Tuesday, May 31, 2016
Is Marital Trust Overrated?
A second very interesting presentation from the International Family Law Scholars conference I attended last week was Jill Hasday's presentation on her forthcoming book about deception. I had not really thought about it before, but deception, specifically fear of deception and punishment for deception, is a significant theme running through many family law cases and statutes. I look forward to reading the book when it is published and I think I was particularly interested in the topic, because discussions of mail order marriage often bring up concerns about deception.
In Buying A Bride, I don't focus on deception specifically. However, the fear that the intended spouse is not being honest about their background or marriage motives is a fear routinely expressed by both men and women considering mail order marriage. Therefore, what is so interesting to me about Hasday's project is that it demonstrates that deception and the fear surrounding deception is not something unique to mail order marriage rather, it is an aspect of many types of intimate relationships.
In mail order marriage, the fear of deception is heightened because the unknowns surrounding the intended spouse are obvious. Men worry that the women are using them for their money or citizenship while women fear the men just want sex or power. American law is sensitive to these concerns, particularly with regard to the women, and offers a number of protections aimed at reducing the risks of mail order marriage. For example, mail order brides are provided with information about their prospective husbands such as their criminal history and if they have sponsored any other mail order brides. In addition, the law protects against abuse by ensuring that abused immigrant wives are able to self petition for permanent residency. This law enables the women to leave their abusers and still remain in the United States. Men using seeking mail order marriages marriage don't have as many specific protections as the women but they often use contract law, specifically prenups, to protect their assets in the case of divorce.
I think it is possible that the uncertainties inherent in mail order marriage may actually make deception less likely than in other types of relationships. Men and women considering mail order marriage are well aware of the fact that they are marrying a stranger. As a result, these couples may be more vigilant and thus less likely to be fooled by a partner's deception than spouses who meet the traditional way.
One of the interesting points that Hasday made during her presentation was just how common deception is and how bad spouses are at detecting it. In some ways, this is not surprising. There are strong disincentives, both legal and social, for being too mistrustful of one's spouse. In general, we expect spouses to trust each other and the law tends to discourage suspicion. Mail order marriage however is an exception to this rule.
Ostensibly, the reason we give mail order brides, but no other potential wives, information about their intended husband is that these couples do not have the luxury of a long courtship period during which they can get to know one another. However, plenty of domestic couples get married quickly and they are not provided with similar information. When I mention this fact to people, they typically respond that it is easier for two Americans to check up on each other because each has a better understanding of American law and culture. This is certainly true in theory, but I am not sure it is true in practice. How many Americans actually do a criminal background check on their boyfriend or girlfriend? I think most people probably do one google search and call it a day.
In the past, an unwillingness to deeply research one's partner didn't matter than much. Most people married men and women they met through their communities and thus, they could rely on third parties to vouch for the person's trustworthiness. Today, the rise of online dating has changed that immensely. The majority of single Americans have attempted online dating and it is now considered neither shameful or strange. In most respects this is good, but it may also mean that online couples are now too trusting.
Like online dating, mail order marriage rates are also increasing. However, unlike online dating, mail order marriages continue to be viewed with high levels of distrust. Exact numbers regarding these relationships are hard to pin down, (many mail order marriage couples prefer not to disclose how they met still), but it appears that the divorce rate for mail order couples is not greater and is probably lower than the rate for couples who meet other ways. Given this fact, Hasday's presentation made me wonder if perhaps, the wariness with which mail order couples approach their marriages may actually be a benefit for the long term stability of the relationship. If the average couple approaches their relationship with too much trust than maybe they are more likely to fail to uncover the the deceptions that could ultimately doom the relationship. If, on the other hand, a healthy does of skepticism helps people weed out untrustworthy marriage partners than perhaps marriages that begin with a little less trust are actually more stable. It's counterintuitive, but interesting to think about.
So, What Exactly is the ABF?
Thanks to Sarah and Howard for re-inviting me to post about the American Bar Foundation (ABF). Many PrawfsBlawg readers may already know what the ABF is and what it does, but since I became the new ABF Director back in the fall, I’ve learned not to take anything about the ABF for granted. So, let me begin by describing what exactly the ABF is.
Since I’m a historian, let me start with a brief history. The ABF was founded in 1952 by the American Bar Association (ABA) to be an independent research institute for the empirical study of law. The founding fathers (and they were unsurprisingly all men) were leading ABA members, including then ABA President Robert G. Storey. They all believed the organized bar ought to have a research affiliate that studies issues relevant to understanding how the law works on the ground.
But more importantly they also believed that the American legal profession had a public duty to help improve the “machinery of justice,” as they put it. And one way to do that was to create a research center dedicated to the objective and independent study of law, legal institutions, legal processes.
Over time, the ABF has become one of the premier research institutes for the empirical and interdisciplinary study of law. Although it is often confused as being a part of the ABA, the ABF has consistently been an autonomous and impartial research institute. Since I’m also a tax law scholar, let me point out that the ABF is a 501(c)(3) non-profit; whereas the ABA is a 501(c)(6), which means it is a non-profit “commercially-oriented” organization. The ABA, as the official voice of the American legal profession, is permitted to lobby government and engage in political activity, whereas the ABF is not. Contributions to the ABF are also tax-deductible, but those to the ABA are not.
More colloquially, most people who know something about the ABF often describe it in a number of ways. For some, it’s a kind of law school without law students, or something akin to think-tank focusing on law. Think of it as a cross between the Russell Sage Foundation or the Institute for Advanced Study and the Rand Institute for Civil Justice. Given our roots in the legal profession, the ABF is not quite a pure science research institute, but neither is it purely an applied ABA “lawyer’s workshop.”
Like the other research institutions mentioned above, the ABF has a research faculty that consists of a group of full-time researchers, mainly social scientists and legal scholars, and a group of joint-appointees from Chicago-area schools. This group of research faculty conducts empirical and interdisciplinary research on law, writ large. In my next post, I’ll describe in greater detail some of the classic and recent ABF research projects.
Monday, May 30, 2016
More small developments as the season moves towards the inevitable vote in the House.
Selina must choose two failing banks to bail out and picks one of them because it is based in Illinois, a state she needs. The show still has her treating the House vote like a mini popular vote, with individual House members voting the state's interests rather than the party line.
Along those lines, Jonah's congressional campaign turns the corner when he begins criticizing the President and her poor performance. If he wins running on that platform, how might it affect his vote in the House? (Again, this is assuming he is running to become the new representative-elect for the next Congress). [Update: Jonah Ryan for Congress has a website]
Finally, we see the next step in Tom James' plan, as he is shown meeting with the Speaker of the House and the head of the lobbying firm Dan worked for (and for which James appeared to be shilling last week). Clearly James is trying to manipulate the House vote. But how? To formally get his name in the House election, he needs that faithless elector, but we do not know what has been happening with the electors. If James is trying to create a stalemate in the House as the way to become President, I go back to my original argument that he only acts as President until the House breaks that stalemate, so this seems a constitutionally unsuccessful move (and one I hope the show does not build the entire season around).
Sunday, May 29, 2016
Documents unsealed in Trump University lawsuit
On Friday, Donald Trump spent more than ten minutes of a campaign rally to criticize (and highlight the ethnic origin of) the judge in a class action against Trump University, mainly because the judge had issued various rulings against the defendant, a clear (according to Trump) indication that the judge was biased and should recuse. That same day, the judge has ordered unsealed a number of documents presented to the court on a class-certification motion. The court emphasized the public interest in the case (which suggested the need for public access to the documents), noting Trump's status as the front-runner for the Republican presidential nomination and that Trump had "placed the integrity of these proceedings at issue" in that race.
I guess judges do have ways to protect themselves against political attacks.
Saturday, May 28, 2016
Thiel, settlement, and third-party funding
First, it derides the ACLU/NAACP analogy (also offered by Eugene Kontorovich) as "ridiculous." That is correct to the extent the ACLU or NAACP are not motivated by private vendettas. But the comparison works at the broader level of someone with an agenda (whether personal or ideological) helping someone else litigate their claims. And the fact that the agenda is personal rather than ideological should not matter. Public-interest organizations are no more consistent than individuals in their positions, as will no doubt be demonstrated when various political groups go silent about President Trump's executive actions.Second, it argues that Thiel 's "Ahab-like mission" prevented the case from settling, which would have been the better solution to properly balance free speech and privacy concerns. But the prevailing view is that too many cases settle too easily, often under pressure from judges pushing settlement, and often confidentially, thereby depriving the public of knowledge of the case or its outcome and making it harder for repeat-player defendants (such as Gawker) to be held accountable. Moreover, to the extent Thiel's funding hand created a conflict between his interests and a settlement that would have been best for Hogan, this case starts to look quite a bit like NAACP-run impact litigation, where a settlement that might be best for the individual client is not consistent with the funder's long-term ideological or institutional needs and goals. So the non-settlement undermines the supposed ridiculousness of the NAACP/ACLU analogy--the potential for party-funder conflict looms in both.
Third, the focus on settlement as the means to balance speech and privacy and serve the public interest (by making Gawker pay for a violation while not being put out of business) is nonsense. We do not strike the balance by settling individual cases, although the parties themselves might. We strike the balance in the legal rules themselves, protecting speech against civil liability for invasion-of-privacy until the speaker crosses some line (the location of which will be the issue on appeal in this case). If Gawker crossed that line, there is no balance to be struck; it should be on the hook for all the harm it legally caused by violating Hogan's rights. And if that harm is so great that it forces Gawker out of business, so be it.
Finally, the post argues that Thiel's supposed deterrence goal is undermined by the fact that he financed the lawsuit in secret, because deterrence only works if the punishment is publicly known. But this makes no sense. It is not Thiel's funding efforts that punishes Gawker, it is the $ 140 million judgment that Hogan achieved through litigation funded by Thiel. And that judgment is publicly known. And that judgment (if it stands, which I do not believe it will) will have a pretty strong deterrent effect. Thiel's identity is not necessary for deterrence. Although, to the extent we are concerned about anonymous funding, Simona Grossi's argument about transparency in funding offers a solution.
Friday, May 27, 2016
Litigation financing and the First Amendment
I wanted to share two takes on the news that tech billionaire Peter Thiel has been funding Hulk Hogan's lawsuit against Gawker Media. Simona Grossi (Loyola-LA) argues there is nothing inherently wrong with Thiel financing someone else's litigation, which represents a different type of third-party litigation financing, although she suggests that due process may require transparency in such funding arrangements.* Slate's Mark Joseph Stern argues that the problem is not Thiel funding the litigation, but that the litigation is possible because of elected state judges and state privacy torts that may not sufficiently leave room for free speech.
[*] In discussing litigation financing, Grossi mentions public-interest organizations providing free/reduced-fee representation. But she does not mention the role of attorneys' fees for many of these organizations, which affects how that financing model operates. Of course, the court knows when attorneys' fees are potentially in play, so any transparency concerns are addressed.
Both argue that Thiel's funding activities are protected by the First Amendment, although for different reasons. Stern finds support from NAACP v. Button and constitutional protection for ideological litigation, while Grossi finds support in an analogy to campaign finance. The answer, I think, is a combination of these.
Button does not do it alone, because the case was less about the NAACP financing litigation than about it soliciting clients to bring litigation (financed, obviously, by the NAACP, but that was not the focus in the case). Plus, the NAACP was, in some sense, seeking to vindicate its organizational rights (or those of its members) through litigation. It is harder to conceptualize Thiel as vindicating his own rights. While he benefits from destroying Gawker, it is only in the way that everyone benefits from the deterrent effects of tort liability (either because Gawker stops publishing mean things or because Gawker stops publishing at all). This seems different than the NAACP desegregating the schools, where the precedential and remedial benefits of a judicial declaration of the unconstitutionality of segregated schools are more direct. That distinction also may relate to the litigation financed--challenges to the constitutional validity of state laws of general applicability as opposed to individual tort suits for damages against a private entity.
But Button does some work for the campaign-finance analogy. Money is not speech. But speech costs money, so restricting the money that can be spent on speech necessarily limits speech.** Under Button, litigation is First Amendment activity.*** It follows that spending money on litigation also must enjoy constitutional protection. That does not get us all the way there, obviously. But it at least forces Thiel's critics to identify what makes this financing model different and uniquely harmful and to show why any harms cannot be addressed in other ways (such as through the disclosure that Grossi suggests).
[**] As a general proposition, even critics of Citizens United and current campaign-finance doctrine would recognize that, for example, government could not limit the amount of money a company can spend on (truthful non-misleading) advertising or on printing its newspaper or magazine.
[***] The Court does not specify whether it is speech or petition activity, although it should not matter. Petition activity costs money, just as speech does.
Lost in much of the hand-wringing is that Thiel's efforts, at least with respect to Hogan, will likely fail. It seems unlikely that the judgment against Gawker will stand (in light of both First Amendment considerations and the trial court's evidentiary rulings), certainly not in the ridiculous amounts imposed. Of course, Thiel's goal may have been simply to force Gawker to spend millions of dollars on its defense, which it has done, even if Gawker does not also have to pay millions in damages. If so, the answer may lie in fee-shifting, although drafting a fee-shifting rule without it turning into "loser pays" will pose its own challenges.
Opportunities for Feedback on Scholarship
Yesterday, I returned from the Eighth Annual Junior Scholars-in-Intellectual Property Workshop (JSIP) at Michigan State University College of Law where I received excellent feedback on a forthcoming paper. The workshop, organized and hosted by Adam Candeub and Sean Pager, pairs each junior scholar with two more senior scholars who carefully read and critique the papers. Because the workshop is small, all attendees read the papers and provide additional comments. This was the second time I attended JSIP (and, unfortunately, the last as a "junior" scholar). Like last time, I left the workshop feeling very lucky to have had the opportunity to get such substantial and helpful feedback on my work.
The Junior Federal Courts Workshop, which has a similar format as JSIP (although larger), is another conference I've participated in more than once, and have gotten really good comments on paper drafts. Since it can be difficult for new scholars to determine which workshops, conferences, roundtables, etc. are the "best" in terms of feedback, I thought I'd ask the PrawfsBlawg community to weigh in on that question and share thoughts and experiences.
Marriage may not be not for everybody, but property law is.
I recently got back from a fascinating conference hosted by the International Association of Family Law (ISFL) and I wanted to write about an interesting presentation given by Katrine Fredwall from the University of Oslo, Norway. In Norway, as well as most of Western Europe, couples are increasingly choosing long term cohabitation over marriage. In many of these countries, cohabitation rates are over 60%. In the United States, cohabitation rates are not nearly as high, but they are increasing here as well. Consequently, considering how countries like Norway choose to address the legal implications of cohabitation may provide insight into how the US should address our own growing rates of cohabitation.
In her presentation, Fredwall explained that a few year earlier, she had been asked to suggest rules addressing how the property of long term, cohabiting couples should be divided at the end of the relationship (either because of death or breaking up). The idea that the property of cohabiting couples might be considered jointly owned is a relatively new idea. At the same time, joint ownership of marital property and the division of marital property at divorce is well established. In fact, the ability to have the courts recognize both spouses' right to a share of the marital property is sometimes cited as one of the biggest legal benefits of marriage. Consequently, it makes sense that as cohabitation replaces marriage, some of marriage's legal benefits may need to be transferred to cohabitation.
In the United States, the titled based approach to property division has long since been abandoned. This means that most marital property, i.e. property acquired during the duration of the marriage, is subject to a relatively equal division between the divorcing parties. In some states, the likelihood of a 50/50 split is higher than others but in general, a divorcing spouse can expect to leave the marriage with about half the marital property. Moreover, this property division occurs regardless of which spouse actually purchased the property. Unmarried couples do not have this protection thus, as increasing numbers of couples enter into long-term, non-marital relationships, there are reasons to consider whether these couples, at least with respect to property division, should be treated more like married couples
In South Carolina, where I live, the legal solution to unmarried couples that behave like married couples is common law marriage. Common law marriage in South Carolina is particularly interesting because it essentially makes marriage the default for cohabiting couples. Although the South Carolina Supreme Court has held that a couple cannot unwittingly find themselves married, there is significant case law holding that the existence of a common law marriage may be inferred from evidence of a well established and long-continued cohabitation. In addition, this is true even in the face of testimony that no express agreement was ever made. Consequently, South Carolina couples wishing to avoid marriage while cohabiting need to be explicit and vocal about their non-marital status.
According to Fredwall, a version of this type of common law marriage opt out approach is what the Norwegian government initially devised to deal with the issue of property division for cohabiting couples. Cohabiting couples would obtain an interest in each other's property unless they specifically agreed their property would remain separate. Surprisingly, this solution was not popular. According to Fredwall, as soon as the regulation was enacted the complaints started. Then, in order to figure out why this solution was unacceptable to so many cohabiting couples, Fredwall began examining cohabitation more closely. What she found explained why a one size fits all approach to cohabitation is unwise.
According to Fredwall, there are primarily three types of cohabiting couples; young and childless, older and childless (including couples who met after their children were grown) and couples raising children together. According to Fredwall, the first two groups think of property ownership very differently than the third group. Specifically, couples in the first two categories primarily think of their property as separate and consider it owned by the person who purchased it. However, couples in the third group are much more likely to think of their property as jointly owned. Based on these findings, Fredwall stated that only the child rearing group should be subject to a property sharing default and that two childless groups should be presumed to own their property separately unless they indicate through contract, or other means, an intent to share.
Fredwall's presentation was interesting and intuitively, it makes sense that these different groups of cohabiting couples might have different assumptions about their property ownership. In the United States, cohabiting couples are usually presumed to hold their property separately. However, perhaps the decision to jointly raise a child should change that presumption. Raising a child together makes cohabiting couples more like a traditional married couple and thus, possibly more suited to having their relationship governed by laws similar to those applicable to marriage and divorce. In addition, treating these couples more like divorcing couples, at least with regard to their property, also makes sense from a practical standpoint. It is much harder to keep finances separate when you are jointly raising a child. Unlike childless couples, where each person is able to purchase separate property with separate money, parenting couples spend a significant amount of their separate money on their joint child. Consequently, having a legal regime that will recognize and protect such couples makes a lot of sense. Although the United States is not as focused on the protection of cohabiting couples, Fredwall's presentation convinced me that states should start paying more attention to cohabitation, particularly to how unmarried, cohabiting parents may require a different set of protections.
Thursday, May 26, 2016
As Howard writes below, all of us today are anxious to learn more about the developments in Dan's murder investigation. This may take a while but we are grateful that it finally looks like there is movement. For those heading to LSA NOLA next week, plans are underway for a MarkelFest gathering. Stay tuned. Meanwhile, on this day when we are anxious to know more, but when we also know that nothing will bring back Dan, I wanted to share here, on the blog he founded and with the community he knitted together, the words I said at Dan's memorial last month at Harvard.
Dan our beloved friend – ʻOlam u-meloʼo– a world in its entirety, full of life, radiating energy and warmth, building friendships, spreading love, creativity, and joy.
Dan and I knew each other here in law school but our friendship truly began as we began our teaching careers. All of us newbies, baby-professors – prawfs spelled R-A-W as Dan coined us – were in many ways raised by Dan. Dan was our peer but he was wiser and he realized early on what is important. He taught us to speak our minds, to write more and to write less, to think fast and slow, to experiment – to write differently, in different mediums and style – to write articles but also books and blogs – and to embrace broader audience. To theorize but to connect with practice. He helped us move beyond conventional anxieties of tenure and hierarchy and instead care about the ideas and the research and the teaching for their own sake, to care about building our institutions, contributing to our community, energizing our student, in the class and beyond, enriching our minds through engagement and conversation, even or especially if that meant taking risks and even if it meant that sometimes you get it wrong or imperfect.
And Dan was brilliant. A brilliant scholar, a gifted writer, a fearless thinker. He knew how to capture the essence of a difficult topic, to understand the underlying logic of current debates, and he pushed us all to fine-tune our thinking. He knew however that more important than any one piece of scholarship, however groundbreaking and well-received, are the exchanges and friendships among colleagues. He also understood that intellectual engagement cannot be done right without heart, without knowing the people and lives behinds the theory and concepts.
And so the Markel network grew. We absorbed and internatlized his sense of community and, with Dan as our leader, our glue, we connected. Dan’s generosity, with his time, his thoughts, his wisdom, with his friendships from the many paths he took all around the world, was infectious. His warmth and openness were irresistible. Dan knew everybody and he wanted everyone he loved to know each other. I know that many of us here today would not know each, surely not be close as we are, if Dan had not introduced us. A month before his death, I received a card that a contribution by Dan was made in my name to Mazon, a nonprofit organization working to end hunger among people of all faiths in the United States and Israel. Every end of the semester, Dan invited his students to eat at his house. He cooked and invited people to meals, making sure no one is left without a home in the holidays. These little acts of kindness and bonding were typical and widespread.
In all of these interactions, Dan taught us that we can, indeed should, have fun in our serious endeavors, and magically he turned professional ventures into team adventures. He expanded for us conferences from the lecture room to the hallways, the restaurants, to the Sabbath dinner, to his famous happy hour, now called the Markelfest, which continues on, in his memory.
Dan lived life to the fullest: he loved learning, he loved trying out new things, travelling, meeting new people. He enjoyed practicing his Hebrew with me – he was a little shy when it came to speaking but his Hebrew was much better than he would admit and I remember him coming to professional talks in Israel that were completely in Hebrew and challenging himself to participate in the discussion. He even let me drag him to yoga classes – and he got into those twisty poses - though it wasn’t exactly his thing.
The last time I saw Dan was in Tel-Aviv the winter before he died. The same evening, he landed, after a very long flight, he came to my birthday party and danced through the night, wearing his Batman T-shirt. A few days later he came to my parents’ house for the memorial of my brother Danny who died at the age of 18 while serving in the Israeli army. In happy moments and in sad moments, Dan was there for you and he moved gracefully and naturally between the professional and the personal, the serious and the funny, the heartbreaks and the joys of life.
Most of all Dan loved his boys. Ben Ben and Linc, your Abba talked about you constantly. He loved taking you to Canada to visit your grandparents and your aunt. He was proud of you and protective. He fought to spend as much time with you as possible. On day he didn’t take you to day care, he made sure to come to the day care and have breakfast with you. When you weren’t together he missed you terribly and made sure to skype with you and always wish you goodnight. He had so many plans for you. The last time we talked Dan was full of excitement. We were on different continents but he video-skyped to show me the beautiful beach house he and Amy were staying at in New York. He was as usual bragging about the boys and was talking about all the fun things he was planning for summer. He was in love and he was happy. Dan, Achi, shalom haver, naamta li meod, we miss you every single day.
Arrest in Dan's death
As many of you know doubt have heard, Tallahassee Police have announced an arrest in Dan's death. Sigfredo Garcia was arrested yesterday evening. The probable cause affidavit for the murder charge has been sealed and the investigation remains ongoing. TPD declined to give further details at a press conference this morning.
We have written very little here about Dan's death (as opposed to about Dan himself) to avoid the speculation and general b.s. that has surrounded this tragedy. We are happy to write about genuine news and may occasionally check back in as the case progresses.
Comments on this post are closed.
Wednesday, May 25, 2016
Frank Easterbrook, the First Amendment, and the Chicago Cubs
My colleague calls this case the trifecta. Interestingly, news reports (BNA, NLJ, etc.) have focused on the court of appeals affirming the denial of the preliminary injunction and rejecting the argument that the flat ban on sales on the adjacent sidewalks violates the First Amendment. But the court spent a lot of time on possible First Amendment defects in a related ordinance requiring all peddlers to be individually licenses, except those selling newspapers. The court questioned both the exception for newspapers under Reed v. Gilbert and the licensing requirement as a whole, to the extent it disadvantages a small publication that relies on individual part-time sellers. The opinion offers the plaintiffs arguments to make in moving for a permanent injunction on remand.
And Easterbrook could not resist starting with this line: "The 2016 season is under way, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal."
I Desecrated a Bluebook, in Public
So when the end of the year rolled around we put together our “Law Revue.” A few of us did a take on Les Miserables designed to poke fun at what I will call the culture of Bluebook idolatry. You can imagine how it went: Valjean is in prison for improperly italicizing an ellipse; Javert is the nazi editor who relentlessly hounds Valjean for his sloppy bluebooking; to escape Javert’s tyranny, Valjean disavows the U.S. legal academy, moves to Canada, and becomes an interdisciplinary legal studies professor. At this point in the play, just as Hugo’s Valjean tears up his yellow parole ticket, our farcical Valjean tears up a Bluebook.
We had about ten students in the play, and when I suggested at our first (and only) rehearsal that Valjean would destroy a Bluebook, you should have seen their faces. I honestly do not think that proposing to destroy a bona fide religious text would have elicited a stronger reaction. They were aghast; dumbfounded; in terror, awe, and shock. Tear up a Bluebook? HOW COULD YOU?
The ultimate performance went well. We had some terrific singers and what I thought were some decent lines (Fantine, lamenting how her RA had promised to Bluebook all her footnotes but abandoned her on the eve of submission, sings “I dreamed a dream in time gone by / when hope was high and ideas worth writing / I dreamed my piece would place so high / I dreamed my offers would be exciting”). Alas, the audience did not laugh quite like I expected. But when Valjean tears up the Bluebook? Riotous applause. To the students in the audience, it was the skit’s psychological climax.
What is it about this book? Silly me, I thought it was nothing more than an editing guide. But in the contemporary academy it somehow morphs into a powerful and multi-faceted symbol: of success, or oppression, or ennui. We suggest to our students that law review is the pinnacle of law school prestige, and then they find it to be largely administrative work. Is it me, or are edits at even the top law reviews growing increasingly tedious, unreasonable, and utterly detached from the article’s real substance and importance? I am reminded of Thomas Merton’s account of the ladder we spend our lives climbing, but upon reaching the top realize that we’ve leaned it against the wrong wall. Seems to me that we, as legal educators, should help our students pitch their ladders more meaningfully.
And how did our skit end? Valjean adopts Fantine’s orphaned manuscript, finishes the footnotes and, having come to terms with the legal academy (singing "Who Am I?"), places it in the top 25.
Anatomy of an Anti-Corruption Revolution
What does a meaningful anti-corruption revolution look like? I’ve already asserted this month that what’s going on in Brazil is best understood as a success story for anti-corruption reforms and the rule of law, if not for democracy itself. I suppose I should defend that claim.
The story begins about ten years ago, when optimism in Brazil, economically and politically, was at an all-time high. But a series of events would precipitate major change. It began in 2005 with a now-seemingly-miniscule (though at the time, substantial) vote-buying scandal called Mensalao. Brazil then began a long-slow decline into the present recession. In the context of these political and economic turns for the worse, Brazil was chosen to be one of only three countries to host the world’s two most expensive athletic events back-to-back: the FIFA World Cup and Olympic Games (the others being Russia, who is doing so now, and the U.S., back in the 1990s). The last straw was the government’s decision to increase fares on subsidized public transportation. That’s when the widely publicized protests began, which concerned the misuse of public funds.
In this context, Brazil enacted four major statutes. In 2011, it adopted major procurement reforms, and an equivalent of the U.S. Freedom of Information Act. Then in 2013 came the two biggies: the so-called Clean Companies Act, which imposed corporate liability for official bribery, and a RICO-style organized crime bill that created a new obstruction of justice charge. Long story short: these laws, working together, have allowed enforcement authorities to expose and prosecute systemic corruption. In other words, in response to public protests about government corruption, a democratically elected body enacted a series of reforms that are now being used to root out corruption and hold both public and private officials accountable. This, I submit, is precisely how an anti-corruption revolution is supposed to work.
If you want the longer version of this story, see our ebook.
Tuesday, May 24, 2016
Trusts, religious paraphenalia, and freedom of the church
I am a week late to this decision from Judge McConnell of the District of Connecticut, resolving a dispute between two congregations over ownership of a pair of historic rimonim (the deocorative bells that adorn a dressed Torah). The opinion spends 40+ pages lovingly tracing the long story of Touro Synagogue and the Jews of Newport, R.I., including the 1790 letter exchange with George Washington and with several divergences into the Iberian Inquisition and differences between Sephardic and Ashkenazi practices. The opinion is a wonderful read as a judicial summary of a piece of American-Jewish history. The central legal issue was the relationship between the current Newport congregation and a congregation in New York that formed in the early 1800s, when most of the Newport Jewish community left for New York.
My question, for those who know such things (looking at you, Rick and Chris Lund) is whether the court successfully avoided any freedom-of-the-church problems. Because the structure of Jewish congregations is not religiously compelled, the questions (what corporations were formed, trust relationships, trustee conduct, existence of a bailment) could be resolved on purely secular grounds. I caught one point in which the court drew an inference (that the rimonim were received at the same time as some torahs, because the items travel together) that is based on some religious idea. But mostly the court seemed able to focus on general legal principles, without touching on any point of obvious Jewish law.
Are there First Amendment problems in this decision? Is this case so different from deciding which of two competing groups is the "real church" arguing over property, the type of cases courts are not permitted to hear?
Monday, May 23, 2016
Should the IOC Require Host-Nation Anti-Corruption Reforms?
There’s a joke in Olympic law circles: the host-nation organizing committee has 100 lawyers, and 99 of them do IP. The International Olympic Committee cares a lot about protecting its own and its sponsors’ intellectual property; no surprise there. But you may be surprised to hear that the IOC has turned its attention in the last decade or two to a number of issues that generally concern ethics or justice. In the various legal documents involved in the Olympic Games, you’ll see nods (of varying degrees) to doping, environmental concerns, and even human rights. This is not to say that the IOC places a premium on these issues; far from it. But their importance is at least acknowledged.
Not so with host-nation corruption. It can be said that corruption in international sport has three dimensions. The first is competitive corruption (doping, match-fixing, and the like). The second is corruption within the international governance organization (FIFA, IOC). These two have received enormous attention in the last decade or two, including from the IOC. But there is a third dimension of corruption that the international governance organizations have, to date, largely overlooked: official corruption within the host nation. For more on this, see our ebook.
What if a commitment to adopting meaningful anti-corruption reforms was a criterion for awarding the Games? What if a country could not win the bid without entering into enforceable agreements to reasonably deter its own official corruption? This is not to say that we should only award the Olympic Games to countries that already tend to enforce anti-corruption laws; if we did that, the movement toward awarding bids to developing countries would instantly stall and we’d be hosting the Games in European and North American countries almost every time. But what if a country were required to do what Brazil is now doing, and take appropriate steps to address its own official corruption? This may be an idea whose time has come.
Last week I posted about the odd theory of second degree assault being played out in the Baltimore trial of Edward Nero, one of the six officers charged in the rough ride killing of Freddie Gray. Today, not surprisingly, given the lack of evidence presented by the prosecution, Nero was acquitted by a judge. His fellow officer, forced to testify by the prosecution, stated that Nero was not involved in Gray's arrest. Now, police are famous for testifying falsely when it behooves them, with no consequences in civilian trials. But it's hard to imagine that Miller (the testifying officer) would inculpate himself at the expense of his colleague. Regardless, the judge had no choice but to acquit Nero, at least on that charge.
Would it be better if the judge had convicted Nero, not based on evidence, but because the criminal justice system is horribly rigged in favor of police and the privileged? In my opinion, a conviction with no evidence does more to harm accountability for police and especially for political DAs than an acquittal. But I can certainly see how this might be viewed as one more instance of a white police officer's liberty taking precedence over the life of a young African American man. That said, the longer view is that all defendants should get the same opportunity to defend themselves against charges brought by overly zealous prosecutors that the police do. This is also the thrust of a couple of articles I have written. Holding police accountable when they make unfair illegal arrests is a prosecutor's duty in all cases, but so is prosecuting only cases where evidence is reliable and where a suspect is criminally culpable, both legally and normatively (see Josh Bowers' fantastic article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute).
On the other hand, the press release put out immediately by the Baltimore FOP undermines any intelligent or nuanced discussion of Nero's criminality by suggesting that he and all the officers charged in Gray's killing are innocents wrongly persecuted by an overly zealous prosecutor and unfair criminal justice system. Nero may not be criminally liable, but that certainly doesn't mean he did "nothing wrong." Moreover, this tone deaf attitude in the face of personal and cultural grief on the part of over-policed under-served communities, is exactly the kind of attitude that permits police to make illegal arrests every day with no consequence.
The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.
Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.
Details (and spoilers) after the jump.
First, no one has yet acknowledged that we do not know for sure that there is an Electoral College tie. The electors have not yet voted (that happens on the first Monday after the second Wednesday in December, so about three weeks from the current action), not every state has a faithless-elector law (and for the states that do, their constitutionality is not settled), and in the show's universe of less-rigid partisanship, an elector defecting to the other party (to say nothing of the hypothesized rogue Tom James vote) is not outside the realm. We will not know that the vote is tied until January 6, when the House meets to count the votes. There is a presumptive tie, given how the College now works, but it remains just that.
Second, it seems odd that Selina seems to be whipping current members of the House, since it is the new House, beginning January 5, that will count the electoral votes and, if there is no majority, select the President. The show could at least mine some scenes from Selina lobbying some new House-members-elect who have not yet taken office.
Third, she is making calls as if individual votes matter, rather than the partisan make-up of the state delegation. Thus, when Rep. Harry Sherman of New Hampshire (an 89-year-old man from the other party) dies, Selina's reaction is that this is one less vote for O'Brien, rather than talking in terms of how it affects the New Hampshire delegation as a whole. New Hampshire has two representatives. If the other representative is from Sherman's party, the state still goes for O'Brien; if she is from the other party, it turns a split delegation into a vote for Selina. That should be the discussion.
That last point leads to the other narrative development over replacing Sherman The state announces it will hold a special election "before Christmas." Sherman's widow (perhaps also-octogenarian, although it would not surprise me if the show trotted out a much-younger woman and played that for laughs) is running to replace him and Selina's party recruits Jonah to oppose her.* But the show is not clear about what vacancy is being filled. Is it the current term, that ends on January 4? Would a state bother to hold an election so someone can serve for 15 days? Or is it for the next term (the one for which Sherman was re-elected) that begins on January 5? But that seat is not yet vacant, since the term of Congress has not begun. Would a state hold a special election before the beginning of the new Congress to fill a vacancy that will occur when the new Congress is seated, but not before and that thus does not exist? It does not appear to be constitutionally obligated to do so. Perhaps it would do so here, given the extraordinary and historic circumstances. In any event, the show is being non-specific on this point.
[*] The decision to have Jonah as the candidate is discussed inconsistently. At times, he is spoken of as cannon fodder, thrown in to lose to the grieving widow. At other times, it is discussed as Jonah likely winning the election (because his uncle is king-maker in the state), but only as a short-time placeholder until his more-favored cousin returns from a tour of duty in the Middle East.
Finally, the show throws out a little Twenty-fifth Amendment action. Selina wants to disappear for the weekend to have minor cosmetic surgery to remove the bags from under her eyes, which leaves both eyes with rings of blood for a few days. Naturally, she is needed to speak to the public, first to calm concerns over a salmonella outbreak and then to address Rep. Sherman's death. She asks both Tom James** and current VP Doyle to take the lead. Doyle agrees once, then balks a second time until he is told why Selina cannot do it. When Mike lies that she just had some minor oral surgery that renders her unable to speak in public, Doyle demands to know why the amendment was not invoked for the President's incapacity or why, if not incapacitated, Selina does not do this herself; Mike's response--"she's not not incapacitated"--is classic Veep.
[**] James is shown working some scheme through his public statements, in which he appears to be shilling for companies represented by a lobbying firm. Is he setting up that one faithless elector to get him into the House vote? Dan, who has been assigned as James' bag man, catches on, but no one in Selina's camp believes him.
Saturday, May 21, 2016
New Columbia: The 51st State?
As a child growing up in Los Angeles, it was easy for me to understand what city and state I lived in. For my kids, who are being raised in Washington, D.C., it's not so simple. The question of D.C. statehood is not new, but is on the front burner once again. Mayor Muriel Bowser, who plans to place the D.C. statehood question on the November ballot, recently unveiled a draft constitution for the 51st state. The Statehood Commission is holding multiple townhall meetings in May and June, and soliciting comments about the proposal online. A Constitutional Convention is scheduled for June 17-18.
The population of the new state would be 645,000, making it the third smallest state in the nation (edging out Wyoming and Vermont). The boundaries of the new state would be drawn to maintain certain areas as federal land, including the White House, U.S. Capitol, National Mall, Navy Yard, Union Station, and Kennedy Center. The draft constitution creates a 13-member legislature (called the House of Delegates), provides that the mayor would become the governor of the new state, empowers the governor (not the President) to appoint judges, and allows residents to elect voting members of Congress for the first time. It is this last point, of course, that makes the proposal so controversial. An overwhelming percentage of D.C. residents are Democrats, which means two additional seats in the Senate could tip the balance of power in Congress. Not surprisingly, the question of D.C. statehood has become a presidential campaign issue. While Hillary Clinton recently vowed to be a "champion" for D.C. statehood and Bernie Sanders has expressed strong support for the cause, Donald Trump has been non-committal.
Assuming for the sake of argument that D.C. becomes a state, what should it be called? The draft constitution refers to it as "New Columbia," but Bowser says she's open to discussion about the name. Some oppose New Columbia because they're reluctant to honor Christopher Columbus, and others simply prefer a different name. Current suggestions include naming the new state after a river--the Potomac or Anacostia--or after an historic figure like Frederick Douglass or Sojourner Truth. Any other suggestions?
Friday, May 20, 2016
Money and departmentalism
Pending legislation in Oklahaom would prohibit doctors from performing abortions (it would be a felony and would result in loss of medical license). This Slate story and this letter from the Center for Reproductive Rights describes the controversy in what I would argue are the appropriate departmentalist terms. It is about time and money: The time and taxpayer money the state is going to waste defending a law that will pretty obviously lose in the courts because the courts are bound to follow SCOTUS and other binding precedent (under which this law is, as the CRR says, blatantly unconstitutional). And, we can add to the bill the plaintiffs' attorneys' fees, which are going to be quite high, if the marriage litigation and other recent examples are an indicator. And they situate this amid all of Oklahoma's economic problems and the money it is not spending on education, social services, and the health and welfare of women and children. Nowhere does the author or the CRR suggest that anyone in the state legislature or the governor is acting contrary to the Constitution or to their oaths by voting on or signing this bill. Instead, it's that this is making it impossible for you to govern the state well.
[*] I want to explore more about the deterrent value of attorney's fees. While that was not the original purpose of § 1988, fees increasingly play that role, especially in non-monetary cases such as this one.
And that is the larger point I am searching for. Political-branch officials do not act "unconstitutionally" when they act contrary to judicial precedent, only when they fail to follow a judgment rendered against them. And if they want to keep forcing new litigation beyond that judgment, even as against precedent, that is consistent with their constitutional vision. But if the cost of this move becomes so great, and starts to distract or draw from other priorities, the hope is that the public will rise up at the ballot box when this becomes wasteful enough. That, in turn, provides a political check on similar behavior.
But to return to the question of legal and judicial ethics in this realm. Some of the legislators are likely attorneys and have attorneys working for them; Fallin likely has attorneys working for her. Are they violating their ethical obligations by voting for this law or advising that they can vote for it?
Update: Gov. Fallin veoted the bill, arguing that the absence of a definition of "necessary to preserve the life of the mother" (the one situation in which an abortion would not be illegal) rendered the law vague, likely to fail in a constitutional challenge, and thus not an appropriate vehicle for challenging Roe.
Lord Acton tries the Samba; or, the Paradox of Brazil's Decentralized Government
We proud Americans might sometimes think we wrote the book on checks and balances and federalism (or rather, think that we continue to write the book). But it turns out that the world's fifth-largest country beats the third-largest at its own game; Brazil out-federalizes the Federalists, big time. After centuries of colonization, dictatorships, and violent oscillations between radical centralization its opposite, Brazil wrote a new constitution in 1988. That constitutional scheme -- the one we now see playing out in Brazil's world-class political turmoil -- distributes power both within the federal government and between the federal, state, and municipal levels in fairly dramatic fashion. They saw what concentrated power does, and they wanted nothing of it.
From an anti-corruption standpoint (that is, my standpoint) this raises a fascinating paradox. Acton famously reminded us that the concentration of power tends toward corruption. If we want to deter corruption, we distribute power. Basic. But no system is immune from corruption, and when violations occur, they of course must be prosecuted. That prosecution must be of sufficient certainty, severity, and celerity (as they say). But can that holy trinity be realized in a radically decentralized government? That is, might the diffusion of power undermine general deterrence? If so, we've got ourselves a paradox: the very system of government that tends to prevent corruption will also struggle to punish it. Decentralization may effectively deter corruption preemptively, but ineffectively post hoc.
And we see this very struggle now playing out in Brazil. The acting president (replacing Dilma Rousseff, who has been temporarily removed pending her Senate impeachment trial) has suspended the negotiation of what Brazil calls leniency agreements (roughly equivalent of our deferred prosecution and non-prosecution agreements) with the construction companies implicated in the Petrobras scandal. He wants to include more federal bodies in their negotiation. Brazil's main anti-corruption agency had exclusively authority, but the acting president wants to bring in the auditing court (which first detected the accounting improprieties that lead to Dilma's impeachment) and, most importantly, the federal prosecutors (who in Brazil are independent of the executive branch, a kind of fourth branch of government). In other words, he wants three independent federal bodies to coordinate settlements. And this requires an act of Congress, which is now in turmoil due to the very same corruption investigation. In the mean time, the negotiation of these agreements -- put another way, the prosecutions themselves -- are suspended, for who knows how long. So basically, the diffusion of power in Brazil's government has created a prosecution stalemate. The definition of celerity, this ain't.
So does the image in your mind of Lord Acton doing the Samba seem just a bit awkward? Well, that's exactly my point.
Thursday, May 19, 2016
Do you like my shoes?
Last year, Dean Scales of Rutgers-Camden law school specifically asked students not to comment on their professors' attire when filling out their course evaluations. Yesterday, a friend of mine reposted this article and, given the fact that I have just recently received this semester's evaluations, it made me start thinking about the issue of faculty evaluations again.
Students occasionally comment on my clothes but, until Dean Scales's request last year, I never really thought much about these types of comments. I think there are a number of different reasons for this. First, I often compliment people on their clothing. Consequently, it didn't really strike me as odd that a student staring at me for hours every week might notice my clothing and, if they liked it, compliment it. Second and relatedly, I believe I didn't really give these comments much thought because they have always been nice. I love to hear that students like my class and it was also nice to hear they liked my shoes or my dress. However, I am pretty sure I would have felt very differently if these clothing comments were criticisms of my appearance. Negative comments about a professor's appearance, particularly when such comments appear to be primarily directed at female faculty, are problematic.
Therefore, one issue this controversy raises is whether appearance compliments can be ok if appearance criticisms are not. I am not sure. At the same time, there is also a broader question raised by this issue. Specifically, given the prevalence of non-teaching related comments in course evaluations, is there a problem with the current method of evaluating professors and should it be changed?.
Theoretically, course evaluations, particularly the non-numerical portion, are a way for students to tell their professors what they liked and didn't like about the class. Ideally, professors will then use these comments to improve the course in the future. The problem however, is that student comments rarely serve this function.
Most of the complimentary comments I have seen, both for myself and my colleagues are short and unilluminating. They are phrases like "great class," or "awesome prof" or, in one memorable instance, "luminous." It is lovely to receive such comments, but they are not extremely helpful. Most students do not elaborate on the specific aspects of the course they liked and what teaching methods they found particularly useful. Negative comments are sometimes longer, but they are often perfunctory as well. Common ones include "boring," or "didn't like the textbook." Most concerning however, is the fact that comments provide a place for students to be mean. I once had a student criticize the way I held a paperclip and I have heard about many much crueler comments received by friends and colleagues throughout the academy.
As professors, it is our job to teach our students as effectively as we can and to be responsive to their needs and concerns. Course evaluations are intended to help us do that. However, if they are not serving this purpose but are instead primarily providing a venue for ad hominem attacks then, as is increasingly done in the blogging world, perhaps it's time to turn off the comments.
Wednesday, May 18, 2016
Forum Shopping in Patent Cases
For more than a decade now, patent reform has been on Congress's agenda. Congress passed the America Invents Act (AIA) in 2011, the most comprehensive patent legislation in fifty years. Still, many believe the AIA didn't go far enough, particularly with respect to patent litigation, and have continued to push for further reform. The Venue Equity and Non-Uniformity Elimination Act--co-sponsored by Senators Flake (R-AZ), Lee (R-UT), and Gardner (R-CO)--is the latest development in this patent reform effort.
Currently, patent owners can file infringement suits against corporate defendants in just about any federal court. The patent venue statute, 28 U.S.C. section 1400(b), provides that "[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business." (emphasis added) Because section 1400 doesn't define "resides," the definition set out in the general venue provision--i.e., that defendants "reside" where they are subject to personal jurisdiction--applies. 28 U.S.C. section 1391(c). This means that corporate defendants can be sued for patent infringement wherever they are subject to personal jurisdiction, which is virtually every judicial district in the country as long as the allegedly infringing product is sold nationwide. As a result of these liberal venue provisions, patent owners forum shop and file a disproportionate number of patent suits in certain judicial districts, such as the Eastern District of Texas where almost 44% of patent suits were filed in 2015.
The VENUE Act, which is supported by many technology companies and public interest groups, would significantly curtail where patent infringement suits may be filed. At the same time, the Act would expand venue in patent declaratory judgment actions, a topic I've addressed in my scholarship and a recent amicus brief. While a thorough discussion of the costs and benefits of the VENUE Act is beyond the scope of this post, I would like to raise two questions. First, is forum shopping (or forum selection) really that bad or is it just part of litigation strategy? Second, why should defendants in patent cases be treated differently than in other civil suits? In other words, why should we have special venue rules for patent cases?
JOTWELL: Steinman on Pidot on tie votes
The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Justin Pidot, Tie Votes in the Supreme Court (forthcoming in Minn.L. Rev.), a timely study of the history and effects of evenly divided Courts.
Tuesday, May 17, 2016
Elsevier purchases SSRN
Elsevier's press release is here. Matt Bodie is curious, Paul Gowder is outraged and looking to start-up a not-for-profit rival that will continue to be open-access for law and political science scholarship (similar not-for-profit services exist for hard sciences), and others are commenting.
Loving and Marriage Restrictions
Today, The New York Times ran an article about the new movie Loving which recently premiered at the Cannes Film Festival. Loving tells the story of Richard and Mildred Loving, the Virginia couple who challenged the state's interracial marriage ban and won. I did not know about this movie until I read the article however, it's release also doesn't come as a complete surprise. Loving v. Virginia is the case that made Obergefell v. Hodges possible. As the fight for same-sex marriage intensified, Loving was transformed from a case largely about racial injustice into the seminal case on marital equality.
The parallels between interracial and same-sex marriage bans are numerous and in the recent fight for marriage equality, supporters of same-sex marriage repeatedly emphasized these connections. Consequently, it is fitting, that nearly one year after the Supreme Court held that same-sex marriage bans are unconstitutional, there is now a movie memorializing the case that started the fight. Still, I wonder if a movie like Loving, which celebrates the first marriage equality victory, while alluding to the most recent, doesn't also cement the perception that the challenge to marriage restrictions is over and won.
Obergefell struck down state same-sex marriage bans. However, there are still significant restrictions on who may marry. Leaving these restrictions in place was intentional. In fact, it was probably essential. One of the major obstacles facing same-sex marriage proponents was the widespread concern that the legalization of same sex marriage would lead to the elimination of other marriage restrictions. At the time, I considered this slippery slope concern a red herring. The law is always an exercise in line drawing. Nevertheless, this was a real concern for many same-sex marriage opponents, and even after Obergefell, it is likely that this slippery slope fear remains. Consequently, although the movie Loving clearly celebrates the movement of this line between permissible and impossible marriages, it is possible that it may also serve as a means of shoring it up.
Today, three significant marriage restrictions remain. These are bans on polygamous marriages, underage marriages and incestuous marriages. At the moment, most Americans support these restrictions. However, this support could easily change. In fact, it was Loving that highlighted the subjective nature of marriage restrictions and demonstrated that these restrictions can and should be challenged.
In South Carolina, where I live, there are bans on incestuous, bigamous and underage marriages. Still, even these seemingly straightforward and common prohibitions are rife with exceptions and potentially vulnerable to legal challenges. For example, although incestuous marriages are prohibited, you can still marry your first cousin, or your step-sibling. Similarly, polygamous marriages are banned, but we allow a person date as many men or women at the same time as they like. Even our underage marriage restriction is ambivalent. Until 1997, girls as young as 12 and boys as young as 14 could enter common law marriages and today, there is still no marital age restriction for underage couples who seek to marry due to pregnancy. South Carolina is not unique. Other states also have a similarly wide variation in their bigamy, incest and non-age restrictions.
In the future, I expect many of these restrictions will be challenged. One question however, is how easily these challenges will be able to draw on the legacy of Loving. The movie Loving presents the challenge to marriage restrictions as over and won and by doing so, the film may make it harder for new challenges to succeed in the future. At the moment, I am far from convinced that current marriage restrictions are problematic. Nonetheless, Loving and Obergefell demonstrated that just because a marriage restriction is long-standing and well accepted does not mean it is right. Consequently, I reserve my right to change my mind and I hope the Loving movie doesn't hinder that possibility in others.
Charm City's Odd Charging Theory Against One of Six Defendants in Freddie Gray Killing
I was in Baltimore this weekend, so I was prompted to write about the truly odd legal theory being tried as we speak in a bench trial for Edward Nero, one of the six officers charged in the killing of Freddie Gray last year. A little background on the charges because this case has already brought up some unusual issues that, depending on the appellate courts, may affect Maryland defendants in all cases going forward.
Six officers were charged in the killing. The charges were announced very publicly by State's Attorney Marilyn Mosby last year, less than a month after Gray was killed. The charges ranging from misdemeanors to second-degree murder for the driver of the van. All six officers managed to get individual trials, which does not often happen in cases where defendants are charged with similar crimes arising from one event. The jury trial of William Porter, who was a passenger in the van with Gray, charged with involuntary manslaughter, assault, reckless endangerment, and misconduct in office, ended in a mistrial; he will be retried. Meanwhile, in a pretty surprising decision, Maryland's highest court ruled that the prosecution could force Porter to testify at the trials of his fellow officers (would be co-defendants). Here, the prosecutor has said that nothing Porter reveals will be used against him at his future retrial, but he could be opened up to new charges, particularly perjury charges if anything he says differs from what he has said before. And that's not to mention the media coverage and potential tainting of his future jury. The Court has not handed down the promised reasoning for that order but if it does not hold very narrowly, this decision could be a major sea change for defendants who usually either strike a deal before they testify against a co defendant or invoke their right to silence. Maryland prosecutors could now force testimony without a plea bargain, shifting power even further to prosecutors.
Even more interesting, in my opinion, is the theory under which the prosecution is trying Nero for assault. Nero is one of the officers who is alleged to have arrested Gray, put him in handcuffs, and put him into the van unsecured by any seatbelt. He is charged with second-degree assault, misconduct in office and reckless endangerment. The assault charge stems from the theory that the police did not have probable cause to arrest Gray, and therefore, handcuffing him was an assault. This is a pretty radical theory -- an officer who illegally arrests someone could be guilty of assault -- given the thousands upon thousands of illegal arrests that go on in this country. If the prosecution is successful on this issue, it could dramatically increase potential criminal liability for police officers.
On one level, this theory addresses and publicizes a big problem in law enforcement -- police officers make illegal arrests way too often and with almost no accountability mechanisms built in (suppression hearings, even if won, do not discipline the officer, it's near impossible to win a lawsuit against a police department for unlawful arrest, etc...). Worse, prosecutors continually pursue cases where officers have made illegal arrests and, at best, turn a blind eye to such misconduct/"assault." I wish Mosby would apply the same time and critical eye to the improper arrests of the many civilians prosecuted by her office as she has coming up with a theory for assault in the Nero case. On another level, this opens up a world of potential criminal liability for officers that should be handled through better training/incentives on the front end. And, it seems hypocritical to prosecute cases against ordinary citizens where police misconduct occurs but is unacknowledged or ignored on the one hand, and then to bring felony charges against another officer for making an illegal arrest on the other.
The prosecution rested its case yesterday, so we won't wait too long to see what the judge thinks about the assault theory. For those interested in daily reports on the trials, follow reporter Justin Fenton (@justin_fenton) and law prof David Jaros (@profdavidjaros) on Twitter.
Justice Sotomayor on Signaling in the Contraception Cases
One of the most interesting aspects of the ongoing litigation over the Affordable Care Act's contraception mandate concerns “signals.” As I've defined that term, signals occur when the Justices act in their official, adjudicatory capacities without establishing conventional precedent, but while nonetheless indicating some aspect of how lower courts should decide cases. In general, signals should guide lower courts when conventional precedent is ambiguous (see this post and this article). In her Zubik concurrence yesterday, Justice Sotomayor addressed signals’ increasingly salient role. But there is both more and less to Sotomayor’s opinion than meets the eye.
By way of background, consider the Supreme Court’s controversial stay decision in the contraception case Wheaton College (2014). In granting an unusual stay of the contraception mandate, the Court appeared to have concluded that the government could have pursued its stated interests through less burdensome means. Thus, Wheaton College could plausibly have been viewed as a signal to that effect—and, in fact, some lower court judges took precisely that position.
True, Wheaton College expressly stated that the Court had not resolved the merits. But that disclaimer could plausibly be viewed as an acknowledgement that the Court hadn’t issued a conventional precedent pursuant to its normal decisional procedures. Thus, the Court’s signal could be viewed as occupying a lower precedential tier than a full dress ruling on the merits. For instance, Court itself might not feel bound by its summary ruling. And lower courts might feel obligated to follow clear conventional precedent, even if Wheaton College or other signals pointed in a different direction.
In that light, consider the most relevant passage of Justice Sotomayor’s Zubik concurrence, which Justice Ginsburg joined. Here it is, broken down into smaller paragraphs:
I join the Court’s per curiam opinion because it expresses no view on “the merits of the cases,” “whether petitioners’ religious exercise has been substantially burdened,” or “whether the current regulations are the least restrictive means of serving” a compelling governmental interest. Ante, at 4–5. Lower courts, therefore, should not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands.
We have included similarly explicit disclaimers in previous orders. See, e.g., Wheaton College v. Burwell, 573 U. S. ___ (2014) (“[T]his order should not be construed as an expression of the Court’s views on the merits”).
Yet some lower courts have ignored those instructions. See, e.g., Sharpe Holdings, Inc., v. Department of Health and Human Servs., 801 F. 3d 927, 944 (CA8 2015) (“[I]n Wheaton College, Little Sisters of the Poor, and Zubik, the Supreme Court approved a method of notice to HHS that is arguably less onerous than [existing regulations] yet permits the government to further its interests. Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests”).
On remand in these cases, the Courts of Appeals should not make the same mistake.
There are several noteworthy aspects of Justice Sotomayor’s discussion. First, Sotomayor is following lower courts in expressly discussing "signals" as a precedential activity distinct from conventional precedents announced in full dress opinions. That is an obvious point, but it bears emphasizing. Signaling is already an explicit part of judicial practice.
Second, Sotomayor appears to be arguing that the Court has tried to control its use of signals by clarifying that some rulings that could be interpreted as signals actually aren’t. According to Sotomayor, the Court engages in this kind of control and calibration by including a disclaimer in summary rulings to the effect that the Court’s decision expresses no view on the merits. If Sotomayor's claim here is correct, it would seem to have significant implications. For example, when the Court issues a summary ruling and does not include such a disclaimer, should lower courts automatically view the Court’s ruling as a deliberate signal? In short, the targeted use of disclaimers may indicate or clarify that signaling is the norm.
Third, and despite Sotomayor’s protestations, it appears that the Court’s prior summary rulings actually were fairly good signals, at least in the sense that they provided lower courts with useful predictive guidance as to the Court’s view of the merits. After all, the Court clearly took the challengers' arguments seriously during oral argument—so much so that it requested special additional briefing as to whether an alternative accommodation was possible. And, ultimately, the Court in Zubik remanded for consideration of that accommodation (possibly to allow for settlement and possibly just to delay a final ruling in the case). Notably, all this happened in the absence of Justice Scalia; if he were still with us, perhaps the challengers would have won outright.
Fourth, Justice Sotomayor is herself engaged in signaling. Concurring opinions frequently try to put their desired spin on majority decisions, sometimes in spite of the majority’s apparent inclinations. It seems plausible that Sotomayor is engaged in that time-honored practice when she places her own preferred gloss on the Court’s past signals and then instructs that “[l]ower courts, therefore, should not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands.” In other words, Sotomayor is trying to signal that lower courts should ignore the Court’s past and present signals on this issue.
Fifth, lower courts should view Justice Sotomayor's signal with caution. I’ve argued that lower courts should generally treat signals as precedential only when they are deliberately transmitted by a majority of the Court. In Zubik, however, Sotomayor’s signal is endorsed by only two justices, and Sotomayor purports to set the meaning of the Wheaton College stay, even though she dissented from that ruling. So while lower courts should of course consider the arguments in Sotomayor's concurrence, they shouldn't view her opinion as precedent. As Adrian Vermeule tweeted shortly after Zubik posted online: “Rule of thumb (re Zubik v. Burwell): whoever writes separately to interpret the Per Curiam is afraid of a more obvious interpretation.” (Aaron Nielson raised related points on twitter.)
Finally, we might ask whether it would be proper for the Court to decide a case like Zubik or Wheaton College while decreeing that its ruling provided no guidance for lower courts. When creating conventional precedents, it is widely believed that courts act illegitimately unless they are prepared to live with the stare decisis consequences of their actions. That is why so many commentators lament the line in Bush v. Gore about the Court’s decision being limited to the precise facts at hand. A proverbial “ticket good for one day only” isn’t generally thought to be a proper judicial decision. There's at least a plausible argument that signaling should work the same way: if the Court wants to issue unconventional rulings, then it should have to live with the unconventional precedential consequences.
Another data point on computers in the classroom
The new study comes from West Point; it created three sections--one that could use any technology (laptops or tablets) to take notes, one that could use tablets to read course materials, and one that could use no technology. The study offers two new insights. First, using a laptop hurt better students (measured by ACT scores) than weaker students--students with high ACT scores who used computers performed worse than comparable students who did not use computers, while students with low ACT scores performed similarly whether they used computers or not. Second, there was no performance difference between those who used technology for notes and those who used it only for reading--both sections performed worse than the non-technology sections.
This last point is notable to me. In Civil Rights, where I assign raw cases, I allow students to use a tablet for their cases (and thus to get the supplemental treatise by ebook). I may have to rethink this.
Monday, May 16, 2016
Zubik, shadow dockets, and dispute resolution
It is easy to conclude that the anti-climactic resolution in Zubik v. Burwell is simply a consequence of the Court being down a Justice. What would have been a 5-4 win for the plaintiffs (with Justice Scalia in the majority) became a 4-4 affirmance (of disparate lower-court outcomes), necessitating the Court to order supplemental briefing and then to remand when, in light of that supplemental briefing, it was no longer necessary for this Court, as opposed to a lower court, to be involved.
And all of that may be true. But I want to try to situate this case, given its actual resolution, in two broader concerns.
First is the connection to William Baude's Shadow Docket. Perhaps this case demonstrates how cases can move back and forth between the "real" docket, in which merits decisions are made and explanations given, and the shadow docket, in which reasons are not given, but hints are dropped and cases are knocked out of the Court for non-merits reasons. The Court functionally DIGed the case, but in a way that gave specific marching orders to the lower courts to start over and, hopefully, put together the compromise resolution that the parties suggested in the supplemental briefing. But the end result plays much like what we saw in the lead-up to Obergefell.
Second, this type of resolution is not necessarily a bad thing. District courts (as do courts of appeals, although not quite as often) do this all the time--it is an aspect of "managerial judging," especially in cases involving institutional reform. While the Court is partially tasked with resolving significant disputes over constitutional (and in this case statutory) meaning and application, it also is the top of a judicial system whose primary function is to resolve discrete disputes between discrete parties. And if the Court can do that with a "work-it-out" mandate without passing on the legal question, there is no structural reason--no reason grounded in the "purposes" of SCOTUS or the federal courts--for it not to do so. Especially if it provides a solution that protects everyone's rights.
Jurisdiction day at the Court
The Court decided two closely watched (by a segment of law professors) jurisdictional cases today. I now have to start thinking about whether to include them in Fed Courts next semester and what to keep or drop if I do add them.
In Merrill Lynch v. Manning, the Court held that the grant of exclusive federal jurisdiction over any action "brought to enforce any liability or duty created by" the Securities and Exchange Act means the same thing as the grant of general federal jurisdiction over civil actions "arising under" in § 1331. This means that the claim must either seek a relief under the act itself or assert a state law claim in which an issue under the act is necessarily raised, actually disputed and substantial, and placing the case in federal court would not disturb the balance of power between state and federal courts.
[**] I was surprised that the Court did not mention the jurisdictional statutes that use the phrase "brought under" (notably the grants for employment-discrimination laws) and also have been interpreted identically to § 1331.
Justice Thomas, joined by Justice Sotomayor (apparently the first time those two have gone off on their own) concurred in the judgment. Thomas insisted that the textual difference between "brought to enforce" and "arising under" must make a practical difference; thus, while "arising under" requires both a necessary federal issue and other considerations, "brought to enforce" requires only that claims "necessarily depend on establishing an Exchange Act violation."**
In Spokeo, the Court avoided the big question--whether a statutory violation, simpliciter, is sufficient for Article III injury-in-fact--by remanding to the Ninth Circuit to redo its standing analysis to consider not only whether the injury was particularized, but also whether it was "concrete," which is a distinct component of injury. According to the majority, the Ninth Circuit "failed to fully appreciate" this distinction. Along the way, the Court allowed a couple of points that may be significant for standing analysis going forward. First, a harm can be both concrete and intangible. Second, both history and congressional judgment play "important roles" in determining what intangible harms are sufficiently concrete. Third, the risk of harm may be sufficient to establish an injury and Congress can create procedural rights designed to avoid that risk. Finally, if Congress establishes a statutory intangible harm that is sufficiently concrete, a plaintiff need not allege any additional harm beyond the statutory violation itself. Thus, the ban on publishing false information could (presumably depending on what the information was) be sufficient to support standing.
[**] Note that Thomas does not like the Grable balancing test even as an interpretation of § 1331 and arising under. He has argued that the Court to return to the Holmes test that the claim arises under the law that creates the cause of action.
Justice Ginsburg, joined by Justice Sotomayor, dissented. She went out of her way to agree with much of the majority opinion. She dissented because this is far from a case of a simple procedural injury with no harm (the majority's paradigm was publishing an incorrect zip code). The plaintiff had alleged significant material misrepresentations about his age, marital status, wealth, education, and employment history, all of which he alleged would harm his job prospects. She argued that it was unnecessary to remand so the Ninth Circuit could simply underscore what is already obvious about the harm the plaintiff suffered (or was threatened with suffering) to his job prospects.
Two Ways of Linking “Positive Law” and the Fourth Amendment
In recent years, the Supreme Court has shown increased interest in the connection between the law of property and the Fourth Amendment. In a terrific new article, Will Baude and James Stern have explored that connection to defend “the positive law model of the Fourth Amendment.”
Will and James’s article is very illuminating, but I disagree with their use of the positive law to set a ceiling on what the Fourth Amendment can do. I explain my disagreements in a response piece that proposes an alternative approach, which I call “the positive law floor.”
For those who are interested, here’s the bulk of the abstract for “The Positive Law Model of the Fourth Amendment”:
We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection should depend on property law, privacy torts, consumer laws, eavesdropping and wiretapping legislation, anti-stalking statutes, and other provisions of law generally applicable to private actors, rather than a freestanding doctrine of privacy fashioned by courts on the fly.
This approach rests on multiple grounds. It is consistent with the history of the Fourth Amendment and with the structure of protection in the closely related area of constitutional property. It draws upon fundamental principles of liberal constitutionalism, namely a concern about abuse of official power. And it is superior to current privacy-based doctrine in many practical ways: it is clearer, more predictable, more accommodating of variation in different times and places, and more sensitive to the institutional strengths of legislative bodies, particularly when it comes to issues presented by new technologies.
And here’s an edited version of the abstract for “The Positive Law Floor”:
The positive law model maintains that a Fourth Amendment search or seizure occurs if, but only if, a private party could not lawfully perform the conduct that the government actually engaged in. The positive law model thus treats laws applicable to private parties as a ceiling on Fourth Amendment protections.
But government action is fundamentally different — and often more deserving of regulation — than similar conduct by private parties. Due to its distinctive capabilities, incentives, and social role, the government often threatens the people’s security in ways that private parties simply do not.
Still, we can learn from analogies to private parties without being limited by them. The way to do that, I briefly suggest, is to view privacy-related measures applicable to private parties as presumptively triggering the Fourth Amendment’s prohibition on unreasonable searches. I call this alternative approach the “positive law floor.”
The Nevada recount is moved somewhat to the background this week, with the main story being about Selina's mother suffering a stroke and Selina removing her from life support. Reports of events in Nevada are interspersed with her grieving (she did not get along with her mother), so that she breaks down while giving the eulogy because she just learned that she had lost both the Nevada recount and the national popular vote (the ballots found last week gave O'Brien a bigger win in Nevada and also flipped the national vote).
Beginning next week, things move to Congress, which is the constitutional piece I have been looking forward to. Three interesting points. First, no one has mentioned the important event before going to Congress--the actual casting of votes in the Electoral College, in December. Will the show play around with a faithless elector either changing votes and giving either Selina or O'Brien a majority (and obviating a House election) or, as some commenters here have suggested, casting a vote for Tom James (Selina's running mate), which would put him into a three-person House election? Second, I am curious to see if, and how, the show paints a House election as anything other than a straight partisan battle--everyone in O'Brien's party votes for him, everyone in Meyer's party votes for her (assuming James is not in the mix), and we see where things land. Are there going to be enough evenly divided state caucuses that straight-party voting continues to produce a tie? Third, I continue to hope the show does not make the constitutional mistake of having the Senate select James, the House unable to decide, and James becoming President and appointing Selina as his VP. Stay tuned.
Sunday, May 15, 2016
Webinar: Ferguson's Fault Lines
I will be participating in an ABA Webinar on Monday, May 16 from 1-2:35 p.m. (EDT), titled Ferguson's Fault Lines: The Race Quake That Rocked the Nation; I will be talking about body cameras. This is a follow-up to the book of the same name and part of the ABA's Free CLE Series.
Saturday, May 14, 2016
Class, Politics, and the Academy
I thought Nicholas Kristof's column about the value of ideological diversity in the academy the other day was not worth mention, because it was so unremarkable in its assertions. I do, however, find the letters in response to it quite interesting. One in particular struck me: a response from a law professor at an Ivy League law school (one of my alma maters, as it turns out) who writes:
It is not the job of the university to represent all the views held in the surrounding society. The commitment to critical inquiry requires it to disfavor some views based on religious dogma, social convention or superstition. The goal of a community of mutual respect requires it to disfavor others, including those that are explicitly racist, misogynist or homophobic. Such views can be expressed in the university, but it is not a cause for concern that academics do not espouse them in their teaching and research. Much of the disparity between views in the academy and in the Republican Party is attributable to their varying social bases. Academics tend to be educated and middle class. The current Republican Party is constituted disproportionately of the undereducated and the wealthy.
That education leads people to different views is neither surprising nor, on its face, disturbing. And if it is a problem that the views of rich people are underrepresented in the academy, they have had little trouble making up for this disadvantage in the media and the political system.
There are a number of interesting things about this response. Although my main interest is in the last few sentences, the opening raises some questions too. Does the professor, who believes (rightly, in my view) that the university is not obliged to represent all views held in the surrounding society, think the university is obliged to represent all groups or individuals in the surrounding society? Or does he think that the commitment to critical inquiry is the university's primary goal and the only proper basis for hiring (or admissions?) decisions? In what circumstances does the professor think that the university should disfavor views based on religious dogma, social convention, or superstition? Very few, surely; in my experience, dogma and social convention are entirely common bases for views held and statements made by academics, critical inquiry is often championed but less often required or exercised, and in any event these things are rarely directly relevant to an academic's discipline and focus. It is possible to teach economics while believing that God was incarnated as a human being, or to teach contracts while believing that genetically modified foods are unsafe or that there is a link between vaccination and autism. One question about ideological diversity in hiring is whether hiring committees, while asserting an interest in critical inquiry, nevertheless pay attention to and disfavor one set of cues about a candidate's disciplinarily irrelevant obedience to certain dogmas and conventions while ignoring or welcoming others--whether, for instance, they are likely to look askance on an English literature candidate who notes in passing her membership in a charismatic church, while ignoring a passing reference by another candidate to Reiki or therapeutic touch. And if or when conservative candidates are disfavored, how often is it because of explicitly racist, misogynist, or homophobic statements, and how often is it because of other cues or views that are not explicitly any of those things, or because of what ought to be irrelevant factors (getting one's litigation experience at a conservative public-interest firm, rather than a liberal public-interest firm or large corporate law firm, for instance)?
I am, however, more interested in the closing arguments in the letter. It is interesting the way the letter pivots sharply and silently from the original column's concern, with liberal versus conservative ideology, to a focus on rich vs. poor. It is equally striking that the writer then describes academics as composed of the "educated and middle class," and Republicans as constituting the "undereducated and the wealthy," and pivots again to the largely irrelevant peroration about "the views of rich people [being] underrepresented in the academy." It's not clear to me whether the writer has a problem with the certainty that the poor, as opposed to the rich, are underrepresented in the academy--a point that takes on added resonance given the many barriers to successful entry into the credentials arms race posed for the poor, and perhaps takes on added weight if, as the writer would have it, giving more entree to the poor and currently undereducated might also give more entree to those holding conservative views. In any event, it should be clear to any academic that the views of, if not the rich, then certainly the more-than-"middle class," are the predominant views of the academy. The average salary for full professors in the United States was around $100,000 in 2007. I cannot begin to estimate the average salary of an Ivy League law professor, although I would take one if offered. At a minimum, I'm guessing that they are in the top ten percent, if this chart is any indication.
Although I'm sure it is unintentional, I think the letter trades heavily on an elision of the difference between being rich and being conservative, and of the difference between views held about the poor in the academy (no shortage, albeit largely of a de-haut-en-bas nature) and views, of whatever political stripe, held by the poor in the academy (heavily under-represented). Of greatest concern to me, however, is that his focus on the "rich" being under-represented in the academy elides the plain fact that the affluent are extraordinarily well-represented in the academy. If having more poor, working-class, and conservative views in the academy meant I would have to put up with more rich people in the academy as a side-effect, or if it meant thinning the faculty ranks of the wildly over-represented affluent members and products of the professional-managerial class, I would consider that a fair trade. And those people will, in any event, have little trouble making up for this disadvantage in the media and the political system, in which their views are also heavily over-represented.
Friday, May 13, 2016
Defend Trade Secrets Act of 2016
I teach an intellectual property survey course that covers patents, copyrights, trademarks, and trade secrets. Each year, I explain to my students that one of these things--trade secrets--is different from the others because it is governed primarily by state, rather than federal, law. But that has now changed. This week, President Obama signed into law the Defend Trade Secrets Act of 2016 (DTSA), which creates a private cause of action for trade secret misappropriation. While the federal government has had the power to enforce trade secret laws through criminal and civil actions, private parties can, for the first time, sue for trade secret misappropriation pursuant to federal law.
Supporters argued that the DTSA was necessary to create uniformity in trade secret law, ensure a federal forum for trade secret cases, and bring the United States into compliance with various international agreements. Supporters further claimed that trade secrets will be better protected with both a robust public and private enforcement regime (a topic I address in a forthcoming article in the patent context). While the Act passed the House and Senate easily, prior versions introduced in 2014 and 2015 met with significant criticism from legal academics, both through letters to Congress (here and here) and through traditional legal scholarship (see, e.g., Peter S. Menell, Tailoring a Public Policy Exception to Trade Secret Protection; Christopher B. Seaman, The Case Against Federalizing Trade Secrecy). Congress listened to concerns about the potential impact on labor mobility and protection for whistleblowers, and addressed them in the final bill.
Professor Dennis Crouch at Patently-O has provided a detailed discussion of the DTSA for those who might be interested in learning more about the new law.
Thursday, May 12, 2016
More on Tushnet on candor, the "culture wars", and taking a "hard line"
Like Paul, I read with interest -- and, in my own case, I was both provoked and taken aback by -- Mark Tushnet's recent post at Balkinization on "abandoning defensive crouch liberal constitutionalism." Although, like Mark, I look forward to a day when legal advocates and scholars don't have to read the entrails of, or purport to admire, Justice Kennedy's prose, I don't share Mark's enthusiasm for the substantive results and doctrinal changes he hopes (and I glumly assume) are on the way. (Mark wants to see more Brennan and Marshall; I'd rather see more Rehnquist and Roberts. We agree, though, that Casey was "wrong the day it was decided"!)
That said, and as someone who admires Mark's work and has cherished his mentorship, I regret that he wrote this, with respect to the so-called "culture wars" and the current religious-accommodations fights:
. . . My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) . . .
Mark has followed up his post with a new one, in which he reports that a number of readers, bloggers, commenters, etc., reacted very negatively:
Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).
He then goes on to say that what he means by "taking a hard line" is refusing to support broad, RFRA-type accommodations for the conservatives who have lost the "culture wars" and being very cautious about even more specific and narrow exemptions.
I wish, though, that rather than dismissing as snark-worthy the negative reaction to his invocation of the "hard line" taken after World War II and the Civil War -- i.e., the "hard line" taken against the supporters, enablers, and managers of two genocidal and racist empires, or against traitors fighting for slavery -- he had instead said that he got a bit carried away and that the comparison was inapt and inflammatory. His follow-up post represents, it seems to me, more of an adjustment to what he said in the first than a re-statement. In the follow-up, after all, he indicates some openness to some (limited, contained) accommodations and compromises, but the original post is reasonably read as rejecting even those (just as, presumably, the "hard line" taken with respect to Japan and Germany didn't include, and shouldn't have included, much openness to them):
. . . I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won. . . .
As I see it, if someone on what he calls in his posts "their side" had employed similar rhetoric, many would (understandably) have pushed back hard against the wisdom and merits of making a comparison that unsurprisingly was heard by some as an invocation of denazification or the IMTFE as helpful guides for dealing with one's defeated ideological opponents. In this case, Godwin's Law kicked in at the outset and the comparison, I think, undermined the possibility of Mark's post being part of a real conversation about the extent to which (if at all) religious actors may or should be accommodated going forward, if it really is the case that the "culture wars" have ended (or, perhaps, they've morphed -- with the campaigns of Trump and Sanders -- into something very different). . . .
. . . Which reminds me: I also think I might have a different understanding than Mark does about what, exactly, the "culture wars" were or are, and whether it makes sense to see them primarily as a "scorched earth" offensive (as opposed to, say, a series of limited-success defensive efforts, against Murphy Brown, W.A.S.P., "Hot, Sexy, & Safer," etc.) by conservatives. But that's a matter for another post, and I should probably re-read the original James Davison Hunter "Culture Wars" book first. . . .
Brazil's Watergate, Only Way Bigger
Was Watergate an embarrassment for democracy or an historic vindication of checks and balances, freedom of the press, and the rule of generally? Same question in Brazil, where the Senate voted this morning to move forward with the impeachment trial of President Dilma Rousseff. By law she is required to step down for the duration of the trial, which will last many months. Folks are calling this moment in Brazil’s history the biggest anti-corruption story ever, for any country. But unlike “trials of the century,” which occur about once per decade, the commentary on Brazil may not be hyperbole.
To be clear, Dilma is not going down in the Petrobras investigation. Rather, she allegedly committed fraud in her annual accounting to cover the extent of Brazil’s deficit. Presidential accounting in Brazil is reviewed annually by its federal accounting court, the TCU. That body historically kowtowed to the powers that be; its ministers are politically appointed. But here, the non-political (and fairly highly respected) auditors were able to convince the political ministers that action should be taken, and it was. It’s stunning evidence of changing norms in a country that once glorified corruption with the term, “jeitinho Brasileiro.”
And how did it all happen? Connecting the dots tells a fascinating story. There was a smaller corruption scandal back in 2005 called Mensalao. Then a recession. Then the realization that this poorly governed and cash-strapped country would be hosting the FIFA World Cup and Summer Olympics back-to-back. Then, when the government increased public transportation fares, the people took to the streets in much-publicized protests. In response, Brazil’s Congress enacted a number of anti-corruption laws; I’ll discuss them in subsequent posts. And its auditing court said, “enough is enough.” It was that rare historical pivot point. And it will continue to unfold through the Olympics and for years to come.
Wednesday, May 11, 2016
If Trump Wins I'm Marrying A Canadian
Ever since it started looking like Donald Trump would win the Republican nomination, people have began joking about moving to Canada. Increasingly however, it appears that people may not be joking. A few months ago, a radio station in Cape Breton suggested that Americans worried about a Trump presidency should consider moving to Cape Breton. Listeners were intrigued. In fact, the station's website has received more than 1.5 million visitors since it launched its "Cape Breton If Trump Wins" campaign. Moreover, this is not an isolated incident. Interest in Canadian immigration is growing. The day after Trump swept the super Tuesday primaries Americans searching for immigration information crashed the Canadian government's immigration website.
Nevertheless, despite the increasing interest, immigrating to Canada is far from simple. Potential immigrants with job offers already lined up have the easiest time but immigrants who simply want to flee Trump may not have the skills or technical expertise to procure these types of job offers. Immigrants without a job offer must then show that they have at least $10,000 in savings. This money is needed to demonstrate they will be able to support themselves while looking for a job. Still, even this is not enough. Canada has immigration quotas (although they are much less rigid than the United State's) and these limit the number of potential immigrants who may enter the country. Moreover, since Canada has committed itself to accepting thousands of Syrian refugees, the numbers of economic immigrants it will accept has signifciantly decreased. As a result, immigrating to Canada is not nearly as simple as packing one's bags and driving to the border. A new company "Maple Matches," is trying to change that. According to Maple Matches, the solution to this immigration problem is mail-order marriage.
Maple Matches is a dating website that promises to match Americans fleeing Trump with lonely Canadians looking for love. According to the company's CEO, more than 10,000 singles, including more than 2,500 Canadians have already signed up for the site. For Americans looking to move to Canada, marriage to a Canadian may be their best chance and Maple Matches is clearly capitalizing on this aspect of Canadian immigration law.
Maple Matches is a unique mail-order bride company in that the potential mail-order brides and husbands are American. Nevertheless, the matches it intends to create are similar to most modern mail-order marriages. These are arrangements where the promise of citizenship and opportunity is offered in exchange for the promise of a spouse. Many Americans are uncomfortable with these types of arrangements and often believe they are examples of marriage fraud. This is understandable. As Maple Matches readily admits, one of the main purposes of their site is to help otherwise ineligible or low priority Americans immigrate to Canada.
From the American spouse's standpoint, the site is about immigration, not love. Still, this does not make a "Maple Match" marriage fraud. It is a common misperception that marrying for citizenship rather than love, is automatically marriage fraud. Marriage fraud only occurs when at least one of the parties weds with no intention of establishing a life with the other person. On the other hand, if the pair lives together as a married couple, sharing both the joys and difficulties of married life, then the fact that the marriage was based on both parties receiving a mutual benefit does not make it any less valid than a love match.
Marrying for love is wonderful, but it is not required. In fact, for most of history, love matches were rare. Maple Matches seeks to pair lonely Canadians with fleeing Americans. These pairing may or may not beget love matches yet, the arrangement has the potential to create real, beneficial marriages. I doubt Maple Matches will spur a huge exodus to Canada, but it'll be interesting to watch.
Spring Self-Reported Entry Level Hiring Report 2016
Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2016. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools.
Here is the full spreadsheet:
The spreadsheet includes 83 tenure-track hires at U.S. law schools, at 55 different law schools.
Here are answers to some frequently asked questions:
Q: How does 83 reported hires compare to past years?
A: Better! (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year.)
Not only were more people hired, but there were also fewer people in the first round of the FAR forms, so the ratio of hires to first-round FAR forms was better this year than in recent years:
Q: You say the hires were at 55 different schools. How does that compare to previous years?
A: About the same as the last two years.
Hires per school per year may also be of interest:
Q: How many reported hires got their JD from School X?
Yale 18; Harvard 11; NYU 9; Stanford 8; Columbia 6; Chicago 6; Other 25.
Schools in the “other” category with three JD/LLBs who reported hires: Berkeley.
Schools in the “other” category with two JD/LLBs who reported hires: GW, Michigan, UCLA, Virginia.
Schools in the “other” category with one JD/LLB who reported hires: Ain Shams Faculty of Law, Boston College, Brooklyn, Cambridge, Cornell, Georgetown, Hastings, Hebrew University, Iowa, Nebraska, Pittsburgh, Thomas Jefferson, Universitat Pompeu Fabra, USC.
This information comes with two related caveats.
First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.
Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued.
Q: How many reported hires had a fellowship, degree, or clerkship?
66 (about 80%) had a fellowship; 41 (about 49%) had an advanced degree; 44 (about 53%) had a clerkship.
Nonproportional Venn diagram:
Q: A lot of fellowships!
I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.
NYU 12; Columbia 11; Harvard 9; Stanford 6; UCLA 5; Penn 4; Other 28.
This information comes with the same two caveats as the JD numbers.
First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.
Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.
The Bigelow Program at the University of Chicago illustrates these two related points, though it is by no means unique. This year, all Bigelows on the market received tenure-track job offers. But (1) the Bigelow is a small program and (2) not all Bigelows who received offers accepted an offer. Thus only two Chicago fellows appear on the spreadsheet. But the relevant information for someone considering fellowships isn’t the raw count, but rather the overall success rate of Bigelow fellows on the job market: according to Brian Leiter, every Bigelow since at least 2008 has received at least one tenure-track offer. (Leiter has been at Chicago only since 2008, and believes this is true going back to the early 2000s, but isn’t certain.)
Q: Tell me more about these advanced degrees.
Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)
That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 41 "highest" advanced degrees broke down like this:
Ph.D., SJD, JSD, D.Phil. 21; Masters 16; LL.M. 3; MBA 1.
Topics ranged all over the map. For the 21 Ph.D.s, five had PhDs in Law (one JSD, one SJD, and three Yale Law Ph.D.s); History had three hires; Economics and Philosophy each had two hires; and the other Ph.D./D.Phil. topics, each of which had only hire, were Business, Criminology, English and Comparative Literature, Evidence-Based Social Intervention, Financial Economics, German, Medieval English, Psychology, and Sociology.
Q: How long ago did these reported hires get their initial law degrees?
Zero to Four Years (Graduated 2012-2016) 6; Five to Nine Years (Graduated 2007-2011) 49; Ten to 19 Years (Graduated 1997-2006) 28; Twenty or More Years (Graduated before 1996) 0.
Q: How do the "time since initial degree" numbers compare to previous years?
A: They are very similar.
Q: Could you break the reported hires out by men/women?
Men 44 (about 53%); women 39 (about 47%). (Let’s say this is right within +/-2 people.)
Based on a quick count of a number of years of spreadsheets that I happen to have, gender hiring over time follows. (I’ve left out the data labels because I am even less sure than usual of the exactness of the numbers, but they’re roughly right as reflections of self-reported hiring each spring—first Solum’s reports, then mine. And as always, 2010 is left out due to missing data for that year.) This year, unlike the last two years but like every year before that for which I have data, there were more men hired than women.
Q: More slicing! More dicing! Different slicing! Different dicing!
Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.
Q: This is all wrong! I know for a fact that more people from School Y were hired!
Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete.
If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about self-reported entry level hires as of the spring before the school year starts.
Q: Is this available in an easy-to-print format?
A: Why, as it happens, yes!
Originally posted 5/11/16; updated 5/11/16 to reflect accurately the areas of Ph.D.s.
Tuesday, May 10, 2016
Consent to General Personal Jurisdiction
The last time I was a guest blogger, I wrote about a pair of patent cases decided by the U.S. District Court for the District of Delaware raising an important question about general personal jurisdiction--namely, whether a corporation can consent to general jurisdiction in Delaware by registering to do business and appointing an agent for service of process there. In Acorda v. Mylan, Judge Stark relied on the U.S. Supreme Court's decision in Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co. (1917) and the Delaware Supreme Court's decision in Sternberg v. O'Neil (1988) to hold that registering to do business in Delaware constitutes consent to general jurisdiction. In AstraZeneca v. Mylan, on the other hand, Judge Sleet refused to follow Pennsylvania Fire and Sternberg based on the U.S. Supreme Court's 2014 decision in Daimler AG v. Bauman, which rejected a "doing business" theory of general jurisdiction and held that corporations are only subject to general jurisdiction where they are "essentially at home."
The U.S. Court of Appeals for the Federal Circuit recently issued its decision in Acorda and AstraZeneca. Rather than resolving this split, however, the majority sidestepped the general jurisdiction question and held that Mylan is subject to specific jurisdiction in Delaware instead. (The specific jurisdiction analysis also raises some interesting questions, which I plan to discuss in a later post.) In a concurrence, Judge O'Malley argued that the court should decide the case on general jurisdiction grounds, which she believed was a more straightforward analysis than specific jurisdiction. Much like Judge Stark and an amicus brief in which I participated, Judge O'Malley reasoned that Daimler--which addressed general jurisdiction based on a corporation's contacts--did not overrule Pennsylvania Fire and Sternberg--which addressed the question of general jurisdiction based on consent.
The panel's decision in Acorda and AstraZeneca may not be the last word in these cases. Mylan has indicated that it plans to seek panel and en banc rehearing at the Federal Circuit. Moreover, the fact that the parties are represented by Ted Olson, Paul Clement, and Kannon Shanmugam suggests that this case may end up at the Supreme Court. Whatever happens in Acorda and AstraZeneca, the general jurisdiction question will have to be resolved sometime soon. In an interesting turn of events, just a few weeks after the Federal Circuit issued its opinion, the Delaware Supreme Court decided Genuine Parts Co. v. Cepec, which overruled Sternberg in light of Daimler. In dissent, Justice Vaughn aptly stated that "[i]t may be that the United States Supreme Court will go in the same direction as the Majority. But we won't know until it gets there."
Asylum Fraud and Immigration Loopholes
On Monday, Chicago immigration lawyer Robert DeKelaita was convicted of falsifying paperwork to help his clients win their asylum claims. Over the past ten years DeKelaita has won asylum for hundreds of Iraqi Christians facing deportation. However, in many cases he did so by impermissibly coaching his clients. DeKelaita would teach his clients how to lie in their interviews with the state department in order to improve their chances of gaining asylum. I have mixed feelings about this case. What DeKelaita did was clearly illegal, but it is the type of last resort that results from a draconian immigration system. For immigrants facing deportation the options for relief are dismal. Consequently, I can understand (although not condone) why immigration lawyers would feel the urge to coach or even manipulate the facts of their client's case.
The year I was a law clerk on the Third Circuit Court of Appeals my judge received numerous asylum cases from Chinese petitioners yet they always took one of two forms. If the petitioner was married, he (all these petitioners were male) would seek relief from deportation based on persecution pursuant to China's one child policy. If the petitioner was single, he or she sought relief as a persecuted Christian. The same fact patterns appeared over and over.The one child policy men claimed they feared returning to China because they had violated the one Child policy and would face persecution by the Chinese government if they returned. In each of these cases, the men had left their wives and children in China yet, they presented no evidence that their wives had suffered retribution (please note that I am just referring to these cases, there is plenty of evidence that men and women have been punished though forced sterilizations, abortions and other means for violating this policy). Similarly, the Christian asylum cases that came before us were all factually similar as well. The petitioners all claimed to be devout Christians who would face persecution if they returned to China. However, none of the petitioners had been religious in China and even in the United States, their religious activities were infrequent and minimal.
Some of these cases may have been genuine. However, it certainly appeared that the petitioners had been coached by their lawyers in order to shoehorn these men and women into meeting the criteria for one of the only two likely possibilities for avoiding deportation. DeKelaita clearly took his coaching too far. Still, his case highlights the fact that our asylum categories and criteria are too narrow. For as long as there have been immigration regulations, there have also been exceptions and the more we cut off one path to immigration, the more likely it is that people will try and pigeonhole themselves, legally or illegally, into another.
In my book, Buying A Bride, I devote a whole chapter to the "marital immigration loophole." This loophole arose during the late 19th and early 20th centuries as US immigration law became increasingly restrictive. First Chinese and then Japanese immigrants were banned, then poverty and literacy requirements were enacted to reduce Eastern and Southern European immigration then, lastly, specific country quotas were passed. These restrictions drastically reduced immigrants' ability to enter the United States but marriage to an American citizen provided a way around nearly all of these restrictions.
Mail order brides were legal immigrants yet they were also clearly exploiting a loophole in immigration law. Critics of the US's restrictive immigration policy were appalled that marital immigration permitted these "undesirable " women to continue entering the United States. Nevertheless, today, most people acknowledge, that it was actually the United States' restrictive, race based immigration policies that were disgraceful. A poignant example of this is the history of America's Armenian mail order brides. These women were refugees of the Armenian genocide yet, it was only as wives of Americans that they were granted entry into the United States. Consequently, although I don't agree with what DeKelaita did, I understand how he might have felt that a legal system which requires a persecuted minority to return to a country where they face a real possibility of future persecution (even if they don't meet that legal definition) is one that is seriously flawed.
Co-Authoring with Students and Collaborative Learning, (Largely) Successful
A Gallup poll of a couple years back found that the two features of an education that most closely correlate with long-term success (broadly defined) are engagement in long-term projects, and opportunities for close mentoring with faculty. The Brazil work that I’ve referenced in prior posts actually grew out of this data. We put together an intensive, year-long course entitled, “Brazil, Corruption, and the 2016 Summer Olympics.” A mandatory component of the course was a weeklong trip to Brazil, where the eight students and I conducted interviews with various lawyers, officials, and advocates in the Olympics space. Each of the students then wrote substantial papers that their devoted professor styled into an integrated report. The report (which we’re publishing serially in the weeks leading up to the August 5 opening ceremonies) just went live this week. If you’re interested, you can find it (and other resources) at law.richmond.edu/olympics/ .
I learned a lot about Brazil and the Olympics, and even more about law school students. There we were, studying together, traveling together, having to work together in a variety of ways. My takeaways were several:
- Students long for, and desperately need, meaningful work during law school. Opportunities to do things they value for their own sake, not just as a means to another end, are so very rare. In the cruelest of ironies we hold out law review as the pinnacle law school experience, and ‘tis fair to say that it usually holds scant personal meaning for our students. If we are to prepare them for effective service to the legal profession, they need to get way beyond box-ticking and resume padding. The Olympics project was not a hypo, and we weren’t there to observe.
- Students need more experience with collaborative learning. The correlation between interpersonal skills and academic achievement in law school is, um, not strong. Teamwork is not intuitive, and rarely incentivized in law school. We stand in stark contrast to the business schools in this way, and may be behind the curve. The lessons the students (and I) learned on the Olympics project in working together, cooperating, addressing problems in constructive ways – these were surprisingly hard. But as anyone who has practiced law knows, they matter far more than Bluebook mastery.
- Students need to learn how to get comfortable navigating in unmapped territory. Our project had no template; it was unlike anything that we had seen before. I could not tell them what they “need to do to get an A,” and there was not podium, literal or figurative, which I could stand behind and authoritatively direct them. We were venturing into the unknown, and for many, it was terrifying. But as we all know, the practice of law is much the same way, and the sooner we learn that, the better.
The best learning is often the hardest learning, and this project was a tremendous success. I’d be happy to answer further questions about it. Shoot me an email.
Monday, May 09, 2016
Media Attribution (or lack there of)
Last month, Chris Walker did an interesting series on what junior law professors should/shouldn't do to raise their profile/advance their scholarly career. One of the posts addressed media interviews among other things. That post and comments focused on how not to get misquoted/speak too much to a reporter. I've been having the opposite problem though; I have done several interviews in the past few months where I spend a good deal of time talking to a reporter who then uses the information/opinion I've given and gives me no attribution.
Chris didn't see much value in media interviews for an individual scholar; I'm not sure I entirely agree. But, even assuming the only value is institutional, some attribution is better than being essentially Westlaw-lite for a reporter. My first thought (imposter syndrome) is that the reporters have found nothing of value in what I said, but then I see them using my opinion (as fact or as another prof's/lawyer's opinion) in their piece. Of course, they are probably interviewing multiple sources who are saying the same thing, but my question is how if at all, I should address the issue of getting some attribution for my time?
Aristotle on Trolling
Lovers of virtue ethics, Internet norms, smart-assery, or all three will very much enjoy this piece in the Journal of the American Philosophical Association: Aristotle, On Trolling. Here is the opening:
That trolling is a shameful thing, and that no one of sense would accept to be
called ‘troll’, all are agreed; but what trolling is, and how many its species are,
and whether there is an excellence of the troll, is unclear. And indeed trolling is
said in many ways; for some call ‘troll’ anyone who is abusive on the internet,
but this is only the disagreeable person, or in newspaper comments the angry old
man. And the one who disagrees loudly on the blog on each occasion is a lover of
controversy, or an attention-seeker. And none of these is the troll, or perhaps some
are of a mixed type; for there is no art in what they do. (Whether it is possible to
troll one’s own blog is unclear; for the one who poses divisive questions seems only
to seek controversy, and to do so openly; and this is not trolling but rather a kind
Well then, the troll in the proper sense is one who speaks to a community
and as being part of the community; only he is not part of it, but opposed. And
the community has some good in common, and this the troll must know, and
what things promote and destroy it: for he seeks to destroy. Hence no one would
troll the remotest Mysian, or even know how, but rather a Republican trolls a
Democratic blog and a Democrat Republicans. And he destroys the thread by
disputing what is known to be true, or abusing what is recognised as admirable;
or he creates fear about a small problem, as if it were large, or treats a necessary
matter as small; or he speaks abuse while claiming to be a friend. And in general
the troll says what is false but sounds like the truth—or rather he does not quite
say it, but rather something very close to it which is true, or partly true, or best
of all merely asks a simple question about the evidence for climate change. Hence
the modes of trolling are many: the concern-troll, the one who ‘sees the other
side’, the polite inquirer into the obvious. For the perfected troll has no need of
rudeness or abuse, or even of fallacy (this belongs rather to sophistic or eristic,
and requires making an argument): he only makes a suggestion or indication
Things continue in Nevada. We see the beginnings of litigation, although I am not exactly sure where or what level--the Meyer campaign is seeking a "Hail Mary Injunction," appears in front of a multi-member court, but everyone is making objections. The show also continues developing Richard as character: He has emerged as the one competent person working for the campaign, but is not liked or taken seriously by others, and one reason might be that he is an overweight African-American.
The episode raises an interesting question about the politics of a Twelfth Amendment House election. Meyer starts and escalates an economic war with China, first to cover for a mistaken Tweet, then to avoid looking weak in the face of cyber-security threats from China, which she fears will hurt her electoral chances. But her electoral chances where? Not in Nevada, where the voting is done and what is left is the counting. So it must be the vote in the House. But would we expect the House vote to be anything other than straight partisanship, especially in this political period? Would a member of Meyer's party really vote for O'Brien (or abstain, allowing O'Brien to win that state's delegation vote)? Worse, would this one event cause that member to change his vote (i.e., he planned to vote for Meyer, but now will not because of this China thing), given what a disaster she otherwise has been in office? The show plays the typical "I can't look weak" concerns of an incumbent President running for office, but it may not fit the context.
Saturday, May 07, 2016
Roy Moore suspended, facing removal
The Judicial Inquiry Commission of Alabama has filed a Complaint against Chief Justice Roy Moore with the Alabama Court of the Judiciary, which will hold trial to determine whether Moore should be removed from the bench. Moore is suspended with pay while the proceedings play out.
The focus of the charges was Moore's administrative order of January 2016, ordering all probate judges in the state that they had a ministerial duty not to issue marriage licenses to same-sex couples pending resolution of the mandamus action in the Supreme Court. This order was contrary to the statewide defendant class injunction in Strawser, the Eleventh Circuit's effective affirmance of that injunction (the Court rejected a challenge to the injunction as being inconsistent with the SCoA mandamus ruling, insisting that the SCoA ruling was abrogated by Obergefell), and Obergefell itself.
I know nothing about judicial ethics, particularly in Alabama. But it seems to me the first charge--that Moore ordered the probate judges to ignore a federal court's injunction--is fair game (although the fact that the Eleventh Circuit had weighed in on the issue seems beside the point). The rest--that Moore decided substantive legal issues, including in ways that conflicted with his role deciding cases as a member of the Court--seem a bit shakier, at least to the extent they suggest an ethical conflict between the Chief Justice's role as administrative head of the state judiciary and as a member of the courts. The last five charges assume that SCOTUS's decision in Obergefell is the last constitutional word and a state judge, even one acting in an administrative capacity, cannot second-guess or disagree with that.
I welcome comments from this with a background in Alabama judicial ethics.
Two Cheers for Candor
Although I found it horrifying, I also immensely enjoyed Mark Tushnet's post yesterday recommending that "liberals" abandon "defensive crouch liberal constitutionalism." It begins:
Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).
It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and – though I wasn’t able to locate up-to-date numbers – the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.
My sense as a fond and frequent reader of Mark's work, in both its earlier and later periods, is that, rather than having to choose between reading his work as being in earnest and reading it as puckish, one should read it simultaneously as both. Like all of his work, including his more puckish posts and articles, his post should be applauded for its candor. Unlike some, Mark is willing to put his cards on the table, knowing that openness about these matters from legal academics won't do much to derail such a program and not caring much, I think, even if it does. All legal academics should be so candid and careless about consequences, but, alas, they often aren't.
I do have some critical comments about the post. The first is to urge readers to pay attention to the implicit assumption, or perhaps Freudian slip, in that first paragraph, which effectively treats all those "generations of law students and their teachers" as if they were and are all liberals. Of course they weren't and aren't. I don't worry much about such an apparent assumption appearing in Mark's work, because he is much smarter than the average bear and knows better. If I were a conservative student, I wouldn't hesitate to take one of Mark's classes. I do worry about such an assumption in the hands of a dimmer, less self-aware, or more unconsciously programmatic law professor, however. Mark's post is, among other things, an advertisement for the continuing importance of ideological diversity in the hiring of law professors and the admission of law students.
Second, I question Mark's labeling of the post as addressing the past and future behavior of "liberals." For one thing, some liberal legalists place more emphasis on the "liberal" part of the formula, and others on the "legalist" element. For another, "liberal" obscures too many intramural differences. Although it's a close call and I don't mean to white-wash anything, I think his post is more profitably read as referring to what legal progressives or leftists ought to do than it is as giving marching orders to liberals. Making assumptions about motives is generally a fruitless enterprise. Still, there is a case to be made that the best way to understand this post is as one issued specifically from the (less powerful) left, with the hope that enough impressionable (and more powerful) liberals will be cozened into taking it seriously and doing the left's work for it. Given that the left lost the Democratic primaries, I'm not sure why the liberals should do anything of the sort, and they might consider the possibility that some of Mark's cynicism is aimed at them as well as at the right. But some of them are impressionable, after all.
Third, I think Mark's candor obscures, or even blinds him to, the complex dynamics involved in forming legal-political views. In the area of religious fraud and the law, I have written that it is a mistake to treat the shepherd and the flock as holding identical views. A minister may mouth doctrinal views insincerely and cynically, while her flock holds those views sincerely and tries to apply them in a principled fashion. The same is true in law--for which, on the whole, thank God. Ideas, once loosed on the world, have a life of their own and cannot be controlled by those who offer them up. Someone who offers a view of judicial restraint because it will advance her current political program will generally try to offer up seemingly politically neutral and compelling justifications for those views. And whatever her own motives in advancing that argument and her insincerity in offering the justifications for her position, some people will find the justifications compelling in their own right and hold fast to them. Some will even maintain those views after circumstances have changed and the center of gravity has shifted, although certainly many will eventually come around to the new center of gravity. Even if, say, liberal originalists or believers in judicial minimalism offered their views for purely political and instrumental reasons, employing their brilliance in justifying those views only as political tools, many liberals will believe those brilliant arguments even if their progenitors do not. Indeed, some of the progenitors will end up buying their own arguments; the most powerful form of deception is self-deception. Maybe the people who end up sincerely believing in those arguments are naive; if so, two cheers for naiveté. The best safeguard against sudden volte-faces of the kind Mark argues for here is the work that is put into justifying those instrumentalist arguments in the first place, including framing them as sincere and politically neutral, and the inevitability of many people taking them seriously in their own terms. Conservatives eager to take Mark's post as evidence that liberal legalism is a sham and that every liberal legalist is in on the sham should take these dynamics into account, and vice versa.
As for Mark's recommendations themselves, they are fairly unremarkable. The only thing interesting about them to me is, again, the interesting dynamic of sincerity and cynicism they suggest. Surely many liberals will eventually take some of these recommendations on board. But not all of them will understand themselves to be following Mark's orders, and some would no doubt angrily and sincerely deny it if it were suggested that they were doing just that. A few out there may applaud his suggestions. But if he were, a few years from now, to give a keynote address at the American Constitution Society convention that said the same thing, I'm sure many would regard it as being in terribly bad taste and even insulting. This is, of course, one reason why I like Mark's work so much. A legal academic with political inclinations should always treat upsetting her allies as one of her primary goals, and one way to distinguish interesting legal academics from hack writers of shadow-amicus briefs is to identify those who never do so.
I am also not quite on board with Mark's paragraph about the culture wars. I agree with its "they lost" point in general terms, but not with its specifics; and I think he gives too little awareness to the financial and other motives for the combatants in these wars to continue believing that they are losing or under threat, whatever the truth may be. No one gets donations or galvanizes their base by talking about how well they are doing. Nor is it quite accurate to say, anent the recommendation that liberals take a hard line on culture war issues (aside from any actual substantive and/or normative objections one might have to this recommendation; after all, we continue to have a First Amendment), that doing so "seemed to work reasonably well in Germany and Japan after 1945." Analogies are dangerous in any case, but the premise here seems almost entirely faulty. For one thing, Mark omits to mention that taking a hard line after 1918 did not go so well. For another, the Allies did not take a particularly hard line after 1945--sometimes problematically so, but often for good reason and to good effect. Depending on what Mark thinks constitutes a "hard line," he might remember that the Allies quite rightly concluded that the Morgenthau Plan was punitive and stupid, and that even mention of the idea helped galvanize German resistance to surrender. If one is going to make such an analogy, one should keep in mind the entrenchment risks of a hard line strategy. American soldiers complained that the Morgenthau Plan was worth thirty divisions to the Germans.
Of course, I agree with Mark's last point, and think his advice about Justice Kennedy should apply to everyone, not just the left. Another good way to distinguish the academic brief-writers from the actual scholars is the amount of attention they pay to patching or redoing Justice Kennedy's writing and massaging his ego.
Friday, May 06, 2016
The Most Inappropriate Comment from A Police Union Yet?
I've been writing and thinking a lot over the past year plus about how the criminal justice system reacts to police who are accused (or not) of committing crimes. Since Michael Brown's death in Ferguson in August 2014, police killings have roiled the public, given birth to new social activism, and reinvigorated a debate about what limits we should place on the police -- legally, politically, and administratively -- in their quest to protect the public. Many scholars and politicians have begun to ask, at what cost?
Unless you actively avoid news of police violence, you have seen the videos of Eric Garner's choking death, Walter Scott being shot in the back, and Chicago teenager LaQuan McDonald being shot 16 times, among others. Among the most disturbing of these incidents, and videos, is the shooting of 12-year-old Tamir Rice in Cleveland in November, 2014. Take a minute (or seconds as it may be) to watch this video. Now add in the fact that the person who called 911 specifically told the police he believed the boy was playing with a toy gun -- a fact that the officers who shot Tamir claimed not to have received -- but one which will matter in a paragraph or two. These officers barely exit their vehicle before they shoot the boy, who was indeed playing with a toy gun.
After local prosecutors commissioned several reports exonerating the police's behavior, a grand jury failed to indict, in a routine that many see as the failing of our criminal justice system to hold police accountable. I have somewhat idiosyncratic views on the utility of the criminal justice system in general and its operation when police are the object of its gaze, which I've laid out elsewhere and may return to this month. That's not what this post is about.
This post is about the letter the Cleveland Police Patrolmen's Association (police union) sent to the media, but really to the parents of Tamir Rice, after they received a $6 million settlement to compensate them for the life of their child. I've pasted a screen shot of the letter after the jump because there is something about the full effect of the insignia, formality, and seeming professionalism of the letter that make its contents all the more ludicrous.
To recap: a 12 year old was playing with a toy gun (albeit one that resembled a real one), something that is completely legal and that thousands of children do every day (I would love to poll the Cleveland police union about how many of their children own toy weapons). A 911 caller told the dispatcher that he believed the gun was fake. Two officers, whether they knew this or not, shot this child within seconds of their arrival on the scene. One did not even get out of the car, the other used his door as a shield and shot immediately. These officers were not charged with a crime, and remain on the force. To compensate Tamir's family for an uncoompensatable loss, and to avoid further litigation, which would result in more scrutiny of the department and potentially more damages, the city settles.
Now, the head of the police union, who, by the way, sits on a committee designed to better relations between police and community after the city reached a consent decree with the US DOJ because of its police departments overuse of excessive force, suggests in a formal letter to the media, that it is the duty of Tamir's family to educate the public about toy guns!? I haven't been able to digest this letter enough to count the ways it is wrong, and what it says about the way police unions, if not officers themselves, look at the communities they police or if it says anything other than that the head of Cleveland's police union should be removed from his position.
Am I missing something that makes this letter justifiable? I can't see it but admit I can be myopic about such things.
Random items for a Friday morning
1) Here is a supercut of movie scenes depicting people dealing with writer's block. The Slate story describes it as stressful to watch--and it is. I also would say "claustrophobic."
2) Yesterday, I held my Civ Pro review session, which also included, for the second time, presentation of the "creative projects" that students can do for extra credit. The students enjoyed it, I got about 80-90 % participation (down slightly from the first time I did it, but still good). And it ran the gamut--board games, music parodies,* children's books, a skit about one of out classes, and even a pencil drawing of me. I think this is beginning to take on a life of its own, which I like. And a forever H/T to Josh Douglas for suggesting the idea; it has proven to be a nice exercise in class collegiality and, in many cases, an review that allows me to see what they understand (and what they don't). [Update: Here is the information sheet I give to students about this assignment]
[*] The one problem with music parodies is that my musical tastes have not kept up. So I can recognize the Spice Girls ("I wanna really, really, really get an A in Civ Pro") and "Let it Be" ("Let 'em plead"--"yeah there will be an answer" sort of fits perfectly). The rest, not so much, although I think they were well done.
3) A federal lawsuit has been filed in the Southern District of Florida alleging that a former administrator in FIU's School of Architecture sexually assaulted a student. I know nothing about any of this. I mention it only to highlight one Civ Pro angle: The complaint was served while the defendant was on campus of another school in another state interviewing for an academic position. That is cold-blooded.
Thursday, May 05, 2016
Rethinking Olympic Legacy
I’m going to spend much of this month trying to re-engineer your thinking about Brazil; the rule of law story is way cooler than most of us appreciate. Among all else going on there, Brazil is hosting the upcoming Summer Olympics, and there will be much talk in the coming months of the Olympic “legacy.” What do we mean by legacy? Generally we define it in economic terms: we calculate the cost of preparing for and hosting the games, then weigh it against the perceived long-term benefit, principally measured in terms of tourism revenue and the economic return infrastructure investment. It has become quite common of late for candidate cities to withdraw their bids, often in response to public referenda, on the grounds that the benefits won’t justify the costs. Oslo, Stockholm, Vienna, Hamburg, even our own Boston, and many other cities have withdrawn based largely on economic concerns. Notably, the only two competitors for the most recent awarding of the 2022 Winter Games were authoritarian regimes – Beijing, China, and Almaty, Kazakhstan. (Finalists for 2024 include Rome, Budapest, Los Angeles, and apparent frontrunner Paris).
But Brazil is showing us something different. It has built for itself what we might call a governance legacy: a series of laws passed in substantial part to prepare for the Olympic Games, that have an application well beyond the sporting event itself, and that will likely remain in place after the Games are gone. And as I will explain in subsequent posts, that governance legacy is overwhelmingly positive. In the areas of criminal enforcement, substantive anti-corruption law, procurement, and freedom of information, Brazil passed laws that tend to promote transparency, accountability, and the rule of law. More remarkable yet, Brazil’s Congress passed these laws largely in response to the much-publicized democratic protests concerning the government’s spending of public money. And as if that weren’t enough, certain of these laws are the very reason that systemic corruption is now being effectively prosecuted and folks are actually going to jail.
So I’m going to try to convince you that a measure of Olympic idealism is still in order, unfashionable though it may be. Cue the Olympic theme song.