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Friday, April 29, 2016

Is Mrs. Palsgraf upset with Yeshiva University over the name of its law school?

A fair question in light of this.

Posted by Howard Wasserman on April 29, 2016 at 05:43 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

The Law of LAWn Signs

A final post of thanks and a quick follow up. First, thank you to Howard and the Prawfsblawg family for the opportunity to share my ideas this month. I look forward to joining you again in 2017.

In an earlier post I mentioned that our LAWn Signs idea had a potential serious legal implication after the Tenth Circuit Court of Appeals decided United States v. Carloss. At issue in Carloss was the impact of an ordinary “No Trespassing” sign on the Fourth Amendment rights of the defendant. In his dissenting opinion, Judge Neil Gorsuch criticized the majority’s position and offered his own version of what an appropriate Fourth Amendment sign might look like. In honor of him, and our larger FourthAmendmentSecurity.com project, Stephen Henderson and I went ahead and made a sign for him. So, if you live within the Tenth Circuit, this sign might actually have constitutional significance. 



Posted by Andrew Guthrie Ferguson on April 29, 2016 at 10:19 AM | Permalink | Comments (2)

Complete Junior Law Prawfs FAQs Series

It has been such a pleasure to guestblog at Prawfsblawg this month and to do this Junior Law Prawfs FAQs Series on how to become a voice in one's field. I have learned so much from your comments, your Twitter conversations, and your very thoughtful emails. I appreciate the time the PrawfsBlawg community has taken to crowdsource answers to these frequently asked questions. Based on the emails I've received from other junior (and aspiring) law professors, many others are also grateful.  

For ease of reference, here is the complete list of questions (with links) to the frequently asked questions we covered this month:

1. How Do I Become a Voice in My Field? (See Also: D Merritt, Going Meta on the Jr. Law Prawfs FAQ Series)

2. How Does My Research Fit Within the Types of Legal Scholarship?

3. Should I Say Write a Response to a Law Review Article (or Allow the Law Review to Solicit Responses to Mine)?

4. Is Publishing a Book Review in a Law Review Still a Worthwhile Pretenure Endeavor? (See Also: P Horwitz, Yes (With Caveats), Publishing a Book Review is Still a Worthwhile Endeavor for Untenured Law Professors)

5. How Do I Make Sense of Online Law Reviews?

6. How Do I Increase the Chance My Scholarship Will Be Read?

7. How Should I Respond to Requests to Read Draft Articles in My Field?

8. How Can I Increase In-Person Scholarly Interaction with Limited Resources?

9. Is Blogging Worth It? (See Also: M Froomkin, The Plural of Anecdote is "Blog"; O Kerr, Legal Academic Blogging and Influence vs. Credit)

10. Is There Any Reason Not To Be on Twitter?

11. What About Podcasts? What About Media Consultations? (See Also: C Turner, Podcasts; C Walker, Rethinking Law Review Podcasts)

12. Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work?

13. Am I Asking the Right Questions? (See Also: M Rich, Hard Prawf Choices)

As the outline I included in the first post in the series suggests, there are numerous additional questions that junior scholars (and all scholars for that matter) frequently ask with respect to becoming a voice in one's field. I hope we will continue to have discussions about those here and elsewhere.

I also hope that we continue to ask ourselves whether we are asking the right questions. I hope that these questions above won't get in the way of writing high-quality scholarship that is useful and relevant to our fields. Perhaps more importantly, I hope we keep asking the "best" questions about how we can use this amazing opportunity we have as law professors to have a profound and lasting impact on the students we teach and the communities we (and they) serve through our research, teaching, and (university, local, state, national, and international) service.



Posted by Chris Walker on April 29, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (0)

Thursday, April 28, 2016

Are we more like Argentina or Russia?

A question I have been mulling for a while now is whether the US is likely to make a serious attempt at some point in the future to hold former government officials accountable for sanctioning arguably unlawful interrogation techniques undertaken as part of the “War on Terror.” 

The Obama administration has taken the position that it would not prosecute anyone who acted “in good faith and within the scope of the legal guidance given by the Office of Legal Counsel.”  See here.  The Department of Justice ultimately conducted a criminal investigation to see whether any “unauthorized interrogation techniques” were used, but this investigation was closed without any criminal charges being brought.  See here.  As best I can tell, it never looked into the question of whether the authorized interrogation techniques would constitute a violation of US or international law but for the (dubious) “legal guidance given by the Office of Legal Counsel.”  See here for a readable discussion of the legal guidance that was being offered at the time.  See here for another argument about why the OLC’s advice was suspect.

This is all well-known by now, quite depressing, but also unsurprising.  My sense is that the first response of governments to (true) allegations of wrongdoing is usually denial.  If that fails, the next response is to admit that mistakes were made but try to “move on” from them.  This is essentially the stage we are at with regard to the “Torture Memos.”  Governments are understandably reluctant to investigate and prosecute their own senior officials.  See here for a brief discussion of why the Obama administration chose not to investigate whether the OLC’s advice was a violation of the law.  Thus, serious investigations and prosecutions of the architects of wrongdoing are often resisted. 

At this point in time it seems impossible that the US will conduct a criminal investigation of whether any senior officials are responsible for either providing suspect legal advice or authorizing torture based on that suspect legal advice.   But it may not always seem impossible.  Indeed, there is a small but distinct possibility that what once seemed impossible will eventually seem inevitable.

I study post-conflict societies as a off-shoot of my interest in international criminal law and the winning side is almost always reluctant or unwilling to conduct a meaningful investigation of their own wrongdoing.  Indeed, amnesties and pardons are still a common “solution” to such wrongdoing.  But what I have also noticed is that attitudes in post-conflict societies can change over time.  This process can take decades, but things that seemed impossible soon after the trauma of the conflict can eventually occur.  It is not a perfect analogy, but a number of Central and South American states have gone through a process where state-sponsored wrongs were initially hidden, then swept under the rug and eventually (decades later) the subject of criminal prosecutions.  Of course, not all societies necessarily go through this process.  Russia for example appears to be content to sweep the wrongs committed under Stalin under the rug.  See here.

I don’t have a theory as to why some states progress to the stage of prosecuting prior wrongdoing, while others do not.  I suspect it is partly due to the passage of time.  It is also probably due to turnover in personnel.  It may well be that the next generation is less invested in the decisions of their predecessors.  It probably also has to do with shifts in the ruling party.  But whatever the reasons, there is a real possibility that at some point in the future the US government will make a meaningful inquiry into whether senior US officials authorized torture in violation of the law.  By the same token, it is also possible (perhaps even likely) that we will eventually decide collectively that the authors of the Torture Memos were heroes who were acting in our interests and that we don’t want to consider whether what they did was wrong.  So I guess the question is whether we are more likely to end up like Argentina or Russia?

Posted by Stuart Ford on April 28, 2016 at 03:23 PM | Permalink | Comments (3)

Jury Love

 The jury trial is dying.  Plea bargains resolve approximately 97% of criminal cases in federal courts and 94% of cases in state courts.  In civil cases, the percentage of jury trials is even lower.  In federal courts, less than 1% of civil cases are resolved before a jury.  In state courts, the percentage of jury trials is only slightly higher.  Perhaps not coincidentally, citizens have stopped showing up for jury duty.  Juror no show rates in some jurisdictions have reached 85%, leading to the postponement of serious criminal cases (including murder trials).  Law students can graduate from law school, excel in practice, and become judges without ever having the opportunity to try a case before a jury.  As an institution, a civic responsibility, and as part of our legal system, juries remain unloved.

I have expended some scholarly effort to change this reality.  I love juries, and it is not just because I have been trying to promote the best book ever written on jury duty – Why Jury Duty Matters:  A Citizen’s Guide to Constitutional Action (okay, so it is the only book written for jurors on jury duty).  But, for several years now I have been trying to make juries relevant.  I have written about the George Zimmerman/Trayvon Martin case, I wrote when Charlie Sheen and Donald Trump got jury duty, I have tweeted, facebooked, blogged and littered the comments section of various discussions.  I even wrote a national CNN op-ed on the Fourth of July with the audacious title, “What is the Most American Thing You Can Do?” (answer jury duty).  But, the reaction of every one of those attempts to recognize this fundamentally democratic and constitutional institution was pretty much nothing.  My love was unrequited.  I couldn’t even generate outrage.  Worse than being hated, I was just ignored.

I am not alone in recognizing the problems of juries in America.  Steve Susman along with Professors Samuel Issacharoff and Catherine Sharkey have created the NYU Civil Jury Project which in just a year has already galvanized research and attention to the problem.  Professor Suja Thomas has a new book coming out in June entitled “The Missing American Jury” which will amplify a national understanding of the problem.   Professor Laura Appleman recently published an excellent book, “Defending the Jury” that does just that.  Jury Centers like those run by Professor Nancy Marder and jury experts in the academy who are too numerous to name have all spent years writing about the problems and promise of jury trials.   

Yet, the reality is that on our watch as law professors a foundational legal institution – one that can find legitimacy in the text of the US Constitution, the Bill of Rights, the Declaration of Independence, and which was central to the Women’s Suffrage Movement, the Civil Rights Movement, and is considered one of the core reasons why the American legal system is special – lies dying.  I would like to change that reality.

I offer five possible considerations to change the way citizens (and your law students) think about the jury.

  1. Change jury duty into constitution duty. I have written two law review articles (and the book) arguing that we need to think about the jury as a constitutional teaching moment.  I have argued we need to think about The Jury as Constitutional Identity and to use Jury Instructions as Constitutional Education.  The central argument in all these works is that serving as a juror is one of the closest connections a citizen can have to the Constitution.  So why not embrace that connection, and see the constitutional values built within the jury system.  We should stop viewing jury duty as just a task to be completed, and instead see it as part of an ongoing political and civic identity.  We should use jury duty to teach the larger constitutional principles that structure our legal and political system. 
  1. Collect positive juror voices. Almost all jurors who serve on jury duty have a positive experience.  Yet, there exists no central place to collect those positive stories of jury duty.  Jurors serve, and then disappear back into society.  A simple website that collects and shares through social media the positive stories of jury duty could change the entire perception of the process.  Jurors can be wonderful advocates for the experience, but someone needs to collect their voices. 
  1. Teach the jury in high schools, colleges, and law schools. We do a poor job educating young citizens about what they should know about the jury.  We are lucky if high school graduates even know there is a jury system.  We do very little to explain why it is important, what the jury role is, and why they must participate.  Then we wonder why people dread jury duty.  We could overcome much of a young citizen’s anxiousness and uncertainty with education and encouragement.  We could empower students with knowledge about why the jury system exists and why they are critical to its survival.  Every high school graduation commencement address should end with the sentence, “Welcome to citizenship.  Don’t forget to vote, show up for jury duty, and contribute to your community.” 
  1. Partner with local courts to promote jury service as important to the legal system. Judges understand the importance of juries.  Some judges are taking steps to improve the system.  But, law professors and law schools can do more.  Professors, students, and lawyers should be in the community teaching about this important right and obligation.  I recently returned from speaking at the Montana Judicial Institute, an intensive three day legal training for high school educators administered by the federal court in Missoula, Montana and hosted by the University of Montana Law School.  For seven years now, educators from all over the state have come to learn about the rule of law, civil and criminal trials, and the role of the jury.  It is an amazing program that deserves to be replicated across the country.
  1. Emphasize the good and counteract the bad image of jurors in America. A concerted effort has been made to delegitimize juries with some success.  But, the “hot coffee” tort horror story turns out to be largely inaccurate.  It actually turns out that jurors tend to get the answers right when deciding cases, and equally importantly their participation helps other aspects of the democracy.  We could teach this reality in our classes and show that citizen justice tends to work.  If lawyers stop believing in the jury system, then we have little hope of saving the institution.

I am fully aware of the structural problems around jury trials.  I understand the impact of plea bargains and mandatory minimums.  I understand the financial realities, and alternative dispute options.  I get the hassle argument.  But, as educators in law we can also find ways to educate about the jury.  Juries have been a part of America before there was an America.  They symbolize citizen self-government and community justice.  They remain an important part of the structure of our constitutional system.  They are great spaces of civic education and inspiration.  And, right now, they need our love.

Posted by Andrew Guthrie Ferguson on April 28, 2016 at 02:12 PM | Permalink | Comments (2)

SEALS Prospective Law Teachers Workshop

Each year, the Southeast Association of Law Schools (SEALS) hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Omni in Amelia Island, Florida, on Thursday, August 4 and Friday, August 5. On Thursday, there will be mock interviews between 8 and 10 AM with CV review sessions from 10:15-11:00. On Friday, mock job talks will take place from 8 to 10 AM. And at 1:00 on Friday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will dispense advice about getting hired in this “new" market. There are also several excellent panels on Friday and Saturday that are targeted to new law professors, which prospective law professors will also find helpful.

If you are interested in being a participant in this year’s workshop, please send your CV to professor Brad Areheart at brad.areheart@tennessee.edu. Applications are due by June 1, 2016. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at diverse schools, ranging from Tulane to South Carolina to Louisville.

Posted by Howard Wasserman on April 28, 2016 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Useful, Relevant Scholarship

Following up on Chris Walker’s discussion of useful, relevant scholarship, I wanted to announce that Professor Ron Wright at Wake Forest Law School has taken over the direction of the Getting Scholarship into Court Project.  This project, the brainchild of Jack Chin, Margaret Colgate Love, and myself and supported by a wonderful group of Academic Advisors has partnered with the National Association of Criminal Defense Lawyers (NACDL) to identify legal scholarship that should be read by lawyers and judges involved in actual criminal cases.  For several years now the Academic Advisors have selected the “Must Read” articles produced by legal scholars that would be of use to practitioners.  Summaries of these articles are published in “The Champion Magazine” and distributed to thousands of NACDL members every month.  Ron is now in charge of leading this project into the future. 

Posted by Andrew Guthrie Ferguson on April 28, 2016 at 09:33 AM | Permalink | Comments (0)

Wednesday, April 27, 2016

Old injunctions and new statutes

The recently enacted anti-LGBT legislation in Mississippi includes a provision allowing public officials to recuse themselves from issuing marriage licenses to same-sex couples if doing so conflicts with their sincerely held religious beliefs. On Monday, lawyers for the Campaign for Southern Equality ("CSE"), an LGBT-rights organization, sent a letter to Mississippi's governor, attorney general, and registrar of vital records , arguing that this opt-out provision potentially conflicts with the permanent injunction barring all state officials from enforcing the state's ban on same-sex marriage. The plaintiffs interpret this to require state officials to "treat any gay or lesbian couple that seeks to marry the same as any straight couple that seeks to do so." The letter demands a "full and complete explanation" of the steps that will be taken to "ensure that gay and lesbian couples are not impeded or delayed when seeking to marry." Slate's Mark Joseph Stern praises this "clever exercise in civil procedure," enabling the organization to challenge the new law without a formal lawsuit.

But does it?

The injunction only protects the named plaintiffs. The named plaintiffs include two female couples, who presumably already received their licenses; the caption does not indicate this was a class action. Formally, the injunction does not obligate the defendants to do anything as to anyone else. If the plaintiffs are trying to use the injunction and enforcement (or threatened enforcement) of the injunction as a shortcut to halting the new law, it should not work because the injunction does not formally obligate state officials to do or not do anything as to anyone else. The twist is that CSE is also a named party, presumably having sued on behalf of its members, which theoretically includes every LGBT person in the state who wants a license. If so, this procedural move has a better chance, since CSE (and its members) is protected by the injunction and since state officials are prohibited from enforcing the law against CSE (and its members).

My best guess is that the state, the plaintiff, and the court will find a way to resolve this by creating reasonable opt-out methods, as has happened in other states. Still, this move requires careful consideration of the proper scope of civil-rights injunctions, something that is often overlooked.

Posted by Howard Wasserman on April 27, 2016 at 10:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Am I Asking the Right Questions? (Jr. Law Prawfs FAQ)

Before turning to this final question, I was going to do one more post (on writing casebooks and treatises) to wrap up the Jr. Law Prawfs FAQ Series for this month. But after Michael Rich's courageous Hard Prawf Choices post earlier this week, I thought I'd skip to the last question I included in my initial post: Am I asking the right questions?

The short answer, I think, is: probably not. Put differently, there are "good," "better," and "best" questions, and these types of questions likely fall in the "better" camp. 

The "good" questions -- indeed, the necessary but not sufficient questions -- concern the quality and type of our scholarship. Derek Tokaz's comment on an earlier post captures the critical importance of these "good" questions:

6. Write Higher Quality, Useful, Relevant Articles. I mean, I know that Batman v Superman has shown that enough buzz and advertising can get eyeballs on the screen no matter how low quality your product is, but I still think the most important way to get an audience is to have something worth reading.

This is certainly true. Our primary mission as scholars should be to produce high-quality scholarship that is useful and relevant to our field. With the exception of a quick post on Dean Minow's Archetypal Legal Scholarship: A Field Guide, admittedly I haven't focused on those "good" questions. 

But I hope this FAQ series has underscored that once a scholar has answered the "good" questions -- and produced high-quality scholarship that is useful and relevant to one's field -- it's time to turn to the "better" questions of how to get those ideas read, digested, and incorporated. As Eric Segall commented on a prior post, "The hardest part is engaging in self-promotion (especially on social media). It often feels super yucky but in our new interconnected world, it is usually necessary if you want the piece read."

If we truly believe we have produced high-quality scholarship that is useful and relevant to our field, we should think about these "better" questions to maximize the chances that our scholarship will reach the relevant audiences and have an impact on our field. That may involve choosing wisely the format of the scholarship as we discussed in the first week, including responses to scholarship, book reviews, and online law reviews. It definitely involves thinking about how to participate in one's field, as we discussed in the second week with respect to commenting on others' draft articles, increasing in-person scholarly interaction (with limited resources), and otherwise improving the chance one's scholarship will be read. To maximize one's voice, as we discussed in the third week, it might be worth blogging regularly, it probably is worth being on Twitter, and podcasts and other media consultations may well be the future (or not). And advocacy work, such as law professor amicus briefs and white papers, might also help one develop a voice in one's field, as we discussed on Monday.

Unfortunately, sometimes worrying about the "better" questions gets in the way of taking care to answer/complete the prerequisite "good" questions. Those "better" questions can also get in the way of asking the "best" questions. To borrow a line from President Shepherd, "I was so busy keeping my job I forgot to do my job." 

So what do I mean by "best" questions? Borrowing from Michael's Hard Prawf Choices post, I think the "best" questions concern more broadly this amazing "opportunity [we have as law professors] to make an impact." No, neither Michael nor I are referring just to one's "scholarly impact" -- though scholarly impact is definitely part of the impact we can have as law professors. Instead, this impact likely takes into account our tripartite mission of teaching, research, and service. These "best" questions no doubt differ for each of us based on why we became law professors and what impact we hope to leave on the world through our work. But I'm guessing for most of us that mission extends beyond becoming a scholarly voice in our field.

Here's another way to frame these "best" questions: One of the most common phrases I've heard from junior scholars is "after tenure." After tenure, I'm going to write that book. After tenure, I'm going to design that experiential learning course that I wish I could have taken in law school. After tenure, I'll finally be able to serve on that state commission, on the board of that public interest legal service provider, or with a political campaign. After tenure... 

I don't mean to suggest that we shouldn't worry about securing tenure. We should. And no doubt the difficulty of obtaining tenure varies by institution. The cardinal Ask Your Colleagues rule should be followed, especially pretenure. But at many schools the tenure requirements leave time and space to develop in all three areas; indeed, one is often rewarded for accomplishments in all three. Moreover, for some scholars, that "after tenure..." may never happen even after tenure if they continue to fixate on these "better" questions without also focusing the "best" questions.

I find much inspiration from my fellow junior colleagues on the faculty here (at The Ohio State University): The colleague who spends countless hours each year running a national security simulation for his students. The colleague who got involved with students and others in the Black Lives Matter movement in Columbus while she was juggling a clinical course and an ambitious research agenda. The colleague who advocates on behalf of children with disabilities at both the state and federal level, at both the administrative and legislative level. The colleague who takes the time to weigh in on how states should regulate drones and also serves on a city-wide commission to implement a police body camera policy. The colleague who volunteered to help rewrite the university-wide intellectual property policy for the benefit of thousands of professors on campus. These are just a few examples.

To be sure, these service activities leverage my colleagues' relevant expertise and often overlap with their research agenda. But these endeavors don't really have anything to do with the "good" or "better" questions. If merely doing a cost-benefit analysis based on enhancing one's scholarly profile (or securing tenure and/or promotion), these activities most likely wouldn't make the cut. Instead, they seem to be my junior colleagues' answers to the "best" questions about how they can have an impact as a law professor.

Pausing to ask myself whether I'm asking the right or "best" questions could lead me, as it did for Michael, "to change the timeframe of my planning. I don't wonder how to construct a career for twenty years from now; rather, I want to make an impact now, or at least soon."



Posted by Chris Walker on April 27, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (2)

Additional thoughts on Heffernan

SCOTUS on Tuesday decided Heffernan v. City of Paterson, holding 6-2 that a public employee stated a First Amendment claim when he was demoted on supervisors' erroneous belief/perception that he was engaged in protected political activity, even if he was not. Justice Breyer wrote for the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Thomas dissented, joined by Alito. I analyzed the opinion for SCOTUSBlog.

A few additional thoughts on the decision and the case after the jump.

The line-up makes sense, given the First Amendment predilections of the Chief and Kennedy, as well as those of Alito, in the other direction. I had some doubt following argument, especially in light of how the Chief and Kennedy both have voted in First Amendment cases touching on the government's institutional interests. (This discussion between Geoff Stone and Adam Liptak explores this institutionalist tendency).

The unspoken feature of this case is qualified immunity--I do not see how any First Amendment right was clearly established at the time of Heffernan's demotion, just given the divide within the Court. Yet it has not come up. I thought that Heffernan might have sought reinstatement to his previous position as detective, an equitable remedy to which immunity would not attach. But both the majority and the dissent spoke of this only as an action for damages. The Court remanded for further consideration of other First Amendment issues, but did not mention immunity as a continuing issue for the lower courts. [Update: Duh. There is no discussion of qualified immunity because the claim is against the City, which cannot assert immunity. As to any claim against the individual, Anon's suggestion would be an intriguing way around the problem]

Finally, the latter part Thomas's dissent, distinguishing harm from violation of a right, seems to illustrate how standing and causes of action have been improperly conflated. Thomas insists that a plaintiff states a § 1983 claim only if the government "has violated Heffernan's constitutional rights, not if it has merely caused him harm." Unconstitutional conduct alone does not violate an individual's rights, even if that individual is injured, unless the conduct violates her rights.* Thomas offers an example of a blatantly unconstitutional law permitting police officers to stop motorists arbitrarily to check for license and registration. Such a law would violate the Fourth Amendment. And attempts to enforce the law may harm an individual, such as by causing her to deal with traffic delays. But if police do not stop that individual, she would not have a § 1983 claim, because any injury (traffic delays) did not amount to a violation of her Fourth Amendment right not to be unlawfully detained.

[*] Thomas frames this as whether that plaintiff falls within § 1983's zone of interests, citing Lexmark and confirming that zone of interests is now unquestionably a merits inquiry.

Thomas is right in that analysis. But it seems to me we ordinarily would talk about this as a matter of standing, not the merits of the § 1983 cause of action. For example, in Clapper, the Court found the plaintiffs lacked standing because they could not show that  the challenged search program would be used to search the plaintiffs themselves. In Susan B. Anthony, standing was present because the plaintiffs had shown that the challenged law might be enforced against the plaintiff's speech. And if that same motorist brought a preemptive challenge to enforcement of the traffic-stop law, Thomas almost certainly would agree that she lacked standing because she cannot show that she will be stopped. So why did Thomas (who joined the "it's standing" majorities in SBA and Clapper) speak of it here as part of the § 1983 cause of action, a merits inquiry?

Perhaps it turns on the difference between prospective and retroactive relief. Thus, harm goes to the cause of action when the plaintiff seeks a remedy for harm that already has occurred, while it goes to jurisdiction when the plaintiff seeks a remedy for ongoing harm or harm that may occur in the future. Indeed, mootness only applies to prospective, but not retroactive, claims. But that is unsatisfying for two reasons. First, the distinction is not supported by the text of § 1983, which allows an individual who has been deprived of a right secured by the Constitution to bring an"action in law" (i.e., a claim for legal relief) or a "suit in equity" (i.e., a claim for equitable relief). The requirements for stating a cause of action under the statute do not vary with the type of relief sought, nor should the relief sought affect whether a statutory requirement is suddenly constitutionalized. Plus, prospective relief may be available for past harms in a case such as this one--there is no reason to believe Thomas's analysis would change had Heffernan sought reinstatement to remedy his previous demotion.

Alternatively, the distinction between harm/injury and right already is prominent in standing doctrine. For example, a party asserting third-party standing (e.g., doctors challenging abortion restrictions) must show their own injuries, although seeking to vindicate others' constitutional rights. On this view, whether the plaintiff has suffered an injury goes to standing, while whether the plaintiff's right has been violated goes to the cause of action and the merits of the claim. Thus, Heffernan did not present a standing problem because his injury (demotion) was clear; it only presented a statutory cause of action problem, because he had not been deprived of a right secured by the Constitution. But this seems an artificial distinction. And it is one that Thomas himself appears to disavow. He speaks of  the plaintiff needing to show the "right kind of harm" to state a § 1983 claim, meaning harm resulting from a constitutional violation. In other words, Thomas defines actionable harm as harm occurring from violation of a constitutional right.

Posted by Howard Wasserman on April 27, 2016 at 12:42 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Tuesday, April 26, 2016

Rethinking Law Review Podcasts (Jr. Law Prawfs FAQ)

Last week I questioned the value of law review-sponsored podcast programs, predicting that they'd be the next Betamax (as opposed to the next iPad). Based on the comments, Twitter responses, and emails, a line from one of the most ridiculous and ridiculously funny new shows on TV comes to mind: "But what if it wasn't."

In particular, it seems like there are a number of really terrific law podcast series out there, including Oral Argument and The Week in Health Law. These podcast series are not sponsored by law reviews, and seem to have carved out a niche audience with field-specific content. So I'm still skeptical that just generalist law reviews doing podcasts on the diverse articles they publish would be a recipe for success, as you need to build subscriptions and an audience.

Accordingly, if I'm the editor-in-chief of a major law review, I see two main paths forward:

First, you become the official podcast of the law school more generally, and you turn all of the school-sponsored speeches, ACS/FedSoc debates, events, etc., possible into podcasts as well as sponsor your own live events to turn into podcasts. That way, you tap into the alumni network of your school as well as lawyers within your region. Depending on the speakers, there's a potential to build your audience beyond those networks.

Second, you specialize in one area of the law and do a podcast series around that. Some journals already do this with online blogs, annual symposium issues, etc. For instance, the Harvard Law Review could do a Supreme Court Review podcast (perhaps partnering with SCOTUSblog?) similar to their annual issue, and those journals that cover particular circuits could do the same -- like the Ohio State Law Journal with the Sixth Circuit Review or the Wake Forest Law Review with the Fourth Circuit Review.  The Duke Law Journal and George Washington Law Review both do annual administrative law issues, so that could be an option.  That said, the Administrative Law Review and/or Yale Journal on Regulation would also be in a prime position to do a weekly administrative law podcast.

I guess there is a third and slightly different path forward: The law review editors could approach one of the existing podcasts and see if they wanted to partner, lending time and resources to an already successful podcast series.

In all events, my hunch is that the generalist law review doing a generalist podcast series probably won't cut it. But, again, I could be wrong. I'm much more optimistic, though, about a focused podcast that develops an audience in a field (or around a law school's general programming and built-in networks). That said, my guess is that launching and maintaining a successful podcast would require a fair amount of time and energy -- time and energy that could be put to other good uses. So consider the opportunity costs.



Posted by Chris Walker on April 26, 2016 at 10:39 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (3)

Monday, April 25, 2016

Hard prawf choices

A little less than three years ago, I was diagnosed with metastatic kidney cancer, a disease that does not lend itself to optimistic prognoses.  I have been fortunate to be able to continue prawfing since then, but it has changed the way I understand my job and interact with my students and the prawf community.

One of my first challenges was deciding how much of my situation to share with my students.  I pride myself on treating my students as much like adults as possible.  So, the first semester after my diagnosis, knowing that treatment would interfere with their class schedule, I shared with them the general diagnosis (cancer) and let them know that it would require flexibility on their part.  I also reconfirmed my commitment to them to do my best and to be available when I could.  That semester was challenging, but the students were incredibly generous and forgiving.  Since then, however, I've tended to share less and less with my students.  I don't tell them I have cancer.  I simply explain cancellations by pointing vaguely to medical necessity.  The change didn't came about because I trust these students any less than the others, but because the process of disclosure was hard and I don't want to add my problems to the preexisting stress of law school.  Moreover, my current set of treatments are not as disruptive to class schedules as the first ones were.  I wonder sometimes if this is right decision -- if I value setting boundaries between myself and my students too much -- but fortunately my students have continued to be flexible and generous.

Another challenge has been whether to disclose my disease broadly.  I shared things with close friends, but I didn't go fully public on Facebook for fear of losing professional opportunities.  Would folks be hesitant to invite me for speaking gigs if I might not be able to fulfill them?  Would schools be uninterested in hiring me?  Again, I'll never know if this was the right choice or not.  The hiring market hasn't exactly been active in the last three years anyway, and speaking invitations don't overflow my inbox.  Obviously, though, I've now changed my mind.  My change of heart came about because my priorities have changed.  Honesty about an issue that has impacted me personally and professionally now trumps concerns about even short- and medium-term opportunities.

Finally, it's been interesting to change the timeframe of my planning.  I don't wonder how to construct a career for twenty years from now; rather, I want to make an impact now, or at least soon.  In the first year after my diagnosis, I was fortunate enough to get an offer to teach at an excellent school outside of the United States.  Because of concerns about my access to experimental medical treatment there, I ultimately made the extremely difficult decision to decline the offer.  When I did, I decided to recommit myself to my current institution, not because it's perfect, but because it gave me an opportunity to make an impact.  I worked hard on curricular changes at the expense of my own research interests.  I do not regret my choice, but I do wonder how things might have panned out if I had put my focus elsewhere.  Service, after all, does not give rise to notoriety outside an institution like scholarship does.

Anyway, I share these thoughts, because I've also learned that my life before my diagnosis was actually more unusual that my life since.  Before, my life was relatively straightforward and free of complications, but I've come to realize that most lives are complicated, even if the nature of the complications differ greatly from person to person.  So perhaps discussing the hard choices that complications forced on me will be useful to someone else.

Posted by Michael Rich on April 25, 2016 at 02:02 PM in Teaching Law | Permalink | Comments (13)

The Future of Predictive Policing

The Wall Street Journal has an interesting, if reductive debate on the value of predictive policing out today.  Is Predictive Policing the Law Enforcement Tactic of the Future? http://www.wsj.com/articles/is-predictive-policing-the-law-enforcement-tactic-of-the-future-1461550190.

I have been writing about the subject for a few years now, exploring first the Fourth Amendment impacts of the technology, and then the larger doctrinal impacts of big data policing.  The issues are fascinating will soon be coming to a courtroom near you. 

My latest article – Policing Predictive Policing – is just up on SSRN this week.  It avoids the binary (good/bad) choice suggested by the WSJ debate, and seeks to situate the predictive policing debate within the work of scholars who have been thinking about predictive technologies for decades now. 

For people curious about the issue, the subject of predictive policing will be a topic of discussion at the May 12-13 Penn Law Quattrone Center Symposium.  https://www.law.upenn.edu/newsevents/calendar.php#event_id/52170/view/event.  It was also a focus of Alvaro Bedoya and Paul Butler’s wonderfully successful Georgetown Law symposium this month on The Color of Surveillance

Any thoughts on the draft article are welcome. 

Posted by Andrew Guthrie Ferguson on April 25, 2016 at 10:57 AM | Permalink | Comments (0)

NOMOS LVI ("American Conservatism") is out

NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy." Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented.  Get your copy here!  My own contribution, "The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism," is included.  Here is the abstract:

A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.

That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[]…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.

Many thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!

Posted by Rick Garnett on April 25, 2016 at 10:38 AM in Rick Garnett | Permalink

Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work? (Jr. Law Prawfs FAQ)

My guess is that today's FAQ takes a slightly different form based on one's field of research. For me it first presented itself as a request to join a law professor amicus brief. Since then these requests have included drafting white papers and participating in other advocacy projects.

So the question, framed broadly, is: What is the value to one's scholarly research agenda, especially as a junior scholar, in engaging in legal or policy advocacy within one's field?

In tackling this question, it might be helpful (or not) to put to one side the other benefits of engaging in advocacy work as a law professor, such as service to the broader community (and making a difference in the world!) and instead focus on the impact on one's scholarly profile. Also, as with prior questions, we're assuming the tenure work is getting done and the Ask Your Colleagues cardinal rule has been followed.

Let's start with law professor amicus briefs, as my sense is that there is quite a division of opinion on whether law professors should join them. As a former Kennedy clerk who teaches and writes in administrative law and constitutional litigation, I receive a fair number of requests to join law professor amicus briefs. My general rule is to not join them, unless they are squarely within my area of expertise, I have the time to thoroughly review and comment on the draft, and I agree completely with the final version. I have not joined many amicus briefs; in fact, I think I've only joined one, for a case in the Ohio Supreme Court. Time constraints for review are usually the main barrier, and I hope to join more briefs going forward.

One of the main benefits of working on and joining law professor amicus briefs is that it gives one an opportunity to interact with other scholars in one's field and further strengthen one's networks. Another potential benefit is that it could provide an opportunity to get one's scholarship into the brief before the Court -- bringing more exposure to one's research. The adlaw profs brief in support of the United States in the pending immigration case United States v. Texas is a terrific example of that. Although this may be an obvious point, one should make sure one agrees with everything in the brief. Having drafted a fair number of amicus briefs with my lawyer (not academic) hat on, there is often a lot of room to maneuver in an amicus brief to allow more parties with diverse views to join.

Of course, we're not talking about the somewhat distinct scholarly project of writing one's own amicus brief in a case. The scholarly benefits of that may be different and perhaps can be much greater. Stephen Sachs' amicus brief in Atlantic Marine Construction comes immediately to mind. My coauthor Aaron Nielson and I are just waiting for the right qualified immunity case to file a law professor amicus brief based on our empirical work on qualified immunity to encourage the Supreme Court to, among other things, require lower courts to give reasons for exercising (or not) their Pearson discretion to reach constitutional questions.

As for white papers and reports for organizations, my guess is that the scholarly cost-benefit analysis is going to vary greatly depending on the field, the organization, and the topic. That's been my experience. The first white paper I did was on the importance of cost-benefit analysis in financial regulation. My colleague Paul Rose and I coauthored the report for the U.S. Chamber of Commerce, and we presented the report and our findings at a conference at the Chamber shortly thereafter. At the time (though not now), Paul and I were among the few defenders of cost-benefit analysis in financial regulation, so the report got a lot of buzz and "but see" citations. 

The second report was commissioned by the Administrative Conference of the United States (ACUS) to assess the role of federal agencies in the legislative process, with a particular focus on technical drafting assistance. ACUS is a government agency composed of government agency officials at various agencies and public members (including a lot of law professors) that commissions research on the federal regulatory state. This was an amazing opportunity, as ACUS opened many doors at federal agencies for me to conduct interviews and surveys for the project. The feedback from the ACUS members during the drafting and recommendation process was invaluable. I should note, though, that this was a tremendous amount of work. For example, the final product, with agency-specific case studies in the appendices, reached 90 pages, and I spent hundreds of hours on the project.

Both projects built on existing research interests and have led/will lead to more traditional scholarship. Both also included some monetary compensation for the work, despite both reports being independent from the sponsoring organizations (and ultimately departing at least somewhat from the organization's position on the issues). If you decide to do any consulting work for which you receive compensation, I highly recommend that you disclose those outside activities, even if your institution does have a form or policy for that (mine doesn't). For instance, per John Coates' helpful advice, I post a financial disclosure form on my faculty profile. It's also worth flagging specifically any consulting work directly related to a subsequent law review article in the article itself.

So what have been others' experiences regrading the scholarly value of doing advocacy work in their field? I hesitated to do a FAQ on this topic because my hunch is that the answer(s) to this question will depend so much on one's field, in addition to the specific opportunity. But because I think advocacy projects can (and cannot) present incredible opportunities to build one's scholarly profile, especially as a junior scholar, I thought I'd post it and see what others think.



Posted by Chris Walker on April 25, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (7)


As I indicated last week, I am going to blog about VEEP's storyline of an Electoral College tie. Mild spoilers (and direct quotations from the show's unique dialogue) after the jump.

We pick up the morning after Election Day, still facing the Electoral College tie.

Early on, Selena asks "Didn't those Founding Fuckers ever hear of an odd number?" And while many a living constitutionalist has wanted to utter that phrase, this tie, per se, cannot be laid at the Founders' feet. The number of electors is based on congressional representation, which was last set by Congress in 1913. It might be more accurate to blame the Twenty-third Amendment, which, by adding three electors from D.C., turned an odd number into an even number. Or blame Nebraska and/or Maine, which allocate their electoral votes by district. The one time we see an electoral map, all five NE votes are red, although we do not see the split in Maine. Did O'Brien (Selena's opponent) win one district in Maine, giving him a vote he otherwise would not have, thereby creating the tie?

The big plot move is that Nevada, which had been called for O'Brien, is closer than 0.5%, kicking-in review of votes and a possible recount (Richard, who had been Jonah's crony all last season, is revealed to be an expert in Nevada recount procedure). So it appears that, at least initially, the show is going to satirize Florida 2000, rather than House of Representatives 1800. But just wait.

Finally, apparently con law experts are the new math/science/computer nerds. Amy returns from a conversation with the campaign's consultants and says "I don't know what's getting their dicks harder-an Electoral College tie or talking to a girl."

Posted by Howard Wasserman on April 25, 2016 at 06:43 AM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (1)

Saturday, April 23, 2016

Body Worn Cameras in NC

I expect a majority of the attention on the North Carolina General Assembly during its upcoming short session will focus on the "will-they-or-won't-they repeal it" drama surrounding House Bill 2, i.e., the bill that folks in the media insist on referring to by the maddeningly reductive moniker, "the bathroom bill."  (It's maddeningly reductive because while the bill does enshrine anti-transgender discrimination in law, it also does far more sweeping harm by, for instance, eradicating any state law employment discrimination claims.)  But those of us lucky enough to live in North Carolina know that the General Assembly must have more well-considered lawmaking in store for us.

With that in mind, I point you in the direction of a legislative proposal recently made by the Joint Legislative Oversight Committee on Justice and Public Safety Body-Work Camera Subcommittee.  It's an interesting proposal on a question I find really challenging: to what extent should body-worn camera (BWC) footage be made available to the public?  The main thrust of the bill is that it leaves disclosure up to the "head law enforcement officer" of the law enforcement agency with custody over the footage.  Then, if this officer decides against disclosure, then the person seeking disclosure can file suit in NC state court to seek disclosure.

This is a limited victory for transparency with respect to BWC footage, but only because the way existing laws in NC have been interpreted make disclosure unlikely.  As it currently stands, most BWC footage would likely be exempt from disclosure either because it is a confidential "personnel record" under NC law or because it falls within the law enforcement record exemption to the NC public records law.  So, the proposal at least creates some avenue for disclosure.

But from the standpoint of videos of controversial police-civilian interactions, it's hard to know how the proposed approach would shake out.  One thing seems certain, though: given the "squishy" standards that both the head law enforcement officer and courts are supposed to use to determine whether footage will be released, the release decision will likely depend on political expediency and not on any underlying commitment to transparency.  As such, the proposal is unlikely to lead to much in the way of fulfillment of the promise of BWC that they will increase the accountability of both police and civilians.

Posted by Michael Rich on April 23, 2016 at 10:19 AM in Criminal Law | Permalink | Comments (0)

Friday, April 22, 2016

VEEP returns amid constitutional chaos

VEEP returns to HBO on Sunday night (with a new showrunner) where it left off--an Electoral College tie; a likely tie in the House of Representatives; Selena Meyer's running mate, Tom James, likely to win in the Senate, then become acting President with the House in stalemate; and the running mate/new VP/new acting President asking Meyer to become his VP. This commentator argues that the show cannot narratively go back to Meyer as VP, although it can draw the uncertainty out well. In advance of the episode, I repeat my argument that the show cannot constitutionally go back to Meyer as VP, because James will only act as President and will not have the power to appoint a Vice President.

I hopefully will have some comments on the episode on Monday. Maybe I will try bloggging the constitutional and succession issues for the season.

Posted by Howard Wasserman on April 22, 2016 at 03:37 PM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Criminal Law Class Materials Request - Update

Back in January, I imposed on the Prawfs community for some suggestions about materials for a few stand-alone class sessions I was hoping to integrate into my standard first-year Criminal Law course:

A Criminal Law class-materials request

Consulting the blawg-oracle:  I'm doing something new (for me!) in my first-year Criminal Law course, and I would welcome very much some help.  I made some cuts in my usual coverage, and freed up three classes (75 mins each) for what I'm describing as "special" or "current debates" topics.  I was thinking of (1) the "mass incarceration" phenomenon; relatedly (2) the "overcriminalization" debate; and (3) policing.  As we all know, each of these topics could take up an entire course (and more) and I'm proposing to put together simply a 30-pages or so handout for each, for the purpose of just one in-class discussion (although, of course, these topics come up, in other contexts, throughout the semester).
Take it away!  Revise my syllabus!
Because some people asked for a report-back, I'm imposing again!  I ended up doing three special classes, one on Solitary Confinement, one on Policing, and one on Overcriminalization.  
For the Solitary Confinement session, we watched the Frontline documentary, "Solitary Nation" and read (a) the opinion and order in Peoples v. Anucci; (b) A. Gawande's "Hellhole," and (c) A. Cohen's review of "Solitary Nation", "Creating Monsters."  For the "Policing" section, we looked at excerpts of the recent report of the President's Task Force on Policing and watched part of a Brookings panel on that report.  And, for "Overcriminalization", we watched part of the Kozinski / Wilkinson debate on Criminal Justice reform that the Cato Institute hosted as well as parts of Kozinski's paper, "Criminal Justice 2.0." 
The students *seemed* to enjoy these units -- if only as breaks between inchoate crimes and defenses! -- but we'll see what the evaluations say!
Thanks again for all the help.

Posted by Rick Garnett on April 22, 2016 at 03:03 PM in Criminal Law, Rick Garnett | Permalink | Comments (0)

What About Podcasts? What About Media Consultations? (Jr. Law Prawfs FAQ)

We already covered Twitter and blogging this week, so I thought I'd finish the week with two somewhat related questions: First, what should we make of this emerging trend among law reviews to do podcasts concerning scholarship they publish and other legal issues? And, second, how do media consultations fit into the scholarly agenda, especially pretenure?

When the law journal board here turned over last month, one of the questions they had for me was whether they should start a podcast series on the articles they publish. I was caught off guard as I apparently hadn't been following this development. The editors noted that there is a fair amount of buzz about podcasts among law review editors nationwide. Sure enough, a quick google search reveals that law reviews at AmericanHarvard, LSU, McGill, NorthwesternUCLA, Yale -- to name a few -- have implemented some version of a video or audio podcast.

I confess I haven't given too much thought to the value of podcasts in the scholarly dialogue. To be sure, I have participated in, and have very much enjoyed, teleforums sponsored by the ABA AdLaw Section or the Federalist Society (which I'm told are then turned into podcasts). I'm not sure, however, those are the same thing as law review-sponsored podcasts. I'm skeptical about the enduring value of this law-review innovation, but then I also was skeptical when Apple launched something called the iPad. If others in the PrawfsBlawg community have experimented with law review-sponsored podcasts, I'd love to hear about those experiences in the comments.

So what about media consultations? Our law school's communications team does a great job of directing reporters my way when they have questions related my research and teaching interests. I seldom turn these opportunities down (when they concern topics within my areas of expertise) -- whether that's local TV news, print or online news outlets, or radio appearances. Sometimes these media consultations are fun -- especially the sit-down NPR-styled interviews -- but most of the time I'm just nervous which soundbite or two the reporter is going to use from a ten-minute conversation.

Although I seldom turn these opportunities down, that's not because I think media consultations help me become a voice in my field or otherwise build my scholarly profile. So I think we're straying from the purpose I originally articulated for this Jr. Law Prawfs FAQ series, but would welcome disagreement on that front. Instead, I view media consultation primarily as a means of service to the law school and university (and hopefully the public). At times I also see those activities get incorporated into the classroom if students come across the TV news segment, article, or radio show. 

While we're on the topic of media consultations, I wish I had received more training on how law professors should interact with the media. I've had a number of awkward interactions with reporters since arriving at the law school. The worst, I think, is when I commented at length on a case, and the reporter decided to make the article about me instead of the case with a clickbait headline of "Justice Kennedy's Former Clerk Thinks..." -- not my finest hour. A few tips, based mainly on lessons I've learned the hard way, immediately come to mind:

(1) Reporters Aren't Your Friends: Reporters are really great at getting people to open up by expressing interest in your opinions, but they often have the story already written and are just looking for the quote they want from you. So they will keep you talking until they get that quote, even if it really isn't your main point (or really your position at all). You have to reframe questions, resist narratives, and make clear your positions.

(2) Know the Difference Between On the Record, Off the Record, and On Background: Here is a quick description. Unless I've dealt with the reporter before, I tend to ask that everything is on background until I get a better sense of where the interview is going and then we can decide what is on the record/attributable to me.

(3) You Don't Have To Answer Questions: Especially as a more junior scholar, it's important to stay within one's comfort zone and area of expertise. If reporters ask me to talk about legal or policy areas where I'm less familiar, I either just say I lack the expertise to weigh in and refer them to a colleague. Or I'll explain that I don't feel I have the sufficient expertise to go on the record or background, but that I'd be happy to talk through the issues off the record.

(4) Email Interviews: I've become a bigger fan these days of responding to emails with my take on a case, regulatory development, etc. I then don't have to worry about what could potentially be included in the story or whether my quote is accurate. One related best practice our communication team utilizes is to get a one-paragraph take from the relevant faculty expert to send out to the law school's media contacts. Sometimes the reporters just pull a quote from that release, or they follow up with additional questions but know in advance where the faculty expert is coming from on the issue.

These are just four observations that come immediately to mind. A google search of "tips for talking with reporters" would no doubt produce many more. Definitely share your wisdom and experiences, as I'm guessing I'm not alone in feeling less than fully competent in dealing with the media.



Posted by Chris Walker on April 22, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (7)

Thursday, April 21, 2016

Rump Courts: An Anniversary

Tomorrow, April 22, marks the 70th anniversary of the death of Chief Justice Harlan Fiske Stone. Stone's death left an already-rump Court even more short-handed. Justice Robert Jackson missed the entire October Term 1945 serving as lead Nuremberg prosecutor, so the Court already had only eight members; Stone's death left it with seven. Because it was so late in the Term, Stone's death affected only five cases decided after April 22 (Stone became ill and died immediately after reading his dissent in Girouard v. United States).

It is appropriate (or ironic) that we hit a landmark anniversary now. Due to Republican intransigence, we are in the midst of what I predict will be the longest rump Court since at least the turn of the Twentieth Century, likely lasting for 75% of this Term (as far as cases decided) and covering all of next. It also reminds that anything can happen, so that the possibility always looms (especially with three other Justices at or nearing 80) that we could face another seven-person Court, this time for more than five cases.

I imagine Stone's death played at least some role in Jackson's later belief that it was a mistake not to resign from the Court before accepting the Nuremberg appointment.

Posted by Howard Wasserman on April 21, 2016 at 11:30 AM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

Alta is (still) for skiers

A few years ago, I noted here on Prawfs an equal-protection / "animus" challenge that had been filed against Alta Ski Area's (a/k/a "Heaven on Earth") skiers-only policy.  The Tenth Circuit has ruled against "Wasatch Equality" on state-action grounds. Here is the opinion.  


Posted by Rick Garnett on April 21, 2016 at 11:27 AM in Rick Garnett | Permalink | Comments (3)

The (still) irrepressible myth of Klein

SCOTUS on Wednesday decided Bank Markazi v. Peterson, rejecting, 6-2, a challenge to a federal statute under the separation of powers principles of U.S. v. Klein. My broadest takeaway from the case is that it makes clearer what probably was true before--short of the proverbial statute explicitly providing "In Smith v. Jones, Smith wins," nothing Congress would realistically enact (and the President sign) can ever violate Klein's prohibition on Congress deciding a case.

Justice Ginsburg wrote for Justice Kennedy, Thomas, Breyer, Alito, and Kagan. She hit a few key points.

   1) She appeared to limit Klein's meaning to the idea that Congress cannot dictate constitutional meaning to the Court (what Larry Sager has called the prohibition on compelling the Court to speak "constitutional untruths"). Klein's additional statement that Congress also cannot dictate rules of decision in pending cases--from which SCOTUS, lower courts, and commentators had derived the "no dictating outcomes" principle--cannot be taken at face value. Instead, Ginsburg looked to the various non-Klein limitations on retroactive legislation and insisted that, outside of those limits, the Court had twice affirmed that "Congress may indeed direct courts to apply newly enacted, outcome-altering legislation in pending civil cases." At a minimum, this marks a change of course, since "no dictating outcomes" had become Klein's central point in sub-constitutional cases.

   2) Ginsburg rejected the Bank's two main, related arguments that the statute was unprecedented in applying to only one case and in not leaving anything for judicial resolution, since the factual questions to be resolved (whether the asset was in the United States, was blocked, and was equal in value to a financial asset of Iran) were foregone conclusions. As to the second, she rejected the argument that the facts were foregone conclusions, requiring "plenty" of particular judicial determinations. And, in any event, that facts are undisputed does not mean a court is not applying new law to those facts. As to the first argument, Ginsburg insisted that § 8772 is not limited to only one case; while the enforcement proceedings were consolidated for administrative purposes, they reflected efforts to execute on 16 different judgments involving more than 1000 victims. Moreover, she rejected that idea that there is something inherently wrong with particularized legislation. While legislation often is of general applicability, bills governing one or a small number of subjects are permissible and common (citing, inter alia, Wheeling Bridge, a case upholding a statute designating a single particular bridge as a post road, a case Klein reaffirmed and distinguished).

   3) Finally, Ginsburg emphasized the statute's national-security context as an additional reason for deference to the political branches. Since Congress and the President creating foreign sovereign immunity, they also have broader power to create exceptions. This struck me more as a cherry-on-top argument good for this case. I expect the next Klein case, arising in a purely domestic context, to deemphasize that piece.

The Chief dissented, joined by Justice Sotomayor (which may be the most distinctive feature of the case), insisting that "there has never been anything" like this statute. No previous statute had singled out only a single pending case or a single defendant in this way. No statute had turned on such basic, already-undisputed facts.

To some extent, the divide in the Court turned on how they view several hypotheticals. The first is the "Smith wins" statute, which the Court had previously insisted (and the plaintiffs conceded at oral argument) would be invalid. The Court split over just how close § 8772 came to this paradigm. Roberts insisted they were the same, since creating a factual fait accomplii is no different that declaring a winner. Ginsburg, again deemphasizing this part of Klein, argued that such a law would be irrational, thereby violating Equal Protection. In any event, such a law would not be establishing a new legal standard, only compelling a result under old law. But Roberts had an interesting response: Such a statute would create new substantive law--old law did not necessarily determine that Smith wins, the new law does. Congress only can act by "changing the law" and anything Congress does (at least in exercising its power to enact statutes) is changing the law. It is necessary to take the next step of asking whether that new law that Congress enacted constitutes an invalid judicial act, something the majority fails to do.

The dissent offered a second hypothetical--a law declaring that a letter from a neighbor is conclusive proof of property boundaries, applicable only to one pending property case. But Ginsburg insisted this was the wrong analogy; the right analogy is a law clarifying which of two inconsistent maps should be used to establish the property boundary in the case. Notably, the statute declared invalid in Klein was problematic, in part, because Congress was dictating the effect to give a particular form of proof in the case.

A third Roberts hypothetical responded to the majority's position (used by many lower courts) that, as long as the result depends on some legal and factual determinations from the court, the law does not dictate the outcome. Imagine that the new law provided that Smith wins so long as the court finds that Jones was properly served and Smith's claim was within the statute of limitations, both of which are undisputed when the new law is enacted.* The majority's response, I suppose, is that those factual determinations do not go to the substantive merits of the claim being brought, while § 8772's factual determinations (whether the judgment debtor owns some enforceable assets) go to the heart of an action to execute a judgment.

[*] Then, just because, Roberts quoted Porgy and Bess.

Roberts closed by criticizing the opinion for offering a blueprint for how Congress can pick winners and losers in particular pending (or even threatened) cases going forward. In reality, it was clear before today that Klein would not have offered much resistance to most such efforts. Bank Markazi puts an exclamation point on that, particularly in arguably reading the "no dictating outcomes" principle out of Klein.

At the same time, Roberts did not offer a line between legislative and judicial conduct, "readily conced[ing], without embarrassment"** the difficulty in drawing such a line. Moreover, subject to due process retroactivity limits, Congress must be free to change the law in statutory cases, even where that alters who prevails in the case. After all, every law benefits one side or the other and Congress drafts the law to benefit the side Congress wishes to benefit. So even if Roberts is correct that § 8772 oversteps, he does not leave a sense of what Congress can, or should be able, to do.

[**] What might we craw from the "without embarrassment" language? And how might it relate to judges calling balls and strikes? Is Roberts acknowledging--and telling the public and the other branches--that constitutional decisionmaking is not so simple as he (and they) often make it out to be?


Posted by Howard Wasserman on April 21, 2016 at 12:43 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, April 20, 2016

The Trial of Teaching Law

A significant number of law professors are former trial lawyers.  Trial lawyering skills if made an intentional part of the teaching method in large, first-year doctrinal classes can improve and enrich the learning experience for students. 

This post explores the parallels between the two disciplines/skillsets.

So, Ladies and Gentlemen, here are ten insights on the trial method of teaching law. 

  1. Teaching is a show. Teaching must blend seriousness and entertainment, substance and style.  Students and jurors expect to be engaged not just by the material, but by how the material is produced.  Production value, humor, and content all matter.   
  1. Classes, like trial preparation, must be fully prepared, completely structured, and yet flexible. Like a witness examination, every question must be scripted, considered, evaluated, placed in order, but all of it can shift in a moment.  In cross-examination this is called “dynamic cross-examination.”  Teachers must learn to be dynamic cross-examiners, methodical, but open to the insights (or misstatements) of students in class.   
  1. You are always talking to everyone in the room. Teaching to a big class (even when questioning one student) is generally a silent dialogue meant to stir reflection in the other students. The questions to a particular student, like those to a witness on the stand, are not merely directed at the student/witness but to the audience of jurors/other students.  This is a misdirected teaching method, where the professor’s questions (like the lawyer’s) are just as important and informative as the answers.  
  1. Teaching is not about the moment, but the synthesis in the end. A good class is not about imparting particular facts to individual students, but about spurring continued deliberation after class.  Just as the questions on cross-examination and arguments in opening and closing are meant to give focus for later jury deliberations, so are the questions and lessons in class meant to encourage on-going deliberation beyond class.  Everything in trial and class is preparation for the synthesis.
  1. Teachers must focus on the audience, not themselves. Even the best, most high-profile trial lawyer, knows that once in the courtroom, it is not about the lawyer but the jury.  Everything must be done to focus on the audience, not the professor. 
  1. Teaching is translation. You are distilling complex legal problems for non-lawyers.  Before juries or 1Ls, your goal is one of translation – teaching a new language, new concepts, and making them relatable to people who otherwise might not care about the issue.  Jurors learn through different methods, so employing different teaching styles may allow you to reach more jurors/students. 
  1. Teachers are storytellers. You are blending narrative, image, and drama in the context of making it relevant.   This is not someone else’s case or law, but the students/jurors’ law.  They must internalize it, own it, and see themselves in the cases, the conflicts, and personally affected by the tensions.
  1. Teachers must bring the world outside the classroom into the classroom. Trial lawyers must figure out a way to bring the outside world – values, common sense judgments, insights – into the courtroom, without distracting from the specific case at hand.   The facts of the world inform the facts of the case, and each fact, witness, or argument can be an opportunity to reflect on this outside world.
  1. Process, ritual, order matters. Respect for the classroom and the court must be maintained to elevate the process.  A courtroom always maintains a sense of professionalism, distance, and respect.  So must a classroom. 
  1. You don’t always win.  Every time two lawyers walk into court, one of them loses.  Yet they still come back.  That lesson also applies to teaching law students.  You always have another class.

I rest my case, but look forward to the continued adversarial deliberations online. 

Posted by Andrew Guthrie Ferguson on April 20, 2016 at 01:27 PM | Permalink | Comments (4)

Is There Any Reason Not To Be on Twitter? (Jr. Law Prawfs FAQ)

As the framing of the FAQ from Monday and today suggests, I'm somewhat agnostic when it comes to whether law professors should blog. But not when it comes to law professors on Twitter.

First, though, a few follow-up thoughts on blogging: As Will Baude noted in the comments, "the advisability blogging, even more than most of aspects of this series, is going to turn heavily on personal tastes and abilities. Blogging is certainly not *so* important as to be worth a person's spending time on it even if they find it unpleasant and time-consuming." I think that's right, though my attempt at categorizing the types of blogging to include field-specific blogging, practitioner-oriented blogging, and beyond blogging was aimed at suggesting that the pain of law blogging may be even more worth it if your goal is for your scholarship and ideas to reach policymakers, practitioners, and the public more generally. In those circumstances, Orin Kerr's observation may no longer be the case that "blogging is still an extracurricular activity instead of something that is part of the core mission of legal academics." For example, I'm guessing that's not the case for Doug Berman, Paul Caron, Noah Feldman, Rick Hasen, or Steven Davidoff Solomon, or perhaps even for Stephen Bainbridge or Josh Blackman.

With respect to Twitter, however, I'd reframe the FAQ I often get as whether there is any reason for a law professor not to be on Twitter. 

I'm a big fan of Twitter for law professors, as my leading question suggests. At the start of my second year at the law school, I decided to experiment with Twitter as a professional resource and social media tool, and I haven't looked back. A few benefits come immediately to mind.

First, a lot of academics are on Twitter, so from an information-gathering perspective you can find out about developments and new scholarship in your field much more quickly. Because you choose who you follow, you can structure your Twitter timeline (or create lists if your timeline consists of a lot of different fields, etc.) to track in real time what's going on in your field.

Second, a lot of academics -- in addition to other experts and media in most law and policy fields -- are on Twitter, so from an information-sharing perspective you can add your voice to the conversation on a particular issue and get your scholarship and ideas out there more quickly. For instance, I've fielded a lot of media inquiries based on my tweets about current cases or regulatory developments (more on media consulting on Friday), and my blog posts and draft articles get a lot more eyes on them by circulating them on Twitter (not so much on Facebook or LinkedIn).

Third, conversations about your scholarship, blog posts, and ideas are likely already happening on Twitter. And because you're not on it, the likelihood that others will find your more extensive commentary on the issue -- or explore your other scholarship and ideas -- is diminished. So much of information-sharing is driven by social media these days that I'm puzzled, for instance, why a number of law bloggers aren't even on Twitter. These seem like missed opportunities to join the conversation around an idea, blog post, or article that you've already written, or to add your scholarship to the discussion.

Fourth, especially in comparison to blogging, Twitter requires very little effort. It's not the case that you only get out of it what you put into it. You get a lot out of the very little effort of setting up the account. Just create an account, let Twitter search your contacts for potential accounts to follow, follow those accounts in your field, and then tweet out stuff when you feel like it -- once a day, once a week, or whatever. Having a Twitter presence, without too much more, helps reap the benefits discussed above. Of course, some scholars put a lot more effort into Twitter than that, and I'd be curious if they feel the benefits are commensurate to the costs. Plus, Twitter, like all social media, can be quite addictive and could distract from scholarship if one does not exercise self-control. On the other hand, Twitter can also be a nice reprieve from waiting in line at the DMV, sitting in the audience at an event you have to attend (you can always live-tweet conferences, etc., to keep you more engaged too), or filling some other dead time in the day.

Finally, some remark that they are already on Facebook and/or LinkedIn (or Instagram or Snapchat (!?)), so they do not want to take on another social media platform. In my experience, however, the benefits listed above are much better on Twitter than Facebook or LinkedIn. I'd be curious what others have experienced with the various social media platforms. As for tips for navigating twitter, there are lots of how-to guides out there. Plus, over at the Faculty Lounge in February we brainstormed some tips for law reviews on Twitter, and many of those tips apply to law professors as well.

So what say you PrawfsBlawg community?  Is Twitter great or the greatest?



Posted by Chris Walker on April 20, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (13)

Tuesday, April 19, 2016

The obligation of law schools towards law students

A question I have thought about a lot recently is what obligation law schools have to refuse to accept certain applicants on the grounds that they are unlikely to pass the bar exam. 

This may not be a big concern at first and second tier schools, but it is a real issue for third and fourth tier schools.  While my sense is that most third and fourth tier schools (including my own) have significantly reduced the size of their entering class in the last couple of years in the face of reduced demand for our services, the applicant pool has been reducing in size even quicker.  The net result is that to fill even our reduced class size, we have taken applicants with lower entering indicators than was the case in 2009 or 2010.  While the correlation is not perfect, there is a correlation between entering indicators, particularly LSAT scores, and likelihood of passing the bar exam.  The net result is that as indicators have dropped many third and fourth tier law schools have seen their bar passage rates drop as well. 

I know already that the comments (if any) are likely to be dominated by people saying that law schools have an obligation not to take students who cannot pass the bar.  Let me state quite clearly that I agree.  Law schools should not take students who have no likelihood of passing the bar.  Conversely, there is no problem with taking students who will almost certainly pass the bar.  But those are the easy answers.  The harder problem is what to do about the students in the middle – those students who are neither very likely to pass the bar nor very likely to fail the bar.

Assume for the moment that we could make an estimate of a student’s likelihood of passing the bar based on their LSAT score.  This estimate would be uncertain as LSAT scores are a crude indicator of the aptitude for law school and the bar exam.  We might, for example, end up with an estimate that someone with an LSAT score of 147 has approximately a 70% chance of passing the bar.  The problem, of course, is that you either pass the bar or you don’t and most of the students with an LSAT of 147 will pass, even though about 30% will not.  There is no way, as far as I can tell, to identify in advance which 30% will fail.  (This may seem obvious, but if we could tell with perfect accuracy which students would pass and which would not, then we should just refuse to enroll students who will not pass the bar.  The reality is not so easy.)

The question then is what likelihood of bar passage is too low for us, in good conscience, to enroll a student.  I don’t believe there is an objectively correct answer to this question.  We could set the bar quite high.  For example, we might say that no law school should enroll any student who has less than a 90% likelihood of bar passage.  This would have several consequences, not all of them good.  First, it would likely result in 90% of the students graduating from law school passing the bar.  This is obviously a benefit to the change.  Fewer students would feel the adverse consequences of failing the bar.

But there would also some consequences that are undesirable.  First, it would deny many students who want to go to law school the ability to do so.  This is a non-trivial problem.  Some people really want to become lawyers.  (As an aside, I have had a number of students tell me that they have known since they were children that they wanted to be lawyers – in many cases very specific kinds of lawyers.)  A system that says to them, I am sorry your indicators are too low for you to enroll seems in many ways to be a system that has taken paternalism too far at the expense of the individual’s freedom to decide their own course in life.  Moreover, while I have no data to support this hypothesis, I suspect that students with low indicators but a strong desire to succeed in law school are likely to over-perform their indicators.  It would be doubly unfair to exclude such students if their real likelihood of bar passage is higher than their LSAT score suggests.

Such a system would also adversely affect many students who we want to encourage to go to law school.  My own school, the John Marshall Law School, prides itself on being a “school of opportunity.”  Historically, we have offered a route into the practice of law for many, like immigrants, women and minorities, who might not otherwise have been able to attend law school.  Perhaps unsurprisingly, these marginalized groups have also tended to have lower indicators.  The result is that any attempt to limit enrollment based on indicators would disproportionately affect groups who have been historically disadvantaged.  This result seems unfair and undesirable.  We need more lawyers from these historically disadvantaged groups, not fewer.

As I said before, I don’t think there is an objectively correct solution to this problem.  I suspect how you answer it depends on how you fall on a scale from paternalist to individualist and on how much risk you are willing to tolerate.  My question to you is assuming that law schools should have an obligation to refuse to enroll students because their likelihood of bar passage is below some threshold, where would you place that threshold (i.e., what percentage chance of passing the bar should be the minimum)?

Personally, I do think law schools should refuse to enroll students if their likelihood of passing the bar is too low, but I am not certain where to draw the line.  I tend to feel it should be around the 70% level.  For me, this level balances the personal consequences to the individuals who fail (which are obviously significant) against the right of the individual to make their own choices and society’s interest in a more diverse and inclusive bar.  But reasonable minds may differ.

Posted by Stuart Ford on April 19, 2016 at 06:18 PM | Permalink | Comments (15)

Can An Algorithm Pick a Jury?

Right now millions of dollars are being spent to map the American electorate for political purposes.  Both political parties have invested heavily in identifying, targeting, and analyzing individual voters by name, address, party affiliation, interests, causes, and even hobbies.  The data game of political get-out-the-vote strategies is as sophisticated as it is creepy (if you care about privacy).  If you live in a swing state, your demographics, income, past voting record, not to mention race, gender, and marriage status have been crunched by data companies in what is called micro-targeting.  If you are a consumer, private data brokers know your habits, preferences, and tastes.  The FTC recently released a Report on Data Brokers that is eye-opening in the extent of personal information available. 

This data is obviously valuable to politicians, but what if the data – or any of the information from big data companies – were used for the other political right – jury service.  What if courts could pick an algorithmically pure jury pool that actually represented a fair cross section of the jurisdiction? 

Such a prospect is technically possible, but is it a good thing?  Jury selection is notoriously unrepresentative with regular lawsuits challenging the jury venire as being not an accurate reflection of the community.  Jury summons yields have reach embarrassingly low levels.  For example, jury summons no show rates have reach 85% in some jurisdictions.  The result is unrepresentative jury venires, which do not match the actual demographics of an area.  And, for all those who complain about the ineffectiveness of Batson challenges, or the lack of fulsome voir dire in federal court (and some state courts), wouldn’t a big data inspired personal dossier save a lot of time and effort in selecting juries.  This is what fancy jury consultants do in big cases with lots of money, why not adopt it as a regular practice.  Trial lawyers would know a lot more than what they can observe (race, gender), and have a far better picture of the whole individual before them.  Race and gender as rough proxies would be replaced by more sophisticated data inspired insights of big data consumerism.    

So, why not let a big data algorithm pick a jury venire and provide targeted personal information about prospective jurors?  I attempt to answer these questions in a forthcoming article “The Big Data Jury.”  I would love to hear comments. 

Posted by Andrew Guthrie Ferguson on April 19, 2016 at 09:40 AM | Permalink | Comments (4)

Bad presidents and fictional schools

I have been listening to WaPo's Presidential podcast, which offers 44 sequential weekly bios of the Presidents, running from the beginning of the year until the election. This week is Buchanan, next week is Lincoln.

But hearing about the forgettable presidents of the nineteenth century, especially in the period between Jackson and Lincoln, got me thinking about TV shows (especially sitcoms) naming fictional schools after presidents who are largely regarded as unsuccessful. Off the top of my head: Welcome Back, Kotter took place at Buchanan HS; Glee took place at McKinley HS; the Brady kids attended Fillmore Junior High; and Girl Meets World takes place at John Quincy Adams Middle School (this is an homage to the original  taking place at John Adams HS).

What other examples am I missing?

Posted by Howard Wasserman on April 19, 2016 at 12:17 AM in Culture, Howard Wasserman | Permalink | Comments (7)

Monday, April 18, 2016

The Subtle But Serious Flaw in the Supreme Court's Welch Ruling

This morning, to just about no one's surprise, the Supreme Court held in Welch v. United States that its June 2015 decision in Johnson v. United States--invalidating on vagueness grounds the "residual clause" of the Armed Career Criminal Act--is "substantive," and may therefore be retroactively enforced by federal prisoners even through collateral post-conviction review. In English, even for those prisoners whose direct appeals were already over, Welch allows them to pursue relief based upon Johnson, which could mean reduced sentences (and, potentially, immediate release) for hundreds--if not thousands--of federal prisoners. And to its credit, the Court really hustled--handing down the decision just 19 days after argument, presumably with an eye toward the one-year statute of limitations for Johnson-based claims (which runs on June 26). So far, so good.

But as I've blogged about at some length previously (and explained in a short piece in the latest issue of the Federal Sentencing Reporter), the problem Johnson raised in the lower courts had two distinct layers to it: The obvious one (is Johnson retroactive), and the far more subtle one (how can lower courts tell when new Supreme Court rulings like Johnson are retroactive). Whether because of the compressed schedule, the short-handed Court, or a more general disinclination to reach that issue, Welch says absolutely nothing about this second layer--and, in the process, does nothing to avoid the same mess that Johnson produced in the lower courts from recurring in the future.

In a nutshell, here's the problem: For prisoners who have already had one bite at the post-conviction apple, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes harsh restrictions on second-or-successive claims for post-conviction relief. Not only must applicants first obtain the permission of the relevant court of appeals, but permission will only be granted, as relevant here, if the applicant can show that he can likely benefit from "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." In other words, for second-or-successive petitioners, the new rule doesn't just have to be retroactive; it has to have been "made retroactive" by the Supreme Court.

In Tyler v. Cain, the Supreme Court clarified that only it, and not the lower courts, can "ma[k]e" a new rule retroactive. But the Justices were unclear on how they so provide. For instance, Justice O'Connor's concurring opinion suggested that, if a Supreme Court ruling at Tprovides that all "substantive" new rules are retroactive, then a Supreme Court decision at Tarticulating a new substantive rule is "made retroactive" by the earlier ruling at T0. But Justice Thomas's majority opinion was more rigid, suggesting that the Court has to expressly make the new rule retroactive (presumably after it is handed down), and the lower courts have divided over which is the correct framework. Thus, after Johnson, a majority of circuits held that the Court's pre-Johnson holdings with regard to the retroactivity of substantive rulings necessarily "made" Johnson retroactive; two circuits held that Johnson wasn't substantive in the first place (and therefore wasn't retroactive); and the Tenth Circuit, most significantly, held that, even if Johnson was substantive, the Supreme Court had not "made" it retroactive. In other words, even the courts that agreed Johnson was "substantive" disagreed over whether that meant that the Supreme Court had already "made" it retroactive.

As I've argued before, it would be easy enough for the Supreme Court to resolve this split--and the open question raised by the distinction between the Thomas and O'Connor opinions in Tyler. And the post-Johnson mess was a perfect opportunity to do so, since Johnson is the exact kind of ruling likely to fall right in the middle of the split (that is, a ruling that is almost certainly substantive, but where there's any room for doubt). But rather than clarifying whether the Thomas or O'Connor approach is the correct one for lower courts to follow going forward, all the Court held today was that Johnson is substantive, and can therefore be retroactively enforced even by second-or-successive applicants, full stop.

To be sure, some lower courts might read into Welch the conclusion that all substantive holdings are retroactive, but the Supreme Court had already held exactly that (in Schriro v. Summerlin), and that didn't stop the Tenth Circuit from still requiring a separate ruling that expressly "made" Johnson retroactive. The Supreme Court provided that ruling this morning in Welch, but did nothing to prevent a court like the Tenth Circuit from demanding the same thing the next time the Court hands down a new substantive rule--or to thereby prevent the exact same headaches that Johnson caused from recurring. As a result, Welch will go into the books as a small but important win for federal prisoners, but a gigantic missed opportunity for clarity in future retroactivity cases.

[Full disclosure: I signed onto an amicus brief in support of Welch, albeit on a different issue--whether the Teague retroactivity framework even applies to federal prisoners.]

Posted by Steve Vladeck on April 18, 2016 at 11:49 AM in Steve Vladeck | Permalink | Comments (10)

Fitbits and the Fourth Amendment

I wanted to spend a few posts examining questions arising from my scholarship.  Prawfsblawg presents an attractive audience of educated, curious readers to try out ideas.  So here is a question that has shaped some of my recent thinking.  What is the “smart” data coming from your Fitbit, smart car, smart refrigerator, or smart bandage to the Fourth Amendment?  Should it be protected under the Fourth Amendment?  Is direct interception of this information a search of “persons, homes, papers, or effects”?  Is direct interception a violation of an “expectation of privacy?”

The question matters because if the smart data falls outside of these Fourth Amendment definitions, it can be intercepted by law enforcement without a warrant.


The Supreme Court has offered up some clues, but no answers.  From U.S. v. Jones we know that certain members of the Supreme Court think long-term, aggregated locational tracking of a car (an effect) via GPS is a search.  From Riley v. California, we know that the court thinks data in a smartphone deserves some Fourth Amendment protection.  But, what about the digital trails (arising from the ever growing Internet of Things) all of which reveal your patterns, habits, and intimate activities?

This subject is a legal puzzle I have been considering through a series of articles.  In one article –The Internet of Things and the Fourth Amendment of Effects – I have argued that we should redefine the term “effect” to include both the data inside the object as well as some of the communicating data emanating from the object.  After all, we have redefined other Fourth Amendment terms of art.   “Homes” now includes apartments, motels, and the curtilage area outside the home (among other things).  And, we have redefined Fourth Amendment “persons” to include excreted blood, urine, and even corporate “persons.”  So why not redefine Fourth Amendment “effects” to take into account not just the object, but the data in the object and some of that smart data coming from your new smart thing (which is after all the added value of that new smart pill bottle you just bought).

In a second (draft) article – The “Smart” Fourth Amendment – I have argued that smart data should be protected because we routinely protect the “informational security” in “persons, homes, papers, or effects.”  Protecting the data from those constitutional sources is, thus, consistent with this theme of informational security.  In the Jones GPS case, the protection did not focus merely on the physical, “thing-ness” of the car at issue, but the informational security of keeping the movements of the car secure from government tracking.  Similarly, if you trace out the reasons for protecting papers, it is not because of any reverence for parchment, but to secure the information on that paper.  The reason for protecting urine excreted from a person is not to protect the waste product (we don’t want it back), but to secure the information potentially revealed by the biological matter.  So, too, with the digital trails arising from smart devices, what should be protected is the informational security deriving from a constitutionally recognized source.

But it remains a puzzle, with these articles only two large pieces in a larger jigsaw of ideas. 

My question here is born more out of curiosity to this audience.  If you own a smart device – from a GM car (with OnStar capabilities) to a Fitbit to a smartphone – do you think the data trails should be protected by the Fourth Amendment?  Do you take steps to secure the information?  Do you expect privacy or security?

Posted by Andrew Guthrie Ferguson on April 18, 2016 at 10:06 AM | Permalink | Comments (6)

Is Blogging Worth It? (Jr. Law Prawfs FAQ)

The Junior Law Prawfs FAQ series enters its third week. The first week focused on publishing legal scholarship (responses, book reviews, and online law review essays). The second week turned to interacting with peers in one's field, including promoting new scholarship, commenting on others' draft scholarship, and increasing in-person scholarly interactions. This week's line of questions builds on last week's, but concerns interacting within one's field more generally (not just limited to other scholars in the field).

Today's FAQ asks a very common question: Especially as a junior scholar, is blogging worth it?

To focus our crowdsourcing, let's put a couple things to one side. First, follow the cardinal Ask Your Colleagues rule, especially pretenure as your tenure-voting colleagues will no doubt have strong feelings on whether they feel blogging is a worthwhile pretenure endeavor. Second, make sure your tenure house is in order. I see blogging as one means to help one become a national (or international) voice in one's field, but it's not a substitute for the traditional scholarship required for promotion and tenure (at least not at any school I know). So this FAQ assumes the junior scholar can blog on top of doing the things required for tenure.

With those assumptions in mind, the next set of questions concern what type of blogging and what benefits one hopes to secure. Let's start with the type of blogging, as I think that changes the cost-benefit analysis. Here I'm going to define blogging more broadly than perhaps the ordinary, everyday meaning:

(1) Generalist Law Nerd Blogging: Perhaps we should call this category the first wave of legal blogging? In this category I include any of the generalist law blogs (Prawfs, Concurring Opinions, Faculty Lounge, Volokh Conspiracy, etc.), where a collection of legal scholars blog about nerdy law and policy topics that may interest them. To be sure, some blog more exclusively on their subject matters, but the blogs themselves seem more general, with the target audience being other legal scholars and law nerds.

(2) Field-Specific, Law Professor Blogging: Here think Law Professor Blogs Network. These blogs have a subject-matter focus, yet the bloggers are generally still legal scholars. The audience, though, may be more than just other legal scholars and may include policymakers, advocates, and others interested in the field. Some of these blogs are team efforts, whereas others -- Doug Berman, Paul Caron, and Rick Hasen come immediately to mind -- are mainly solo endeavors. Some of these blogs attempt to cover everything that's happening in that field (again, see, for example, Berman, Caron, and Hasen), whereas others cover topics that are of most interest to the bloggers (and their audience).

(3) Field-Specific, Yet Practitioner-Oriented Blogging: A variant of the prior category, these blogs are similarly focused on one legal field, but their audience is perhaps as much if not more policymakers and practitioners, as it is other legal scholars and law nerds. This is at least the goal of the Notice and Comment blog, where I've regularly blogged since Fall 2014. The Yale Journal on Regulation student editors founded the blog, and we became the official administrative law blog in the Law Professor Blogs Network about a year later. More recently, the ABA Section of Administrative Law and Regulatory Practice joined as a co-partner to expand our government and practitioner audiences (and bloggers). The blog's mission is definitely to reach policymaking, government, and practitioner audiences.

(4) Beyond Blogging: As traditional media outlets have been forced to evolve (perhaps in part in response to blogging), opportunities to write regularly for more traditional media outlets seem to be on the rise. Volokh Conspiracy's migration to the Washington Post is one example of that trend. But individual law professors have also been deeply involved, with Garret Epps, Noah Feldman, Peter Shane, Steven Davidoff Solomon, and Cass Sustein coming immediately to mind. These authors write regularly for the Atlantic, Bloomberg View, Huffington Post, and the New York Times, among others, as opposed to at law blogs. 

My guess is that the costs and benefits will vary significantly depending on the type of blogging one is interested in doing, and of course what one hopes to get out of it.  I can only speak from my own personal experience. As I mentioned above, I started blogging at the Yale Journal on Regulation back in Fall 2014. The advice I received from many regular (and retired) bloggers was to start with a narrow focus, as blogging takes up a lot of time and can end up swallowing time otherwise dedicated for my own research.

Inspired by Jotwell, Lisa Larrimore Ouellette's Written Description Blog, and Larry Solum's Legal Theory Blog, I decided my initial experiment would be the AdLaw Bridge Series, in which I would highlight one piece of administrative law scholarship each week in an attempt to bridge the gap between the theory and practice of administrative law. I was already reading all of these articles, and oftentimes providing comments to the authors, so I thought the additional work of coming up with a few hundred words about the piece wouldn't be too overwhelming. 

As I got more comfortable with doing the AdLaw Bridge Series, I'd sprinkle in a couple substantive posts of my own each month, covering current administrative law cases and topics. For instance, I did two fun posts on King v. Burwell (within hours of the opinion being issued), and more recently one in response to Tyler Cowen on Trump as Regulator-in-Chief. We've also done a number of online symposia on various topics, and I do a monthly SSRN adlaw scholarship top-10 list. I of course also blog about my own scholarship -- at the idea-generating stage, at the comment-soliciting stage, and at publication.

I definitely underestimated the costs of blogging regularly, but fortunately I also undervalued the benefits. Blogging regularly is therapeutic, as it keeps me more engaged with ideas and arguments in my field, supporting my own research and teaching. Blogging about articles makes me read them a bit more closely, and obviously has helped me get to know scholars in my field. Hopefully readers have also found them useful. If one enjoys talking with reporters or consulting with policymakers, the number of calls I receive from both groups has gone up considerably since I started blogging, and many of those individuals reference blog posts of mine. SSRN downloads shot through the roof once I started blogging, and I hope that means that scholars, government officials, and practitioners are reading and thinking about my scholarship.

In sum, my own experience is that there are significant costs and benefits to blogging, but at least for me it has had a large positive net value and complements well my research agenda. It's particularly helpful for someone like me who hopes that federal agency officials and administrative law practitioners will read and incorporate my scholarship.

I'm curious to hear others' perspectives on blogging regularly -- both as to the cost-benefit analysis generally and as to cost-effective ways to blog. If you've already blogged about that elsewhere, please do include the link(s) in the comments so that others can find them here.



Posted by Chris Walker on April 18, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (5)

Sunday, April 17, 2016

Not an infield fly

On Sunday, Tigers second baseman Ian Kinsler* intentionally failed to catch an infield pop-up with a runner on first and none out, in order to get a force out at second base on a speedy runner at first, replacing him with the batter, a slower runner. (Video in the link). After some initial confusion, the runner at first was called out and the batter was on first base.

[*] Apropos of nothing, Kinsler is Jewish, so this ties back to the ongoing fascination with the presence/increase of Jewish athletes.

Some comments after the jump.**

[**] (Yes, this is a post about baseball rules--the laws of baseball, if you will--a subject I have been writing about at Prawfs since I started here in 2007. If you do not like baseball or do not want to read about baseball on a law blog, feel free to skip the post.

• The Infield Fly is not involved here, despite the initial shouts from the announcers (more on that below), because there were not force outs in effect at multiple bases. That rule is designed to prevent a double play on the stuck base runners (as opposed to a base runner on the batter running to first base). Absent that risk, the IFR does not control. Instead, R. 5.09(a)(12) (also known as the "trapped ball rule") prohibits an infielder from intentionally dropping a ball with a force out in effect at any base, although the rule does not apply where the infielder allows the ball to drop to the ground untouched.

• It is not clear where the confusion came from initially. The only possibility is that the first base umpire believed Kinsler had touched the ball and intentionally dropped it, although the video makes clear that the ball fell to the ground untouched. But the umpires conferred and got it right.

• This is the same play that originally triggered the creation of what became the infield fly rule in 1894. Hall of Fame shortstop John Montgomery Ward pulled the same move in an 1893 game order to replace a runner on first with the batter, who had the "speed of an ice wagon." Decrying the deception, trickery, and poor sportsmanship (in 19th century conceptions) the play reflected, baseball officials outlawed the play in 1894. Over the next decade, they came to realize that the problem was this play being made when there were two force outs in effect and the defense could turn a double play; what became known as the Infield Fly Rule evolved in that direction.

• Critics of the IFR (most recently Judge Guilford in Penn Law Review) point to this situation to show that baseball otherwise tolerates players intentionally not catching balls in search of greater advantage. My response is that the cost-benefit disparity is not nearly as great, since the defense still only gets one out in this situation (as compared with two outs when there are multiple forceouts, and thus the IFR, in effect). As a result, the incentive to try this play is not as great, given the relatively marginal benefit of exchanging individual base runners, the relative rarity of genuinely wide disparities in speed, and the deemphasis on base-stealing in our advanced-metrics times. Part of the reason Kinsler's play will draw attention is that infielders do not try this all that often, because the benefit is typically not worth the risk.***

[***] A batting team has a run expectancy of about half-a-run from having a runner on first and one out (meaning it scores an average of .5 runs from that situation to the end of the inning); that number does not move dramatically with a faster runner.

• Announcers are clueless about baseball's rules. The Astros announcers initially believed the umpire had called Infield Fly, downshifting into a discussion of why that rule should not apply here. The Tigers announcers recognized what Kinsler was trying to do, but then started talking about how he did not "sell" the play well enough, ignoring (or unaware) that because he never touched the ball, he did not have to sell anything.

• Although this is not an infield-fly situation, watching the play illustrates how likely a double play would be in that situation absent the rule, at least on balls hit to this area of the field. Watch the play--see how the ball falls at Kinsler's feet, takes a small bounce, and comes to a rest at his foot; see how easily Kinsler picks up the ball and flips it softly to second. It is easy to imagine, in an infield-fly situation, a fielder picking this ball up and making a hard throw to third, followed by a relay to second that produces a double play, all before the base runners can even begin moving. Having the IFR means we generally cannot test the actual likelihood of the double play that the rule seeks to prevent; a play like this gives us a little bit of an idea.

Posted by Howard Wasserman on April 17, 2016 at 08:15 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Laptops in class (again)

For those of you who are keeping (as I am) a file or folder for the increasing number of pieces covering the "laptops in the classroom" issue, here's another item, from Weekend Edition.

Posted by Rick Garnett on April 17, 2016 at 10:36 AM in Rick Garnett | Permalink | Comments (0)

Friday, April 15, 2016

Attorneys' Fees and Departmentalism

The model of departmentalism, judgments, and precedent that I have been urging carries an obvious risk of recalcitrant officials enacting all sorts of blatantly unconstitutional laws (based on their independent constitutional judgment) or refusing to alter their conduct unless and until compelled to do so by new litigation producing a new injunction. The answer is a number of doctrines that incentivize voluntary compliance. Chief among these is attorneys' fees--in theory, if the state compels enough litigation rather than voluntary compliance, it will get expensive for the state and, perhaps, politically unpopular.

Another case in point: North Dakota enacted a "fetal heartbeat" law (no abortions after a heartbeat can be detected), which effectively banned abortions from the middle of the first trimester. The Eighth Circuit declared the law invalid, obviously, in light of SCOTUS precedent. And the state just agreed to pay $ 245k in fees for that litigation.

Will that sufficiently deter the legislature from enacting the next piece of "we think this is constitutional, no matter what the activist Court says" legislation? Hard to say.

Posted by Howard Wasserman on April 15, 2016 at 06:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

At Least Two More Cheers for Counter-Clerks

The up-side of Facebook is that it allows me to quick-post links and ideas I don't have the time or energy to work up for public discussion. The down-side is that lots of fun potential blog posts go missing, or that, while I'm having that conversation in the limited forum of FB, which I did in this case, someone beats me to the punch in the blogosphere. Eric Segall's post on Monday, talking about Justice Scalia, raised the interesting subject of "counter-clerks": those clerks that Justice Scalia hired to provide an in-chambers "liberal" view as a lens for examination and criticism of his views or opinion drafts. Counter-clerks weren't a huge part of his post, which was mostly about Scalia's position on affirmative action and his originalism. But it did evoke interesting questions about counter-clerks. Now his co-blogger, Mike Dorf, has this post talking directly about counter-clerks and raising "two cheers" for them, concluding this way: "The bottom line is that a willingness to hire counterclerks is a modest indication that a judge takes his professional responsibilities seriously and enjoys the company of people who disagree with him, which indicate positive character traits. But that's about all."

There are a couple of things I would say about counter-clerks, but the most important is simply that the idea of having counter-clerks, especially but probably not exclusively at the Supreme Court, is worthy of much more study than it has received. Although I disagree with various aspects of it, I think Richard Posner's book Divergent Paths is right to argue that we need more study of structural, managerial, and other aspects of the (federal) judiciary. It is a valuable subject in itself, the more so as the judiciary has long since become a large, complex institution rather than a disparate collection of, to use Philip Hamburger's term, individual judicial "offices." If one also believes, pejoratively or otherwise, that the Supreme Court is a "political court," it's also useful to think about potential structural responses to this.

None of this requires one to conclude that counter-clerks are a good idea, or an effective one. But it deserves study and attention. As with thinking about judicial term limits, how to sequence discussions or votes in conference, or other such questions, it's useful in asking about the Court as an institution and what institutional features might benefit from tinkering or change. Maybe more so: lifetime tenure is a formal structural rule and thus highly visible, but in most areas legal scholars would observe that all kinds of sub-constitutional rules and practices (like the use of clerks) are at least as important as the formal ones in reflecting and channeling the work of an institution, and need to be studied.

A look for discussions of counter-clerks doesn't turn up very much. There should be more. Maybe every justice should hire a counter-clerk. Maybe it is a failing of the current Court, and the current justices, or revealing of their understanding of their job or of the current moment on the Court, that they do not all have such a practice more or less formalized. Maybe the counter-clerk idea is a good one but there are better ways to do it. It doesn't have to be organized around political ideology, for instance, although the current justices are political and perhaps it's important to have that internal check; but it could be organized around methodology, or as a matter of having a formal "Devil's advocate" clerk, period. And although I think there are fairly good reasons to hire at least one clerk who definitely does not share the justice's politics or methods, it may be that the formal role of "counter-clerk" should rotate among the clerks. In other areas, legal scholars and social scientists (beginning with Irving Janis) have argued that decision-making groups, or advisors to a decision-maker, need a formal Devil's advocate, to guard against groupthink, polarization, epistemic closure, cascades, and so on, and that the role should be rotated to make sure the advocate is not powerless or routinely dismissed. We may want to think more about whether the Court and its use of clerks needs to take the same approach. 

After the jump, some additional points informed by excellent comments about this from my FB discussion. As usual, it's tl;dr, so feel free to skip it, although the last paragraph is somewhat interesting. 

 The responses received to my post were interesting and certainly made me think of this question differently, although it doesn't alter my view that the practice of having counter-clerks deserves more attention. Let me list them here. Although I draw on that conversation, no doubt I'm not doing full justice to the nameless commenters:

1) Ineffective. Specifically, the suggestion was made that the imbalance of power between justice and clerk is too great for the counter-clerk position to function well enough. I take no position on this, other to note that it's not unique to this court or to the job of law clerk, and may be even stronger in the case of political appointees in the executive branch who are asked to provide unvarnished advice. I'll also note that it's not specific to acting as a counter-clerk: "normal" clerks may also feel pressure to tailor their work to their sense of the justice's priors or preferences, not in the sense of being a faithful amanuensis, but in the sense of failing to raise (or to spot) questions and criticisms.

2) Justice-dependent. Whether a counter-clerk is effective, or (more on this below) whether such a position is necessary as such, may depend on the justice's receptivity to criticism. A justice might have a counter-clerk but be inflexible in his or her position, or have no counter-clerks but be open to argument from his or her clerks. That seems reasonable enough, but not reason enough not to study the idea of the counter-clerk structure. Also, and this is the point of writers who have talked about Devil's advocate structures in other group deliberation situations, the view that if a bunch of agreeable people work with, and argue with, their their receptive boss/justice in an open-ended non-specific way, they will end up airing all that needs to be aired is susceptible to doubt. Whatever their good intentions, they may still collectively fall prey to groupthink or epistemic closure--indeed, egg each other on into a resultantly polarized opinion.

3) Not necessary on ideological grounds. On this view, justice X is not an ideologue, the chambers never discusses ideology, and so this whole framework is not necessary. I pretty strongly doubt the first two parts of this view. In particular, the fact that chambers discussions are about "the law" and not ideology doesn't say much about how affected they are by ideological priors and other factual and value assumptions. (That's even more true if such a chambers ever discusses "policy" as well as "law," if it's not absurd to distinguish between the two.) And I doubt that Scalia's counter-clerks were asked to talk like liberals at a political convention, so much as they were hired with the knowledge that they thought differently from Scalia on some set of political and/or jurisprudential issues and were then asked to push back as lawyers. But I agree that we shouldn't treat ideology too narrowly here, and we're certainly welcome to think about other bases for Devil's advocacy. Indeed, I think it's the idea of a structural Devil's advocate, rather than a house liberal (or conservative), that is central to thinking about why we might want to have more use of counter-clerks. But given the political nature of the Court and its members on some central set of issues, and the political elements of clerk hiring and the use of feeder judges, it's understandable that ideology is a relevant factor to think about and will often be relevant in the context of the Court. Perhaps our discussion should be about whether justices should, as a norm, hire for political diversity. But I think the counter-clerk question can be separate from that; and many people who think justices have no obligation to hire for political diversity might still think that a counter-clerk is a good idea.

4) What this says about the justices. I got a sense that there was some pushback on the counter-clerk question specifically because commenters thought Justice Scalia's hiring of counter-clerks was taken as a sign of his special or superior virtue, and as suggesting that his colleagues were in some way less virtuous for not doing so. That reaction is heightened if the view is that, despite the presence of a counter-clerk, Scalia voted politically and was jurisprudentially inconsistent. I don't care about the justices as such, for what it's worth, and it is clear to me that the legal profession, academy included and not just former Supreme Court clerks, buys way too much into a "great man/woman" vision of law and history. To an extent, I don't take Scalia's counter-clerk hiring as indicating that he was a terribly virtuous judge or as reflecting poorly on the other justices. To me, that's not the point, any more than one decides the virtues of term limits for justices by pointing to individual stories. I think the counter-clerk idea or something like it is structurally interesting and might be structurally beneficial, and I don't care what it says about the justices as such.

But it's not clear to me that Scalia's practice wasn't a good and praiseworthy practice, or that there is no basis to think the other justices are subject to reasonable criticism for not following it. It does seem to me that many former clerks, and others, are likely to take the practices at the Court when they were working there as reasonable if not normative. I would think the Court's practices are at least as subject to study and criticism as congressional or executive branch practices--probably more. And many if not most former clerks, and others, are resistant to structural criticisms that reflect badly on some or all justices, a tendency about which I've made my views clear on other occasions.

Let me make a last point. The sense in what discussions I have seen is that having a counter-clerk is rendered necessary or useful because the justices hire politically and jurisprudentially congenial people and so need to ensure a certain kind of feedback. A contrary view is that the justices (or whichever justice one clerked for) are open-minded and reasonable and engage in a productive back-and-forth with their clerks. And separately from the counter-clerk question, most people conclude that the justices are heavily influenced by their political priors. So perhaps another structural feature to think about is to get rid of the "elbow clerk" model altogether, or to junk a good deal of it. We could instead have an annual hire (perhaps by someone other than any of the justices) of 36 staff law clerks who can rotate through the justices' offices. It raises administrative questions, of course, but its benefits might still outweigh its costs. Or, for the sake of consistency and ease, one could give each justice one or two elbow clerks and require them to work with the staff law clerks for everything else. 



Posted by Paul Horwitz on April 15, 2016 at 03:33 PM in Paul Horwitz | Permalink | Comments (1)

How Can I Increase In-Person Scholarly Interaction with Limited Resources? (Jr. Law Prawfs FAQ)

In her meta response to this Junior Law Prawfs FAQ series, my colleague Deborah Merritt suggested, among other things, that we should "[r]educe the number of scholarly presentations that require travel."  She further explained:

Workshops and conferences are terrific ways to promote scholarly exchange, but we have more than is prudent. These sessions are expensive for schools to host, and frequent faculty travel disrupts class schedules. And let’s not forget the major effect that air travel has on global warming. We could cut scholarly travel modestly, replacing some of it with online interactions. We could prune, moreover, in a way that preserves junior and diverse voices.

Like Howard, I agree with some of Debby's proposals, including encouraging both shorter and online forms of scholarship and balancing our scholarly modes. But I'm just not convinced that the benefits of this less-travel-for-conference proposal justify their costs. In fact, I see in-person scholarly interaction (especially with the senior scholars) as a vital part of developing a voice in one's field. 

But, as Debby notes, we live in a world of (perhaps increasingly) limited resources, so such in-person interactions may be becoming less common and more precious. In response to this post I'd love to hear more about how others have leveraged existing resources to create meaningful, in-person scholarly dialogue.

To get us started, here are ten best practices I've seen in my first few years here:

(1) Faculty Workshops: For those schools that still maintain a faculty workshop series with outside presenters, one best practice that I love about my law school is that pretenure scholars are given the opportunity each year to choose one of the outside presenters and are encouraged to select someone senior in their field who they would like to get to know better. This is a terrific opportunity for junior scholars to interact with others in their field, and the folks I've brought in have remained strong mentors in my scholarly development.

(2) Summer Faculty Workshops: Last year we experimented with a new form of summer faculty workshop where pretenure professors invited other junior scholars in their field to present their scholarship during a lightning-round faculty workshop. The junior scholars paid their own way, and our law school covered a dinner the night before and the lunch at the faculty workshop. To limit the number of events, we had three presenters at each of two workshops, who received 20-25 minutes total to present and get feedback. These lightning rounds were very productive, as was the ability for all of the juniors here to interact with three juniors from outside the law school.

(3) Junior Faculty Workshops: Established long before I arrived here, the law school supports a monthly junior faculty workshop series, where we get to present scholarship internally. In addition to having a smaller environment that may encourage a different type of discussion (and with more junior peers, which may take some pressure off some to present earlier and/or crazier ideas), it is also an easy way to have additional in-person scholarly interactions without the cost (in terms of lunch, if that is provided, and faculty time) of the full-faculty workshop.

(4) Inter-School Exchange Workshops: We have a number of exchange agreements with other Ohio schools, where they send one scholar to our faculty workshop each year and we send one their way. This reduces costs significantly -- allowing us to have more opportunities to present elsewhere as well as more opportunities to interact with scholars outside of our school here.

(5) State/Regional Conferences: For many years now we have had the Ohio Legal Scholars Conference twice a year, in which junior scholars at law schools from across the state pay their own way to drive to one school for a one-day event. The costs on the host institution are relatively low (lunch and facilities), and this provides a great opportunity to interact with others in the field and in the state. Indiana-Bloomington also hosts an annual Big Ten Juniors Conference that is absolutely amazing. I love that it's in August, near the end of the summer research cycle but before classes begin. I attended a "new ideas" conference at the beginning of last summer that U Kentucky hosts each year, and that was a terrific event as well.

(6) Law Review Symposium: When Chevron deference turned thirty, my colleague Peter Shane suggested that we organize a birthday party and pitch it to a law review. This is a lot of work to do solo, especially pretenure, but not as heavy a lift if you have a partner in crime. The Fordham Law Review agreed to take the symposium (final written product here).  This experience remains for me one of the most meaningful from the perspective of developing as a scholar. Law reviews are always looking for symposium topics, and law reviews typically have funding to help pull off the event. It obviously helps to have a participant at the law review's institution.

(7) Field-Specific Conferences: Imitating the longstanding and successful Federal Courts Junior Faculty Workshop and newer Civil Procedure Workshop, a number of us (coincidentally all at Big 10 schools) have launched the Administrative Law New Scholarship Rountable. The inaugural roundtable will be at Michigan State this summer; Michigan, Ohio State, and Wisconsin have committed to host the event during the next three years. The host institution agrees to pay for meals, facilities, and the travel and lodging expenses for the senior commentators, and the presenters (who were selected from a call for papers) pay their own travel and lodging. This is a terrific way to gather scholars in a field together to workshop papers and share ideas, and this format (which we copied from the Fed Courts Workshop) is pretty cost-effective. A number of other legal fields have similar events.

(8) Practitioner Events: One of the hidden secrets for administrative law scholars is the annual ABA Administrative Law Conference. The ABA Section of Administrative Law and Regulatory Practice solicits panel proposals in the spring/summer for the fall conference, and many law professors propose panels on current topics and scholarship. And many more law professors attend the conference, along with 500-1000 government and law firm attorneys. This is a terrific opportunity to bridge the theory-practice gap, and my guess is that other ABA sections have similar programming (or could have similar programming with a little nudge from professors in their field). There are of course annual conferences for the American Constitution Society and the Federalist Society, among others, that may afford additional opportunities for law professors to present their scholarship and interact with each other and other lawyers and policymakers in their field.

(9) Online Forums: Although not in-person interactions, there are a number of ways to interact online. For instance, as I mentioned last week, we just wrapped up a terrific online symposium over at Yale JREG on Peter Conti-Brown's new book on the Federal Reserve. I've participated in a number of ABA and Federalist Society teleforums on emerging issues and cases (see, e.g., here). As Richard Re documented last summer here on PrawfsBlawg, we once had a pretty vibrant discussion via Twitter about the Supreme Court's standing precedent. (I'll return to Twitter next week.) And Nancy Leong's RightsCast is worth checking out as another way for scholars to interact online about their research.

(10) Book Clubs: I couldn't compile a list of in-person opportunities to develop one's scholarship without mentioning the scholar who occupies the office next to mine: Peter Shane. I am so fortunate to have another scholar in my field at my law school. And one of the most generous scholars in my field, at that. We have many, many interactions on a weekly, if not daily, basis, but one of my favorites is our "book club" -- an idea Peter proposed shortly after I arrived. We take turns choosing a new piece of scholarship in our field to read, and then we discuss it over lunch. I've learned so much about my field, about writing scholarship, and about life during these lunches. To be sure, sometimes we spend just a few minutes on the assigned reading, and conversation quickly drifts to our own research. Not everyone is fortunate to have another scholar in their field at their school, but fortunately technology has made it more possible to have such conversations remotely.

I think I'll stop there, as I'm already over 1,000 words. These are the first ten that come immediately to mind. But I'd love to hear ideas that others have to encourage more interaction between scholars in one's field. And, as always, definitely chime in if you think I'm asking the wrong question(s).



Posted by Chris Walker on April 15, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (5)

Thursday, April 14, 2016

Remembering Dan at Harvard (Updated for Change of Venue)

Please note the Change of Venue: The entire event, including the Minow/Feldman conversation, will take place at Harvard Hillel, 52 Mt. Auburn Street. 



To sign up for Shabbat dinner in memory of Dan Markel, please sign up at http://guestli.st/404715

To make a donation in Dan’s memory, please do so at https://donatenow.networkforgood.org/danmarkel

Posted by Ethan Leib on April 14, 2016 at 04:36 PM | Permalink | Comments (0)

"Drunk Outlines": Marbury v. Madison

Some students of mine had some fun with what could be -- who knows? -- the sequel to the Hamilton! craze:  The "drunk outlined" version of the Election of 1800 and Marbury. Above the Law, take note!

Posted by Rick Garnett on April 14, 2016 at 03:48 PM in Rick Garnett | Permalink | Comments (3)

Evolving Scholarly Benchmarks?

Reposting this because for some reason the comments button was off.

I have found the Jr. Law Prawfs FAQ series quite interesting and thought I would add my own question.  What is the new normal for pre-tenure scholarly output?  How many articles (or equivalent) are required for tenure? 

I have co-chaired our Appointments Committee for two years now, and have been able to see the incredible array of talented applicants.  The rise of VAPs, Fellowships, and apparently very self-directed law students (who knew they wanted to teach before law school) has meant that many aspiring law professors have written two or more law review articles before going on the teaching market. 

So, my question is:  Does this early output impact later scholarly output once candidates become full time professors?  I would imagine most law schools have not upped their formal tenure requirements in the last ten years, so has there been an informal change/expectation?  If the formal tenure and retention standards require three published articles, does that really mean four or five now?  Has there been any noticeable change?  What should be the new normal?  And, before you respond, “it depends on quality, not quantity” and “it depends on the school,” (both are true, no doubt), let’s put some concrete numbers behind it.  How many articles did you write before tenure?  How many are average pre-tenure at your school?  And, we can assume that the quality is up to snuff.    

Posted by Andrew Guthrie Ferguson on April 14, 2016 at 03:05 PM | Permalink | Comments (3)

JOTWELL: Lahav on Prescott & Spier on Settlement

The new Courts Law essay comes from Alexandra Lahav (UConn) reviewing J.J. Prescott and Kathryn Spier's A Comprehensive Theory of Settlement (forthcoming N.Y.U. L. Rev.), which offers a broad understanding of settlement within civil litigation.

Posted by Howard Wasserman on April 14, 2016 at 12:01 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Strategic Immunity

Aaron Nielson and I just posted to SSRN a draft of our new article, Strategic Immunity, which is forthcoming in the Emory Law Journal. This is the second based on a data set of circuit court decisions dealing with qualified immunity. Aaron did a nice post about the article over at the Yale Journal on Regulation blog earlier this week. The draft is available here, and the first paper is here. Comments are welcome!

And here is the abstract:

The first rule of administrative law is that discretion can be dangerous. Although discretion is often used for its intended purposes, scholars of the regulatory process understand from both theory and experience that unintended consequences sometimes lurk in the background. This is one reason why the Supreme Court is cautious when it comes to agency discretion. After decades of preventing agencies from acting in arbitrary or even self-interested ways, the modern Court has developed a fairly sophisticated understanding of the risks and rewards of discretion and why it is essential to pay attention to incentives.

That is, unless the Supreme Court is addressing judicial discretion. Then, its sophistication all too often gets tossed aside. Qualified immunity is a perfect example. In Pearson v. Callahan, the Court granted judges confronting novel civil-rights claims maximalist discretion whether to decide constitutional questions for the benefit of the public. The intent behind this new discretion is sound: flexibility allows judges to balance constitutional avoidance versus constitutional stagnation in light of case-specific factors. What the Court forgot, however, is that discretion can also have unintended consequences.

This Article addresses perhaps the most serious of these unintended consequences: strategic behavior by judges. While the Court recognizes that administrative agencies may have incentives to use discretion in strategic ways, neither the Justices nor scholars have considered the strategic considerations that can influence a judge’s discretionary decision to clearly establish constitutional rights. The potential for strategic behavior is especially sharp, moreover, when discretion to decide constitutional questions is combined with discretion to issue unpublished, nonprecedential opinions. To illustrate this danger, this Article examines real-world judicial decisionmaking. Reviewing over 800 published and unpublished circuit decisions, this Article identifies significant “panel effects”: politically unified panels are more likely to exercise discretion to find no constitutional violation (for “all Republican” panels) or to recognize new constitutional rights (for “all Democratic” panels). Yet on mixed panels there are no differences, suggesting a collegial concurrence or a majority compromise to avoid dissent. Moreover, the decision to publish also appears to be used strategically. For instance, one in five decisions recognizing new constitutional rights is unpublished. The potential for strategic behavior — as in the administrative law context — counsels in favor of reform.



Posted by Chris Walker on April 14, 2016 at 09:03 AM | Permalink | Comments (0)

Wednesday, April 13, 2016

Jews, politics, and the next generation

I take no position on this opinion about the policy and politics of Bernie Sanders' appointment of Simone Zimmerman, a sharp critic of Israel's West Bank policies and supporter of the BDS movement, as director of Jewish outreach. Instead, let me offer the following:

Update: On Thursday, the campaign suspended Zimmerman, so it could investigate a year-old tweet in which she lambasted Netanyahu, then closed with "Fuck you, Bibi . . ."

1) It strikes me as surprising that the first serious Jewish presidential candidate (let's stipulate that Barry Goldwater no longer self-identified as Jewish) needs a director of Jewish outreach. Did Obama have a director of African-American outreach or Bush a director of Christian outreach? But Sanders' identity has not alone rallied the Jewish vote the way Obama's identity rallied the African-American vote. (Full disclosure: I am supporting Clinton because my desire to win the general election trumps both my religio-ethnic identity and my purest policy preferences).

2) It strikes me as even more odd (if not ironic) that there is a belief that a Sanders presidency would be bad for the Jews. Moreover, it seems entirely because of Sanders' apparent policy preferences with respect to Israel. This reflects what I believe is an unfortunate conflation of Judaism, Israel, and the policies of the Israeli government.

3) Michelle Goldberg's Slate piece argues that hiring Zimmerman reflects a division of policy and politics. It jibes with the preferences of the younger voters, including Jewish voters, who support Sanders and who are likely to oppose the Netanyahu government and its policies. It does not jibe with the preferences of older (and more numerous) Jewish voters, who tend to support Israel's policies, aligning more closely with AIPAC's positions on Israel (even while largely voting Democratic).

The dynamic feels roughly analogous to a similar evolution with respect to Cuba here in Miami. An increasing portion of the younger generations of Cuban-Americans (many of them first- and second-generation) are less hawkish as to Cuba and the Castro regime, and more open to normalizing relations, than their parents and grandparents, many of whom lived and suffered under that regime.

Posted by Howard Wasserman on April 13, 2016 at 07:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Ferguson's Fault Lines

Ferguson's Fault Lines: The Race Quake That Rocked a Nation, edited by Kimberly Jade Norwood (Wash. U.), has been published by the ABA. I contributed a chapter on body cameras; there also are contributions from a host of legal and non-legal academics. Recommended, as they say.

Posted by Howard Wasserman on April 13, 2016 at 01:50 PM in Books, Howard Wasserman | Permalink | Comments (0)

AALS Recruitment - An International Perspective

I received the following correspondence from Professor Dennis J. Baker, head of the School of Law at the University of Surrey. This may be of interest to some on the job market.

I thought I would bring the international perspective to your attention. This year, I attended AALS and made 10 offers....Seven of ten candidates accepted my offers and will start at the University of Surrey Law School from June to September 2016. I also recruited several people from the UK, but found the oversupply of incredible talent at AALS very useful for building up our Law School. We will attend again this year looking again to make several appointments.

Out of the 3 candidates who declined our offers, two decided to chance VAPs in the USA....However, one young star who declined our offer instead took a post in the Economics Department at at the University of Warwick in the UK.

Some of those we hired are listed on our Philosophy and Public Affairs Institute page.


Posted by Sarah Lawsky on April 13, 2016 at 01:16 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Why bother measuring the gravity of crimes?

In my previous post I argued that the factors used to measure the gravity of the crimes investigated by the International Criminal Court (ICC) could also be used to measure the gravity of crimes investigated and prosecuted in domestic systems and compare them to the crimes investigated by the ICC.  The main response I got was something like "ok, but why would we want to do that?"  Today, I will try to answer that question.

The ICC is an international organization.  It was created by states pursuant to a treaty (the Rome Statute) and membership is voluntary.  The member states then fund the court's operations through annual dues.  Dues are not divided evenly among members but are distributed according to relative wealth.  As a result, the richest member states pay the largest portion of the ICC's costs.  The five largest contributors to the ICC are thus Japan, Germany, Britain, France and Italy.  They account for nearly 60% of the ICC's dues.

Over the last several years, these rich ICC members have fought to institute a "zero growth policy," which essentially means that the ICC's five largest contributors have agreed to try and prevent the ICC's budget from rising at all for the foreseeable future.  They have justified this position by arguing both that: 1) the ICC has plenty of resources and 2) that they are unable to afford higher contributions.

The ICC and most of its other supporters have pushed back on this narrative.  They argue that the ICC does not have sufficient resources and that it should be given significantly more resources.  For example, the Prosecutor at the ICC recently released a report arguing that for the Office of the Prosecutor to conduct "adequate" investigations, it would require a significant increase in resources.  See here at paras. 14-15 (noting that this would require an increase in funding of 43% and an increase in staff of 33%).    This would, of course, mean that the big five contributors would have to shoulder a large chunk of the cost of these additional resources.

Thus, central to the question of what level of funding the ICC should have is the issue of what level of resources it needs to successfully carry out its mandate.  This is not, however, an easy question to answer.  It would be very difficult, for example, to directly model the investigative resources necessary to investigate a particular crime.  (At least, I was not able to think of a way to do this that I thought was workable.  The data necessary for this sort of approach might be out there in the records of the ad hoc tribunals like the ICTY and the ICTR, but it is not publicly available.)  Instead, my article uses a comparative approach.  It tries to understand what level of resources states devote to the investigation and prosecution of crimes of approximately the same gravity.  My hypothesis is that the level of resources that states devote to the investigation of crimes should shed some light on the level of resources the ICC could be expected to need to investigate crimes of the same approximate gravity.  We can then compare this to the resources available in the typical ICC investigation to help us understand whether the ICC's current resource level is too high or too low.

Now, this comparison between crimes of approximately equivalent gravity only makes sense if one assumes that investigative resources increase as crime gravity increases.  I have an argument in the paper about why it is that I believe that the investigative resources needed to successfully investigate a crime do increase as the gravity of the crime increases, but I won't have time to get into the details of that argument today.  (If there are questions about this in the comments, I may return to this issue in a later post.)  Note that I am not arguing that there is a perfect correlation between gravity and investigative resources, but rather that the investigative resources needed to investigate a crime will generally increase as the gravity of the crime increases.

Anyway, I see I have written 700 words again, so I will have to leave my paper's conclusions for another post.  I recognize that the question of what level of resources the ICC needs is one that probably only appeals to a niche audience, but I think it is an important question.  At least one prerequisite to the success of the ICC must be that it has adequate resources to carry out its mandate.  Thus this somewhat dry topic is important to the overall success of the ICC as an institution.





Posted by Stuart Ford on April 13, 2016 at 11:30 AM | Permalink | Comments (4)

How Should I Respond to Requests to Read Draft Articles in My Field? (Jr. Law Prawfs FAQ)

A significant part of my first few years on the faculty has consisted of reading articles from scholars in my field. Perhaps in part because I transitioned straight from private practice, I felt way behind when I arrived and took the advice of mentors to spend much of my first year just reading articles in my field -- time that, looking back, was very well spent. 

As I started in interact more in my field, however, the requests to read and comment others' drafts started trickling in and now I spend a lot of time reading and commenting drafts. I am guessing I'm not alone here. Although I've gotten faster at reviewing drafts, it still requires a decent chunk of time, and even more to do so well.

That leads to my Jr. Law Prawfs FAQ for today: Especially for junior scholars, how should one respond to requests to read drafts of articles in one's field?

The short answer, I think, is that junior scholars generally should accept the request to respond. This feels like a critical part of being a legal academic. I admire the senior scholars in administrative law who are so generous with the time to comment on drafts of my work. I still remember when Jerry Mashaw and Peter Strauss, for instance, took the time to review and comment on one of my papers. To be sure, especially as a junior scholar with a steeper learning curve and a tenure clock, it's understandable to set some limits. But healthy habits are made early.

Perhaps the more interesting question is how to respond. In other words, what type of feedback is most helpful and valuable to scholars in the field? I've received everything from general comments and broad themes to specific suggestions and even line edits. I'm just happy to receive any feedback, so I haven't focused too much on what has been most helpful to me. And I'm particularly curious if there are any best practices for aspiring and junior scholars to think about when commenting on senior scholars' draft articles in particular.

Circling back to Monday's FAQ post about increasing the chances of one's scholarship being read by folks in the field, one critical step is becoming part of the field. And reading and commenting on drafts from others in the field seems like an important ingredient. On Friday I'll turn to what I think is another important ingredient: participating (and organizing) conference/symposium events.



Posted by Chris Walker on April 13, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (5)

Tuesday, April 12, 2016

Entry Level Hiring: The 2016 Report - Second Call for Information.

This a reminder of the Entry Level Hiring Report.

If you have information about entry-level hires for this year, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on April 12, 2016 at 05:25 PM in Entry Level Hiring Report | Permalink | Comments (0)

Rejection Time

April is a happy time.  Not simply because the first rays of Spring sunshine are reflecting off my window, but because the gloomy clouds of rejection have floated by with the passing of the February/March submissions season.  Every year, I tell myself I am not going to let the rejections get to me.  Every year, it seems to turn out pretty well.  But, the process of daily rejection, of hourly email obsession, and general grumpiness are as regular as the seasons.

And maybe, just maybe, it is for the best.  Being a law professor is easily one of the best law jobs in existence.  The work is creative, meaningful, and exciting.  The job is respected and respectable.  Professors maintain a privileged autonomy and control that cannot be found in many professions.  With such an honored place in the world, one might imagine the temptations of egotism, arrogance, and elitism would corrupt us to become full of ourselves (I know…).

Which is why those first dings from 2Ls who have skimmed the abstract of a year and a half of exhaustive legal research are so important.  Those rejections remind us of the arbitrariness of life (and success).  They are humbling, random, and completely opaque.  Yet, those automatic pleasantries referencing the fact that “our article was not selected out of the 3000 articles they receive every year” teach a fundamental lesson:  life is unfair, unlucky, and life will continue if you persevere.

It is a lesson I think a lot about when I talk to students.  Why does one student get a clerkship and another does not?  Why does one get that Fellowship or dream job?  Life is not a meritocracy.  Sometimes the best student is recognized.  But, sometimes something else wins out.  Sometimes it is hustle, a well-placed phone call, or a quirky connection.  Sometimes it is just a bit of good luck.  But, through it all comes a good dose of regular rejection, and then carrying on.

So, I think there is a bit of justice in law professors spending a month facing daily rejection every year.   I think it is a good lesson in humility and resilience.  Sometimes all the work in the world results in a 7:00 am rejection (thank you Scholastica for providing the option of a fixed time for daily rejection… it helps me brace for the experience), and sometimes you meet your stated goal.  The lesson to be learned and later taught is how to face rejection and overcome.  How to look into the face of 29 of the top 30 journals rejection emails and say, “I only need one.”   

So, next time you check your email (four minutes after the last check) to see if anyone has emailed with an offer of publication and find nothing, or worse the dreaded “the journal has made a decision” email, remember that the world is filled with rejection, but the lesson we should be embracing and teaching is resilience.       

Posted by Andrew Guthrie Ferguson on April 12, 2016 at 01:56 PM | Permalink | Comments (0)

Monday, April 11, 2016

Reality Checks

Over the last few years, I've taken to writing about emerging tech and criminal law.  As a childhood fan of science fiction, it's fun to get to think about technologies that are similar to those I read about as a kid.  In particular, I have a blast thinking about how the law will or should handle what I predict will be very-near-future technologies.  So, for instance, I've written about algorithms taught through machine learning techniques to identify individuals who are likely to be presently or very recently engaged in criminal activity (e.g., an algorithm that says that that guy on that street corner is probably dealing drugs, or that this on-line sex ad (and whoever posted it) is probably related to human trafficking).

At the time I wrote the piece, there were no algorithms that exactly fit what I describe.  There were computer systems that identified individuals in real-time as they engaged in activities that human operators had already decided correlated to criminal activity, and there was research ongoing using machine learning to identify activities that correlate to criminal activity, but no one had put the two together.  As I saw it (and perhaps it is the sci-fi fan in me), it was just a matter of time before the two came together to create the kinds of algorithms I discuss.

A source of frustration for me when I presented on the topic, then, was that inevitably one of the first questions I'd get would be whether the technologies I discussed really exist.  I'd explain what I just said in the prior paragraph, but nonetheless I'd feel defeated in some sense, like my legitimacy had been undermined.  And I can see many reasons for the questions: curiosity, to understand the technology better through an example, and skepticism about the validity of discussing something that doesn't exist, to name a few. 

But the questions still bothered me.  And they got me thinking:  To what extent should we talk about the legal implications of things that we believe are about to happen, but which haven't happened yet and therefore may never happen?  What is our obligation as scholars to prove that our predictions are correct before engaging in legal analysis?  Is this obligation higher in some areas of law, like criminal procedure, that traditionally have not been consistently forced to adapt to technological developments, and lower in areas of law, like intellectual property, that have?

Posted by Michael Rich on April 11, 2016 at 12:16 PM in Criminal Law, Science | Permalink | Comments (8)

A Jot on Gedicks, Helfand, and the Value and Limits of "Free Exercise" Doctrinalism

Howard is much better about putting up links to "jots" from his corner of Jotwell. Here's a jot from the constitutional law section, by me. In keeping with my urge to mess with the basic format, it's on two articles: Frederick Mark Gedicks's forthcoming article 'Substantial' Burdens: How Courts May (and Why They Must) Judge Burdens on Religion Under RFRA, and Michael Helfand's Identifying Substantial Burdens. Both are excellent pieces and both contain what may, depending on your definition of the word, be substantial discussions of what was thought likely, before oral argument, to be (and may still turn out to be) the principal issue in Zubik v. Burwell. The jot treats both articles as evidence, and exemplars, of a recent and valuable increase in doctrinal scholarship around the Free Exercise Clause and RFRA interpretation, as opposed to Free Exercise theory. I argue that the articles also demonstrate the limits of doctrinalism in this area (and perhaps more broadly). Here's a snippet:

Inevitably, however, both articles also show the limits of doctrinalism—perhaps in general, and certainly in this field. Not all doctrinal scholarship, to be sure, will be subject to the same severe limitations. In particular, one can imagine, and there has been a recent increase in, scholarship about doctrinalism. Scholarship recommending reforms in current doctrine, though, inevitably requires some sense of the metric against which those reforms will be measured and the values they are meant to serve. In a stable field or one with a highly specific statute, there may be substantial consensus about the relevant norms and values. But law and religion is not a stable field. The constitutional text is old and general; RFRA itself contains broad terms like “substantial burden,” and incorporates the highly contested caselaw of the Free Exercise Clause. And disputes in the field today suggest division over basic values and over the allocation of power between church and state, questions that may have been answered by prior cases but cannot settle them. Doctrinalism can channel such questions but it can hardly escape them. Questions of theory, and of policy, which also involves theory, are unavoidable here. . . .

None of this, of course, is meant as a fatal criticism. Law must be implemented as well as theorized. Too abstract a focus on theory will not provide us with adequate tools to implement that theory; and too frequent a recourse to first principles will deprive the law of stability and predictability, and steer judges’ and scholars’ time and talents away from the kinds of technical questions at which they have a comparative advantage. It makes sense that law—scholars’ law and judges’ law—will sometimes engage with higher-order questions, but that its primary development will often be smaller and more doctrinal. Questions of implementation are important, and a body of good legal scholarship can add considerably to the improvement of doctrine. Both Gedicks and Helfand contribute mightily to this task in the area of substantial burden doctrine. Their articles are both models of good work in this field. In deciding Zubik, I would not be surprised if different factions on the Court appealed to one or both articles. In the end, though, you cannot build a better mousetrap unless you have a sense of what the goal of trapping mice is, and what balances must be struck in doing so. Zubik itself, and both articles, turn on larger questions of theory, policy, and power that are unanswerable by appeals to doctrine itself. Both articles are well worth reading, and neither can tell us how to choose between them.

As I say in the jot, both articles are well worth reading. (So is another article written on essentially the same topic and at about the same time, Chad Flanders's Insubstantial Burdens. As they say in Shakespeare in Love, good title!)    

Posted by Paul Horwitz on April 11, 2016 at 11:12 AM in Paul Horwitz | Permalink | Comments (0)