need health insurance. Go figure. Or, as they say on South Coast, "Go Figah."
Steven Antonson eventually wore a wire and proved to be a fertile source of Buddy Cianci stories, many more of which you might glean from Mike Stanton's 2003 book, The Prince of Providence: The True Story of Buddy Cianci, America's Most Notorious Mayor, Some Wiseguys, and the Feds.
Intentional fouls and limiting rules
The NBA practice of intentionally fouling a poor free-throw shooter away from the ball (and the entire play) is spreading. Last week, the Houston Rockets began the second half by having the same player foul an opponent's poor shooter five time in eight seconds. Last night, two different teams fouled someone before he could throw the ball inbounds. This season, 27 players have been subject to the "Hack-a-_____." In October, NBA Commissioner Adam Silver announced that, although the league has been studying the issue, it was not considering rule changes to stop the practice.
Critics of the Infield Fly Rule often point use this situation to argue against the IFR, insisting that the situations are the same and, if basketball does not require a special rule, neither should baseball. But the argument does not work because the situations are not the same. Like the infield fly, "Hack-a-____" involve teams intentionally acting contrary to their ordinary athletic interests (defenders ordinarily do not want to foul, especially a player who is uninvolved in a play and no threat to score); it gives one team an advantage over the other (statistics of points-per-possession show that a good offensive team is substantially worse off having its worst FT shooter shoot over and over than running its regular offense); and the advantage is great enough that teams have the perverse incentive to keep doing it (hence the reason the strategy is spreading). But "Hack-a-____" lacks the necessary substantial imbalance in control over the play--the fouled team can counter the strategy by making their damn free throws, or at least more of them to render the strategy no longer worthwhile. Limiting rules do not exist to save teams and players from themselves or their own shortcomings.
Instead, any rule to stop this practice would be for aesthetic purposes, not cost-benefit balance. The game becomes ridiculous and boring to watch (watching a parade of free throws is bad; watching a parade of missed free throws is worse). Eventually fans might get sick of what they are watching. To be sure, some aesthetic concerns underlie the IFR; we would rather see players catch easily playable balls than not catch them. But the IFR situation also involves an extreme cost-benefit imbalance. Aesthetics provide the sole basis for eliminating intentional fouls.
An interesting question is what any limiting rule might look like for the NBA. My proposal would be to give the offense a choice following an off-the-ball intentional foul--shoot the free throws or get the ball out of bounds. All fouling would give the defense is a chance to steal the ball on the inbounds play, although steals or turnovers on such plays are relatively rare, while incurring the cost of running up their foul totals. This change should eliminate the perverse incentive; there is no incentive for the defense to intentionally foul when the benefit is a small chance of getting a turnover on the inbounds play, but little or no chance that the offense will choose to have the bad shooter go to the line.
Thursday, January 28, 2016
Thursday Podcast Blog
It's Thursday, so Marc Maron's newest WTF podcast is available. Maron is such a great interviewer, and he really shines when talking about subjects he cares about passionately. Music is clearly one of his great passions.
His guest is music critic/historian Peter Guralnick. Great stuff.
Listen here. Enjoy.
Takedowns: The Alice Goffman Edition
For months now, I've been fixated on the hubub surrounding Alice Goffman's book, On the Run. Perhaps fixated isn't the right word. It seems safe to say that many others, inside and outside the academy, have spent a lot more time thinking and writing about her and her work. But I've been lurking pretty hard. You know you've got a problem when you stay up late at night reading deep on sociology listservs.
I have a hard time getting worked up about the book (which I read and enjoyed). I guess I just can't get excited about a scholarly takedown. Maybe I'm soft. Maybe I don't have the stomach for the rigors of academic life. And, frankly, I'm fine with that. I feel the same way when faculty audiences team up against a weak colloquium presentation. There's a bit of the bully in academic culture. Why do we relish scholarly takedowns so much?
I got sued for defamation because of an article I wrote. The case lasted for about a year and a half, and I had a queasy feeling in my stomach the entire time. The very, very limited attention I received in that case pales in comparison to what's going on in Alice Goffman's situation. I don't know Alice Goffman, but I hope she has thicker skin than me.
Whenever I read about One the Run, be it favorable or unfavorable, I can't help but feeling crappy about it. I feel crappy about the negative stuff because much of it feels like an attack on Goffman the person rather than the work itself. And I feel crappy when I read the more positive pieces because I know that lots of people are sharpening their teeth, preparing to pounce.
Is Goffman's book really this bad, or is there something else at work here? I fear it's the latter. Perhaps it's her last name, or her first. Perhaps it's because the book was a hit. Whatever it is, there's a lot of ugly on the internet about Alice Goffman.
Ferguson consent decree
DOJ has reached agreement with the City of Ferguson on a proposed consent decree resolving the threatened § 14141 action. It appears to attempt to address everything that went wrong there in 2014, as well as those practices that contributed to the general tension that had long existed. The order requires training and commitment to public First Amendment activity--peaceful protests, lawful public assembly, and video-recording of police activity--including a requirement that only the Chief of Police or Assistant Chief may declare an assembly unlawful and officers cannot disperse an assembly without that declaration. It limits and restricts "stop orders" or "wanteds," in which police initiate contact to enforce warrants. It requires the City to implement a body and dashboard camera program, with broad recording of most stops and interactions and public disclosure of recordings to the maximum extent allowed by state law. And it requires broad reform of municipal court practices and training and policies on use of force.
Tuesday, January 26, 2016
Is It TB That Ails Us?
Last week, the New York Times reported a tuberculosis outbreak in Marion Alabama so severe that TB incidence in Marion is now at a rate that exceeds TB incidence in much of the developing world. Marion is the county seat of Perry County and it is saying something when a city of roughly 3,600 people has had 20 cases of active TB diagnosed in the last two years alone, producing two TB related deaths. Those who count TB infections do not typically count latent infections -- relatively easily if time-consumingly treated -- though these have been documented in a further two dozen people.
Now, if there have been 20 active cases, the latent infection rate is likely much higher than that, but no one knows how much higher since screening for latent TB infection in the general population is not standard procedure in the United States. Why such screening for latent TB has not been pursued earlier in Alabama is a more difficult question. Long before the New York Times arrived on the scene, TB cases have been unusually high in Alabama. The number of tuberculosis cases increased in 2014 in Alabama, but decreased nationwide. Across the nation, the number of new infections decreased by more than 2 percent. In 2014, there were 133 cases of tuberculosis in Alabama, compared to 108 the year before. The TB trajectory in Alabama has not been good for some time.
The reasons for this are hard to parse. As the New York Times points out, there is a tradition of limited access to health care in this low income rural community where lack of reliable transportation to health care venues looms as one of the chief causes of limited health care access. Since the data shows that those with transportation -- disproportionately the insured -- use that transportation to leave the community for health care, leaving the uninsured lacking transportation to seek care locally, it is no wonder 54 of Alabama's 55 rural counties have official shortages of primary care providers. After all, good payor mix in your patient panel is one of the ingredients to successful sustainable practice.
A people who lack the resources and opportunity to access care have a limited culture of care. The disincentives to leave the community, even when able to do so, are complicated by a general distrust of health care providers, particularly among African American residents. Ironically, a provider-patient relationship built on trust may be the scarcest health care resource of all in Marion.
But the situation is more complicated than this even, since the conversion rate between latent TB infection and active (or manifest) TB infection is not evenly distributed among the TB exposed population. Drug users, alcoholics, and, in particular, those who are HIV positive are particularly at risk of TB exposure converting into active TB. Drug use, particularly use of injectables like heroin, appears to have more than a toe hold in Marion. The Marion refrain "I don't want nobody knowing my business" in response to public health attempts at contact tracing for those with active TB may make more sense evaluated in light of access or lack thereof to drug treatment programs in Marion.
On the international stage, public health authorities struggle with the prevalence of active TB infection in injectable drug using and HIV positive populations. In the developing world, there is some evidence that financial incentives to promote screening and successful treatment, if required, have begun to make a dent in promoting the completion of TB treatment. Interestingly, TB screening incentives are reported as now being offered to the entire Marion community and not exclusively to relatively high risk sub-populations such as the homeless or self-disclosed injectable drug users.
Is it that the United States Public Health Service and the Alabama State Department of Public Health as well as county public health officials are unaware that broad screening incentives are not the norm? Or, is it that in a community of a few thousand, the only way to screen at significant levels is to create an incentive for all to be screened in a de-stigmatized way? Whether it is folly or it is genius, only time will tell. But if it is the syndemic of injectable drug use and TB or HIV and TB masquerading as an outbreak of TB alone that ails Marion, it will take far more than screening incentive payments and TB treatment incentive payments to right what is wrong with Marion -- emblematic of so much that is amiss in rural low income America.
The Third Team at the Super Bowl
On Sunday night, my beloved Denver Broncos and the Carolina Panthers punched their tickets for Super Bowl 50. Both teams should be proud. The Broncos have spent months working together to gel as a team to reach this moment, and the Panthers no less. But the outcome of the game may ultimately rest on the teamwork of another group in the field, a group that will have barely worked together at all. I’m talking, of course, about the officiating crew.
National Football League officiating crews generally remain together through the regular season: the same officials work together (at different venues) each week. Once the playoffs start, however, the highest graded officials at each position are chosen to continue working games, and they are reshuffled into new “All-Star-style” crews. The crew assigned to the Super Bowl (headed this year by referee Clete Blakeman) gets one divisional round game as a warm-up, but that’s it. The officials who take the field on February 7 are among the very best individually at their positions, but their performance as a group is a much greater unknown.
Does it matter? Cognitive psychology says yes, and the lessons carry broadly into many realms of law.
We often ask groups of people to make decisions based on distributed information. This means simply that each member of the group has some information that may be pertinent to the decision, but no single person has all the information. Each group member must share his or her information so that group as a whole can make informed decisions. Trained professionals often deal with the phenomenon of distributed information by coordinating their information acquisition and sharing in precise ways. For example, a surgical team assigns certain team members to monitor specific aspects of the patient’s condition during the procedure, and adopts protocols for communicating that information to the entire team. Similarly, a cockpit crew can safely land an airplane by assigning each crew member to monitor specific information (speed, altitude, weather conditions, control tower transmissions, etc.), and by sharing that information through coordinated discussion, even though no single member of the crew is aware of all the relevant information at any given time.
In the legal world, decisions based on a distribution of information are also a regular occurrence. Jurors pick up different details and nuances of evidence and witness testimony, and must reassemble it though memory and communication upon returning to the jury room. Appellate panels, administrative boards, and rulemaking bodies work in similar ways, although they have better access after the fact to artifacts like briefs and transcripts. The precise order and timing of how information is communicated may not be as important in a jury room as in an operating room, but the general idea is the same. The quality and efficiency of group decisions depends in large part on the group’s ability to identify, share, and process the information they collectively possess.
The ability to share and process information is affected by the interpersonal dynamics of the group in question. For example, group members who work together regularly are more likely to develop shared mental models of the group’s purpose and customs. Shared mental models create a shared baseline of understanding, which allows the group to sift through information more efficiently, and which encourages group members to share the information that they know the group will deem important for the decision-making task. Shared mental models can therefore promote decision-making consistency. If all officials on the Super Bowl crew adopt the “let ‘em play” mentality when it comes to pass defense (or conversely, universally adopt the “everything is pass interference” mentality), some of the calls may be incorrect, but at least they would be consistent within the game. If one official on the crew has a much more stringent view of what constitutes pass interference than another official, however, the structure of penalties within the game can seem erratic or biased, or it may take longer for the crew to agree on the correct call.
But if familiarity within the group is so helpful, why not just use the best overall officiating crew from the season? The NFL actually tried this for a couple of Super Bowls in the mid-2000s, but reverted to the “All-Star” crew approach in 2006. The problem here is that group familiarity breeds its own cognitive challenges. Shared mental models may cause group members to disregard (or fail to share) external information that is outside the scope of the shared mental model. So an officiating crew that tends not to call pass interference stringently in its first few games of the season may develop a collective (if unspoken) understanding not to call pass interference except in egregious instances. That may lead to some true instances of pass interference not being called in the playoffs, when it matters most.
The NFL’s playoff officiating policy seems to be an effort to balance the costs and benefits of distributed cognition in familiar groups. To assure consistency in calling penalties, playoff officials must have sufficiently similar mental models of the game (the pace, the type of calls that are appropriate, etc.). But to assure accuracy in calling penalties, officials must be willing to share amongst themselves everything they see, even if it conflicts with what others may have seen (or not seen).
Clete Blakeman and his new team will be put to the test in two weeks. (Hopefully he can learn how to flip a coin by then.) Here’s hoping they achieve both accuracy and precision in their calls. But if the cognitive task proves too much, here’s hoping they err in favor of the men with horses on their helmets.
Fashion & Design Law: Stories the Students Collected
As part of their first week assignment, I asked the students to bring in stories about fashion law legal disputes that they found interesting. The variety of stories they chose reflect the diversity of topics that arise in fashion law.
Some students were interested the business aspects of fashion law, including what we should consider a “fair” business practice. For instance, students discussed trademark infringement claims against retailers that sell inexpensive imitations of designer clothes. Even when the courts found no trademark infringement, some students were concerned that such retailers were unfairly profiting by copying the creative work of others. Of course, what is fair or unfair can be a matter of perspective. While some of the students disagreed with this “free riding,” other students observed that these retailers service a different clientele from the upscale fashion boutiques. It was not clear to them, therefore, that the high-end designers suffered any loss of business. Nonetheless there seemed to be some consensus that the reputation of a luxury brand could be harmed by widely available low quality look-alikes.
Students also selected stories, such as the Gucci/Guess trademark dispute about the interlocking G’s and other Gucci trademarks. The Gucci/Guess dispute presents a good comparative law case study because the litigation led to different results in different countries. For instance, Gucci found success when it litigated in the United States. However, Italian courts were less sympathetic to Gucci, and decided in favor of Guess. Another case that was identified by students was the recent copyright litigation, Varsity Brands Inc. v. Star Athletica, LLC, which addressed whether the stripes on cheerleading uniforms could be protected by copyright. The Court of Appeals for the Sixth Circuit concluded that the stripes were “conceptually separable” from the utilitarian aspects of the cheerleading uniform. The Court rejected Star’s argument that the stripes on the uniform are utilitarian and that the uniform would not be recognized as a cheerleading uniform without the stripes.
On the international human rights and employment side, a couple of students talked about child labor and sweatshops, and the relationship with our demand for low cost products. Finally, students made the connection between culture and fashion. For instance an indigenous group in Mexico objected to a French fashion designer basing her clothing designs on their cultural clothing. The Mexican group asserted that the actions of the French designer amounted to theft and cultural appropriation. There are other issues that we will discuss in Fashion & Design Law, but this represents a good sampling of the topics we will cover over the course of the semester.
 Varsity Brands, pp. 26-28
Monday, January 25, 2016
More judicial departmentalism
A few points in furtherance of the model of "judicial departmentalism" that Kevin Walsh coined and that I have been urging, beginning with the marriage equality litigation and its aftermath.
First, the law imposes a number of incentives for governments and government officials not to push the departmentalist boundary, chief among them attorneys' fees for prevailing plaintiffs. This story discusses the fee awards from the marriage-equality litigation, which have topped $ 1 million in a number of states. The fee request in Tennessee (one of the states who defended in SCOTUS) is $ 2 million. Texas was ordered to pay about $ 600,000 (in a case that had limited briefing and a summary affirmance in the court of appeals), which the state plans to appeal. The point is, it will get pretty expensive for states if many of their officials decide to follow Kim Davis or Roy Moore and force couples to bring inevitably successful new litigation to obtain marriage licenses. [Update: A new report says Montana settled for $ 100k, bringing the national total to $ 13.4 million).]
Second, SCOTUS today in a per curiam decision in James v. City of Boise (pp. 13-14) held that the Supreme Court of Idaho was bound by SCOTUS interpretations of federal law--in this case, the limitation on § 1988 that prevailing defendants may recover fees only if a claim is frivolous, unreasonable, or without foundation. The state court had said that SCOTUS did not have the authority to limit the interpretive discretion of state courts, only of lower federal courts. The court made quick work of that argument, emphasizing the disuniformity it would engender (citing Justice Story in Martin) and insisting that "it is the duty of other courts to respect that understanding of the governing rule of law." Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.
Third, I like the way the Court described its authority--the Court says what a statute means and it is "the duty of other courts to respect that understanding." (emphasis mine). The Court did not say it was the duty of officers or offices other than courts. I am not suggesting this drafting was deliberate or that it reflects a sudden wave of departmentalism in the Court; more likely, it was written this way because that was how this case presented. Still, it captures what I believe is the appropriate scope of the Court's power to "say what the law is" and to whom.
Sunday, January 24, 2016
Sunday Sci-Fi Pay Equity Blog
The X-Files returns tonight. The world seems a wee bit better when Mulder and Scully are flirting while chasing aliens and discovering inbred Pennsylvanians tied under beds.
And the good news is that the show's stars, David Duchovny and Gillian Anderson, will be receiving equal pay for the revival. According to this story, as well as a gaggle of others, Anderson was initially offered half of Duchovny's salary. Which is, you know, silly, especially since she had to fight for equal pay with her co-star the first time around. Apparently, when the show first started, Anderson was instructed to walk behind, rather than alongside, Duchovny, so she would seem more like a sidekick than a partner.
I, of course, blame the government. It's a conspiracy. Aliens are involved. The truth is out there.
Saturday, January 23, 2016
Harvard Hillel Conversation and Shabbat Dinner in Memory of Dan
After the jump is an announcement about an event on April 15, sponsored by Harvard Hillel and the Markel Family--a Law School Conversation and Shabbat Dinner in Memory of Dan. Spread the word. We will post additional announcements as the event draws near.
Harvard Hillel and the Markel Family present a
Harvard Law School Conversation and Harvard Hillel Shabbat Dinner
in Memory of Dan Markel
Martha Minow, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School
Noarh Feldman, Felix Frankurter Professor of Law, Harvard Law School
Friday, April 15, 2016
• Conversation at 5 p.m. in the Milstein East Room, Wasserstein Building, Harvard Law School
• Shabbat Dinner at 7:45 p.m. at Harvard Hillel's Rosovsky Hall (following optional Shabbat evening service)
A shuttle bus will be available before Shabbat for those who prefer not to walk across Harvard Yard from Harvard Law School to Harvard Hillel
Details, including registration links, will be forthcoming.
Show (audibly), don't tell
Because of the Court's practices of only releasing argument audio at the end of the week, I wrote my argument recap on last week's Heffernan v. City of Paterson based only on the transcript. It was clear from the transcript how much the petitioner's attorney struggled, especially when asked about the availability of alternative state-law remedies and what those remedies would be. Listening to the audio drives home just how great that struggle was.
Little Minorities/Little Staff Attorneys
Several of the same old structures continue to defy meaningful and lasting progress and continue with inequities. I'm talking about "little minorities" and "little staff attorneys," and the variety of or dearth of responses to an outcry against discriminatory practices.
As everyone is no doubt aware, the Academy of Motion Picture Arts and Sciences this week announced its nominees for the 88th Annual Academy Awards. Variety reports that the nominees:
"listed 23 total producers for the eight movies picked in the best-pic race; seven were women. For the two screenplay races, 17 individuals are nominated, with four women and no racial minorities. The sole nom for 'Straight Outta Compton' went to a self-described 'white Jewish gay guy from Connecticut' and his white writing partners, Jonathan Herman and Andrea Berloff."
Although the nominees were not diverse, responses to the announcement were, see, e.g.:
Lupita Nyongo'o, Best Supporting Actress, Twelve Years a Slave, 2013:
“I am disappointed by the lack of inclusion in this year’s Academy Awards nominations. It has me thinking about unconscious prejudice and what merits prestige in our culture. The Awards should not dictate the terms of art in our modern society, but rather be a diverse reflection of the best of what our art has to offer today. I stand with my peers who are calling for change in expanding the stories that are told and recognition of the people who tell them.”
George Clooney, Best Supporting Actor, Syriana, 2005; Best Picture, Argo, 2013:
“I think that African Americans have a real fair point that the industry isn’t representing them well enough. … There were four films this year: Creed could have gotten nominations; Concussion could have gotten Will Smith a nomination; Idris Elba could have been nominated for Beasts of No Nation; and Straight Outta Compton could have been nominated. And certainly last year, with Selma director Ava DuVernay — I think that it’s just ridiculous not to nominate her. But honestly, there should be more opportunity than that. There should be 20 or 30 or 40 films of the quality that people would consider for the Oscars.”
Spike Lee, Honorary Award, 2015:
"….As I See It, The Academy Awards Is Not Where The 'Real' Battle Is. It’s In The Executive Office Of The Hollywood Studios And TV And Cable Networks. This Is Where The Gate Keepers Decide What Gets Made And What Gets Jettisoned To “Turnaround” Or Scrap Heap. This Is What’s Important. The Gate Keepers. Those With “The Green Light” Vote. As The Great Actor Leslie Odom Jr. Sings And Dances In The Game Changing Broadway Musical HAMILTON, 'I WANNA BE IN THE ROOM WHERE IT HAPPENS.' People, The Truth Is We Ain’t In Those Rooms And Until Minorities Are, The Oscar Nominees Will Remain Lilly White.“
And there's more here.
Charlotte Rampling, Nomination, Best Actress, 45 Years, 2015:
"No, I find to the contrary, that it's racist toward whites . . . one can never really know . . perhaps sometimes black actors have not earned a place in the final running. . . .There will always be problems with people saying this one is too handsome, this guy is too black, this guy is too white, there will always be someone of whom people say, ‘You are too …And so we’re going to classify everything to make thousands of little minorities everywhere?"
Stacey Dash, actress and FOX News Contributor:
"We have to make up our minds. Either we want to have segregation or integration. If we don't want segregation, then we need to get rid of channels like BET and the BET Awards and the [NAACP] Image Awards, where you are only awarded if you are black. If it were the other way around we would be up in arms. It's a double standard. Just like there shouldn't be a Black History Month. You know, we're Americans, period. That's it."
Inside of a week, and as a result of the public outcry by celebrities and others, the president of the Academy stated that she is “heartbroken and frustrated” by the lack of diversity among this year’s nominees, and announced “dramatic steps to alter the makeup of our membership.”
Over here in the other Academy we have a similar disregard that provokes a quieter outrage and no immediate declaration of a fix. On Thursday's Law School Cafe a colleague in my field wrote:
"At the AALS meeting, a friend of mine (and tenured professor) stood chatting with a few tenured colleagues from other schools. Conversation turned to work that another professor had done in a clinic. “Yeah,” said one of the professors, impressed, “and they didn’t even have a little staff attorney to do all the work.” My friend protested this derogatory reference to staff attorneys, and the professor apologized, but the remark was telling.
This is how all too many tenured professors think of clinical work, clinical professors, and staff attorneys; the same attitude applies to legal writing professors. This work, we assume, is simplistic and doesn’t merit our full attention. It can be done by “little” people.
Professors who teach legal writing and clinics are, indeed, 'little people' in most of our law schools. They earn less than tenured faculty, have less job security than tenured faculty, and share fewer governance rights. Yet these professors teach students the heart of lawyering. They teach students how to write like lawyers, how to speak with and write to a wide range of audiences, and how to solve lawyering problems.
After thirty years teaching all types of courses (doctrinal law, interdisciplinary subjects, legal writing classes, and clinics) I’m convinced that clinical and writing professors have the greatest impact in teaching students to think like lawyers. Tenured faculty prompt that work in the doctrinal law classroom, but first-year students learn how to do it in their legal writing classes. That’s where they “think” in writing and without leading questions. They also receive personalized, formative feedback that improves their thinking.
Similarly, clinics challenge students to think and strategize, not just within the narrow confines of a classroom question or appellate argument, but within the context of negotiating with an adversary or performing other multi-dimensional tasks. Analyzing an appellate opinion within the four walls of a classroom is much easier than using that opinion (along with a few other opinions, statutes, and uncertain facts) to frame a negotiating strategy for a client who depends upon you.
Why do doctrinal law faculty persist in thinking that legal writing and clinical professors do work that is less intellectually challenging or valuable than the work they do? It’s partly self interest; everyone likes to think that their own work is most important–and to protect their higher salary and governance privileges.
It’s also partly ignorance. Many tenured faculty know little about what happens in law practice, law school clinics, or legal writing classes. Some are not particularly good legal writers, despite their focus on scholarship. Even if they are good writers, they might not know how to teach someone else how to write. Ignorance can make us defensive; we diminish the importance of the things we don’t know.
I’ve also come to think that tenured law faculty constitute a type of cult. We have very specific criteria for admission to this cult, we engage in a narrow range of permitted behaviors, and we celebrate common rituals–one of the most valued of which is deciding who will be allowed to join our cult.
We need to escape this behavior and recognize the challenging, important, and time-consuming work that clinical and legal writing professors perform. We already recognize how much work they do. It’s time to acknowledge–and reward–the importance of that work."
In comments following the post, Professor Merritt notes that professors in the area of Academic Support are similarly situated. I would add to the similarly situated the odd-man-and-woman out in the role of the non-contract and contract-with no-permanancy-but-not-exactly-an-adjunct professor.
And here I add my own AALS anecdote, a toss-away comment that "writing professors are the most disgruntled law professors." Disgruntled. As if inequities should be dutifully taken without question like Tylenol for a headache.
Professor Merritt asks and answers her own "why" question above. But I'm not convinced we need to continue to ask why. What is necessary is for the leaders in this Academy to take "dramatic steps to alter the makeup" not only of our hierarchical structure but of perception. Perhaps we need George, Spike, and Lupita to step into discussion of fairness and equity in this Academy.
A Powerful Shock to the System: Cardiac Rhythm Management at the False Claims Act Crossroads
For the past several months, a series of announced hospital settlements with the U.S. Department of Justice under the Federal False Claims Act has been gathering momentum and interest. Reported to be the product of years of investigative work, the 450 plus hospitals that have settled with the government for more than$250 million dollars are rumored to yet be only the tip of the iceberg of a nationwide investigation into the suspected overuse of implantable cardiac devices. These ICDs are spendy, costing about $25,000 each in comparison to a more conventional pacemaker that might cost less than 50 percent as much. It has been noted elsewhere that, "[c]ardiovascular disease remains one of the largest cost drivers in medicine."
Anything involving more than 450 American hospitals ought to be of interest and an investigation involving a rumored twice that number of American hospitals out to be riveting. The fact that HCA has 42 hospitals, to date, involved in these settlements (though scores more, reportedly, involved in the investigation) also ought to be of interest. HCA's troubled history with overuse of lucrative cardiac treatments is the stuff of legend. HCA is a hospital behemoth, particularly in the disproportionately Medicare enrolled population of Florida. An estimated two thirds of the entrants on this 2014 list of the most profitable hospitals in the United States are HCA facilities. A full five percent of all U.S. hospital services take place at an HCA facility.
In addition, the subterranean dispute beneath all this concerning the role of Medicare National Coverage Determinations in the area of cardiac rhythm management also matters. None of the three biggest hospital systems involved in the settlement agreements, to date, have conceded liability. Community Health Systems (31 settling facilities to date) delicately noted, in an October 2015 statement, that "[t]he issue involved a highly technical interpretation of a Medicare national coverage determination that was the subject of strong disagreement in the medical community." But that is the rub, the Medicare National Coverage Determination on cardiac rhythm management and ICDs was not highly technical or particularly highly technical for a technical field.
It was controversial, however. It is worth thinking about why it was controversial. A Medicare National Coverage Determination is arguably one of the few restraints the Medicare system explicitly places on provider discretion to determine the scope of Medicare coverage for a certain diagnosis. Medicare's general mandate to provide to its beneficiaries what is reasonable and necessary for the diagnosis or treatment of an illness or injury sets scant limit, in and of itself, on what may be covered. Medicare National Coverage Determinations are infrequently made and, to the extent they cluster in areas of high-cost arguably low-value care, they are always controversial. They are, surprisingly, non-transparent to those, arguably, most interested in the scope of what Medicare might cover: Medicare beneficiaries.
So, just what happened at these facilities? ICDs, apparently, were implanted in many cardiac rhythm management patient Medicare beneficiaries that were not Medicare coverage reimbursable, falsely representing to the U.S. Government that they were (by billing for them and their implantation costs through the Medicare program) and by representing to the individual Medicare beneficiary patient/implantee that they were within the Medicare scope of coverage for each of them.
Was this the product of dismal provider ignorance of the revised Medicare National Coverage Determination in this area? Was it confidence that the Medicare National Coverage Determination in this area would not be enforced so long as any conflicting practice protocol could be cited? Was it awareness that Medicare Coverage Determinations have, historically, been difficult to audit for compliance combined with a telling lack of awareness that new Medicare data and data search capabilities would make it possible for whistle blowers -- including two cardiac healthcare reimbursement consultants -- to search out those hospitals and those individual providers implanting ICDs before the 40-day post heart attack milestone, for example, where a significant percentage of cardiac patients may no longer need something like an ICD? Perhaps it was all of these things and more.
One thing we do know: physicians billed for 70,969 of these devices under Medicare in 2008 and 51,052 in 2013, so somebody's reading the Medicare National Coverage Determinations now, at any rate. Now, that's a shock to the system.
"Affirmative" Benefits versus "Negative" Non-Prosecution: May the President Provide Former When It's Necessary & Proper for the Latter?
The Fifth Circuit's decision in Texas v. United States distinguishes the Obama Administration's DAPA policy from ordinary executive decisions not to prosecute on the ground that the former provide "affirmative benefits"-- work authorization -- rather than mere "negative" prosecutorial inaction. "Negative" refusal to prosecute is generally immune from judicial review under APA section 701(a)(2), becase it is "committed to agency discretion by law" under Heckler v. Chaney. "Affirmative" decisions to (for instance) extend work authorization and trigger accompanying benefits like unemployment insurance are said to be quite different (see page 36 of Texas v. United States).
This "affirmative"/"negative" distinction, however, runs against one practical obstacle: No president could sensibly or practically adopt a decision not to prosecute certain categories of offenders without providing those offenders with at least some "affirmative" protections. The latter, therefore, can be said to be "necessary and proper" for implementing the president's undoubted Article II power of prosecutorial discretion.
The point can be illustrated by the Treasury Department's guidance on banks' accepting deposits from marijuana-related businesses. The guidance seems awfully similar to work authorization under DAPA: It allows banks to engage in actions flatly forbidden by federal money laundering laws, not merely by "negatively" refusing to enforce those laws against banks but by "affirmatively" providing a safe harbor for banks that meet the guidance's criteria. The guidance has inspired mighty little opposition from those who seem otherwise perturbed by DAPA. (Texas v. United States does not discuss FinCEN's banking guidance at all, even though Judge Smith distinguishes DAPA from the Cole Memo defining non-prosecution marijuana-related businesses at footnote 101. Senator Charles Grassley complained that the guidance violated the Take Care clause, but his complaint has gotten no traction with others).
One reason might be that the relationship between banking guidance and federal non-prosecution of marijuana-relatd businesses in Colorado seems as tight as a rusty nut and bolt. Allowing marijuana-related business to operate free from criminal prosecution but not allowing them to park their cash in safe and sound banks is an invitation to chaos and thievery. If the former policy is legitimate prosecutorial discretion, then the latter is surely necessary and proper to implement the former. But note that precisely the same argument justifies DAPA: Bringing unlawfully present persons covered by DAPA out of the legal shadows seems just as practically necessary for sustaining DAPA's non-prosecution as bringing pot money into bank vaults.
Against this reasoning, one might make (1) a text-based argument that Article II contains no "necessary and proper" clause and (2) a more functional argument that, by making it practically onerous to engage in non-prosecution, the absence of such an implied N&P executive power deters de facto presidential law-making. After the jump, I will offer a couple of reasons why these arguments seem thin to me.
As to the absence of a N&P clause in Article II, I have the same argument as McCulloch: The presence of that clause in Article I being unnecessary for Congress to have an implied power to make effective its enumerated powers, the absence of the clause in Article II is not fatal to the President's enjoying a similar implied power to make practically sane what the President can legally pursue.
What about the idea that Congress-defying and unconstitutional non-prosecution is deterred by barring the executive's "affirmative" implementation of non-prosecution policies? I would be reluctant to attributes to Congress a very, very silly policy absent pretty clear statutory language -- and barring the President from mitigating the collateral damage arising out of his non-prosecution policies seems pretty silly.
Of course, if Congress wanted to do so, it could certainly enact a law barring such "affirmative" implementation. Congress could, for instance, amend the money laundering laws to clarify that it preferred to have marijuana-related businesses stash bags of cash under beds rather than keep the money safe in a bank vault. Likewise, Congress could certainly enact the "Terrorize Illegal Aliens With Employer Exploitation Act" ("TIAWEEA"), barring any work authorization for people who, because of scarce prosecutorial resources, remain in the country regardless of the lawfulness of their presence here. I guess that the idea behind such a statute might be to encourage "self-deportation" by forcing unlawfully present persons to work in the shadows, practically unprotected by safety, anti-discrimination, and wage and hours laws for fear of filing complaints and inviting deportation.
But Congress has not enacted any such statute, and there is no reason to attribute such a bizarrely cruel policy to Congress absent some actual statutory text. It is not faithful execution of the laws for the President to enforce those laws regardless of collateral damage. Just as the Constitution is normally construed to have safety valves (recall all of those "necessary-for-compelling-purposes" escape hatches from even the strictest of scrutiny), so too, statutes should not be construed to be suicide pacts absent text to the contrary.
So I am inclined to regard the "affirmative"/"negative" distinction as a red herring. But I am happy to be corrected -- and my students (to whom I am teaching this stuff in Leg-Reg this term) will thank you for your ripostes that they might be too shy to make.
Is Lawless Behavior by Street-Level Bureaucrats "More Executive"? The Mystifying Persistence of "Case-by-Case" in the Debate over Prosecutorial Discretion
As everyone knows who follows the debate over the Obama Administration's DACA guidance and whether it violates the "take care" clause, a central issue in the debate has been whether DACA provides for "case-by-case" review of unlawfully present alien's applications for DACA status. The OLC memo on the subject of prosecutorial discretion makes the "case-by-case" character of such review critical to determining whether the executive is unconstitutionally engaging in legislation or permissibly exercising prosecutorial discretion. The Obama Administration's briefs and affidavits and the DACA policy itself proclaim that they permit DHS officials to exercise "case-by-case" discretion in implementing the guidance. The Fifth Circuit's opinion in Texas v. United States affirms the district court's finding that the policy did not have this apparently necessary "case-by-case" quality (albeit not on the constitutional question but rather on the APA question of whether the DACA qualified as a "policy statement" exempt from the obligation to undergo N&C rule-making process).
To all of which I am inclined to say: Why would anyone think that the "case-by-case" character of a policy has anything whatsoever to do with the question of whether it constitutes permissible "executive" discretion or unconstitutional "legislation"? I see no reason to view a policy as any less "executive" in character because it honors rule-of-law values by being a bright-line rule admitting of no exceptions,. Why is lawlessness the hallmark of "executive" action? Is there some purpose to encourage street-level bureaucrats to engage in a little whimsical and unpredictable action, immune from presidential oversight, immanent in Article II? True, prosecutorial discretion often has such a lawless character -- but I took that to be a bug, not a feature.
Adam Cox, my colleague (and former con law student: Damn, I'm old) and Cristina Rodriguez (my former colleague) have asked this question in article-length form in The President and Immigration Law Redux. I reiterate the question just to advertise their contribution and solicit defenses of the opposite position. Unaided by your crowd-sourced wisdom, I am afraid that I cannot fathom the point of protecting opacity in enforcement priorities with constitutional doctrine.
Thursday, January 21, 2016
What Would Publius Do? He Would Not Cite Publius.
I am now in Austin, Texas, attending a conference on The Federalist Papers, enjoying 60+ degree F weather, sunny skies, and historians who know far more about Madison and Hamilton than I do. Sandy Levinson's book of essays on The Federalist is one focus of the conference; Noah Feldman's intellectual biography of Madison is another. Jack Rakove has been commenting on both. If I am lucky, I will get snowed in until Sunday.
The Federalist is, I imagine, the most frequently cited Founding Era source regarding the purposes of the Constitution's institutions. If one regards Publius as not just a polemicist but also as a political scientist, however, then such a use of The Federalist is precisely the sort of use that Publius himself (themselves?) would reject. Publius the Political Scientist made many predictions about institutional behavior that, according to Publius, had to be tested against experience. As John Ferejohn and I argue in "Publius as Political Scientist," an essay that will appear in a Cambridge collection edited by Jack Rakove and Colleen Sheehan, James Madison came to repudiate many of the specific institutional predictions about the behavior of Congress, the states, the President, and voters that he made in his role as Publius. As Madison discovered in the 1790s, Congress was weak and disorganized compared to a unitary executive; the President needed to be curbed and not bolstered; the voters would not be rallied by state politicians, allegedly closer to the people, as effectively as they were rallied by George Washington's denigrating the Democratic-Republican clubs; and, contrary to Federalist #10, majorities could not control a cabal of financiers masquerading as the People without themselves forming tightly knit partisan organization's that Federalost #10 condemns.
In repudiating his specific institutional predictions, however, Madison did not repudiate Publius' theory of human nature or collective action or values. Madison simply applied these basic premises to the new data he obtained from his struggles during the 1790s over the Bank, the Whiskey Rebellion, Jay's Treaty, the Neutrality Proclamation, and the Alien & Sedition Act. Like any good political scientist, he revised his specific institutional predictions in light of "that best oracle of wisdom, experience" (Federalist #15). The implication, I think, is that Publius would have advised us not to cite Publius -- at least, not to cite Publius as an authority for how Congress or the President or majority factions or courts were likely to behave. Which is the Least Dangerous Branch, from what source does the disease to which republics are most prone arise, and so forth -- all of these questions ought to be worked out by ourselves, through post-enactment experience, not through citations.
None of which is to say that we law profs should not attend conferences about The Federalist -- especially in warmer climates in January.
Is DAPA about "Negative" Refusal to Deport? Or "Affirmative" grant of benefits?
Deep at the heart of Judge Jerre Smith’s opinion for the Fifth Circuit in Texas v. United States is an apparently contradictory interpretation of two different parts of the APA that brings joy to my student-confusing, puzzle-loving, Leg-Reg teaching side but leaves me scratching my head on how Judge Smith got the Fifth Circuit to go along.
On one hand, Part V(A)(1) of Judge Smith’s opinion finds that DAPA is reviewable because it is not merely an exercise of prosecutorial discretion akin to the FDA’s decision not to bring an action against drug makers in Heckler v. Chaney. Instead, DAPA insures that unlawfully present persons will become eligible to receive “benefits” like Social Security, Unemployment Insurance, and Texas drivers’ licenses. Because DAPA “would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens,” it is, according to Judge Smith, “much more than nonenforcement” (page 35). Such an eligibility policy, unlike a bare decision not to prosecute, can, according to Judge Smith, be tested against statutory standards and so is reviewable under APA section 701.
But if DAPA s really a policy about payment of, or eligibility for, benefits, then should it not be exempt from notice-and-comment rule-making under APA section 553(a)(2), because it is “a matter relating to . . . public property, loans, grants,benefits, or contracts”? No, Judge Smith reasons in Part VI(C) of his opinion: “DAPA does not ‘clearly and directly’ relate to public benefits as that term is used in § 553(a)(2).” Why? Because the “USCIS—the agency tasked with evaluating DAPA applications—is not an agency managing benefit programs” such that “[p]ersons who meet the DAPA criteria do not directly receive the kind of public benefit that has been recognized, or was likely to have been included, under this exception” (page 53). It seems that eligibility to receive various benefits is merely collateral consequence of a decision not to prosecute, not a “direct” decision about benefits themselves.
So which is it? Is DAPA an “affirmative” rule defining eligibility for benefits? Then why is DAPA not a “matter relating to . . . public property, loans, grants,benefits, or contracts”? If HHS were defining eligibility of unlawfully present alien's to receive, say, TANF benefits, they would not have to put the question through N&P rule-making, right? Or is such eligibility merely an incidental byproduct of an otherwise unreviewable “negative” exercise of prosecutorial discretion by DHS? Then why is the decision about DAPA not committed to agency discretion and, therefore, unreviewable under APA section 701? After all, if a U.S. Attorney adopted a non-prosecution policy on, say, sale of medical marijuana, we would not say that such policy’s indirect effects on the seller’s power to get the benefits of, say, state property law (because the marijuana proceeds would not be forfeit) invited judicial review review of the exercise of prosecutorial discretion.
Can someone else find a space between the two lemma's above? I admit that I might be blinded by my libertarian support for DAPA’s policy merits to see the legal merits of Judge Smith’s argument as clearly as they deserve.
A Criminal Law class-materials request
Like every third person on the planet, I like Serial. Regardless of what people are saying about the podcast's second season, the show is very good. These are master storytellers at the height of their game. Now that the show is leaking out slower than it used to, I've had more time to think about it. And that's one of the things I like best about it.
Waiting often sucks. My friend is late to pick me up. Sucks. The light has been green for twenty seconds and no one is driving their effing car. Sucks. The professor still hasn't posted grades. Sucks. But the anticipation is wonderful. The waiting is one of the things that makes it great.
Don't get me wrong. I binge with the best of them. I binge-watch shows that beg for a cooling off period, like Sundance Channel's Rectify. It's a beautiful show, to be sure, but the main character's whole Boo Radley thing is straining, especially when you power into the third episode straight. And yet I chug it down like it has the antidote. Perhaps the problem is my lack of self-control, but that's a different post for a different day.
There's a lot of talk out there about the changing nature of entertainment norms and structures. Content is increasingly being dumped at once, and we watchers/listeners/readers have more access to good content than ever before. For the most part, I think this is great. I just worry that we lose the benefit of anticipation. My son is 12. Basically all he knows is streaming content (and he's never looked up something in a phone book, which is messed up.) I like to have stories stick with me. I like the opportunity to speculate. I like being able to set down a show for a bit. And Netflix knows this about me, which is why it just fires up the next episode. Don't let him stop. Keep him watching. Eventually he'll give in and watch Marco Polo or Hemlock Grove.
It's only a matter of time before the major networks abandon the current method of scheduling programming. And it's a shame. A show like Lost shouldn't be binge-watched. You have to dedicate a certain amount of hours to wondering where that frigging polar bear came from. The struggle is real, and we're losing it, and that's unfortunate.
Wednesday, January 20, 2016
SCOTUS on Wednesday decided Campbell-Ewald v. Gomez, holding that an unaccepted offer of judgment and offer of settlement do not moot a case. Justice Ginsburg wrote for herself and Justices Kennedy, Breyer, Sotomayor, and Kagan, stating that an unaccepted offer is like an unaccepted contract offer, having no legal force or effect and thus insufficient to moot the case. Justice Thomas concurred in the judgment, arguing that Article III should be read to incorporate common law principles of tender. The Chief Justice dissented for Scalia and Alito, with Alito adding a separate dissent.
Interestingly, only Justice Thomas mentioned (although even he did not particularly emphasize) that the plaintiff here sought retroactive legal relief (damages) for a past violation of his rights, whereas the Court's modern mootness cases all involved claims for prospective injunctive or declaratory relief from ongoing or future violations. And this omission reflects the flaw in how mootness is conceptualized, particularly by the Chief. Everyone keeps describing mootness as the point that "it is impossible for a court to grant any effectual relief whatever to the prevailing party." But the reason it becomes impossible for a court to grant any effectual relief is that the plaintiff no longer is injured as a result of the defendant's conduct. Thus, for example, the covenant-not-to-sue could moot Already v. Nike because, having promised not to sue, Nike no longer is harming Already with the threat of trademark infringement litigation; thus no judicial remedy can stop the injury that no longer is occuring. But in an action for retrospective relief for a past injury, the injury remains. The remedy makes the plaintiff whole by offering a substitute thing of value (money), but it does not uninjure him or stop the injury. It thus should be impossible for a claim for retroactive relief ever to become moot.
[Updated in response to comments]: At best, the court might enter judgment for the plaintiff in the appropriate amount when the defendant presents complete relief into an account payable or to the court. Justice Ginsburg leaves open whether that would moot the case what the result would be, while Justice Alito insists that paying the money to some third-party trustee would moot the case, without the need for a judgment. The case should not be moot, because you cannot have both an entry of judgment and a moot case--the entry of judgment ends the case, so there is nothing to be moot. Alito is wrong because payment of the money does not end the injury, it only compensates for it with a substitute good (money).
How Being a Struggling Student of Talmud Made Me a Better Professor of Law
My mother passed away last March. With my dad’s passing six years earlier, my brother and I suddenly found ourselves parentless while still in our 30s. Dealing with the grief has been difficult enough. Equally difficult in many ways has been the challenge of administering my mom’s estate—working through the modern morass of medical forms, bills, taxes, mail and magazine subscriptions, bank accounts, and credit cards is essentially a second full-time job. It turns out that dying in the twenty-first century involves a tremendous amount of paperwork.
The silver lining to all this, I suppose, is that acting as personal representative of my mom’s estate has allowed (forced?) me to employ several long-dormant aspects of my legal education. I have reviewed more contracts, communicated with more federal and state agencies, and spent more time at the probate court clerk’s office in the last year than at any time since I left full-time practice (and maybe ever). Like working an underused muscle for the first time in a long time, doing this kind of legal work is simultaneously invigorating, exhausting, and humbling. I am despondent about the circumstances, but grateful for the experience.
The circumstances have created another unexpected educational benefit: I have been reintroduced to the awesome challenge of Talmud study. In a year when many things have been cloudy and overwhelming, a weekly dip into Talmudic debates has sharpened my mind and changed some of my perspective on teaching.
The Talmud is a compilation of commentaries surrounding Judaism’s Oral Law (that is, the law said to be provided directly to Moses and orally transmitted through the generations, before the teachings were compiled in written form around 200 CE). Serious Talmud scholars intensely focus on a single page of text each day (Daf Yomi). A statement of law or practice in the center of the page is accompanied (literally surrounded) by a variety of rabbinic debates on the meaning and application of the statement, or offering proof for the statement. Commentaries build upon commentaries, and pull in citations from a variety of other textual sources. For a very rough sense of what it feels like, imagine a treatise on the First Amendment written by a squabbling committee of brilliant academics over the course of several centuries, and referencing a dizzying array of cases, law review articles, statutes, regulations, and local practices.
My entry into the Talmudic waters has been far less intense than daily study, but still offers plenty to digest. I meet with a small group of adult learners once a week shortly before evening minyan (the service that permits me to say Kaddish, the obligatory mourning prayer said daily for eleven months after a parent’s death). We have an excellent instructor, who is both prepared and patient. I dutifully bring my book, puzzle over the debates with the others around the table, and try to understand each strand of argument line by line, paragraph by paragraph.
In some ways, my legal training has been immensely helpful for this kind of work. I can easily recognize and appreciate some of the tools of argumentation: reasoning by analogy, reasoning from history, reasoning by custom, etc. It’s Cardozo, 1500 years before Cardozo. In other ways, my American legal training is virtually useless: because the debates in the Talmud operate in a closed environment in which text, history, and practice are of divine origin, the policy arguments that animate difficult legal questions in our time are noticeably absent. You cannot just say, “Why does any of this matter? “ One must take it as a given that it matters—even when the debate is about something as arcane as when to celebrate the New Year for Vegetables. (Yes. Really.) Nor can one simply dismiss a purported proof text as wrong; since the point of the exercise is to explain the law rather than develop or discover it, rejection of one proof requires the submission of an alternative proof. Once you accept these parameters, it’s a wonderful stretching exercise for the logical mind.
More strikingly, my journey into Talmud study has been humbling. If you were to ask me at the end of each study session whether I understood what we covered, the answer would be an unequivocal yes—and an unequivocal no. I understand the scope of the debate as presented in the limited form we discussed, but at the same time I realize how little I understand of how it fits into the larger discussion. So I get it—and I don’t. And it occurs to me that only years of consistent and rigorous study will truly make some of it clear (or more accurately, clearer).
This realization has had effects on the way I teach civil procedure. My own experience suggests to me that student silence (especially among 1Ls) almost certainly does not have a uniform meaning. Some students may be quiet because they are unprepared and cannot follow the discussion in a meaningful way. Others may think they understand, but need time to process the discussion and rearticulate it in their own words. They are not ready to ask questions or jump in. Still others may understand the terms of the specific discussion we are engaged in at the moment, but (like me at Talmud study) don’t know enough (or don’t feel comfortable enough) trying to tie it together to other topics in the course. I have to try to reach all of these groups in different ways—through classroom discussion, formative assessment methods, and one-on-one meetings.
So I will stick with Talmud study, even when my other executor duties are complete. I think my mom would approve.
I would be curious to hear from others who had the simultaneous experience of being a teacher in one discipline and a student in another. How did your experience in one area influence your approach to the other?
Symposium on Levy's Rationalism, Pluralism, and Freedom
As Monty Python would say, Jacob T. Levy's recent book, Rationalism, Pluralism, and Freedom, is "triffic. Really triffic." Here's a description:
Intermediate groups-- voluntary associations, churches, ethnocultural groups, universities, and more--can both protect threaten individual liberty. The same is true for centralized state action against such groups. This wide-ranging book argues that, both normatively and historically, liberal political thought rests on a deep tension between a rationalist suspicion of intermediate and local group power, and a pluralism favorable toward intermediate group life, and preserving the bulk of its suspicion for the centralizing state.
The book studies this tension using tools from the history of political thought, normative political philosophy, law, and social theory. . . . It discusses the real threats to freedom posed both by local group life and by state centralization, the ways in which those threats aggravate each other. Though the state and intermediate groups can check and balance each other in ways that protect freedom, they may also aggravate each other's worst tendencies. Likewise, the elements of liberal thought concerned with the threats from each cannot necessarily be combined into a single satisfactory theory of freedom. While the book frequently reconstructs and defends pluralism, it ultimately argues that the tension is irreconcilable and not susceptible of harmonization or synthesis; it must be lived with, not overcome.
Although it is a work of (somewhat stylized) history and political theory, Levy's book is also very timely, given recent conflicts over the status and (constitutional or statutory) rights of religious groups, the relationship between LGBTQ rights and religious liberty, and more generally the relative priority or balance of liberty and equality, on and off campus. The Bleeding Hearts Libertarians site has a symposium on the book; links start here. The contributors include political theorists and legal academics, including Prawfs friend Will Baude and two Prawfs members, Rick Garnett and me. Mine is titled "Levy for Dummies Lawyers." The intro is a touch snarkier than I intended, but the idea is that, given that the symposium already includes contributions from distinguished and expert political theorists, it might be useful to ask what the book offers to lawyers and legal academics, whose role (even for most law professors doing what they call "theory") tends to be closer to the immediate problem-solving end of things than the high theory end, and who thus often draw on resources like this as resources and for more short-term ends. My short verdict is that Rationalism, Pluralism, and Freedom has a lot to offer to this readership. Here are some snippets:
[The] legal audience ought to read Rationalism, Pluralism, and Freedom. They will find in it, both despite and because of its timelessness, an invaluable resource—a store of ideas that will provide useful tools for the kinds of cases, conflicts, and debates that have recently reappeared and sprung to the top of the legal and political problem-solving agenda. . . Levy has supplied arguments, a history, and most of all a usable vocabulary that is missing from current debates over law and religion. . . .
It is especially valuable that Levy’s account of pluralism is a specifically liberal account—that it retrieves a long historical tradition within liberalism that worries about the state’s centralizing, atomizing tendencies and values intermediate groups as an important element in a healthy liberal society. Levy is not the first or only writer in recent years to attempt to balance the rationalist liberal worldview with a reminder of the value and importance of intermediate groups, like churches and universities. But those of us who have written in this vein have often treated this view as arising from a critique of liberalism generally, thus placing us outside the usual terms of debate—especially within the courts, which generally speak in the language of rationalist liberalism—and imposing on ourselves a much greater burden of persuasion. One of the signal virtues of Levy’s book is that it places us within the conversation more directly, in a way that is capable of reaching and persuading a wider audience that would tremble at the thought of any set of ideas labeled as non-liberal, and with forbears—Constant, Montesquieu, Tocqueville, and others—whose ideas are less likely to be dismissed out of hand as irrelevant to our history and traditions.
Like Levy, I think the pluralist tradition has been too much ignored. Our current debate would be much enriched if room was made within it for a more robust pluralism that recognizes the value and importance of intermediate groups. We should treat pluralism as a good in itself, not necessarily as an intrinsic or “natural” matter but because of its value in actually existing liberal societies. We ought to resist the view that however the conflict between liberty and equality plays out, it should ultimately be resolved by uniform and universal laws imposed by the centralized state, as if nothing else is there, or as if whatever is left is a mere residue to be managed and rationalized.
But to this I would add one last important contribution made by Levy’s book. He reminds us that the conflict between rationalist and pluralist liberalism is not a matter of right versus wrong, of a true versus a false vision of social ordering. Rather, both forms of liberalism recognize the potential threat posed by different power centers: for pluralists, the centralized state, and for rationalists the welter of intermediate, often illiberal, groups. Each of them is susceptible to abuse, to capture, to inequalities and power dynamics that threaten the rights or well-being of the individuals within them. . . .
[O]ne value of Levy’s book is that it recognizes those groups’ value even as it describes their dangers, and does not assume that the best solution to the problems these groups present is simply to level them. And another is that it provides us with a vocabulary—still liberal, but in a very different liberal voice than the rationalist strand we are accustomed to—with which to do so. Rationalist liberalism, speaking to these groups de haut en bas and treating them as existing on sufferance, provided they do not depart from congruence with the liberal norms and procedures that apply to the state, is unlikely to reach or persuade those groups—likely, if anything, only to create more illiberal groups and greater polarization. Pluralist liberalism offers a chance, albeit only a chance, of speaking productively to and within the many intermediate groups that dot, and benefit, our society.
Divergent Paths, the "Posnerian Clone Wars," and Two Takes on Legal Education
In the New Rambler Review, which incidentally is a great resource, today's example notwithstanding, I have a review of Richard Posner's new book, Divergent Paths: The Academy and the Judiciary. Here's my summary of the book's thesis:
The federal judiciary suffers from many flaws, not least “a certain staleness in the current judicial culture.” Some flaws are structural; others involve poor management of the judiciary as a whole and of individual courts and judges; a third set concerns “deficiencies in how federal judges decide cases and justify their decisions in judicial opinions,” including a mechanical formalism and an unwillingness to confront openly the task of solving complex problems. Some of those flaws are fixable. The legal academy could do a lot to help. But it hasn’t, and won’t, unless it fixes some flaws of its own. Its central shortcomings are its increasingly academic nature and its lack of interest in understanding or communicating with judges. “There really is a gulf between these two branches of the legal profession, and the gulf has been growing.” A “focus on practical instruction” in legal education would “create a greater faculty interest in judges,” especially those beyond the Supreme Court, and narrow the gap.
And here is my basic assessment:
In Divergent Paths, [readers] will find much that repays their time, but I’m not sure they will find a rewarding book as such. They will find “too much”—a “gallimaufry,” as he says (wonderfully) of a quote by Laurence Tribe—and also not enough: several books not one, sometimes conflicting in diagnosis and prescription, and too often wandering into fun but unfocused irrelevancies. . . .
Duncan Kennedy famously wrote that legal education is a machine for the reproduction of hierarchy. Divergent Paths wants to turn law schools into a device for the large-scale industrial cloning of Richard Posner himself. . . . I agree with most of Posner’s diagnoses and many of his prescriptions; I admire his work as a judge and a scholar; I wish more judges, lawyers, and law professors were like Posner. But all of them? By the end of the book, one can’t help recall a scene in the movie Being John Malkovich, depicting a world with nothing but Malkoviches. Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous. Whatever legal academics’ job is, it can’t be that.
After the jump, I offer more substantial excerpts. One suggestion I make toward the end of the review is that instead of making recommendations for the future of law schools based, by his own admission, only on his knowledge of the elite law schools, Posner should have considered the possibility of "more tiering of law schools, not just as a matter of rankings but in terms of the role and strengths of different kinds of law schools. It’s also surprising that the book doesn’t consider the possibility of separating legal academic study from legal professional training, with fewer, less highly compensated, and more academic legal scholars teaching in departments of law, and more practical, doctrine- and instruction-oriented academic lawyers working in law schools." [For what it's worth, I have taught at five law schools, and in a week will begin a visit at a sixth, representing all "tiers."] I also write:
In focusing on the shortcomings of individual elite law professors while insisting that the whole legal academy serve as glorified valets to the federal courts, [Posner] ignores another possibility. Two features, above all else, distinguish elite law schools from lower-ranked schools: money and resources. What separates Harvard, Yale, or Stanford from most law schools is not the presence of airy theorizing or Supreme Court clerks, both of which can be found elsewhere. It’s that these schools have accreted a large number of generously funded centers and institutions, staffed with affiliates, fellows, and administrators, a number of whom have significant expertise in useful disciplines. Individual tenure-track faculty members at the elite law school faculties are now just the visible tip of a much larger corporate enterprise.
These varied centers now mostly serve as a research and advocacy arm of legal liberalism. They do some impressive work, no doubt. But it’s not unique work; and, varied and piecemeal as they are in their activities, they don’t achieve half as much as they might if they were properly coordinated. With their resources and ability to hire dedicated and qualified staff, and with more forethought and direction, the elite law schools could do a lot to study the kinds of questions Posner thinks are central to the improvement of the federal judiciary (or other branches of the profession). They would certainly be better qualified at this job than the general run of current law faculty. They would also be more qualified than the practically oriented faculty that he champions in his conclusion. Rather than retrofit the law schools into a rag-tag version of the Federal Judicial Center, why not build from existing and potential resources to fit the right tool to the job? In his compulsion to remake the judiciary and law schools in his own image, Posner’s usual Weberian instincts abandon him.
I thought, in light of my recommendations, that it would be nice to close this post with a "But see": Rebecca Roiphe's new article, Tilting at Stratification: Against a Divide in Legal Education. The abstract states, in part: "Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. . . . The article draws on [ ] history to argue that there are no easy solutions. In order to fix the problems of legal education, we need to address the question of professionalism in general and distill what it is that is valuable about a separate legal profession. The profession should train all our lawyers in those skills. The intellectual and theoretical approach to the law is necessary to both rich and poor clients, therefore, all lawyers--not just those who graduate from elite schools--ought to be trained in the complex nature of the law and its relation to society, culture, and politics."
As with most of Posner’s books, reducing Divergent Paths to a dry précis gives no sense of the genuine intellectual treasures to be found in it. Its pleasures lie in its detours and divagations as much as in the main trail. “Having flailed at the American Law Institute for a few pages,” he writes at one point, “let me get back on track.” Throughout the book he flails away: at individual judges, articles, and ideas, at judicial piety and academic abstruseness, and at many of his other usual foils. He usually hits his target.
Sometimes—more often than usual for Posner—this becomes repetitive; for example, a 75-word passage appears, word for word, at pages 225-26 and 271. Frequently, he descends from acidity to crankiness. . . . [T]he book needed more ruthless editing and greater self-restraint. That extends to his epilogue, added at the last minute to throw in some harsh criticisms of recent Supreme Court opinions. Posner says he “thought it likely that some of those late-decided cases would cast light on issues discussed in this book.” The discussion is more distracting than enlightening—one more punch to throw before last call. It should have been cut.
Many other passages, however, retain the trademark Posnerian capacity to cut to the quick and separate sense from nonsense. . . .
The heart of the book is its pairing of flaws in the federal judiciary and ways the legal academy could address them. Plenty of law professors today are eager for reform recommendations. They should be. Even if the legal economy recovers fully, many reasons for reform will persist. Among other things, law schools make questionable choices in faculty hiring and curriculum, and there is a disjunction between what schools teach and how they teach it, and the practical needs of students, the legal profession, and others.
But even those eager to praise any suggested reform of legal education should take a careful look at Posner’s recommendations. The problem is not their cost. Requiring law professors (like me) to retool or move on is hardly a good reason to resist reform recommendations—if they’re good ones. But the consistency, coherence, and effectiveness of Posner’s proposals are questionable.
There is a strong tension between Posner’s complaints about law schools and his prescriptions for reform. . . . One might think, [given his diagnoses], that Posner’s prescription would be: “Fewer doctorates, more doctrine.” Hire talented young lawyers to teach, and encourage them to do the doctrinal work at which they excel and which judges can understand and use. They won’t need much encouragement, given their particular (and limited) skills and their identification with the profession.
But it isn’t, or not quite. Posner urges that “the judiciary as an institution (as distinguished from its legal-doctrinal output) should be receiving a good deal more attention from the academy than it is.” Judges themselves—their psychology, their priors and incentives, their management techniques—are the rats that must be made to run the legal academic maze. The tools for that sort of study are organizational and psychological: statistics, management, organizational and institutional scholarship, behavioral economics and psychology, and so on. . . . Thus the first item on Posner’s list of recommendations: “Redirect focus of academic scholarship from legal doctrines and particular decisions to systemic and institutional issues.” So the prescription is actually “More doctorates (but aiming their studies at the judiciary), and (even) less doctrine.”
What good will this do? Empirical study of the judicial process and the management of the federal courts would surely yield some benefits. But Posner argues throughout the book that judges can’t understand or won’t listen to this sort of thing. . . . They wouldn’t necessarily do anything about it even if they did listen. The usual problem of horses and water would apply.
The references to rats and horses are apt here. I will add a third animal metaphor. In his book How Judges Think, Posner urged legal and other scholars not to accept judges’ descriptions of how they decide cases uncritically, but to bring an external and interdisciplinary perspective to bear. He wrote pithily, “Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology.” Going an absurd step further, Divergent Paths aims to turn the entire legal academy into a center for the study of feline psychology. Since he wants law professors not only to study their subjects but to help them, by such tasks as “guid[ing] judges to reliable websites and away from unreliable ones,” he would also turn us into feline therapists and feline concierges. While he’s at it, since he wants judges, unlike cats, to listen to the people studying them, he wants us all to talk to the animals as well, like Dr. Doolittle. There is no reason to think judges would take any more kindly to our observations than cats would, or that the skills necessary for external study of the judiciary would make us better judicial therapists and servants, and vice versa. . . .
There are two more important flaws with the book, both tied together by a certain self-centeredness and the usual human tendency, widely shared by legal academics, to look for one’s keys under the nearest lamppost. The book’s plea for future study of the judiciary is undercut by the certitude, specificity, and oddness of his prescriptions. Posner already seems certain not only of the flaws in the judiciary and legal academy but of their remedies, and this affects his recommendations in bizarre ways. Duncan Kennedy famously wrote that legal education is a machine for the reproduction of hierarchy. Divergent Paths wants to turn law schools into a device for the large-scale industrial cloning of Richard Posner himself. . . .
I agree with most of Posner’s diagnoses and many of his prescriptions; I admire his work as a judge and a scholar; I wish more judges, lawyers, and law professors were like Posner. But all of them? By the end of the book, one can’t help recall a scene in the movie Being John Malkovich, depicting a world with nothing but Malkoviches. Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous. Whatever legal academics’ job is, it can’t be that.
Finally, Posner’s exclusive focus on the federal appellate courts and the elite law schools is odd. It makes sense to write what you know, but this is a sweeping set of prescriptions for so narrow a scope of study. It leaves out other branches of the legal profession and of government, most of the law schools in the country, and all of the state courts. Narrowing in at the outset leaves him, and us, unable to evaluate whether other legal institutions are in more urgent need of help.
It also affects and distorts his prescriptions. Despite the perverse tendency of the competitive job market in law teaching to create a whole nation of law faculty who mimic their mentors at the elite schools, there has also been a recent increase in differentiation and specialization among law schools, as they are forced to pay more attention to local employment markets. There could, and probably should, be even more of this. Posner notes that faculty at non-elite schools are still likelier to produce doctrinal work, although the snobbery of federal judges (or their clerks) may lead them to neglect it.
Why not build on this? Instead of a prescription that all law schools become judicial study centers, based only on his knowledge of a few elite schools, why not allocate the work more efficiently? Perhaps he should encourage more tiering of law schools, not just as a matter of rankings but in terms of the role and strengths of different kinds of law schools. It’s also surprising that the book doesn’t consider the possibility of separating legal academic study from legal professional training, with fewer, less highly compensated, and more academic legal scholars teaching in departments of law, and more practical, doctrine- and instruction-oriented academic lawyers working in law schools.
In focusing on the shortcomings of individual elite law professors while insisting that the whole legal academy serve as glorified valets to the federal courts, he ignores another possibility. Two features, above all else, distinguish elite law schools from lower-ranked schools: money and resources. What separates Harvard, Yale, or Stanford from most law schools is not the presence of airy theorizing or Supreme Court clerks, both of which can be found elsewhere. It’s that these schools have accreted a large number of generously funded centers and institutions, staffed with affiliates, fellows, and administrators, a number of whom have significant expertise in useful disciplines. Individual tenure-track faculty members at the elite law school faculties are now just the visible tip of a much larger corporate enterprise.
These varied centers now mostly serve as a research and advocacy arm of legal liberalism. They do some impressive work, no doubt. But it’s not unique work; and, varied and piecemeal as they are in their activities, they don’t achieve half as much as they might if they were properly coordinated. With their resources and ability to hire dedicated and qualified staff, and with more forethought and direction, the elite law schools could do a lot to study the kinds of questions Posner thinks are central to the improvement of the federal judiciary (or other branches of the profession). They would certainly be better qualified at this job than the general run of current law faculty. They would also be more qualified than the practically oriented faculty that he champions in his conclusion. Rather than retrofit the law schools into a rag-tag version of the Federal Judicial Center, why not build from existing and potential resources to fit the right tool to the job? In his compulsion to remake the judiciary and law schools in his own image, Posner’s usual Weberian instincts abandon him.
Individual right or government wrong?
I have a SCOTUSBlog recap of Tuesday's oral argument in Heffernan v. City of Paterson, which I had previewed. The issue is whether a public employee can state a First Amendment claim where he was demoted because the government believed he was engaged in expressive association, even though the government was actually wrong in that believe. In other words, if the government acts with the intent to retaliate but does not retaliate because there is nothing against which to retaliate, does it violate the First Amendment? Dahlia Lithwick describes the "extra-meta" tone of the argument.
It is interesting to look at this case in light of last week's argument in Friedrichs v. California Teachers Association. The Justices who seemed most critical of the petitioner's position in Heffernan (the Chief, Scalia, and Alito, and to a lesser extent Kennedy) were most solicitious of the employees in Friedrichs and seem most likely to hold that public employees cannot be compelled to pay agency fees to unions, even for collective bargaining activities. But if those positions hold, the practical results seem odd. It would free public employees from any compelled union participation because anything the union does (even negotiating higher wages) is potentially objectionable speech on a matter of public concern, then expand the circumstances in which public employees can be fired based on government presumptions about their associational activity, at least if those presumptions prove erroneous. It is as if that bloc of Justices views it as a greater First Amendment violation to be compelled to pay for another's speech than to be sanctioned for one's own speech
Tuesday, January 19, 2016
Terry Moe Triumphant? Do Collective Action Problems Plague Judicial as Well as Political Safeguards Against Presidential Power?
One can view the controversy over President Obama’s DAPA policy, now elevated to the major case of the term by SCOTUS’s cert grant today in Texas v. United States, as an illustration of one fundamental truth: Partisan politics trumps institutional loyalty. Liberals who denounced Bush’s allegedly imperial signing statements now predictably embrace Obama’s allegedly imperial guidance documents. Conservatives who were devoted to the unitary executive under Bush II now predictably denounce Obama’s imperial presidency. Both Democratic and Republican pots and kettles predictably accuse the other of blackest hypocrisy about their constitutional principles – and, of course, both are correct. Partisan disloyalty to abstract constitutional arrangements is a matter of bipartisan consensus.
According to Terry Moe, all Presidents, regardless of their political party or campaign promises, will always stretch presidential prerogatives to the limit, because their high visibility impels them to satisfy their constituents’ demands for action. (For Moe's own summary of the institutional literature on the Presidency, see here). Congress’ push-back will be flabby and ineffective, because Congress suffers from collective action problems. Hog-tied by bicameralism and lacking a leader capable of rallying a united rank-and-file (Speaker Ryan’s bully pulpit is surely as lowly as Speaker Pelosi’s), Congress will always be less popular, less energetic, and less unified than the executive branch. The result is, for better or worse, relentless expansion of presidential prerogatives.
Moe’s theory undermines theories about the political safeguards of separation of powers. But does it follow that SCOTUS’s active review is an effective antidote to the imperial presidency? The obvious problem is that SCOTUS is plagued by collective action problems as well. A particular partisan majority on a collegial bench might, in abstract, embrace a principle like the unitary executive or the Color-Blind Constitution -- but will they stick with that abstract theory when their party's ox is being gored? Only if the other side can make a credible commitment to return the compliment when the partisan tables are turned. Stare decisis and crisp constitutional doctrine might be the foundation of such commitments -- but can the doctrine ever be crisp and credible enough to constitute a pact capable of surmounting the hyper-partisan passions of our times? As I noted with respect to the Color-Blind Constitution, liberal and conservative justices seem rationally to trim their sails based on partisan considerations, because the flabbiness of the relevant doctrines does not give either side assurance that the other side will stick to the doctrine when it disfavors that side's party loyalties. Scalia’s dissent in Zivitofsky v. Kerry suggests (et tu, Nino?) that his loyalty to the unitary presidency might be GOP deep -- and rationally so, if he believes that liberal justices will not protect a conservative president's conservative foreign policy prerogatives. The same distrust, of course, applies to the opposite side of the bench. Moreover, even if one side can muster a 5-4 majority to spank the president in this case, will such a precedent last – or will it dissolve, limited to its facts, when the partisan tables are turned and a judicial majority shares the President’s Party? Stare decisis, after all, is the sort of abstract institutional principle that partisan bile dissolves just as effectively as the unitary presidency.
But maybe I am unduly pessimistic about the power of constitutional abstractions to unite a court across cases? (I should tip my own ideological hand by noting that, on the merits of this particular assertion of Presidential power, I share Ilya's support for DAPA as a justified assertion of presidential enforcement discretion. But that might just be because, like Ilya, I am an immigration libertarian).
Vermont's All-Payer Claims Database: What Hangs in the Balance.
I have been following Vermont's all-payer claims database litigation, Gobeille v. Liberty Mutual Insurance Co. -- argued at the U.S. Supreme Court on December 2, 2015. Perhaps you have as well. There is absolutely nothing like a good ERISA preemption dispute to to remind me of the force of Bill Sage's observation that is a case like this that reminds you why you must explain "to every class of Health Law students... that ERISA [is] the most important law affecting private health insurance in the United States."
Strictly as an ERISA preemption case, Gobeille is interesting for how it may force the Court to parse yet again and yet further whether the collection of health care data by a state interferes with a core ERISA function belonging to the U.S. Secretary of Labor or whether state by state variable all-payer claims database reporting requirements are arguably unduly burdensome on the reporting entities and firms. If you've read this far, I know you are fascinated by preemption, but even more importantly, such a decision would test whether or not the gradual movement of the states to mandating reporting of all-payer claims data has legs.
It is early days, but there is some evidence that the all-payer claims data has begun to influence health care cost to consumers and health care consumer decision making in New Hampshire (under its Comprehensive Healthcare Information System established by state law in 2007). The claim of price transparency triumphant, of course, is also balanced by arguments about adverse affects of health care price transparency because limited research may also indicate that it causes rates to narrow and average costs to rise.
All of this is based on fairly little experimentation with health care cost transparency in the U.S. of the sort that may be developed from all payer claim databases. So just what is it that we would rather not know, rather not test empirically, about the competitive effects of the disclosure of this kind of information?
JOTWELL: Tidmarsh on Hill on financing class actions
The new Courts Law essay comes from Jay Tidmarsh (Notre Dame) reviewing a student note by Tyler Hill (Yale), Financing the Class; Strengthening Class Action Through Third-Party Investment (Yale L.J.).
Monday, January 18, 2016
Corruption Match Game!
Sunday, January 17, 2016
What's a Hospitalist?
Thank you for the opportunity to guest blog here for the remainder of the month. I hope to blog here on all things health law, health care regulation, and health policy related.
Last week, I participated in a discussion of primary care provider supply on KCUR, Kansas City's local public radio affiliate. I was pleased to participate and enjoyed the conversation with my fellow panelist, Dr. Michael Munger and with our host Gina Kaufman. I suppose I was invited to participate because I just won't be quiet about primary care provider supply, medical school education, Kaiser Permanente's recent announcement of its decision to fix the broken pipeline of primary care providers representative of and responsive to communities with the greatest shortages by opening a proprietary medical school in southern California and on and on.
Today, I want to focus on a point made later in the radio program when listener call-in questions were fielded. One self-described "older" caller disparaged the rise of hospitalists and the use of hospitalists in places where they were previously unknown, including rural settings. Forgive me KCUR host Gina Kaufman, but the most interesting thing about the whole exchange with the call-in listener was that you did not seem to know who or what a hospitalist is until, apparently, you were guided to some understanding by someone in the studio. I note this without dismay for two reasons. First, unless and until you have experienced a hospitalization for something other than scheduled elective surgery or a planned normal birth, you may not have been introduced to the new normal: acute in-patient care delivered by a physician typically previously unknown to you, a provider often employed by the hospital itself, and a provider you are unlikely to ever encounter again outside of an acute care in-patient setting. Or, it could have been that the use of hospitalists in America's acute care in-patient facilities is so widespread that the term has become obsolete to lay people, though recognized inside baseball as the fastest growing medical specialty. Either way, the caller's point was that quality care should not be based on a system of strangers treating strangers. The easy answer to that is that electronic medical records will make us all strangers no more and that care by strangers is cost effective.
Whatever you make of the alleged impersonalism of modern health care, the caller may have been on to something in noting that there is an ongoing problem with the hand off between hospitalist provided hospital based acute care and the ongoing treatment and monitoring of things like chronic disease required of community based medicine. Our hand offs are problematic. Less expensive care in the in-patient acute care setting under the hospitalist combined with the costs of poorly integrated transitions to community based care on discharge can lead to higher community care based expenses along with the cost of unnecessary human suffering pushed elsewhere. So much of our health care system is financed and delivered under principles designed to push costs elsewhere in the system rather than acknowledge that poorly integrated care costs us all but costs some of us more than others.
So, whether you are in the "What's a hospitalist?" camp or the "You can see someone beside a hospitalist during an acute care admission?" camp, we all ought to be interested in valuing and prioritizing the hand off from acute in-patient care to community based care, where the real rubber meets the road.
Another Cold/flu - Is there something about teaching v. practice?
I have heard it said that teachers, particularly those who teach small children, are more likely to be exposed to viruses and to get sick. Until recently, I did not count myself among the “more likely to catch a virus” group. I felt completely fine when classes started on Monday, and I was excited about the next set of classes, but by Wednesday it was clear that I managed to pick up a rather nasty flu of some kind. Again.
I am starting to think that there is something about working as a law professor that requires me to more actively guard against getting sick. I enjoy teaching and writing about the law, and I like interacting with students. However, it seems I have caught my fair share of minor illnesses since I started teaching full time. Before teaching, I practiced law, went back to school, did some international work, practiced some more and moved around a fair amount. Even with all that, getting sick was not part of my vocabulary. I have been thinking about what has changed.
I interact with far more people now than I did in practice. Even though it is often said that academia is isolating, when I was in practice, I spent quite a bit of time working independently on legal memos. Aside from lunch or client meetings, I dedicated my time to legal research and analysis for client files. As a law professor, I still work alone a lot, but I also encounter many more people. Perhaps the less formal atmosphere of the academic setting also makes a difference. I suspect people will go to school when they have cold and flu symptoms whereas they might not go to a business meeting sniffling, coughing, or sneezing. I have also contemplated the effects of an irregular schedule (night teaching), publish or perish, the wonderful flexibility (easy to work all the time if you are not inclined to perish), conference travel, and other factors, including too much sugary coffee! Whatever the reason for the increase in minor illnesses, I have decided it is time to actively avoid catching another one.
Friday, January 15, 2016
A symposium on Levy's "Rationalism, Pluralism, and Religious Freedom"
Here's my contribution to a symposium (there are a half-dozen others, too), hosted by the Bleeding Heart Libertarians site, on Jacob Levy's wonderful new book, Rationalism, Pluralism & Freedom (buy your copy here). A bit:
. . . Jacob is right, it seems to me, to highlight, within the “liberal understanding of freedom,” the “pluralist emphasis on the freedom found within and protected by group life against the power of the state.” He is on firm ground when he insists that “[t]here is no social world without loss” and that “[s]ometimes we will not be able to have the morally best degree of freedom of association and the morally best degree of protection against local tyranny.” And, he correctly reminds us that “[w]e cannot . . . simply point to the moral loss suffered by some relatively powerless or disadvantaged person within an association, religion, or cultural group and conclude that the group constitutes a local tyranny that must be dissolved or overruled by the state.”
He is right about all this, I think, not because religious institutions (or other non-state associations) never act wrongly or never inflict hurt and harm. They do (sometimes), just as liberal states do (sometimes). As I see it—and Jacob’s book is helping me to think harder and, I hope, better about the matter—the liberal practice of respecting the rights of religious and other associations’ distinct, even if non-liberal, practices is not merely a matter of “governance best practices” or a strategy about how to allocate scarce enforcement or litigation resources. Instead, the practice reflects the fact that a (good) liberal, constitutional government accepts—and not grudgingly—as given the fact that reasonable people, associations, institutions, and communities disagree reasonably about things that matter. Such a government is not merely resigned, but resigned comfortably, to the “crooked timber of free society.” . . .
The Inifinte Loop (Returning to AALS)
Last Friday, I moderated the panel session Impossible Realities, Infinite Loops and Movable Staircases: The Impact of Institutional Marginalization on the Tricky, Unpredictable, and Inconsistent Trajectory of the Non-Tenured Track Career Professor, on behalf of the AALS Task Force on Professional Development, which sponsored a five-session program on the “Arc of the Career.”
By way of background, the Task Force requested proposals that addressed: How can AALS better help legal education professionals with professional development over the course of their careers? In reviewing the list of topic areas contemplated for in the request for proposals, we noticed that the concept of the professional development of the non-tenure track, non-tenure eligible, contract, and non-contract faculty member was omitted from consideration. Our panel, composed of me, Mel Weresh, Anna Hemingway, Alyson Carrel, and Dean Susan Duncan shared our professional experiences, explained our challenges, and together with the contributions of numerous attendees, offered ideas to the AALS on how to support the non-tenure track professor with professional career development.
Mel set the stage by explaining that law faculty members who are employed on an ABA 405(c) contract have increasingly been subject to requirements for promotion that rival those of a tenured faculty member. In other words, the obligations for teaching, service, and scholarship are relatively equivalent for tenure track and 405(c) track faculty. As a result, ABA accreditation standard 405(c) rewards these faculty members with “tenure-like” security of position.
Notwithstanding the above, many non-tenure track/contract faculty members have found their positions to be unstable. Some faculty members have been released from positions that are defined as “tenure-like,” after receiving a contract that is "presumptively-renewable." Others have had contractual provisions changed or teaching obligations increased significantly with no additional compensation. As a result, faculty members who have served for many years and earned security of position by satisfying tenure-like standards are denied the proposed reassurance of their contractual provisions. Even more disturbingly, the majority of law faculty members who hold these positions are female.
Thursday, January 14, 2016
Final CFP Announcement: 2d Annual Civil Procedure Workshop
Here. Paper proposals are due on Friday, January 15.
Narrowing Second Amendment Precedent From Below
Last month, Justice Thomas wrote (another) dissent from denial of certiorari in a Second Amendment case, Friedman v. City of Highland Park. This time, Thomas expressly warned of lower court “noncompliance” with the Court’s case law. Friedman raises a question taken up in my new draft paper: do lower courts have some authority to narrow Supreme Court precedent?
But first, a few definitions. "Narrowing" occurs when a court interprets a precedent not to apply where the precedent is best read to apply. By contrast, "distinguishing" occurs when a court interprets a precedent not to apply where the precedent is best read not to apply. Narrowing is also different from overruling or partial overruling, which accept that a precedent applies to the facts at hand but then decline to follow the precedent in whole or in part based on another, more fundamental source of law. I've previously argued that the Supreme Court frequently narrows its own decisions.
When vertical narrowing or "narrowing from below" occurs, courts decline to adopt the best reading of higher-court precedent. But they are still interpreting precedent and so aren't asserting the power to overrule higher-court decisions. My new paper discusses when narrowing from below is compatible with various theories of vertical stare decisis. For present purposes, we can rely on a rule of thumb: narrowing from below is often legitimate if the higher-court precedent is relevantly ambiguous.
That leads to Friedman. When the case reached the Supreme Court, Justice Thomas wrote a dissent from the denial of certiorari. Joined by Justice Scalia, Thomas lamented that the Court “had refusal to review a decision that flouts two of our Second Amendment precedents.” And, taking a broader view of Second Amendment case law, Thomas complained of “noncompliance” with the Court's precedents.
Thomas was right to feel that lower courts are implementing a narrow view of the Second Amendment rulings in Heller and McDonald. In Friedman itself, the Seventh Circuit basically limited the Second Amendment to weapons used in at the founding, in modern militia, or as now necessary for self-defense. But that restrictive test appears nowhere in the U.S. Reports. And, as Thomas shows, each feature of the Seventh Circuit’s test is in tension with reasoning that does appear in the Court’s Second Amendment opinions.
Yet it’s hard to say that Friedman or any other leading lower-court decision on the Second Amendment has transgressed clear Supreme Court precedent. (A thought experiment: if the qualified immunity or AEDPA standards for clear Supreme Court precedent applied in Second Amendment cases, would Thomas think that those standards had been met in Friedman?) So Thomas's lament raises a broader question: do lower courts sometimes have authority to narrow ambiguous Supreme Court precedent?
The lower-court opinions in Friedman illustrate how lower courts might debate about narrowing from below. Instead of insisting that Supreme Court precedent supported him, Judge Easterbrook's majority opinion argued that the relevant precedents “leave matters open” for lower courts and offered only “ambiguous” guidance in the case at hand. Here's the most relevant passage:
Heller and McDonald set limits on the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court's opinions.
In dissent, Judge Manion recognized that the Court’s case law left much uncertain. But he contended that important aspects of the majority opinion had defied “clear” precedent and so adopted a "gerrymandered reading" of Heller and McDonald. This nuanced argument is important because defiance of clear Supreme Court precedent is far more troubling than a decision to set aside an ambiguous message. Here’s the most relevant passage:
Neither Heller nor McDonald purported to resolve every matter involving the regulation of weapons; but they are clear about one thing: the right to keep arms in the home for self-defense is central to the Second Amendment and is not conditioned on any association with a militia. Instead of following this clear principle, the court engages in a gerrymandered reading of those cases to hold directly contrary to their precedents.
In focusing on whether precedent was "ambiguous" or "clear," the above passages suggest that the dispute in Friedman may not have turned exclusively or even primarily on the best reading of Heller and McDonald. Instead, the the majority and dissent were concerned, at least in part, with whether the Supreme Court's cases unambiguously prohibited the majority's narrow rule of decision. This framing is consistent with the view that lower courts have some discretion to narrow the Court's decisions.
Second Amendment litigation is just one area of law marked by narrowing from below. We’re bound to see much more of it in 2016.
Wednesday, January 13, 2016
Does Ted Cruz's Conditional Citizenship Affect the "Natural Born Citizen" Analysis?
I have previously written that Senator Ted Cruz is a natural born citizen, eligible to the presidency, because he was a citizen at birth. Though born in Canada and having a father of Cuban heritage, his mother was a U.S. citizen; the Immigration and Nationality Act also made him one under the circumstances. Neal Katyal and Paul Clement, Michael Ramsey, Randy Barnett, and many others, persuasively argue (and this is a paraphrase) that if Congress makes a person a full member of the U.S. political community at birth, that person is a natural born citizen. (See also classic Charles Gordon article here). In Wong Kim Ark in 1898, the Supreme Court, quoting a leading treatise, stated: "Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth." 169 U.S. 649, 657 (1898) (italics in original).
There is a catch, though, that has apparently not been addressed. Under the law in effect in 1970, when Cruz was born, a child born abroad to two U.S. citizen parents was generally an unconditional U.S. citizen. However, a person like Senator Cruz with a single USC parent had only contingent citizenship, and would automatically lose U.S. citizenship and nationality unless she that child spent five years in the United States between the ages of 14 and 28. In Rogers v. Bellei, 401 U.S. 815 (1971), the Court, 5-4, upheld the citizenship termination provision. Senator Cruz's citizenship was perfected in 1978, when Congress eliminated the retention requirement. But when he was born, Rogers v. Bellei explained, Congress granted children in his situation "presumptive," "conditional" citizenship, not "absolute," "full" citizenship, because Congress had a "legitimate concern" that non-citizen parentage coupled with foreign birth raised questions of "divided loyalty" and "primary allegiance" which should be resolved by future U.S. residence.
The case remains strong that Congress has the power to make children of one or two U.S. citizen parents full members of the political community at birth, even if born overseas. Therefore if Senator Cruz had been born in 1980, he would, fairly clearly, be a natural born citizen. But there is wide agreement that a person either is, or is not, a natural born citizen at the moment of birth; automatic loss of citizenship based on future circumstances is in tension with this. Congress granted Senator Cruz a status that did not guarantee that he would even be allowed into the country after age 23, because they did not fully trust people like him. Focusing on the conditional nature of Senator Cruz's status makes it less clear than it was that Congress either intended to make children with one U.S. citizen parent full and equal members of the political community, or exercised its authority to do so. I would love to hear what other people think.
Tuesday, January 12, 2016
SCOTUS Preview: Political patronage and misperceived association
I have a case preview at SCOTUSBlog for Heffernan v. City of Paterson, to be argued next Tuesday, January 19. The case concerns whether a public employee can state a First Amendment retaliation claim where the government demoted him explicitly because of his supposed political activity, but where he actually was not engaged in any activity. The most recent We the People Podcast features Burt Neuborne (NYU) and John Inazu (Wash. U.) discussing the Assembly Clause and they touch on this case.
We could be us, just for one day
Monday, January 11, 2016
When I was first starting out in the gig, one of my mentors gave me a piece of advice that has stuck with me. Don't write replies. Even if your paper is essentially a response to someone, don't frame it that way. Build the response into a larger claim.
But there was more to it: definitely respond. Engagement is key. The conversation is what matters. Disagree, amplify, make subtle distinctions. Just don't frame the paper around the reply.
I've followed this advice and given it myself. Yet I've never really considered. Why not reply?
My sense--and I'm fine being wrong about this--is that the advice is driven by the submission process. By pitching the paper as a response to someone, we give the appearance of a limited contribution. The law review submission process is a black box on its best days. So it makes sense for scholars, especially junior scholars in search of tenure, to avoid submission formats that won't play well with the acquisition editors. Maybe that's always good advice, whether in a law journal or peer review situation. Or maybe the "no reply" rule isn't widespread. Frankly, I don't know.
But I welcome thoughts. Please and thank you.
Sunday, January 10, 2016
Sunday Soderbergh Blog
Steven Soderbergh is a productive guy. Like really productive. In the last few days, I've stumbled upon some interesting pieces about the man, the myth, the auteur . Those familiar with my writing already know that Soderbergh has been a huge influence on me and my thinking about New York hospital culture in the early years of the 20th century. So please enjoy:
The first is his own list of stuff he watched, read, and listened to in 2015. Yes, it's weird he keeps a list. And weirder that he publicizes it. But I'm really struck by the range of his interests. Dude loves him some news magazine shows. Which makes sense, because Lester Holt is awesome.
The second is a Vulture piece by Matt Zoller Seitz about how The Knick, Soderbergh's show on Cinemax, is made. It's a crazy schedule. I found it riveting--more so than the show it covers.
I'm glad no one has decided to write one of these stories about me ("He writes slowly and infrequently, breaking for podcasts, donuts, and naps.")
Fashion & Design Law
Many thanks to Prawfs, for having me back. I just returned from a terrific Association of American Law Schools meeting, and I am gearing up for class tomorrow!
My blog posts will be primarily about Fashion & Design Law, which I will be teaching for the first time this semester. In the introductory chapter to their book Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys, Guillermo C. Jimenez and Barbara Kolsun write: “At the heart of both fashion law and entertainment law is IP law. However, fashion-related IP calls into play a number of specific principles not encountered in the entertainment context.” (p.25) They point out that copyright issues arise more in the entertainment context, while trademark issues are more prevalent in the fashion industry. In addition to the intellectual property issues, Jimenez & Kolsun cover commercial law, advertising, licensing, customs, employment law, and other fashion-related topics.
Fashion Law, which is considered a fairly new subject, is not a commonly offered law school course. Susan Scafidi at Fordham Law in New York is apparently the first faculty member to have offered this course at an American law school. Like Entertainment Law, Fashion & Design Law is an intellectual property-related course, and I think is a good addition to our growing intellectual property curriculum. The course also makes sense, given our location in Miami. Our students seem to have some interest and expertise in fashion issues. For instance, I learned that one of my former students from my International Intellectual Property course is the CEO of a fashion company (he had a lot of cross-border transaction questions and comments in class!), and another former student is involved in his family’s shoe business. We also have a fashion-loving student who blogs and tweets about fashion and who has started to connect with the fashion community in Miami.
Even though this is another new course to prepare and I am pre-tenure, I am excited to teach it. The course involves a number of different areas of the law, including lots of contract and intellectual property law, which is fun because I teach both these subjects. Fashion & Design Law also raises a variety of interesting issues that I will discuss in other posts.
In addition to the Jimenez and Kolsun book, I will draw on a variety of materials for the class (i.e. Navigating Fashion Law from Aspatore, Trademark, Unfair Competition, and Business Torts by Barton Beebe, and Trademark & Unfair Competition Law by Dinwoodie & Janis, as well as their book on Trade Dress & Design Law). I have also seen some helpful resources from the American Bar Association. If anyone knows of any additional fashion law teaching resources that could be helpful, I welcome your suggestions.
Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.
1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.
[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.
The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.
2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal is likely that she knows she will lose, because students are losing all of these cases.
Which is tragic. Government officials, the education system, and society cannot complain that "kids today" are apathetic, then punish them when they take stands on the things that matter to them, simply because those officials do not like the stance. That seems to be why we need a First Amendment in the first place.
3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.
[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.
4) One additional thought: Gehl was suspended for the games, but not punished as a student. But what if the same tweet had come from a non-athlete (say, a student-fan or just a student who objects to stupid restrictions on protected speech)? Would the WIAA have cared? Would the suspension have been from school? Or was Gehl singled out because she is a student-athlete?
Friday, January 08, 2016
Vehicle Problems vs. Unusual Vehicles: The Supreme Court's Bizarre Cert. Grant in Welch
This afternoon, the Supreme Court granted certiorari in Welch v. United States, a case that raises a question I've written about previously ad nauseam--whether the Court's June 2015 decision in Johnson v. United States may be retroactively enforced by federal prisoners in both original and second-or-successive petitions for post-conviction relief. The headline is straightforward; Welch means the Court will almost certainly resolve the 6-2-1 circuit split on that issue before AEDPA's one-year statute of limitations runs in June, which is, in my view, a Very Good Thing. And given that the Solicitor General agrees with Welch on the merits (it recommended a GVR at the cert. stage), the odds of the Court siding with the six circuits that have held that Johnson is substantive, and thus retroactively enforceable, seem high.
All that said, the fact that the Justices chose Welch as the vehicle through which to reach this question is bizarre in at least two respects:
First, Welch comes to the Court in a strange (and to my knowledge, unique) procedural posture: The Eleventh Circuit denied his application for a certificate of appealability _before_ the Supreme Court decided Johnson. That doesn't mean the Eleventh Circuit was right in denying his COA (it sure could've seen Johnson coming); it just means that a Supreme Court decision now holding that Johnson can be enforced retroactively going forward wouldn't actually reverse the Eleventh Circuit's holding in Welch; it would merely provide a new ground on which he may pursue a certificate of appealability. (The Eleventh Circuit denied a petition for rehearing after Johnson, but that's not usually enough to justify a cert. grant.)
Second, and related, Welch is presumably such an attractive vehicle for the Justices because it's a regular petition for certiorari after judgment, over which the Court only has jurisdiction because his is a first (and not second-or-successive) motion for post-conviction relief. For second-or-successive petitioners, relief doesn't depend just upon whether a new rule of constitutional law articulated by the Supreme Court (like Johnson) is substantive, but whether it has been "made retroactive" by the Supreme Court. In other words, it's at least theoretically possible that the Court could confirm that Johnson is substantive (which is all Welch needs in order to win), without taking the next step of holding that such a conclusion necessarily "makes" it retroactive, such that the decision wouldn't actually settle the circuit split (or allow second-or-successive petitioners in the Fifth, Tenth, or Eleventh Circuits to prevail).
Neither of these problems are fatal; the strange posture has no bearing on the Court's jurisdiction, and I have to think that the Court will make it clear, if it holds that Johnson is substantive, that it can also therefore be enforced retroactively in second-or-successive petitions as well as in cases like Welch. But it does highlight why Welch is an especially strange vehicle through which to take up the Johnson retroactivity circuit split, in contrast to the petition for certiorari before judgment in Harrimon, and especially the petitions for original writs of habeas corpus in Sharp and Williams (both of which are second-or-successive cases). Indeed, perhaps for those reasons, in the government's various briefs in those cases arguing why the Court should wait for a more "appropriate" vehicle, Welch was never mentioned...
As for why this matters going forward, it suggests, if nothing else, that when confronted with a choice between cases with vehicle problems, and cases presenting unusual vehicles (like original habeas or cert. before judgment), the Court is far more inclined to rely upon the former. I leave it to others whether, in the long term, that's a healthy practice (since, among other things, it makes the vehicle problems seem completely discretionary). It certainly seems in this context to perpetuate the effective unavailability of extraordinary relief even in cases in which the Court's criteria appear to be satisfied--and to therefore raise the constitutional questions the Court ducked in Felker v. Turpin.
Conference Announcement: New England Regional Junior Faculty Scholarship Workshop
Details here. There is still space available , but note that the deadline to express interest is fast approaching.
Okay, so it is pretty apparent that this season is not setting up as a big legal mystery. Fans of the first season are likely to be a little let down. After the breakout debut album, maybe we can write this off as the sophomore slump. Even more, there is a new band in town (Making a Murderer on Netflix) that is getting all of the attention. The third album is always the best, anyway, so we’ll see what the next season has in store. (Steve Vladeck shares some of his angst about this season here.)
This week’s episode focuses on the conditions of Bergdahl’s confinement and while pretty interesting, it is pretty straightforward. We hear a little bit about what I discussed in the last blog (can we use his mental health to explain his crime when it doesn’t seem like his mental health was an issue while he was in captivity). At one point in this episode, Bergdahl says that while he was in captivity he didn’t revert to his normal fantastical thinking as a coping mechanism. That might be a clue that his diagnosis includes something on the schizo-spectrum. I still hope we’ll learn more about that in a future episode.
Koenig introduces some new themes, including the impact of GTMO and Abu Ghraib on our strategic goals in the region and on Bergdahl’s captivity in particular. She also brings up some about some of the strategic issues in the region and how they contribute to the existence of ungoverned spaces in Pakistan (ungoverned by Western standards) where Bergdahl was kept. It turns out that one of these issues – Pakistan’s relationship with India – helps to explain why Afghanistan is still unstable and will likely be unstable for years to come.
Pakistan needs Afghanistan to be unstable. Pakistan is a narrow country wedged between Afghanistan and Pakistan’s primary competitor, India. If Pakistan is invaded by India, its forces have no place to go to recoup and refit – other than Afghanistan. If Afghanistan has a strong central government, that government might be able to prevent Pakistan from doing that. And a strong central government would also be easier for India to influence and could more effectively implement India’s goals than a weak central government that has no power beyond Kabul. Solving the problem in Afghanistan probably requires solving the problem between Pakistan and India first.
Serial might step up the mystery factor next week as Koenig hinted that she is going to explore some quasi-conspiratorial explanations for why the American military seemed to give up on looking for Bergdahl. I hope she goes there because there may be some interesting social psychology explanations for that. We’ll see next week.
No one gets it
I am repeating myself, so I apologize. But this story on Chief Justice Moore's order to Alabama probate judges includes opinions from both sides of the issue--two law professors and the two United States Attorneys in Alabama criticizing the order and anti-marriage-equality advocates praising it to the heavens (in one case quite literally). None of them is right in their analysis.
And the common theme in all of this incorrectness is an overly simplistic approach to the process of constitutional litigation, particularly everyone's disregard for the role of lower courts and judgments. The Supreme Court, in the course of deciding one case, makes broad pronouncements about the law (e.g., the Fourteenth Amendment prohibits bans on same-sex marriage). But those pronouncements are not self-enforcing and do not, in and of themselevs, impose legally binding obligations on any non-parties or as to other laws. As to people and laws not party to the case that created that precedent, an additional step is necessary--separate litigation applying that precedent and producing a judgment as to this new law and these new parties. But we have that in Alabama--Judge Granade's class injunction (entered in May, stayed until the ruling in Obergefell, made effective by order applying Obergefell, and summarily affirmed by the Eleventh Circuit) requiring every probate judge in the state to issue marriage licenses to any same-sex couple that wants one. Thus, the problem with Moore's order is that he is compelling probate judges to act in contempt of court.The USAs insist that the "issue has been decided by the highest court in the land and Alabama must follow that law." Carl Tobias (Richmond) says Obergefell "was a national ruling and it applies nationally." While correct in the abstract, it makes it all sound automatic when it is not--the Court's opinion applies nationally, but the judgment of the Court does not. One of two things must happen: Either the extra step of a judgment against Alabama officials as to Alabama's law, based on Obergefell, is necessary, or Alabama officials must voluntarily comply with Obergefell in order to avoid the inevitable judgment. The point of Moore's order is to force Alabama officials to follow the first rather than second path. That my be unwise, obnoxious, and driven by Moore's pathological intransigence. There is nothing unlawful about it.
But the anti-SSM advocates are equally wrong because they ignore the judgment and injunction against the class. So one advocate can say that Alabama does not have to follow a Supreme Court decision that ruled on law in another state. Which is true, but irrelevant, because of the injunction. Unfortunately, they can argue that way only because Moore's critics (and most, but not all, reporters) talk about this as defying the Supreme Court in Obergefell rather than defying the injunction that applied Obergefell to Alabama law.
And the attorney for one of the probate judges insists that the Eleventh Circuit has not applied Obergefell as to Alabama law. This is wrong in several respects. First, the Eleventh Circuit affirmed the injunction.although the reasoning is convoluted and incorrect in some respects, including its understanding of how Obergefell affected Alabama. Second, regardless of what the Eleventh Circuit did or did not do, the class injunction is out there--it was was entered, took effect, has not been reversed by a higher court, and has not been stayed. This means probate judges are under an ongoing judicial obligation, imposed on them directly and on pain of contempt, to issue licenses. So Moore's order does not merely tell probate judges to wait--it is telling them to act in contempt of a federal judgment. Third, neither federal circuit nor district precedent is binding on state courts, thus, even if the Eleventh Circuit had not spoken, it would not matter because the Eleventh Circuit does not create a greater obligation on Alabama officials than a district court.
So if we are going to discuss this accurately, everyone needs to shift the focus to the district court and to Judge Granade's extant injunction. And with that focus, we see that Moore's order, if followed, sets probate judges (although not Moore himself) up for a potential Kim-Davis-like showdown.
Thursday, January 07, 2016
Thanks to Howard and rest of the Prawfs crew for having me.
Starting this semester, I'm transitioning into a administrative position. As of this month, I hold the very sexy title "Acting Associate Dean for Faculty." Fitting for a Skakespearean trained associate dean like myself.
One of the eggs in my administrative basket is our junior faculty mentoring program. Program is a heavy word. Like a lot of schools, much of our mentoring happens on the fly. Don't get me wrong, we mentor hard; it's one of the things our faculty does best. But I'm wondering if we can improve things. When things are going well, tinker with them, right?
For me, the guiding principle of mentoring is always to remember that it's not my career. Too often mentors try to recreate themselves. Which is, of course, not surprising: if it worked for me, surely it will work for you. The problem is that being law professor is an individual sport. While there is collective wisdom to build on, ultimately we have to be ourselves in our teaching and writing. And that's often the most daunting part when you're just starting out in the gig.
But I'm eager to hear thoughts, concerns, suggestions. Please, thank you, or sorry, as the case may be.
"Buy my book" – Justice Stephen Breyer
"I am in a profession in which I am not the only participant." Justice Breyer, noting collaborative circle of the law between judges > law profs > practitioners.