Thursday, June 30, 2016
Overview of ABF Research (Part III): Law & Globalization and Legal History
In this last post on ABF research, let me describe two parts of our research portfolio that reflect both our sense of the past and our transnational perspective on the present. From its founding in the 1950s through today, the ABF has been focused on studying how law, legal institutions, and legal processes operate across place and time. Our scholarship and programming on law & globalization and our work in legal history reflect these enduring commitments.
Let me start with a brief description of our research on law & globalization.
Law & Globalization
Globalization, to be sure, is not a new phenomenon, but it has taken on a greater sense of urgency in recent decades. Like many academic and research organizations, the ABF has become increasingly interested in the causes and consequences of globalization and its relation to law. For many years, we have had numerous international faculty members conducting research throughout the world.
Most recently, our legal sociologists Terry Halliday and Sida Liu have been collaborating on a long-term project about Chinese criminal defense lawyers and their role in political mobilization. As I’m sure many Prawf readers know the Chinese state in recent years has been intimidating and persecuting Chinese lawyers because of their political activism. Terry and Sida have conducted hundreds of interviews with Chinese lawyers to learn more about how the everyday work of criminal defense lawyers has become a political project. Drawing on a long line of scholarship about lawyers and political liberalism (much of it written by Terry), their forthcoming book will one of the first to examine empirically how the seemingly ordinary work of criminal defense lawyers in China can have far reaching transnational political and social implications. Although the book won’t be out for another year or so, this fascinating research has already garnered significant media attention across the globe.
Another area of ABF research on globalization focuses on comparative constitutions. Our joint-appointee Tom Ginsburg (U. of Chicago Law & ABF) has been at the forefront of research about the origins and international diffusion of rights in national constitutions. For many years, Tom and his collaborators have been collecting data on the countless constitutions that have been in existence since 1789 to the present (you can learn more about their Comparative Constitutions Project here). This project has documented the important role of domestic political factors and country characteristics in understanding the development and diffusion of constitutional rights.
While Tom Ginsburg’s research focuses on the material aspects of the rule of law, one of our other colleagues working on globalization, Jothie Rajah, explores the more theoretical underpinnings of rule of law discourse. Following up on her first book about rule of law in Singapore, Jothie’s latest project analyses the different ways in which global institutional actors (the UN, the World Bank, the International Commission of Jurists, the World Justice Project) define “rule of law.” Through a close reading of the texts and practices of these institutions, Jothie analyzes the development of global norms and the efficacy of rule of law indicators.
ABF research on globalization also examines the diffusion of legal rules across nation-states. Our joint-appointee Carol Heimer (ABF/Northwestern Sociology) is studying how laws, regulations and other rules are actually used in HIV research and treatment in the United States, Uganda, South Africa, and Thailand. Her book project investigates what happens when laws, regulations, and guidelines, admittedly created with the best of intentions, are transported to new sites where they confront the realities of medical care, clinical research, and healthcare administration in developing countries. Carol is currently finishing up a fellowship year at Stanford’s Center on Advanced Study in Behavioral Sciences, where she is completing her book manuscript.
In addition to our work on Law & Globalization, the ABF has also had a long tradition of research on legal history, writ large. Many years ago, the ABF had a Legal History Society of some kind that hosted regular events advancing scholarship in legal history. Although the formal society doesn’t exist anymore, the ABF continues to play an important role in supporting and promoting legal history. From our faculty members like Vicky Woeste, whose recent research focuses on hate speech (here’s a link to her latest book on Henry Ford and Hate Speech), to our regular Chicago-area seminar on legal history, to our recent support for a junior scholars conference on Law in Capitalism, the ABF remains committed to supporting innovative and influential research on how law and legal institutions have operated in the past, and on how these historical legacies continue to influence the present.
Indeed, our recent conference, which was co-hosted by the University of Chicago Law School, and supported by a consortium of schools and the American Society for Legal History, brought together a stellar group of junior scholars working at the intersection of law and the new histories of capitalism. These advanced grad students and junior faculty members had a chance to share their work and receive feedback from senior scholars in the field. We were delighted to host this group at our Chicago location, and we look forward to having more ABF events on legal history.
Like the other categories I’ve discussed earlier, these two ABF research streams are just examples of a much deeper body of scholarship. To learn more about our research, please visit our website.
Now that I’ve given readers a sense of the type of empirical and interdisciplinary research the ABF conducts, perhaps in my last post (if I haven’t already over stayed my welcome as a guest blogger) I can address a couple of pragmatic issues about ABF funding and the role that legal academics play in both supporting and helping disseminate ABF research.
Same-sex marriage, religious opt-outs, and constitutional procedure
On Monday, Judge Reeves of the Southern District of Mississippi declared that Mississippi cannot statutorily authorize county clerks to opt-out of issuing marriage licenses to same-sex couples based on religious objections to same-sex marriage (the law was enacted soon after, and in response to, Obergefell). But the order was entirely bound-up in the procedure of constitutional litigation, particularly with respect to marriage. Refreshingly, Judge Reeves took his time on the process and got it right.The plaintiffs challenged the Mississippi law through a motion to amend the existing permanent injunction prohibiting enforcement of the state's ban on same-sex marriage. Before the court could reach the constitutionality of the new state law it had to determine:
1) It still had jurisdiction to enforce and expand the injunction, because the same issue--the constitutionality under the Fourteenth Amendment of a state law seeking to treat same-sex couples differently than opposite couples with respect to marriage licenses--was involved in both the original injunction and the new challenge.
2) The plaintiffs have standing to expand the injunction. This one is trickier, because the named couples have, presumably, gotten their marriage licenses, so they are not injured by the new law. And this is not a class action. The court relied on basic principles that plaintiffs always have a right to protect their final judgment, although the new law does not threaten the injunction as to them. Any uncertainty was resolve by the court's third point--the Campaign for Southern Equality is a plaintiff and it has associational standing to represent any members who want a license in the future and may have it denied pursuant to the new law.
3) The named plaintiffs, and the enjoined persons, are the governor, the AG, and the clerk of one county. The plaintiffs were trying to get the clerks for the other 81 counties in the state to comply with Obergefell. The court recognized that these 81 clerks are not parties and not bound by the injunction. Instead, the court ordered the parties to ensure that these other parties have notice of the injunction and that they are subject to it, presumably by adding them as defendants and/or certifying a defendant class, to whom the injunction can be extended.
4) The injunction would be extended to state that everyone bound by the injunction must issue marriage licenses to same-sex couples on the "same terms and conditions as opposite-sex couples." The court took this language from Obergefell to ensure that the Supreme Court decision, which is the law of the land and the law of the circuit, will be enforced. The judiciary, he added, should "remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly." Without saying so, Judge Reeves capture the departmentalist point--the injunction against specific individuals is necessary to formally bind them to Obergefell. The key is to ensure that all appropriate people are named parties subject to an injunction.
5) The court left it to the parties to figure out how to get notice to the other clerks and to agree on language for the amended permanent injunction.
JOTWELL: Malveaux on Marcus on public interest class actions
The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing David Marcus, The Public Interest Class Action (Geo. L.J.), which considers the special role of the public-interest, equitable-relief class action and how to shield it from the Court's recent narrowing decisions.
The Middle of America?
It is something beyond a truism at this point that we live in increasingly ideologically divided times with increasingly ideologically coherent political parties battling each other (even after Donald Trump's success in the primaries!). When one party controls a branch of government, it tends to push that branch of government either to the left or to the right based on which party is controlling that branch of government.
Imagine that I told you, then, that one branch of government in the past few weeks had taken actions that had the following practical effects: making it harder to regulate abortion; making it easier to have affirmative action policies; and making it harder to have immigration reform. Three salient issues, two liberal results, and one conservative result. This might sound like the ideological valence of a President or a Congress from the middle of the twentieth century, but not of the start of the twenty-first century.
With all of the reports of the Court moving to the left, it is notable how much the Court still sits more to the center than the other branches of government. It might be moving one way or another, or about to move one way or another, and we might not know entirely why, but my sense is that it even this year it still tends to sit more in the middle of American public life more often than the other branches of government are.
Should the Supreme Court Go Public?
I appreciate the fantastic comments on my earlier post regarding Justice Sonia Sotomayor's dissent in Strieff. These comments raised great questions related to Strieff itself, as well as larger issues related to public outreach by the Justices. I want to write something short about the latter issue.
Why doesn't the Supreme Court engage in more and more significant public outreach? This public outreach is fairly common for state court judges to do. I can still remember members of the press office of the Florida Supreme Court standing out front of the courthouse to announce how the Florida Supreme Court had resolved the presidential election controversy in 2000. Of course, though, large numbers of state judges must stand for election.
There is a whole literature in political science about foreign high courts engaging in public outreach. Two of the leading works in that area are Jeffrey Staton's great book on the Mexican Supreme Court, and Georg Vanberg's equally great book on the West German Constitutional Court. American scholars have started to think about this issue more, but they are analyzing subtle rather than salient outreach efforts by Justices.A substantial part of the opposition to a court (including the Supreme Court) going public is the assumption that going public would undermine the perceived legitimacy of courts. I think it is time that we question that assumption. It might still be wrong for Justices to go public, but this part of the argument for that claim needs to be revisited.
First, as regards the Supreme Court, if the Justices are not speaking about the Supreme Court, someone else is--and that means polarized and political elected officials in the federal government. You might not want Justice Sonia Sotomayor or Justice Samuel Alito appearing in front of millions of Americans to discuss their jurisprudence, and that might be right as a matter of first principle. But would you prefer that they do not such salient outreach, and instead have your least liked political figure who talks about the Court (Ted Cruz? Barack Obama?) do this?
If you want to know why attitudes towards the Court are so polarized, you need at least to start with the reality that far more Americans know about the Court from polarizing political figures (or related polarizing media sources) than any other place. If there is one Washington truism, it is that someone has to define you--does the Supreme Court want it to be the other two branches?
Second, there is some evidence to indicate that going public increases the perceived legitimacy of courts, at least as regards the Justices. People hear from Justices and hear that they sound better than elected officials, and this improves their assessment of the Justices.
One big caveat: much of this would surely depend on what the Justices say when they go public. There is a lot they could say that could increase their legitimacy. We might not want a Justice discussing particular cases, but if they talk about other things in highly salient settings, there is evidence that support for their legitimacy increases.
Wednesday, June 29, 2016
The Many Constitutional Laws
The primary field of scholarship that I write about is constitutional law. It has occurred to me in my writing this summer how much constitutional law has subdivided itself--and how common it is for academic fields to do that as both cause and effect of their increasing prominence. New scholarship begets new scholarship, and new sub-fields beget new sub-fields.
It would be absurd to think that there is just one area of political science, for instance. Michael Sandel is doing something very different than what Robert Dahl was doing; Adam Przeworski is doing something very different than what Hans Morgenthau was doing. Because and as political science became more and more complicated, it had and has an increasingly plausible claim to subdividing itself. To respond to the sophisticated claims of a specialist, it requires the equally sophisticated claims of another specialist.Constitutional law has had a similar evolution. For an earlier article, I looked at what classes law schools have been offering and what articles law professors have been writing for the past 50 years or so. Issues like those raised by constitutional criminal procedure were being taught and written about by law professors fifty or sixty years ago. But they were more likely than they are today to be taught in the same class as Marbury v. Madison or Youngstown Sheet & Tube Co. v. Sawyer, and to be written about by the same professors as those writing about Marbury v. Madison or Youngstown Sheet & Tube Co. v. Sawyer. Now, to respond to the sophisticated claims of a specialist in a discrete area within constitutional law, it requires the equally sophisticated claims of another specialist in that discrete area.
Other fields in the academy subdivide not just based on other scholarship but also based on events in the world. The Cold War created and justified more international relations theorists, for instance. But my sense is that legal scholarship subdivides even more based on events in the world--particularly, at least for constitutional law, based on decisions by the United States Supreme Court. As the Court decides more and more cases addressing similar issues and relying on similar precedents (e.g. exclusionary rule cases), it is easier to group these cases together into a field and separate that field out from other fields. It then follows that this area of doctrine becomes its own area, with its own classes, its own casebook, and its own scholars.
Zero and Positive Sum Psychology
One of the best academic theories to help us explain the passionate divide regarding Brexit or Donald Trump's success is the so-called "zero-sum bias." Empirical research has suggested that many people tend to understand life as essentially zero sum. If some other individual or group is gaining more of something, then there is less of it left for other individuals or groups. Immigration, then, means more for other people and less for my people. If one team wins, then one team loses.
Others understand competition as positive sum. Voluntary exchanges benefit all parties to the exchange. Immigration, then, means more for other people and more for my people as well. Both teams win.
Monday, June 27, 2016
Sunday's season finale played out the constitutional election/selection/succession contingencies to the last, producing what, in reality, would be a genuine constitutional and political crisis. And it leaves the show in the position of a genuine reboot when it comes back next season, which presents some interesting possibilities.We begin before the Senate vote for Vice President, which Tom James expects to win. He and Meyer are negotiating her role in his administration--she wants to be Secretary of State, he presents VP as take-it-or-leave-it. She initially leaves it by telling James she would not be his vice president if there were "a grassy knoll full of Jodie Foster fans" in the front row at the Inauguration (a great line). She relents because she believes it is the only way to continue working with China on freeing Tibet (a possibility set up two weeks ago). The scene where Meyer agrees and James cannot help laughing when he promises her that she will be an involved part of his team is a good commentary on how the vice presidency is perceived.*
[*] Although vice-presidential historian Joel Goldstein (SLU) has argued that this has not been true of the modern vice presidency, at least since Walter Mondale.
The show had been building to this since the end of last season, but, as I argued then, it gets it wrong. Under the 20th Amendment, when the House has not chosen a President, the VP elected by the Senate "shall act as President until a President shall have qualified." That may happen in two days, when the House holds a new vote and selects a President. Or it may happen in four years, when a new election and Electoral College vote selects a President in the scheduled quadrennial election. But this VP never becomes President, although she exercises the powers of the presidency.** She remains Vice President and cannot appoint a new VP because the vice presidency is not, in fact, vacant. As I said in a comment to last week's post, this person would not be Ford after Nixon resigned, but GHW Bush when Reagan had polyps removed. And no one believed Bush could have appointed a new VP.
[**] With perhaps some informal limits on Supreme Court appointments, as Rob Kar and Jason Mazzone suggest.
The twist in the episode is that James loses the Senate election. Vice President Doyle, mad at Meyer for reneging on her promise to make him Secretary of State, orchestrates a tie in the Senate vote (by appealing to various Senators whom James had angered over the years over judicial holds, earmarks, etc.), which he then breaks to give the Vice Presidency to Laura Montez, O'Brien's running mate. And with it, the acting--not actual--presidency. This was a twist that I certainly did not see coming. Montez then is sworn in, with a huge inauguration attended by two million people. Again, this would not happen because Montez is not, in fact, the 45th President;*** formally, the presidency remains vacant.
[***] A poll discussed in the episode rates Meyer the 43d best President, just behind James Buchanan, who is "credited with causing the Civil War."
I kept waiting for some further twist back, but it never happened. My first thought was that James would go back to the Speaker to hold a new House vote**** (since that was the plot that started all this) and James would try to whip-up votes to get Meyer the win. Of course, O'Brien came closer to winning that Meyer, so it would have required not only moving the three "abstaining" states, but also one other. Then, during a discussion of Montez's Mexican-born husband, I thought it might be revealed that Montez was not a natural-born citizen, and that might blow everything up. But nothing. And that is the plan. Showrunner David Mandel has said that Season Six will focus on Selina's life after the White House, perhaps Catherine, Gary, and Amy, who are with her at the end. No word on whether other regulars from her staff will be back. Meanwhile, the agreement with China on Tibet that Meyer had negotiated is announced during Montez's address and credited to her, with talk of her getting the Nobel Peace Prize that Meyer had been craving (shades of the freeing of the Iranian hostages on January 20, 1981).
[****] A TV in the background at the White House shows a CNN chyron that the Speaker had said he would not hold a new vote. I thought that might be Chekhov's Chyron, but it turned out to be a reminder of the House role in this and a way to stop that piece of the story.
So how did the season "stick the landing" on the constitutional stuff? Not well in the details, although fun in the story. It seriously understates the political and constitutional crisis that would be involved here, producing an unrealistic result. The Twelfth Amendment was intended to prevent this "inversion" of president and vice-president. No way would O'Brien or Meyer accept the result so easily; they would be fighting like crazy for a new House vote. No way would their supporters in the House accept the result so easily. O"Brien's supporters wanted O'Brien as president; Meyer's supporters wanted Meyer; and the ones who broke were willing to go along with James's plan because they liked him better than Meyer, but would not want Montez in the White House. The Speaker could not refuse to hold a new vote if both sides demanded it; the body might remove the Speaker if he were that obstinate.
Finally, no way would the public accept this, certainly not to the tune of two million people wildly celebrating Montez's inauguration (a law the 2009 Obama inauguration)--no Meyer voter would be happy and an O'Brien voter, while perhaps happy that their party was in the White House, voted for O'Brien, not Montez. They, too, would be pushing the House for a new vote. This is exacerbated by the show suggesting that Montez is callow and ill-prepared. So was Meyer. But Montez is thrust into office because of behind-the-scenes political dealings and the refusal of the Speaker of the House to do his job.
And consider some future problems. What happens if there is a Senate tie? Montez remains the vice-president***** who should break the tie, but she is also acting as president, in which role she would sign the bill. [Correction: A commenter points to Art. I, § 3, cl.5, which provides that the President Pro Tempore presides over the Senate "in the Absence of the Vice President, or when he shall exercise the Office of President of the United States," which seems to capture this situation. So one problem resolved]
[*****] She cannot resign the vice-presidency, since that is the source of her power to act as president.
She presumably will decline to break the tie, as a matter of prudence. But having four years of this strange arrangement is bound to create problems. And what happens in the new House after the mid-Term elections? Might a new Speaker hold a new vote on O'Brien-Meyer, resulting in Meyer coming back to office for two more years, as President, with Montez serving as her VP? That would be a neat plot twist, which the show closed off by talking about Montez as the President; it would take too much exposition to walk it back. Anyway, it is a moot point, since Mandel's plan is to focus on Selina Meyer outside the White House.
All-in-all, I enjoyed the season. And most of the broad strokes of the story worked. They got the details wrong, which is frustrating just because it would have been so easy to correct. Put Jonah in Connecticut instead of New Hampshire and that story works. Talk about divided states rather than abstaining states and that piece works. Have the House holding multiple votes and unable to break the impasse, with no Alexander Hamilton in sight, and that piece works.
Posner is Much More Right Than Wrong
Three passages from the new Slate Breakfast Table are getting a lot of play today among law professors. I no longer read Slate if I can help it, but this was a fun conversation. The first is from Richard Posner, complaining about a widening gap between the legal academy and the judiciary. This is the subject of his most recent book, which I reviewed here, and one is better off reading the book than the post.
The second is a reply from Dawn Johnsen. She writes, in part:
I do not perceive law professors as pandering to the justices or as generally reluctant to speak truth to power. It may be that few employ Judge Posner’s sweeping style or reach conclusions as extreme. But the law journals are filled with substantive and harsh critiques. That’s what we do.
A better question is how much of that writing is worth reading. Is Judge Posner right that law professors are, well, too academic? At one level, I would say clearly yes—as have many others, over many years. . . . On the other hand, numerous of my academic colleagues have done serious full-time stints in government and nonprofits, typically by taking leaves. Many more engage deeply with real-world practical experience, even while teaching, be it through litigating and filing amicus briefs; serving on nonprofit boards; working with legislators and other elected and appointed officials; blogging for Slate or SCOTUSblog, Lawfare, Just Security, Volokh, or themselves. The American Constitution Society just announced a new Board of Academic Advisors filled with wonderful law professors who are deeply engaged with the world outside of the academy.
And the third is Posner's response. Again in part:
I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you.
I think Posner's book is deeply flawed, as I write at length in the review, and that his initial post is overstated. That said, I think his reply is right on the money. Johnsen raises some very peculiar, perhaps tellingly peculiar, arguments in response to him. Whatever the phrase "speaking truth to power" means, it is ill-chosen here. Law professors do indeed sometimes speak truth to power. But most of the time, at best, they speak truth about power, which is not at all the same thing. Speaking truth to power requires one to speak directly to an audience of the powerful and for the powerful to be listening. Burying a criticism of the powerful in the middle of an over-long law review article in a journal likely to be read by few--few law professors, let alone lawyers, law clerks, and judges--does not require much by way of fortitude. It amounts to whispering, with footnotes, into the void.
Whatever the phrase "engage deeply with real-world practical experience" means--how does one engage with experience?--her examples are weaker than she apparently supposes. Without doubt, some law professors--even a large number, although small compared to the total number of law professors and smaller still in the top tiers of the legal academy--have practical experience and continue to make use of it. I applaud them for it. (Provided, of course, that they maintain a distinction between their legal work and their academic intellectual work, which, for better and worse, is supposed to operate by different standards.) And some law professors write amicus briefs--rather than merely signing them, which requires no practical experience and gives one no new practical wisdom. Those are exceptional cases. Some of the other examples are relevant but rare. The activities she cites that are actually most commonly engaged in by law professors have nothing to do with "engaging with practical experience." Writing an op-ed or blog post does not require practical experience and does not conduce to it. The best-placed op-eds I have written drew on my academic expertise and a soupçon of, God willing, wisdom and common sense, but not on any practical experience. I regularly receive emails with recent op-eds by Bruce Ackerman. They're very good and so is he, but they are hardly underwritten by practical experience.
The notion that serving on the ACS "Board of Academic Advisors" has much if anything to do with "engaging with practical experience" is quite absurd. Even as a list of examples of practically engaged lawyers it is questionable, since some of them have little practical experience and, for others, their primary practical experience is in public advocacy and propaganda, not lawyering. As should by now be expected, Johnsen raises as a counter-example to Posner the go-to case of Randy Barnett. He has indeed had a good deal of real-world influence. But I know no law professors who do not believe, openly or quietly (and law professors are even more polite and flattering to each other than they are to judges--far too much so), that Barnett's influence has grown proportionally as he has focused more on public advocacy and meme-propagation and less on genuine academic work.
You can read my review to see how much I think Posner has strayed recently from his best work, and how overstated I think some of his current claims are. But I think he is generally right in his current complaint, although one can read it descriptively without sharing completely his normative views about what law professors ought to be doing. (That turns out to be, essentially, echoing Posner's own views and serving as adjuncts to the federal judiciary.) And he is right in spades in his response to these rear-guard defenses of the "relevance" and "engagement" of the legal academy. If our defense rests on "speaking truth to power," we are in serious trouble.
Interesting in both cases--with respect to Posner's posts and those of his Breakfast Table critics alike--is the focus on influence at the level of national politics or the federal judiciary. Those law professors most likely to have serious practical experience reside in the "lower" ranks of the legal academy, and they--and all of us--would be better off focusing on gaining experience and seeking for influence at the local and state level. But law professors are status-seekers, and that kind of engagement brings no rise in status. And aside from that, there is a difference, swiftly elided by all the Breakfast Table talkers, between having practical experience and seeking or wielding influence. There are plenty of reasons to favor the former, but also plenty of reasons to question the latter as a goal. I think it is right that more legal academics should have practical experience, and do not except myself from the criticism. But it is hardly clear that they should have or seek influence, especially national legal or political influence. In a moment in which large numbers of people are questioning the arrogance or blindered perspective of elites, and in which academics have lost a good deal of their academic authority by departing from serious academic standards in the interest of political engagement, surely there is room to pause before concluding that it's a good idea to stir hundreds more politically engaged, epistemically-closed elites into the mix.
Sunday, June 26, 2016
Dan Markel Memorial Lecture July 23 in DC
If you are in Washington DC in July please make a note in your calendars. Matthew Price will give a d'var Torah on Shabbat morning, titled “Reflections on Friendship,” in memory of Dan Markel, z”l, on the occasion of his yahrzeit. Dan was a beloved friend of many members of Ohev Sholom. Saturday, Jul 23 Dan Markel Memorial Lecture Time: 11:00 am.
Friday, June 24, 2016
Overview of ABF Research (Part II): Diversity & Inclusion and Access to Justice
My apologies for the long gap between posts about ABF research. I’m clearly not as prolific as other guest bloggers. In fact, I don’t think I can read as fast as David Fontana can blog. Well done, David!
Let me see if I can pick up the thread on the different parts of the ABF’s research portfolio.
In addition to Criminal Justice and Legal Education (described in my previous post), ABF research has also focused on the important topics of Diversity & Inclusion in the Profession and Access to Justice. Like most ABF research topics, these two aren’t self-contained or isolated areas of scholarship and programming. In fact, they often blend together.
Let me begin by describing some of our work on Diversity & Inclusion in the Profession.
Diversity & Inclusion
Some of the projects I’ve already mentioned, particularly “After the JD” (AJD), are connected to diversity in the legal profession. With three waves of AJD data, we know, for example, about the stubborn persistence of gender and racial inequality in the profession. We also know that there are significant racial and ethnic disparities in practice areas, salary growth, and job satisfaction.
But AJD is just one ABF project related to diversity. Our recently established Research Group on Legal Diversity (RGLD) has also been conducting regular conferences, and producing innovative research, on this important topic. The first conference in 2012 brought together leading scholars on the topic of “The Future of Legal Diversity.” In the following year, the ABF hosted a conference organized around the theme of talent, with the more verbose official title of “Pursuing Diverse Talent in Legal and Professional Services: Research within and Across Professions, Organizations, and Societies.” This conference led to the recent publication of an edited volume, Diversity in Practice, that contains many of the papers presented at the 2013 conference (we’re all hoping for an affordable paperback version soon).
In 2014, the ABF’s RGLD hosted a conference on “Bias and the Law.” And most recently we held a fascinating conference last month on “Metrics, Diversity & Law.” All of these conferences and their resulting publications build upon the ABF’s longstanding tradition of innovative, empirical, and interdisciplinary research.
As part of its diversity initiatives, the ABF has also recently established an endowed chair honoring William Neukom of Microsoft fame. We are fortunate to have UCLA Law Professor and Dean Emerita Rachel Moran as our inaugural holder of the visiting William H. Neukom Fellows Research Chair in Diversity and Law. During her year with the ABF, Rachel has helped launch a new ABF project: “The Future of Latinos in the United States: Law, Opportunity, and Mobility.” Together with our colleague, Bob Nelson, Rachel has been advancing research and policymaking focused on the future trajectory of the Latino community and American democracy. The project aims to explore four key issues facing the growing Latino community in the United States– education, immigration, political and civic participation, and economic opportunity – through research, teaching, and outreach. You can learn more about the first phase of this project here.
Because the ABF occupies a unique space between the academy and the practicing bar and bench, some of our research projects are also the direct result of collaborations with ABA entities. One stellar example of such cooperation is our work with the ABA’s Commission on Women in the Profession. In 2015, the ABF and ABA published a report, First Chairs at Trial: More Women Need Seats at the Table, documenting how women are consistently underrepresented in lead counsel positions and in the role of trial attorney for the vast majority of criminal and civil litigation. Not surprisingly, this important joint study has received lots of attention within the legal community, especially among trial lawyers.
Access to Justice
Although nearly all ABF projects deal in one way or another with Access to Justice issues, a few of our projects focus directly on the yawning gap between civil legal needs and available resources. One project, supported in part by the Legal Services Corporation and led by our joint-appointee Rebecca Sandefur (ABF/U. of IL), maps civil legal assistance across all 50 states to show how diversity and fragmentation have created a highly uneven and unequal civil justice infrastructure.
Similarly, the ABF’s Community Needs and Service Study, supported in part by the National Science Foundation, chronicles how Americans who often have “justiciable” legal problems frequently do not perceive these issues as legal problems and hence do not seek legal assistance. When they do seek legal help, where they happen to live, rather than the kind of help they need, determines the legal assistance they obtain. One of our newest projects, conducted in collaboration with the National Center for State Courts and funded by the Public Welfare Foundation, explores the effectiveness of recent experiments in Washington and New York to provide new forms of legal representation from non-lawyers.
Another important part of our research portfolio on Access to Justice is our work on juries and legal decision making. Our law and psychology colleague Shari Diamond (Northwestern Law/ABF), for instance, has been using unique access to videotaped real jury deliberations in Arizona to explore the multitude of factors that shape how juries make decisions. In one of our newest projects, Janice Nadler (Northwestern Law/ABF), our other law and psychology scholar, is exploring the relationship between visual images and legal decision making in the courtroom.
These studies on Legal Diversity and Access to Justice are just two more examples of a rich research portfolio that we hope to expand in years to come. Next time, I’ll conclude this series of posts on “An Overview of ABF Research” by discussing some of our international work and something close to my own interests, our scholarship and programming in legal history.
Annual Law and Religion Roundtable
With Nelson Tebbe and co-blogger Rick Garnett, I have been an organizer of something called the Annual Law and Religion Roundtable ("ALRR" for short) for the past seven or so years. (Accuracy rather than modesty compels me to say that Nelson and Rick are the real heroes here and do the lion's share of the organizing work.) This kind of informal but organized subject-matter conference has become pretty common in recent years and has a been a wonderful development. I share the view of a number of participants that the ALRR is the conference I most look forward to every year; I even scheduled my annual summer surgery around the conference this year. This year the conference was held in Montreal at McGill University, with the generous support of McGill and various centers there, as well as Notre Dame Law School's Program on Church, State, and Society; the co-hosts at McGill were Jacob Levy of McGill's political science department and Victor Muniz-Fraticelli of McGill's Faculty of Law. (Check out the terrific recent books from Levy and Muniz-Fraticelli.)
A word or two on these kinds of conferences generally and on this year's roundtable in particular. For obvious reasons, these conferences are much better than general conferences like the AALS. They are generally pay-your-own-way affairs, although McGill and Notre Dame were generous in their support of conference resources and a fabulous dinner. Our approach with the ALRR has been to hold it at a different host school every year, to spread the organizing costs, stay a step ahead of the creditors, and make sure that it's easier for folks in different regions to attend the roundtable. (I am reminded every year of Guys and Dolls and the "oldest established permanent floating crap game in New York.") The guest list is large but not too large and never entirely fixed, and we try to ensure some rotation in and out of the roster. An important aspect of the roundtable is our desire to ensure a mix of senior scholars and junior and/or up-and-coming scholars in the field. Not only do we benefit a good deal from the ideas and energy of the junior scholars, but all three of us have benefited from the kindness of senior scholars in law and religion and would like to keep the virtuous cycle going. Participants are expected to read everything before they show up and presenters (not everyone presents every year) are expected to keep their remarks short so we can focus on questions and discussion. For the past few years, we have included a "hot topics" panel or two, to focus on new developments and give an opportunity to people who want to present but don't have a developed paper in hand. We generally try to make some invites outside the legal academy, to scholars of religion, political theory, history, or what have you, although we've been less successful in that. Dropbox makes it even easier to facilitate the whole thing.
I used to joke that the one problem with the roundtable was that there was too much damned pleasantness and agreement. Changes in the field and high-profile cases in the last three or four years have changed that to a degree, as has the fact that the composition of the room and of the broader church-state discussion has changed as more scholars who focus primarily on equality have taken up religion-related issues. That has been a valuable development on the whole, albeit one that can raise the temperature of the discussion. Over time, I have come to appreciate that one benefit of the subject-area annual roundtable is that one gets something of a real-time picture of what "problems" are coming to the fore or fading to the background and of changes in the center of gravity or consensus on law-and-religion issues.
Two notable features of the roundtable this year were the presence, obviously, of a substantial number of Canadians, and a larger number of political theorists and other non-law-school faculty. (A personal note: I graduated, around the dawn of time, from McGill, and it was a real treat to be back on campus and have ready access to the vastly superior Montreal bagel. As a partially Canadian-trained lawyer, it was also an honor to meet Canadian scholars whose work on law and religion whose work I have followed and respected for years.) The cross-border element was incredibly useful in ways both expected and unexpected. American and Canadian scholars learned a great deal from each other on the details of cases and the similarities and differences between the two countries on church-state law. More unexpectedly, the cross-border element of the conference and the presence of more non-law scholars changed the tone and nature of the discussion, altering the map of the room and disrupting the tendency to line up on opposite sides of particular hot-button cases. It was an interesting lesson in the unanticipated benefits of comparative constitutional law.
Thanks again to McGill, Notre Dame, Rick and Nelson, and the participants for a really fruitful and interesting discussion. If your field does not have an annual roundtable of this sort, I encourage you to start one up, and any of us would be happy to offer advice.
Whole Women's Health
Three cases remain to be decided this term--Whole Woman's Health, McDonnell v. US, and Voisine v. US. Of these, only WWH seemed even remotely likely to be a 4-4 affirmance. The Court issued two 4-4 affirmances on Thursday, in DAPA and Dollar General. Can we conclude, therefore, that WWH is not going to be a 4-4 affirmance? Is there any reason the Court would issue two divided affirmances today but hold one out until next week?
If not a 4-4 split, the next likely result is a 5-3 opinion declaring the TRAP regulations unconstitutional, with Kennedy joining Ginsburg, Breyer, Sotomayor, and Kagan, and Kennedy assigning the opinion. If so, WWH will offer a nice counterpart to Fisher. As Steve pointed out, Fisher marks the first time Kennedy has declared valid a racial preference. WWH would mark the first time Kennedy has declared invalid a restriction on abortion since he co-authored the joined opinion in Casey.
Thursday, June 23, 2016
A University Without Professors
What is essential to the concept of "university," and what could we live without? Professor Clayton Christensen has launched an institute to encourage "disruptive innovation" in education. But the founders of Forest Trail Sports University have gone beyond even what Chirstensen might have imagined, dialing their proposed disruption to eleven. They have 200 students committed to attend their new university for the fall, and they have entered into a lease with the financially struggling Barber-Scotia College to use its classrooms, libraries, and dormitories. No need for professors, though--Forest Trail students will simply enroll in online classes through Waldorf University, and "classes will be 'piped in' to classrooms at Barber-Scotia." So what's the point of founding a new university, especially one that costs $38,700 a year? It's right in the name--sports! They might not have professors, but they do have coaching staff. Students will be attending primarily for the purpose of athletics, including baseball, softball, basketball, soccer, volleyball, track, cross country, tennis, and golf, with a plan to add lacrosse. They already have 30 basketball games scheduled, and they haven't even opened yet! However, the founders may have gotten ahead of themselves--apparently they failed to register with state regulators.
A Different (First Amendment) World
Today the British vote in their hugely consequential EU referendum. The British rules about what can be covered on the day of an election are so interestingly different that I thought I would link to them.
What now on DAPA?
Today's 4-4 affirmance of the injunction against DAPA leaves things in obvious flux. There are several considerations affecting might happen now--legal, procedural, and political.
Procedurally, the next move is a trial on the merits and, as the trial judge has tipped his hand, likely entry of a permanent injunction. Then we go back up the ladder, presumably back to SCOTUS, by which point it will be back up to a full roster. I have heard suggestions that the government might seek a quick permanent injunction (if a defendant has no new evidence, the court can convert a preliminary injunction into a permanent injunction without a trial or further hearing) and expedited review to SCOTUS. Given my long-standing position that there will not be a ninth Justice until the start of OT 2017*, I am not sure this will achieve anything, until the hope is that SCOTUS would stay the permanent injunction pending review (which, of course, does nothing about the preliminary injunction that remains in place until final judgment).
[*] Assuming, of course, that a Republican Senate does not continue to refuse to allow an appointment because, even though the people have spoken, the real governing principle is that Democratic presidents do not get to make Supreme Court appointments.
Legally, the United States could attempt to apply DAPA outside of the eight states that brought this suit. Although the district court purported to issue a nationwide injunction, I do not believe a district court has that power. The United States is enjoined from enforcing DAPA only as to the plaintiff states, and no one else is protected by the injunction;** this was not a class action and there is nothing that legally makes this relief indivisible. The precedential force of the constitutional analysis supporting the injunction is limited to the Fifth Circuit. And SCOTUS's affirmance of that analysis does not create binding precedent. So nothing in the Constitution or any court order prohibits the United States from enforcing DAPA in, for example, California, especially if California does not object.
[**] For much the same reason that Obergefell did not, of its own force, require Texas to issue marriage licenses, a position Texas happily adopted a year ago.
Politically, I do not see this happening. It would take too long to explain to the public concepts such as scope of an injunction, regional precedent, and non-precedential SCOTUS affirmances. Instead, this would play in the public as the administration ignoring a court order, one seemingly emanating (or at least endorsed by) SCOTUS. [Update: I imagine the government also wants to avoid a situation in which it enforces the immigration laws differently in 42 states than it does in the other eight.]
Authoritarian Law Schools
One of the classic stories of how dictators maintain power is the selective distribution of patronage. It turns out that law schools can be part of that patronage. Many dictators have cared quite a bit about regulating legal education as a means of ensuring coercive control. In my work with a few newly democratizing countries, and in some preliminary research, I have discovered that it turns out that a very controversial issue in creating (or re-creating) a legal system can be how many law schools there are in that country. Dictators have favored increasing the number of law schools in several countries--places in North Africa and the Middle East are those I am most familiar with--as a means of ensuring coercive control.
More law schools means more lawyers, and more lawyers means that lawyers have lesser social status and lesser wealth. Lesser status and wealth makes lawyers less powerful and therefore less threatening to dictatorial control. More law schools also means more governmental resources being distributed to more--and potentially more geographically distributed--parts of a country. Just as other forms of governmental resources can be used to buy off threats, so too can resources in the form of the creation of new law schools.
Interdisciplinarity and Campus Design
There are at least a handful of law schools that are exceptions to what I will write below, but one of the major problems facing legal scholars (or any scholars) that want to be interdisciplinary is the simple physical isolation of their offices. Common problems that prevent interdisciplinary research have been noted before--such as discipline-specific hiring, publishing, and tenuring.
Another problem that deserves attention is that law schools (like other academic departments) tend to be physically distant from scholars in other parts of the university doing other work. This is even more dramatic for law schools, because they tend to have their own buildings, not just a floor in the same building as scholars affiliated with other departments. We know from economic geographers that physical proximity leads to more informational spillovers. It is quite hard for law professors to learn from and work with people who they have to make quite an effort to see on a regular basis. Law schools can hire those with degrees from other disciplines, but as these faculty are more and more physically distant from their former discipline they are more and more intellectually distant from those disciplines as well. If you want interdisciplinary work, you need interaction; if you want interaction, you need proximity.
Tuesday, June 21, 2016
Justice Sotomayor's Dissent in Strieff
I have written before of Justice Sonia Sotomayor's unique public profile, as represented in part by her judicial opinions. This style is characterized in substantial part by the accessibility of her arguments to the public. There is no better illustration of this than her dissent yesterday in Utah v. Strieff. Her invocation of language and sources from a range of publicly known authors--such as Ta-Nehisi Coates--has already led to her dissent receiving substantial amounts of public attention.
But notice one other feature of her dissent: the part of it that makes these publicly accessible arguments was joined by no other Justice. Indeed, Justice Sotomayor explicitly states in that part of her dissent that she is "[w]riting for myself." There were two other dissenting Justices in that case (Justice Ruth Bader Ginsburg and Justice Elena Kagan). Only Justice Ginsburg joined any part of Justice Sotomayor's dissent, and Justice Ginsburg did not join that last part of the Sotomayor dissent.
Is it because Justice Sotomayor states in her dissent that it is based on "my professional experiences," and it would be inappropriate for Justice Ginsburg (or Justice Kagan) to join a statement just based on insights derived from Justice Sotomayor's experiences alone? Is it because they disagree with something substantive Justice Sotomayor said in that part of her dissent? Is it because they believed it inappropriate and/or unwise to resort to this rhetorical style in a judicial opinion?
Cross-Border Campaign Contributions
One of the articles I am writing this summer is about the very few neighborhoods in a very few metropolitan areas that generate campaign contributions in large enough amounts to shape congressional elections in districts and states very distant and very different from those places--and how campaign finance law permits and even facilitates this behavior. This article is really an expansion of a shorter, popular essay I wrote about the congressional elections of 2014.
Geographical wealth disparities had started to decrease in the United States for several decades, but now this inequality is on the rise again. For instance, Manhattan has approximately 370,000 millionaires (defined by total wealth) located in less than four square miles, while Mississippi has one-twelfth as many millionaires in 12,000 times the number of square miles. There is a literature on cross-border contributions in law and political science, but rarely does it address how unequal the practice of cross-border contributions are because of this increasing geographical inequality. In the rural House district where I was raised, for instance, there were more campaign contributions from a few streets in New York City and Washington than there were from all of that rural district.
I wanted to highlight two recent, helpful discussions of this neglected issue. The Brennan Center has posted a report entitled "A Civil Rights Perspective on Money in Politics," and The City Lab has a companion story on "The Damaging Influence of Outside Money on Local Elections."
O.J. and Rodney King
I hope people have had a chance to watch O.J.: Made in America, the spectacular five-part ESPN documentary that traces O.J.'s life from his college career to his current incarceration, while weaving his story into the story of racial bias in society and the LAPD and O.J.'s lifelong efforts to "rise above" race (the telling line is "I'm not Black, I'm O.J."). The film links O.J.'s acquittal (by a largely Black jury) to the acquittal of the officers who beat Rodney King (by an all-white jury). On this telling, O.J.'s acquittal was "revenge" for the officers' acquittal, the long-awaited chance for an African-American to benefit from mistakes in the system. One juror explicitly acknowledges this as her reason for voting to acquit.
But the film (and every conversation about the connection) omits something: Two of the officers in the King beating were convicted of federal civil rights violations and sentenced to 30 months in prison (the other two were charged and acquitted). So if justice means that a wrongdoer is convicted and punished under some criminal law for his misconduct, there was some justice in that case. It may not have been enough justice or the right kind of justice. Thirty months was arguably too short (the court departed downward from an expected Guidelines range of 70-87 months). Perhaps it somehow would have been "more just" for them to be convicted of assault, etc., in state court rather than civil rights violations in federal court. Indeed, that might prove the point. Congress enacted the Reconstruction-Era civil rights statutes because the states were incapable and/or unwilling to enforce the rights of African-Americans against whites and white public officials. Having to resort to those in 1992 demonstrated how far we had not come.* Some had a sense that the civil rights charges were illegitimate, more a result of the rioting that followed the state-court acquittals (which the Koon Court took time to call out) than legitimate prosecutorial decisionmaking or use of federal criminal law.
[*] And still have not come, where police-abuse cases now do not even make it past a grand jury and even the civil rights backstop is increasingly unavailable.
It seems too simple to say "Stacey Koon, et. al, got off, so O.J. should have gotten off." Because Koon and Powell did not get off, at least not entirely. By contrast, two people who had nothing to do with anything were dead in a horrific manner (I had never seen the photos of the bodies or the crime scene--they were stunning) and, on the definition above, they did not receive justice.**
[**] I bracket for the moment how we consider, in terms of assessing "justice," the civil verdict that necessarily included a jury finding that Simpson killed Nicole Brown and Ron Goldman but that did not impose criminal punishment, or the absurdly long sentence Simpson received in 2008 for the events in Nevada, which everyone sees as having impermissibily taken the murders into account. In one interview segment, attorney Carl Douglas points out that the Nevada judge held the jury until late into the evening to announce the verdict on the thirteenth anniversary of the murder acquittal and sentenced Simpson to 33 years, matching the $ 33 million in damages awarded in the civil case.
Monday, June 20, 2016
More on RJR Nabisco and extraterritoriality
It makes no sense for a statute's private right of action not to be coextensive with the substantive law being applied. Ginsburg is correct that there should be a link, not separation, between prohibited activities and authorized remedies. At the very least, that should be the presumption, unless Congress provides otherwise in the cause of action itself. And a statute that says "[a]ny person injured in his business or property by reason of a violation" of some substantive law--where that substantive law has been (and, per Congress, can be) violated by that extraterritorial conduct--should allow for a claim for extraterritorial violation. By applying the presumption of extraterritoriality to the cause of action, the Court now requires Congress to draft the cause of action not only to link the right of action to the substantive law being enforced, but also to include language dealing with extraterritoriality. For example, I presume this case now means that, even if the Fourteenth Amendment applies extraterritorially, a § 1983 claim will not lie for such a violation, since nothing in the statute speaks to extraterritoriality (indeed, the purpose of that statute was bringing states into line within their own borders following the Civil War and has nothing to do with foreign conduct).
The culprit in this is Kiobel v. Royal Dutch Petroleum (2013), where the Court applied the presumption of extraterritoriality to the Alien Tort Statute, a purely jurisdictional provision. But the ATS is unique in that it grants not only adjudicative jurisdiction, but also prescriptive jurisdiction to create federal common law based on the law of nations as of 1789 and its analogues; the question in Kiobel was whether the grant of prescriptive jurisdiction could include common law applying extraterritorially. In other words, the courts were not only creating the right of action, they also were creating the law that "directly regulate[s] conduct or afford[s] relief." The end result in Kiobel is that the substantive common law the courts could create did not reach extraterritorial conduct (because Congress did not grant the courts the power to establish such common law), so neither could the court-created right of action.
Under RICO, however, the law regulating conduct does apply to extraterritorial conduct, per Congress. The right of action should, as well.
Foreign Plaintiffs and the Presumption against Extraterritoriality
The Supreme Court's decision today in RJR Nabisco, Inc. v. The European Community isn't surprising--observers had noted that "given the Court’s recent antipathy to applying U.S. law overseas," the Court seemed likely to rule in favor of the European Community. And today's ruling continued its trend of restricting transnational litigation in U.S. courts.
In the underlying case, the European Community and 26 of its its member states alleged that RJR Nabisco (and associated entities) "participated in a global money-laundering scheme in association with various organized crime groups." They sued in New York, seeking treble damages under RICO. The district court dismissed the case, holding that RICO could not be applied to conduct occurring outside the United States. The Second Circuit reversed.
The Supreme Court...unanimously agreed with the Second Circuit that Congress had satisfied the presumption against extraterritoriality with regard to the public enforcement of RICO claims. It noted that some of the predicate acts made actionable under RICO expressly include conduct outside the United States, and at least one, the “kill[ing of] a national of the United States, while such national is outside the United States” can apply only outside the U.S. Even though those particular predicate acts were not at issue in the underlying case, they suggest that Congress did not intend to limit RICO's application to domestic acts.
The Court split 4-3 (with Justice Sotomayor not participating, likely due to her prior work on the Second Circuit) on the question of whether the private right of action under RICO could also survive the presumption against extraterritoriality. Justice Ginsburg's dissent, joined by Justices Breyer and Kagan, agreed with and quoted the Second Circuit's opinion, which held that “[i]f an injury abroad was proximately caused by the violation of a statute which Congress intended should apply to injurious conduct performed abroad, [there is] no reason to import a domestic injury requirement simply because the victim sought redress through the RICO statute.”
But the majority, in an opinion by Justice Alito, disagreed--with somewhat interesting logic. The Court pointed out that "providing a private civil remedy for foreign conduct creates a potential for international friction beyond that presented by merely applying U. S. substantive law to that foreign conduct." To support its claim, the Court explained that extraterritorial application of U.S. antitrust law (under the Clayton Act) had caused a fair amount of consternation. Interestingly, though, as Justice Ginsburg noted in her dissent, RICO's remedial provisions are based on the Clayton Act. So the logic of the Court's position is tenuously balanced: the Court has held the Clayton Act's remedial provisions do apply extraterritorially. Now the Court uses the foreign reaction to this application as a reason to deny extraterritoral application of RICO's very similar provisions (but doesn't suggest re-thinking its earlier decision on Clayton Act extraterritoriality). It's kind of like a parent who gives their younger child an earlier curfew after the older one misbehaves ("Sorry, little Rico--Clayton showed us what happens when we let you wander around around outside! It's too late for him, but we are keeping you in.").
And, as Justice Ginsburg points out, it is highly unlikely that extraterritorial application of RICO's private right of action would in fact give rise to the same frictions that extraterritorial application of the Clayton Act did--and, for those cases that are more appropriately tried abroad, the U.S. courts have broad powers under the forum non conveniens doctrine to dismiss in favor of a foreign tribunal. Obviously in this case, the plaintiffs are foreign states who are not going to view the extraterritorial application of the statute as a threat to their sovereignty. But even in other cases, the typical use of the statute would be by foreign plaintiffs against U.S. defendants. In these cases, I have argued, greater international friction is caused by denying the foreign plaintiff a remedy--and while encouraging suits to go forward abroad may be in the short-term interest of U.S. defendants, it is probably not in their long-term interest.
Professional Schools and Scholarly Innovation
I blogged earlier about one notable change in legal scholarship. I wanted to touch briefly in this post on something we see happening more generally in the scholarship produced by academics at professional schools: scholarly innovation that might not be as possible or as common if scholarship was only produced by the traditional departments of the social sciences and humanities.
One of the reasons why innovation is underproduced by academics in the departments of the social sciences and humanities is because of strong disciplinary constraints. Graduate school in the United States socializes students (the scholars of tomorrow) into the disciplinary constraints of the discipline they are entering. High-status academics dominate funding, hiring, publication, and tenure decisions in those disciplines. These high-status academics have made their reputations in substantial part by defining the discipline in which they operate, and policing the boundaries of that discipline. Disciplines usually do not fully credit--or credit at all--contributions in the journals of other disciplines. For those of you so inclined, it is worth checking out a great article in the American Sociological Review in 2005 about scholarly change that touches on the importance of high-status scholars in producing scholarly innovation.
Enter in law schools, business schools, and medical schools. Law schools, business schools, and medical schools share reputations as "professional" schools, but also as academic units without strong, self-contained, disciplinary constraints. They issue terminal degrees, but terminal degrees without the strong scholarly training of the traditional academic disciplines. They have their own academic journals, but journals with more flexible methodological norms. Their academics also tend to be savvier because they have more background with and engagement in the world outside of higher education. In other words, it is easier for professional school academics to produce and promote different kinds of scholarship.
Some of the most important intellectual developments of the past century, then, owe some crucial part of their development to professional school academics and their more flexible standards and more strategic scholars. Take, for instance, the intellectual history of behavioral economics. It should not be surprising that while economists and psychologists helped created the empirical findings behavioral economics, it has reached new levels of importance because of a book (Nudge) co-authored by someone teaching at a law school and someone teaching at a business school. Indeed, this is not just a feature of the social sciences and humanities. Many important developments in medical practice and policy owe their origins and success not just to biologists or health economists, but to medical school professors.
12 years a President?
Following up on my discussion of Veep's penultimate episode and Tom James occupying the White House for twelve years: I asked Brian Kalt (MSU), who wrote the book Constitutional Cliffhangers, which explored various gaps in the constitutional provisions on presidential selection. He wrote the following (reposted here with his permission):
On the question of whether acting as president for four years should count, it does seem right textually. As such, I think it provides one of the strongest tests I can imagine of a person’s commitment to textualism, because it is so much at odds with the purpose of the 22nd Amendment. As with the question of whether there is a distinction between being eligible to be elected president and being eligible to serve at all, the legislative history tells us that the drafters intentionally sacrificed precision and broad coverage on the altar of supposedly simple language.
Following the path I take in my book, I would dodge the question somewhat by focusing on the practical side—positing that it is very unlikely that such a person would be able to get the people to elect him two more times. Conversely, if he did manage to get the people to elect him two more times, it would be hard for the courts or Congress to deny him his prize.
Brian described evolution of the language of the 22d Amendment, where a desire for simplicity of language collided with a desire to count at least some portion of another person's term toward the term, leading to a an unintended hole.
First, the version introduced in the House said that no one: “shall be chosen or serve as President of the United States for any term, or be eligible to hold the office of President during any term, if such person shall have heretofore served as President during the whole or any part of each of any two separate terms.”
The version that passed the House had the same effect, but was more concise: “Any person who has served as President of the United States during all, or portions, of any two terms, shall thereafter be ineligible to hold the office of President.”
The Senate Judiciary Committee loosened the restraints a bit in terms of timing (one day would not count; it had to be a year) but still did not limit it to terms to which someone else had been elected: “A person who has held the office of President, or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.”
Senator Magnuson was the great advocate of simplicity. He also did not want to count any partial terms. To him, then, the Veep character’s position would be just fine. His language was: “No person shall be elected to the office of President more than twice.”
The Senate’s final text (to which the House agreed) accepted Magnuson’s simplification of the “eliminated from what?” language, which was the basis of the discussion here a little while back on whether two-termers can serve as President even though they cannot be elected. But on the other part of the amendment, the “eliminated based on what?” language, the Senate was not willing to fail to count unelected service. When they restored language to count unelected service, though, they used the infelicitous phrasing that we are now discussing: “or acted as President, for more than two years of a term to which some other person was elected President.” They could have just eliminated everything after “term” and avoided our current dilemma.
We finally get to the House election, but the episode is shown through the documentary (Kissing Your Sister: The Story of a Tie) that Selina's daughter, Catherine, has been working on all season. It is a nice change of pace. It gives us scenes we already have seen in real time during the season, but from the different perspective of Catherine's hand-held camera. It also shows the background events for things we have seen on the show. For humor, we see the background shots of Jonah (unsuccessfully) chopping wood for his campaign commercial. We see into the personal lives of the staffers--Amy's attempts to get together with Dan, Kent's membership in a Spanish-speaking motorcycle gang, Mike's shifting preparations for the coming babies. And we see Selina's verbal revenge against Amy for her outburst last season.
For plot, Catherine catches the lobbyist and Speaker of the House walking into Tom James' office announcing "future calling;" this lead to the dinner at the Mongolian Barbecue that we saw live a few weeks ago. We also see Catherine's interview with Bill Ericsson, the former staffer who took the fall and went to jail last season for the Meyer Campaign's illegal activities; he says that if he were James, he would try to get three states to abstain to send it to the Senate. We know Ericsson got his conviction overturned on appeal (he was running the Widow Sherman's campaign in New Hampshire), so now we can wonder if James or the lobbyist helped Ericsson to get out of jail.The show went with Ericsson's plan, hinted at the end of last season--the final House vote is O'Brien 25, Meyer 22, 3 abstentions (Missouri, Vermont, and a third state we never saw). The Speaker adjourns the House. And the implication is that the Senate will elect James as VP and he will become President next week, because "a President shall not have been chosen."
Selina made one Hail Mary, trying to get Jonah to switch New Hampshire's vote to O'Brien. If O'Brien won, she could run against him in four years, but if James won, she would have to wait eight years, at which point she would be too old. Unfortunately, Jonah did not get the word in time (he was late for the vote because he spent the night with a high school senior/congressional groupie, then could not find the House chamber). After the session ends, he tries to change his vote, announcing "The Gentleman from New Hampshire puts forth on the floor a do-over."
So how did the show do on the Constitution and the electoral process? Not well--yes, I know it is a TV show and a great one; it just does not pass the Con Law exam).
• They got the dates wrong. The House election is taking place on January 3d and we see a flashback to Jonah's swearing in the day before (right before hooking up with the groupie). But under § 2 of the Twentieth Amendment, the new House convenes on January 3. And under 3 U.S.C. § 15, the House does not open and count the Electoral College votes until 1 p.m. on January 6. And the House cannot hold an election until it actually counts the electoral votes and determines that there is, in fact, a tie (what if there had been that faithless elector?).
• I am trying to figure out why three was the magic number of abstentions for denying a majority. There does not seem anything significant about that number. Also, no states had evenly divided delegations, which seems unlikely as a practical matter, given the number of states with even-numbered House caucuses (including New Hampshire, more on that below).
• On that point: I cannot find the answer to this question and do not feel like researching it at midnight: Are abstentions treated the same as divided caucuses? Or is divided caucus a vote for neither candidate, while an abstention is a non-vote? And does the Twelfth Amendment require a majority of all states or all states that case votes, with abstentions being non-votes that reduce the denominator? History is ambiguous. In 1800, all the representatives in Delaware (1) and South Carolina (4) abstained on the 36th ballot. Jefferson already had won 10 states, so he had the election anyway. But it is not clear whether his majority was out of 16 (total states) or 14 (states casting votes, since Delaware and South Carolina abstained because each of their members abstained)? Were the abstentions from those two states the same as, say, Maryland's earlier non-committal vote when the caucus split between Burr and Jefferson?
In the Veep-iverse, this matters for two reasons. If they are the same, James did not have to necessarily plot to get states to abstain, he could have just counted the votes and seen that there were a sufficient number of evenly divided even-numbered caucuses. If they are different, then O'Brien won the election, because the three abstention reduce the denominator to 47 (states voting), so O'Brien's 25 votes constituted a majority of that.
[Update: A participant in the Con Law Prof listserv offers the right way of looking at this: If every member of the caucus abstains, then the vote from the state is 0-0-X; this is an evenly divided caucus, just as much as a 1-1-1 caucus would be. So there are no non-votes, which means the denominator must be 50. But then we go back to James not needing states to abstain, but simply be divided, whether through true division or through strategic abstentions by individual members in a state that create a tie (we thought that is what he was doing two weeks ago in getting the seventh member of Colorado's caucus to abstain, producing a 3-3-1 division). So the show seems to err again, confusing abstentions by states with abstention by individual members that tilt the balance one way or another.]
• The House adjourns with no announcement or plans for another vote. Of course, in 1801 the House immediately dove into additional votes over the course of that day and the following days and weeks. Catherine's movie catches a snippet of a conversation in which Selina and one of her staffers mention that James likely got the Speaker to agree not to hold additional votes once the first produced no winner. But would the members of the House, especially those who support O'Brien (and thus are politically opposed to James), tolerate that? Would the public? Yes, James is popular and competent. But it seems too pat.
• Jonah, of course, makes a fool of himself. But the problem of placing him in New Hampshire arose again. New Hampshire has two representatives, so Jonah does not exclusively control the caucus vote. New Hampshire only voted for Meyer because the other New Hampshire representative also voted for Meyer. So, again, Jonah was not necessary. More importantly, Jonah could not unilaterally switch the state's vote; switching his vote, assuming his colleague did not switch (and Jonah never had a chance to talk to him), would only render New Hampshire a split caucus going for no one, denying both candidates the possibility of a majority (unless abstentions do not count as votes).
• The show got its numbers wrong, at least for purposes of season-long consistency. The idea was that Jonah would cast the vote that would give Selina New Hampshire and the presidency. Put aside that NH could not play that role. It only works if NH would be the 26th state for Meyer. But the final vote with NH going for Selina, was 25-22-3. Even if all three abstentions would have been Meyer states, that still would not produce a victory for her.
• The show is setting up a Tom James presidency, continuing to ignore that James is not becoming President, he is only becoming acting President. Put differently, he does not hold the office of President, he only exercises those powers. The 22d Amendment expressly draws that distinction, as does the presidential succession statute. Even if it lasts four years, he still only acts as president during a period in which no President has been chosen. Neither the Constitution nor § 19 places a limit on the period in which someone can act as president or a limit on how long the period of non-qualification can last.
What the Speaker is allowing to happen is inconsistent with the purpose of the Twelfth Amendment. The amendment was motivated, in part, by the risk of "inversion," in which a party's preferred candidate for Vice President would win the House election and become President, against the preferences of the party and perhaps the public. The Federalists who voted for Burr did so because they hated Jefferson, but also because they knew it would mess with the Democratic-Republican plans to have Jefferson as President and Burr as VP. The Speaker is allowing the very inversion the amendment was designed to prohibit. Again, because James is so popular and so competent, the public in the Veep-iverse is okay with it, as he will get things done. Thinking about it, however, it starts to sound like a coup--the VP is conspiring with the Speaker to prevent a vote for the presidency, allowing him to exercise those powers for an entire four-year term. I think there would be strong opposition. And I also would expect both Meyer and O'Brien to lobby House members from their respective parties to force a vote--perhaps on bipartisan threat of removing the Speaker if he does not continue holding elections. Again, too pat.
Since the show is coming back for another season, it must be setting up what it hinted at in last season's finale--James nominating Meyer as his vice president, so next season she will be back where she started--doing nothing and waiting for the President to call. Too bad that is a constitutional impossibility.
• And now for the big mistake (ed: Maybe). Selina explains to Amy her plan to have Jonah switch so she could run against O'Brien in four years, whereas if James is made (acting) President, he would serve for eight years. Amy corrects her--"Twelve, ma'am. Tom's first term won't count because technically he'll be an elevated Vice President." My initial reaction was this is unforgivably wrong and I cannot believe they missed that badly, even if only as a piece of exposition. The Twenty-second Amendment makes clear that someone who has acted as president for more than two years of someone else's term can only be elected President once. Since James will act as president for four years (we presume, because the Speaker is blocking a vote), he could be elected once for four more years, but not a second time.
But then someone pointed out that the 22d Amendment says "held the office of President, or acted as President, for more than two years of a term to which some other person was elected President." (emphasis mine). The argument is that James is not acting in a term to which someone else was elected; he is acting because no one was elected. Textually that seems right. And it cannot be excused as drafting for an unforeseen situation, since the 12th and 20th Amendments both contemplated a VP acting as president for some period of time if the House failed to elect a President. So if they intended to include that in the 10-year limit, the drafters of the 22d should have accounted for that. Amy's exposition ("he'll be an elevated Vice President") is still wrong, but the substance is right.
But this reading is so inconsistent with the purpose of all three amendments related to a House election and presidential succession that it cannot be right. The 22d was intended to limit the number of years anyone can exercise executive power. And it would incentivize the very manipulations we see here, both in the Electoral College and in any House contingency election. And those incentives would not be limited to the VP-elect. If the House cannot pick a President and the Senate cannot pick a VP, the Speaker would act as president under § 19(a). So imagine the plots that could be hatched.
• The process the show followed for the House election is interesting. One member from each state, in alphabetical order, cast the entire state's vote publicly, presumably with individual votes having been taken in secret and within each caucus. In both 1800 and 1824, however, individual votes were recorded and each state's ballot was written and sealed. The procedures for the House vote are left to the House and changeable for each election, so nothing is set in stone. Lawrence Tribe wrote a nice essay on the process prior to the 1980 election, when it seemed possible that independent John Anderson might win some electoral votes, perhaps enough to deprive Reagan or Carter of a majority and throw the election into the House (spoiler: He didn't).
Thursday, June 16, 2016
The Rise of the Chicago-Style Article
One of my writing projects in its earlier stages is about the intellectual space that legal scholarship occupies. My provisional argument is essentially that legal scholars increasingly occupy a space between universities and the public that has been vacated by the increasingly technical nature of the social sciences (and humanities). Law professors are more and more serving as translators, taking ideas that the university creates and translating them for the consumption of the public and the powerful.
As part of writing this essay, I have done what I did years ago for another article: read lots of law review articles from past and present to get a sense of how they have changed. I wanted to remark on a (related) change I noticed. I leave considerations of whether this change is good or bad to others, but I think the change is significant as a positive matter:
(1) There has been a gradual but significant increase in the top law reviews of what I will loosely call the "Chicago-style article." I call this article the "Chicago-style" article because it is most commonly associated with the work of a group of faculty over the past few decades currently or formerly teaching at the University of Chicago Law School. The tactic is to lump together a doctrinal or institutional trend observed in many different areas of the law, and engage in a normative analysis of that lump. The Chicago-style article often engages in that normative analysis using the arguments and language of cost-benefit analysis. It uses the findings of social science articles as a main tool to perform this cost-benefit analysis. Social science findings might suggest that the doctrines or institutions of the law might not be achieving what they are intended to achieve, for instance, or do so at a cost that make them undesirable. The scholarly contributions of the Chicago-style article, among others, are the creation of the lump (noting how things that were thought to be different are actually similar) and the analysis of the lump (creating some new normative insights and proposals).
This style of article is becoming more and more common in law reviews, with one caveat. There is still the lump, and the lump is still analyzed using the core finding of social science articles as a major tool. Now, though, the normative analysis is often in style and substance less about the more economics language of costs and benefits, and more involving a range of other normative framings.
(2) More so than anything else, the Chicago article is the manifestation in the law reviews of the influence of empirical legal studies. There are still relatively few law review articles that engage in the analysis of new data sets or in the new analysis of old data sets. Far more common are articles using the (supposedly) settled findings of a social science literature to engage in a normative analysis of the law. The modal article of this genre reports some doctrinal rule that exists, and some (relatively) settled social science findings that call that rule into doubt. The findings are not reported in the law review article though.
This is quite different from what would have been found in the law reviews a generation or two ago, to be sure. This is still, though, engaging with doctrine. A scholar has to know the doctrine to tease out the empirical assumptions of the doctrine. Their proposals based on existing social science findings will involve changes to doctrine itself.
Wednesday, June 15, 2016
Notre Dame Law Review Symposium on Dignitatis Humanae
The symposium issue of the Notre Dame Law Review is out and available online. The symposium is titled "Religious Liberty and the Free Society: Celebrating the 50th Anniversary of Dignitatis Humanae." It includes interesting articles by John Garvey, Anna Su, Chris Lund, Tom Berg, Marc DeGirolami, and others. Enjoy.
Tuesday, June 14, 2016
The Orlando Shooter's Spouse and Misprision of Felony
CNN is reporting that Noor Salman, spouse of the Orlando mass killer, might have known about the attack in advance and failed to report it. Although federal authorities do not believe she was a co-conspirator (indeed, CNN reports that she discouraged her husband), they are apparently considering "whether to bring charges against her for allegedly failing to report her knowledge of his general plans to carry out some kind of attack" which might include misprision of felony. I have researched federal misprision; due to a hilarious set of misunderstandings when I was in practice, a prosecutor once good-naturedly suggested that it could be applicable to me. It turns out that misprision "requires both concealment and failure to disclose. Under it some affirmative act toward the concealment of the felony is necessary. Mere silence after knowledge of the commission of the crime is not sufficient." United States v. Farrar, 38 F.2d 515, 517 (D. Mass.), aff'd, 281 U.S. 624 (1930). See also Gabriel D. M. Ciociola, Misprision of Felony and Its Progeny, 41 Brandeis L.J. 697, 722 (2003). Accordingly, even if she knew of the plan and did not report it, she could not be guilty of this particular offense.
Whether Ms. Salman could be guilty of the 49 murders and many attempted murders as an aider and abetter, if, as reported, she drove her husband to "case" potential massacre sites knowing that he planned a mass shooting, presents a much more difficult question. Some courts require actual purpose to assist the criminal venture, others hold that knowledge that the conduct will aid and abet the crime is sufficient. From the 11th Circuit Pattern Jury Instructions (at 62) I am not sure which way the 11th Circuit goes, but the last sentence suggests they take the broader view that knowing assistance is enough: "you must find beyond a reasonable doubt that the Defendant was a willful participant and not merely a knowing spectator."
An Interview with Fr. (Prof.) Robert J. Araujo, S.J.
As Prawfs readers with way better memories than mine might remember, I mentioned last year that my friend and Mirror of Justice colleague, Robert J. Araujo, S.J. - a longtime law teacher and legal scholar at a number of institutions -- had passed away. Recently, thanks to the folks at the New England Jesuit Oral History Program, I got hold of this interview, conducted not long before Fr. Araujo's death, with Fr. Paul Kenney, S.J. Among (many) other things, Fr. Araujo reflected on his experiences with law-blogging. It might be of interest.
Monday, June 13, 2016
Trump's Attorney General
I had missed this before--it certainly did not get much coverage anywhere--but Donald Trump tweeted last summer that his pick for Attorney General would be Representative Trey Gowdy (R-SC). Gowdy is the Chair of the United States House of Representatives's Select Committee on Benghazi. It is certainly interesting to consider this in light of his announcement of potential Supreme Court nominees and the discussion on this blog about his list.
Conservatives and Criminal Justice Reform
Steven Teles wrote a wonderful book eight years ago about the conservative legal movement. This month he has published another book (with co-author David Dagan) about why many conservatives changed their mind about criminal justice issues. For those interested in conservative legal and political thought, political and legal change, and/or criminal justice issues--or for those just looking for a great book to read--I highly commend this book.
The (Second) Warren Court?
I wanted to draw attention to two interesting pieces out there that have been discussed separately but are best understood together: Mark Tushnet's blog post on defensive crouch liberal constitutionalism, and Richard Primus's essay on the musical Hamilton and originalism. I suspect we will see lots of discussion before November (and after if Clinton wins) about what the guiding theory of a liberal majority Supreme Court would be, and these are two helpful starting points.
As we face the last few weeks of the term, one of the talking points among some lawyers I talk to in Washington has been whether we will see the Justices enter into the debate about there being only eight Justices on the Supreme Court more and more significantly. Adam Liptak had a piece in The New York Times noting the general public statements the Justices have made about an eight-Justice Court. Will any of the Justices find some way in some case to make reference in their opinion to there being only eight Justices? Or will they say something in public about this--maybe something generic like the need for compromise is greater at some times in the history of the Supreme Court?
I am doubtful this will happen, but it is interesting to think about two questions that would be raised if it did happen:
(1) Will this change the way the Garland nomination proceeds forward? I am really just expanding here on a point I raised in another post. If the Court divides 4:4 in a lot of big cases in a short period of time, the media will note that and try to make something of it, which could generate pressure to act on the Garland nomination--but not much heat. If there is some language from some Justice to support the Divided Court claim, even more heat is generated.
(2) Is it legitimate for the Court openly to act differently because of the eight-Justice Court? Is it better for them to act differently in a way we all know they are doing (like in Zubik) without saying so? On the other end of the spectrum, what about writing opinions calling for different results or styles of reasoning because there are only eight sitting Justices?
The Eight-Justice Court in the American Mind
The Supreme Court did not release any major decisions today, which raises the question of what the next few weeks will hold for the blockbuster cases still to be decided. One of the issues that I am currently writing about is the normative and empirical dimensions of the Supreme Court's influence on American public opinion. I have written about this already in an article with Donald Braman and an article on Sonia Sotomayor, and I blogged about it earlier this month. In a draft article with the political scientist Brandon Bartels--which we will post later this summer--we argue that the American people do not particularly care if the Court invalidates laws enacted by Congress and signed by the President, and we consider whether that does and should shape how we think about judicial review.
I wanted to take some of what I have written about already and apply it to how the next few weeks might play out in terms of what the Supreme Court does and how the public will respond to it. Sometimes in their opinions the Justices will directly reference how the public responds to what the Court is deciding and how that shaped their decision. For instance, the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey famously did so. Because several of the Justices have spoken about the 8-Justice Court in their public appearances, we can reasonably infer that they are thinking about the public reaction to their next few decisions as well. How will they respond to the eight-Justice Court, and how will the American people respond to their approach?
Roughly speaking, we might see two narratives in the weeks ahead, and we might predict two different types of reactions to those two narratives:
(1) The Zubik Approach: We might see the Justices decide cases the way that they decided Zubik v. Burwell earlier this term. The Court could "express no view on the merits" of a case (the language from Zubik) or it could even express very narrow views on the merits. In their public remarks, Chief Justice John Roberts and Associate Justice Stephen Breyer have indicated that approaches like Zubik will preserve the Court during this interim eight-justice period. Staying away from controversial issues related to the Court is the way to ensure that the public does not "los[e] confidence in the judiciary" (Casey's language). Better to issue decisions obviously trying to avoid a divided Court than actually to have a divided Court.
If this is the approach the Court takes the next few weeks, the Garland nomination could fade even more from public discussion. By doing nothing--and certainly doing nothing interesting--the Court would be removing itself from the public spotlight. The Zubik approach is essentially that "no news is good news" for the Supreme Court. As I have written elsewhere, the capacity to pop in and out of the news and political conflicts is crucial for the durability of a high court. With a presidential race likely to occupy the public mind over the summer, the Court would comparatively disappear--and so would the Garland nomination.
(2) The Divided Court Approach: We might see the Justices not find a minimalist compromise, and instead divide 4:4. This generates lots more media coverage than the Zubik approach, even if the Court just notes that it is tied 4:4 and adds nothing more. As I mention in another post, there has been some discussion about whether the Justices will find some way to deviate from their usual practice and comment on the divided Court. If they do that, the media coverage would be even greater still than just noting the 4:4 split without opinions.
The Divided Court approach would generate more headlines and generate more pressure on the Senate to act. It would reinforce the Obama narrative that the Court cannot do its job right now, more so than the Zubik approach does. Conflict is news, and more news generates more pressure to do something about the Court vacancy. It would likely not matter in the end, but the Court would return to the headlines rather than fade from them even more.
So the pieces are beginning to come together as we move into the final two episodes, which apparently will involve the actual House election (where find out if there is, indeed, an Electoral College tie) and the inauguration of someone.Jonah wins the New Hampshire special election, which is revealed to be an election to replace a representative-elect, stating that Jonah will be sworn with the rest of the House at the beginning of January. He wins in typical Jonah fashion--after he shoots himself in the foot, his opponent (the widow of the former representative and Jonah's former grade-school teacher) is quoted telling Jonah he needs to be more careful because guns can be dangerous; that last part is seized by the NRA, which undertakes a massive campaign to defeat her. So Jonah wins and promises to cast the vote that delivers Meyer the presidency.
While I like the story, let me lay out why the math does not work for the plot device of Jonah casting the deciding vote as a representative from New Hampshire. Meyer needs 26 state delegations to win. Let's say she has 25 states and the idea is that NH will be 26, with Jonah voting for her. NH has two representatives, so the delegation voting in January will consist of Ryan and Rep. X. If Rep. X supports O'Brien, Jonah's vote creates a divided delegation and does not provide the 26th state. It keeps NH away from O'Brien, but taking a state away from O'Brien does not give it to Meyer, leaving her with 25, not the required majority. If Rep. X supports Meyer, then she alone could have given the state to Meyer; there was no need to rush the special election or to get a supporter into office by January, as Meyer and her team wanted. The only possibility is that Rep. X plans to abstain, so Jonah's vote moves NH from a non-commitment to Meyer's 26th state. But that seems an odd plot move, one the writers have not set up or even telegraphed over the season, although maybe they will next week.
[Update: Upon further consideration, even that last one does not work. If Rep. X, as the lone member of the NH delegation had abstained, then the vote from NH would not have been a non-commitment, it would have been an abstention; that would drop the denominator to 49, meaning Meyer's 25 states constitute a majority. So Meyer would have a majority regardless of whether Jonah is in the House.]
By the way, the constitutional problem with the plot is not making Jonah the deciding vote (which is a cute move, given everything we know about Jonah and how the Meyer people feel about him), but putting Jonah in New Hampshire, a state with an even-numbered delegation, as the deciding vote. If you like New England, put him in Massachusetts (9 representatives), Connecticut (5), or even Vermont (a single at-large rep [update: Although, again, see above]) and the story makes constitutional sense.
I suppose another possibility is that Jonah renegs on voting for Meyer, denying her the majority and setting up a House stalemate and clearing the way for Tom James. But, again, James still only acts as president, so that hole remains.
Meyer at one point is nonchalant about losing benefits to Ohio and North Carolina from the agreement with China, in part because Jonah appeared poised to win New Hampshire. But that, too, is inconsistent with the requirement of a House majority--Meyer needs all the states she can get. Unless she is trading NH for OH and NC, which really makes no sense--why give up two states that take you past the bare majority?
I am looking forward to seeing how the writers play this out.
Friday, June 10, 2016
Trump, the Goldwater Rule, and Trading on Authority
It has become a truism that a significant change in the ecology of public intellectuals in the past decades has been that where once many public intellectuals were free-standing writers with no "official" position, a lot of them have since moved into the academy. (To be clear, many public intellectuals are academics, but most academics are not public intellectuals.) It has been a related but separate concern--of mine, at least, and I'm sure I'm not alone in this--that many academics and other professionals are eager to trade on their authority and/or credentials when making public statements about matters of public concern, whether their expertise has anything to do with the particular statement or not. In this they are often abetted by the press, for its own reasons. In the legal academy this comes up in discussion of whether and when law professors should join amicus briefs or sign letters and statements, but it certainly has wider application. The two points are nicely connected in a couple of recent stories.
Section 7.3 of the American Psychiatric Association's Principles of Medical Ethics, the so-called "Goldwater Rule," states:
On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.
Kroll and his co-author, independent clinical psychiatrist Claire Pouncey, object to the way the rule stifles a psychiatrist’s ability to speak his or her mind. Certainly, Pouncey told me, psychiatrists shouldn’t run around shooting their mouths off about things they haven’t deeply studied. But it’s impossible, she said, to distinguish between the psychiatrist as a professional and the psychiatrist as a person — and that person might feel a very real ethical obligation to talk about their perspective on the mental health of a public figure angling for a position of power over the whole country. “We don’t dispute the spirit of the law,” she said. “But it’s not a real distinction and it shouldn’t be upheld by a professional body.”
Both articles make some interesting points, especially about the non-enforcement of the rule, which with the rise of Trump's candidacy is going to be violated with increasing alacrity. But--without wanting to exceed my own expertise--it seems like a pretty sound rule to me. I suspect that one should always be suspicious whenever a professional talks about "the deeper dictates of ethics and professionalism." I also think Dr. Richard Friedman, in the Times piece I link to above defending the rule, is right to say that engaging in this kind of long-distance, drive-by diagnosis risks intellectual dishonesty.
The commentaries note that a psychiatrist or psychologist is still free to say certain things publicly, short of offering an individual diagnosis. Perhaps that's a mistake and the rule should be stricter. But at the least it means the rule's bite is not that great. And it does not appear to prevent a mental health professional from "speak[ing] his or her mind." They can do so as citizens; they simply can't do so as professionals, in a way that specifically invokes their supposed expertise to buttress their opinions and phrases it as a genuine diagnosis of an individual. The argument ad Hitlerum, which often is so unhelpful, seems useful here in judging how necessary it is to get rid of the rule. Psychiatrists, psychologists, and everyone else should have spoken out or taken action against Hitler and National Socialism, and taken other actions that have nothing to do with being mental health professionals, such as running for office, protesting, taking up arms, or assassinating him. But a statement like, "If only I had been able to offer a public mental health diagnosis of Hitler, despite never having examined him, all this could have been avoided," is clearly nonsense, and one that betrays a sort of excessive professional amour-propre at that.
It seems to me, then, that what those professionals who have spoken out, either in violation of the rule or arguing for repeal of the rule, want is not to be able to speak their conscience, but to be able to speak their conscience more successfully, by trading on their supposed expertise and authority, even when that expertise is of dubious relevance. They might be able to persuade (or manipulate, or browbeat) people more effectively if they were speaking down to them as "experts," rather than speaking to them on an equal level as fellow citizens. Our society increasingly distrusts professionals, experts, and other authoritative individuals and institutions, but it is still a credentialist society in which expertise and authority carry some additional weight. At the same time, it is one in which many professionals and professional bodies increasingly argue that they should take institutional positions that are essentially political and have little to do with their expertise as such. That's a mistake, in my view, and if professional individuals or bodies are going to make it, they should at least say that they are advocating a specifically political position that has nothing to do with their profession as such or its "deeper dictates."
In any event, the urge to trade improperly and without serious foundation on authority seems endemic, in a way that speaks to the problems with a credentialist society and its abuses. It says a lot about the rather phony use of experts in the news media as a vehicle for reporters to advance some argument rather than making it themselves. It also speaks to the erroneous conviction of many professionals, and many academics, that subject-matter expertise is the same as general intelligence or wisdom, and that because they have a political conviction about some issue that can be phrased conveniently in terms of their expertise, that opinion ought to have some special weight. That is hubris. It also suggests that even professionals themselves think of their professional status as a tool to be used and misused, not as a set of strictures and responsibilities that go along with professionalism and rightly limit the actions of those who take their professional role seriously. This kind of trading on authority is likely to exacerbate rather than reduce the general public distrust of experts, authorities, and institutions, and it should. There are arguments for and against the proposition that Trump's relative success so far indicates a kind of populist or working-class pushback of elites, and I won't weigh them here; but this kind of trading on authority does seem to encapsulate the kind of elite behavior that is likely to produce just such a pushback.
Problems with trading on authority are in some ways greater, and in some ways lesser or more complex, with lawyers and legal academics. On the one hand, what they have "expertise" in is often closer in substance to politics and civic involvement, and so it's harder to frame a rule of conduct that would limit them too sharply in what they say. On the other hand, and for more or less the same reasons, they engage with great frequency in the public issuance of opinions that are dressed up in authority, yet do not draw in a serious way on any actual expertise. And, again precisely because so many political issues in the United States can be translated into legal terms, and because they are favorite go-tos for the press, they are asked to weigh in as "experts" on various issues far more often than, say, psychiatrists or engineers. Nothing stops them from asking the interviewer to omit their professional status from the description of them in the story, or to insist that the story make clear that they are speaking as citizens and not as experts, and that their opinion is not especially strongly related to their actual expertise. I suppose then they just wouldn't be quoted at all, but that's hardly a bad thing. One might say that readers already understand this and can disregard their opinions, but that just invites the question why the "experts" aren't explicit about it to avoid any misunderstanding--and the answer to that, I think, is that they want to trade on their authority, or perhaps have an overinflated sense of their actual authority and expertise. Legal academics ought to be wary and punctilious about this sort of thing. And the press ought to curb its unhealthy and lazy addiction to quoting law professors, except on questions that genuinely require expert opinion and on which the person interviewed is actually an expert.
I have in mind as a partial and imperfect example in the legal field the Adam Liptak column last week in the Times on Trump and the rule of law. Mark Tushnet wrote about it last week, twice and in his usual enjoyable way. The story got a lot of Facebook prominence in my feed, unsurprisingly given who my friends are, and more surprisingly (in some ways and not others) got page one play. Headlined "Donald Trump Could Threaten U.S. Rule of Law, Scholars Say," it featured quotes backing up that assertion by what it called "legal experts across the political spectrum." In reality, this meant several politically conservative (by academic standards, anyway) and/or libertarian legal scholars and advocates. With one very important exception, I don't disagree with the general conclusion. And I believe the phrase "rule of law" and "First Amendment" has somewhat more content than Mark thinks it does. He appears to think "rule of law" is an essentially vacuous phrase with "no there there," whereas I think it's a mostly windy phrase with little there there.
Even if there's more there than that there, however, the article didn't really ask difficult questions about the rule of law and, at least on the rule of law questions, didn't actually ask questions that called for any particular expertise about the rule of law beyond that possessed by an average somewhat-informed citizen. There are relevant questions that might call for more careful expert examination and benefit from more expert speculation--specifically, whether and to what extent the larger constitutional, political, and bureaucratic structure will constrain Trump's ability to act effectively in a rule-of-law-threatening manner, in the way summarized by President Truman. A Trump presidency is bound to raise like never before the question whether those who staff the administrative state are creatures of the president or their own institution. I suspect something like uncivil obedience will be a highly relevant concept to executive-branch workers if Trump wins. This question is raised in the column, sort of, but given short shrift and not much expert consideration. Leaving aside the motives and good faith of the people quoted, I think it's hard to read the column in any other way than as one that trades on authority for persuasive purposes in service of the author's goals. That reading is even harder to avoid given the pronouncement that the article is based on discussions with experts from "across the political spectrum," and the contrasting reality that it uses conservative and libertarian law professors and advocates, clearly in order to persuade conservative and libertarian readers of Liptak's column, if any such exist. The piece is essentially a persuasive exercise, and trading on authority is clearly a key part of its persuasive arsenal.
Thursday, June 09, 2016
Law, Psychology, and Impartiality
Donald Trump's suggestion that Judge Curiel should recuse himself seemed obviously wrong to me (and apparently to his own lawyers, who, as Neal Goldfarb pointed out in response to my prior post, did not even bother to raise the issue by motion). But today's Supreme Court decision in Williams v. Pennsylvania raises all the difficult questions that the Trump University lawsuit does not about when disqualification is required because a judge's "impartiality might reasonably be questioned." Richard Re also has more here at SCOTUSBlog.
On the face of it, the main questions are fairly straightforward. The District Attorney who personally approved the decision to seek the death penalty in Williams' case was later elected to be Chief Justice of the Pennsylvania Supreme Court. Decades after the original conviction, he was part of a panel that ruled against Williams' subsequent habeas petition. The Pennsylvania Code of Judicial Conduct--based on the ABA's Model Code--forbids judges from acting in a case where they "served as a lawyer in the matter in controversy, or w[ere] associated with a lawyer who participated substantially as a lawyer in the matter during such association." Chief Justice Castille participated in the Pennsylvania Supreme Court's ruling shortly before his retirement. After his retirement, the Court considered--and rejected--a motion for rehearing.
The first question before the Court was whether the violation of this rule would amount to a violation of constitutional due process. The Court, in an opinion authored by Justice Kennedy, held that it did: "Where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level."
The second question that the Court had to decide was whether the judge's participation in the Pennsylvania Supreme Court decision amounted to harmless error, given that the ruling was unanimously decided by a multi-member court. This, to me, is a much more difficult question. The Court held that harmless-error review was not appropriate, as the disqualified judge could have influenced the other members of the panel, and " it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process."
Chief Justice Roberts, joined by Justice Alito, wrote a dissenting opinion arguing that due process does not require recusal when the petition does not allege that the judge had "any previous knowledge of the contested facts at issue in the habeas petition, or that he had previously made any decision on the questions raised by that petition." (emphasis in original).
Justice Thomas also wrote a dissenting opinion. He pointed out that the due process requirements of criminal proceedings are and should be different that those required by later habeas proceedings (a form of civil action), and argued in favor of greater deference to the relevant rules and legislative enactments. He also pointed out that the Pennsylvania Supreme Court's earlier decision to deny rehearing in the case--a decision made after Chief Justice Castille had retired from the court--might have "cured" the alleged due process violation.
So what, in my mind, makes this case so hard? Some of it involves law, politics, and difficult recusal issues.
(1) The Commonwealth argued that it was unreasonable to think that Castille would be biased given the amount of time that had gone by and given his relatively limited participation in the case. The murder at issue occurred in 1986, and the Pennsylvania Supreme court decision was issued in 2014. And although Castille had to personally sign off on the decision to seek the death penalty, the Commonwealth's brief called that an "administrative act," as Castille would have deferred to the prosecutors who worked up the case. But, as Justice Kennedy points out in the Supreme Court's opinion, this characterization of Castille's role is at odds with how he portrayed his role as district attorney when he ran for judge, as "multiple news outlets reported his statement that he 'sent 45 people to death rows' as district attorney." Perhaps this was mere campaign puffing, but it is hard for the state to walk back Justice Castille's involvement at this point. I am also personally troubled that the death penalty has become so politicized that these decisions have become effective fodder for judicial campaigns.
(2) The Supreme Court's decision points to the possibility of unconscious bias, a topic very deftly argued in an amicus brief by Yale's Ethics Bureau (and spearheaded by Lawrence Fox). But if the Court takes seriously the risk that a judge, in the Court's words, "would consciously or unconsciously avoid the appearance of having erred or changed position" taken as a prosecutor, than isn't that doubly true of the current justices on the Pennsylvania Supreme Court? If we believe that Chief Justice Castille could have tainted the panel's decisionmaking, then wouldn't we expect the remaining judges on the Pennsylvania Supreme Court to be subject to the same unconscious bias hindering a change of position? One of my favorite social science articles suggests that people are very bad at identifying their own biases--and, in fact, that further reflection upon possible biases only makes people believe even more strongly that their views are neutral and unbiased--even when the evidence would suggest otherwise. See Cynthia McPherson Frantz, I AM Being Fair: The Bias Blind Spot as a Stumbling Block to Seeing Both Sides, 28 BASIC & APPLIED SOC. PSYCHOL. 157 (2006).
(3) The underlying facts of the case are especially tragic, and show how various factors (including social stigma, overworked defense lawyers, and overly zealous prosecutors) can combine to create a miscarriage of justice. Williams, the defendant, was subjected to sexual abuse between the ages of 13 and 17. He later committed two murders--one at age 17 and one at age 18--and there was substantial evidence that both of the men he murdered were among those who had raped him. More importantly, the prosecutor's office knew that history, according to later-released notes stating that Williams' "relationship" to the two victims was "substantially similar." Williams' first attorney used that information as mitigation evidence in the trial for the first murder, and the jury returned a verdict of third-degree murder. In the trial for the second murder, however, Williams had new counsel and seemingly did not tell his attorney of this history. Perhaps a better attorney would have done a more careful job with the client interview and drawn out that information; certainly a better attorney would have examined the earlier proceedings. But for whatever reason, Williams' second attorney did not, and Williams himself testified falsely at trial that he had no earlier connection with the murder victim. All of this led to issues in the later habeas proceedings, including whether the defense attorney provided ineffective assistance of counsel and whether the prosecutor committed a Brady violation by failing to turn over evidence of the prior sexual abuse. Justice Thomas notes, in footnote 2 of his dissent, that it's an interesting question whether "a prosecutor could violate Brady by failing to disclose information to the defendant about the defendant’s motive to kill." Clearly, Williams knew of the prior abuse. But the stigma surrounding that abuse--particularly in the 1980s--may have hindered his willingness to raise the issue even when faced with a potential death penalty. But untangling the web of responsibility here is a difficult one: Williams admittedly committed perjury in the second proceeding; his attorney, at a minimum, did a bad job investigating the facts of the case; and the prosecutor knew of relevant mitigating evidence that defense counsel did not.
(4) Finally, I have to note one of the most offensive items from the briefing in the case. The Commonwealth's brief to the Supreme Court, at page 10, gratuitously goes out of its way to describe Williams as "a double murderer who had sex with men for money." Given that he was between the ages of 13 and 17, Williams was below the age of consent for the majority of the time period at issue. Not only is this statement offensive (as has been repeatedly noted, "Sex without consent isn’t sex. It’s rape."), it is also terrible advocacy. Point out Williams' responsibility to testify honestly; point out that sexual abuse does not justify murder. But disparaging a child as young as thirteen for his own rape only perpetuates the stigma associated with sexual abuse and trafficking and stops other victims from coming forward before the tragedy cascades further.
The science and linguistics of profanity
From the latest Slate Lexicon Valley. I especially liked the four division of four categories of profanity--blasphemy, sex, bodily excretions, and slurs (or, as the author calls it, "Holy shit! Fuck! N****r!"*)--and the way different linguistic cultures accept or reject any of them.
[*] Yes, I recognize the sad irony of not using the word in a post about words. I don't need the headache.
Permanent injunctions and no mootness in marriage equality litigation
I missed this yesterday, but Judge Granade entered a permanent injunction in Strawser v. Strange. She rejected the state's argument that the case was moot in light of Obergefell, pointing to the suspended Roy Moore and the Supreme Court of Alabama's refusal to vacate its March 2015 Mandamus and that court's continued criticism of Obergefell as demonstrating that the state officials cannot show that enforcement of the marriage ban is certain not to occur. That the court (including whoever is Chief and serving as the administrative supervisor of the state judiciary ) is especially salient in Alabama, where judicial-branch officials are charged with issuing marriage licenses.
Judge Granade's order follows on the heels (and relies on) a similar permanent injunction in Brenner v. Scott in Florida back in March (sorry to have missed it at the time). The court in Brenner was even more dismissive of the state's mootness arguments. The court pointed to the state's refusal to immediately comply with earlier orders, the legislature's failure to repeal or amend the ban on same-sex marriages and other laws affected by that ban, and requests of state officials to "clarify" the scope of the injunction on other issues that turn on recognition of same-sex marriage. For example, the State Surgeon General asked for clarification whether, under Obergefell and the injunction, they must identify a female non-biological parent on a birth certificate, even though the document says "father;" the judge insisted the answer should be easy (same-sex couples must be treated the same as opposite couples in all respects) and the request itself showed that the defendants have not "unambiguously terminated their illegal practices." These courts join the Eighth Circuit in rejecting the argument that officials' agreement to comply with Obergefell, without more, moots unrelated cases involving different parties and different laws.
There is a procedural morass here that makes this a lot more complicated and that I need to think through further.
On the one hand, SCOTUS precedent should not moot an unrelated case, given the general rule that voluntary cessation does not moot and especially given my departmentalist model in which state officials have no constitutional obligation to follow SCOTUS (or any other) precedent outside of a judgment against them as to particular parties. That keeps the controversy alive, since every new request for a license is a new controversy beyond the scope of any existing court order. That state officials are not rushing to apply Obergefell to new settings is a product of Obergefell not extending that far.
On the other hand, the limited scope of most injunctions (including the injunction in Brenner, although not Strawser, given the class certification) should make a permanent injunction inappropriate once the named plaintiffs received their marriage licenses on the strength of the preliminary injunction. The plaintiffs got what they wanted and the defendants gave the plaintiffs what they were entitled to, so there is nothing more for the court order to do as to these parties. Everything else is for further state compliance with respect to people and issues not before the court and, if necessary, further litigation and a new injunction involving those new parties and new issues. For example, Brenner recognized that the birth-certificate issue is "not well presented in this case," since none of the plaintiffs seeks a birth certificate; there are two separate lawsuits by unrelated parties against the Surgeon General for refusal to issue such certificates. And if those statutes are constitutionally invalid (as they assuredly are under Obergefell), then state officials will be enjoined from enforcing those laws as to those plaintiffs. But that should not provide a basis for the type of free-standing injunction against taking any "steps to enforce or apply" Florida's prohibition on same-sex marriage, unconnected to context or party, in a case in which the plaintiffs only sought marriage licenses.
Finally, an interesting side note: I found the Strawser order on the website for Americans United for Separate of Church and States, which is undertaking representation of couples seeking marriage licenses in Alabama (and presumably elsewhere), since the refusals are now grounded in officials' religious objections to performing this function. It is interesting how the constitutional valance of marriage equality, and thus of the advocacy groups involved, has shifted.
Wednesday, June 08, 2016
Stern on liberals, sexual violence, and the justice system
I was going to write something about the misguided effort by California voters to attempt to recall Judge Aaron Persky in response to his light sentence on convicted sexual assaulter Brock Turner, arguing that anyone supporting such efforts cannot complain when state judges are removed or non-retained in response to, for example, pro-LGBTQ rulings (e.g., three members of the Supreme Court of Iowa in 2010). But Mark Joseph Stern at Slate (whose work I generally do not like), beat me to it. He ties the recall petition to a host of issues in which progressive commitment to due process, basic defendant rights, and judicial independence have run aground in cases of sexual violence, with the ordinarily progressive position abandoned; these include victim-impact statements, propensity evidence in sexual-violence cases, the right to confront witnesses, and general abandonment of due process in campus sexual assault.
To further illustrate the shifting locus: During lunch when I was interviewing at one law school, the subject turned to summer public-interest scholarships (small-money grants for students working public-interest summer jobs). The faculty member at the table said the grants were available for students working at the public defender's, but not to students in prosecutors' offices, which did not qualify as "public interest." That is, unless they were prosecuting domestic violence and sexual assault.
Tuesday, June 07, 2016
Overview of ABF Research (Part I): Criminal Justice, Legal Education & the Profession
In my previous post, I highlighted some ABF research that was on display at LSA. I’m sure I missed several other ABF-related panels at the conference. Even so, the LSA panels reflect only part of the ABF’s broader research portfolio. Let me mention some other projects. At its core, the ABF is an empirical and interdisciplinary research institute, and thus most of our research goes beyond purely doctrinal or theoretical questions to analyze “law in action,” as the legal realists put it. In this and the next set of posts, I’ll describe a few clusters of our research that reflect this focus on how law operates in society and on the ground.
Since its founding in the 1950s, the ABF has had a strong research focus on criminal justice. One of the ABF’s first projects, funded in large part by the Ford Foundation, explored the processing of offenders from arrest to prison. Led by Frank J. Remington, this study culminated in a scholarly edited volume (Discretion in Criminal Justice), as well as a larger publication (A Plane for a Survey) that highlighted the many areas of discretionary decision-making in the criminal justice system (thanks to former ABF doctoral fellow Meredith Roundtree for pointing me to this storied history).
More recently, ABF scholars have been continuing the tradition of analyzing criminal justice issues. Several are conducting research on the social and political implications of mass incarceration. ABF Research Professor and Northwestern Sociologist John Hagan and his co-author Holly Foster (Texas A&M) have been documenting how parental incarceration of non-violent offenders has had tremendous deleterious effects on children. With support from the National Science Foundation, the ABF held a White House Conference on this important topic. Similarly, Traci Burch (ABF/Northwestern Political Science) in her recent award-winning book (Trading Democracy for Justice) has shown the pervasive political and social consequences of mass incarceration, and how the criminal justice system has helped reproduce massive inequality.
Another area of ABF research related to criminal justice is Jim Heckman’s work on early childhood interventions. Jim, who is a U. of Chicago Nobel laureate economist and an ABF Research Professor, has been investigating how investments in early education and healthcare for disadvantaged children from birth to age 5 can have significant long-term effects on boosting graduation rates, improving health outcomes, and reducing violent crime. In a sense, Jim is studying ways to break down the school-to-prison pipeline that has been preoccupying many criminologists and lawmakers.
Legal Education & the Profession
In a previous post, I mentioned the ABF’s signature “After the JD” project, which continues the Foundation’s hallmark work on the legal profession. Directly connected to this line of research is more recent work on legal education. Beth Mertz (ABF/Wisconsin Law) has long been studying the relationship between language and the law. In recent years, she has been examining how law schools operate as a site for the training of lawyers in the language of law. Her award-winning book, The Language of Law Schools, draws on deep ethnographies to explain the important role of language in the socialization of law students. Beth is following up that earlier project with new research on the post-tenure experience of U.S. law professors.
In a similar vein, ABF Research Professor Steve Daniels has been conducting research on many aspects of the legal profession and legal education. Following up on his recent book (co-authored with Joanne Martin) about the Texas plaintiff’s bar, Steve is currently working on changing patterns within legal education. With support from the Access Group, Steve will be building on his experience as a consultant for the ABA’s Task Force on the Financing of Legal Education to explore how law schools have been responding to the current challenges facing legal education.
Criminal Justice and Legal Education & the Profession are just two historically prominent areas of ABF research. In my next post, I’ll describe other more recent areas of research.
John Inazu responds to Mark Tushnet on "Confident Pluralism"
[Note: Professor John Inazu has written the following response to Professor Mark Tushnet's three posts about John's new book, Confident Pluralism: Surviving and Thriving Through Deep Difference]
Confident Pluralism, Expressive Association, and “Tone”
Mark Tushnet has a series of posts on Balkinization commenting on my new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I appreciate Mark’s engagement with the book. And I appreciate the opportunity to offer this response as a guest post on Mirror of Justice.
Before I turn to Mark’s critiques, I’ll briefly situate the main arguments of the book. Confident Pluralism insists that our shared existence is not only possible, but also necessary. Instead of the elusive goal of unity, I suggest a more modest possibility: that we can live together in our “many-ness.” That prescription includes both a legal and a personal dimension. The two are interrelated. Silencing other viewpoints may begin with personal antipathy, but it ends with legal prohibition—a refusal to extend the protections of the law to one’s adversaries, and ultimately, an effort to turn the law against them.
The legal dimension of Confident Pluralism focuses on three areas: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The personal dimension of Confident Pluralism aspires toward tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (including protests, strikes, and boycotts); and (3) our relationships across difference.
Mark’s first post addresses my critique of the Supreme Court’s expressive association doctrine. His second post explores the implications of my constitutional argument for association with the oft-raised but important hypothetical of the racist restaurant. His third post criticizes the “tone” of my civic argument for tolerance, patience, and humility. I’ll comment first on Mark’s third post, which goes much more to the core of the book than his first two posts.Tolerance, Patience, and Humility
Mark’s third post criticizes what he calls the “tone” of my book. He writes: “Most of [Confident Pluralism’s] argument appears to be directed at intolerant, arrogant, impatient secular liberals—although formally speaking, he addresses intolerant, arrogant, impatient religious conservatives as well.” Mark concludes his post by writing: “Tolerance, patience, and humility are good things, of course, but urging them only on secular liberals is not.”
I think the best response here is to leave it to other readers to decide whether my argument is slanted in the way Mark suggests. My hunch is that most readers, regardless of their ideological priors, will disagree with his characterization.
I do not mean to suggest that I wrote the book from a “view from nowhere.” I have all kinds of personal beliefs that affect how I think and how I see the world. Take, for example, the two most significant constitutional issues that I address in the book: the right of association and the public forum. Most of my views about associational autonomy lean conservative, and most of my views about the public forum (including public protest) lean liberal.
In the chapter focused on speech as a civic practice, my critique of the “hurtful insult” is directed mostly at conservatives and my critique of the “conversation stopper” is directed mostly at liberals (though it is not difficult to think of cross-cutting examples for each of these). And when it comes to the aspirations of tolerance, humility, and patience, I tend to think, and tried to explain, that conservatives are more likely to resist the aspiration of tolerance and liberals are more likely to resist the aspiration of humility—but that both are needed to pursue a more confident pluralism.
Throughout the book, I do my best to name hypocrisy or inconsistency when I see it. For example, when it comes to the expressive nature of for-profit corporations, I express disappointment with both progressives and conservatives: “Many progressives were quick to defend Mozilla’s moral expression (and that of large corporations like Apple in the debate over Indiana’s religious freedom law) but view Hobby Lobby’s claims less favorably. Conversely, conservatives who ardently defended Hobby Lobby were quick to critique Mozilla and Apple. Whatever conclusion we reach as a society about the expressive and moral claims of for-profit corporations, it ought to apply across the ideological spectrum.”
Mark’s post raises some specific examples that emerged mostly after I completed the manuscript. On the subject of recent religious liberty legislation, I agree with Mark that most proposed laws have been neither carefully drafted nor narrowly focused, an argument that I made last fall in an essay coauthored with Michael McConnell and Rick Garnett. With respect to the so-called bathroom laws, I have criticized the North Carolina legislation and I have pushed back on overly dismissive arguments by religious conservatives. I do think, however, that some of the policy implications of transgender laws in other facilities and other circumstances are more complicated than Mark suggests.
Mark assumes a polarized binary between “secular liberals” and “religious conservatives” that I do not adopt in the book. For example, Mark references a story about some hate mail I received after I wrote about protests in Ferguson, Missouri. Mark assumes that the letter came from a “religious conservative.” But nothing in the story hints at the sender’s religious disposition, or whether the sender is liberal or conservative. (Indeed, I know nothing about the sender except for his temperament and his apparent dissatisfaction with my writing.)
I worry that Mark has assumed a “culture wars” mentality that sees only two sides. The shortcoming of that approach is that it forces an alignment of contested issues with ideologies that oversimplifies the views of many if not most people in this country. There are secular liberals and religious conservatives. There are also secular conservatives and religious liberals and all kinds of other combinations in between. And many people hold views on individual issues that, once aggregated, would not fit neatly into any of these labels.
I wrote in the introduction to Confident Pluralism that the goal of the book “is not to settle which views are right and which views are wrong. Rather, it proposes that the future of our democratic experiment requires finding a way to be steadfast in our personal convictions, while also making room for the cacophony that may ensue when others disagree with us.” That goal does not mean we will be able to engage with everyone who disagrees with us. I am unlikely to respond to the person who sent me hate mail. But I do hope to engage meaningfully with many of the people whose paths I cross. That includes colleagues, near and far, many who disagree with me on contested cultural and legal matters.
In the best cases, those encounters allow us to discover common ground in spite of profound disagreement. That is, for example, what I hope my colleague, Marion Crain, and I accomplished in our article “Re-Assembling Labor.” It is also, I trust, why scholars as diverse as Jason Mazzone, Tabatha Abu El-Haj, Ash Bhagwat, Tim Zick, Rob Vischer, and Steve Morrison have taken a renewed interest in the First Amendment’s right of assembly—perhaps because they find common ground in a constitutional principle despite deep differences on other matters.
Let me turn now to some of the more granular doctrinal arguments in Mark’s first two posts, which address my critique of the Court’s expressive association doctrine. (I should note that the section on expressive association inConfident Pluralism summarizes a more extensive argument that I make in my first book, Liberty’s Refuge: The Forgotten Freedom of Assembly.)
Mark defends the Court’s distinction between “expressive” and “non-expressive” associations as one of the “second-order rules whose justification lies in the fact, or hope, that a system implementing those rules will actually achieve better compliance with the first-order norms than a system in which courts attempt to enforce only the first-order norms.”
There are two problems with Mark’s argument. The first is that we have little evidence that the second-order formulation actually parses the first-order norms better than an undifferentiated right of association. The Supreme Court first recognized a right of association in its 1958 decision, NAACP v. Alabama. The doctrine quickly destabilized around the Court’s attempts to distinguish between the NAACP (which it wanted to protect) and the Communist Party of the United States (which it did not want to protect). It is not clear how a second-order formulation would have better honored first-order norms given the Court’s disparate treatment of Communists and civil rights workers.
The Court first introduced the second-order formulation of expressive association (alongside a separate right of “intimate association”) in its 1984 decision, Roberts v. United States Jaycees. Since then, it has held that private civic groups (like the Jaycees) are expressive but unprotected against gender antidiscrimination norms, that the Boy Scouts are expressive and protected against sexual-orientation antidiscrimination norms, and that a skating rink is “non-expressive.” Lower courts have concluded that motorcycle clubs, fraternities, fight clubs, nudist colonies, and other groups are all “non-expressive.”
It’s hard to see how these distinctions hold up. As I argue in the book, the category of non-expressive association “obscures the fact that all associative acts have expressive potential: joining, gathering, speaking, and not speaking can all be expressive.” For this reason, “it becomes very difficult, if not impossible, to police this line apart from the expressive intent of the members of the group. And many groups that might at first blush seem to be non-expressive could in fact articulate an expressive intent.” (I also note in the book, and in an article on Virtual Assembly, that the distinction between expressive and non-expressive becomes even more precarious once we consider its online applications.)
The second problem with Mark’s second-order argument is his assertion that “the Court’s distinction between expressive and non-expressive associations was motivated by a concern that ordinary commercial enterprises would invoke the right to justify policies of racial (and, later, other) discrimination.” I don’t think that’s right. The closest we get to that view is Justice O’Connor’s concurrence in the Jaycees’ case, a view that has never been adopted by a majority of the Court.
Even if Mark were right about the Court’s view, the two second-order formulations are not interchangeable—“commercial” is not an adequate proxy for “non-expressive.” Many commercial associations are “expressive” and some noncommercial associations are “non-expressive.” Hobby Lobby is expressive when it takes a position on birth control, and Delta Airlines is expressive when it threatens to boycott Arizona over the state’s religious freedom legislation. Conversely, both a gay social club and a Christian prayer group arguably fall short of the Court’s definition of “expressiveness,” even though both groups are clearly noncommercial.
One could, of course, adopt a pragmatic distinction between commercial and noncommercial associations. Andy Koppelman has called this view a “neo-libertarian” approach to the right of association, which he attributes to a diverse group of scholars including Michael McConnell, David Bernstein, Dale Carpenter, Richard Epstein, John McGinnis, Michael Paulsen, Nancy Rosenblum, and Seana Shiffrin. I find the distinction insufficient insofar as it leaves open the possibility of powerful monopolies emerging from within the noncommercial category. In Liberty’s Refuge, I propose a line between commercial and noncommercial associations that also accounts for the monopoly situation in the noncommercial context (a position for which Richard Epstein has criticized me).
In short, I agree with Mark about the pragmatic line-drawing; I just don’t think expressive association gets us there. But all of this is a bit beside the point when it comes to Confident Pluralism. The primary claim of the book with respect to the right of association—and the one that I wish Mark had focused on a bit more—is that current doctrine insufficiently protects the private groups of civil society—the very groups that we most need to live out confident pluralism.
The Racist Restaurant
Mark’s second post raises the oft-made but important hypothetical of the racist restaurant owner who appeals to the right of expressive association to exclude non-white customers. As I’ve already suggested, my own pragmatic view is that the right of association (or what I prefer to think of as the right of assembly) should not extend to commercial associations. That knocks out the different versions of Mark’s hypothetical, so let me turn to the harder case that I address in the book, the racist private school. Schools present a much harder and more interesting question than restaurants (in the latter example, I agree with Mark that antidiscrimination laws should prevail).
It seems in this instance that courts have made plausible distinctions on the level of social policy. When it comes to race-based discrimination against African Americans in the wake of widespread and damaging practices of the Jim Crow South, the schools have lost. When it comes to any other kind of discrimination (including other forms of race-based discrimination), the schools have typically prevailed. That is not to deny that people suffer real and tangible harms from discrimination on the basis of other characteristics, including gender and sexual orientation (which is one reason that I support a pragmatic line-drawing between commercial and noncommercial associations under which the former would not be protected under the right of association).
The Intended Audience of Confident Pluralism
In closing, I’d like to return to Mark’s third post and clear up one final point: it was never my intention to write to “intolerant, arrogant, impatient secular liberals,” any more than it was my intention to write to intolerant, arrogant, and impatient conservatives. The people who have already made up their minds and demonized “the other side” are unlikely to persuaded by my book, even if they happen to come across it. The people I am trying to reach are those who are predisposed to be more charitable to one another, even in the midst of deep and intractable disagreement. They are the people who are open to reasonable arguments, and willing to listen to different perspectives. To my good fortune, based on my interactions with him, Mark Tushnet is one of them.
Monday, June 06, 2016
Campus Activism at Law Schools
I just finished reading Nathan Heller's characteristically excellent essay in the New Yorker on campus activism. I thought there was not much new to say on the topic, but Heller manages to do so. Particularly interesting was his unbundling Millennials into two meaningfully different social groups.
Has there been campus activism of similar scope on law school campuses the past year? I have read of a little, but I wonder if there is more. During the 1960's, law schools featured much less activism than main campus, although Laura Kalman's excellent book on Yale Law School does provide examples of it at Yale, and there are other studies. Law school activism writ large never matched main campus activism writ large.
I wonder if something similar is happening this time around.
The Year of the (Legal) Establishment
If there is one political thread that has been covered endlessly, it is that the Establishment has had a rough year. Donald Trump is the presumptive Republican nominee for President, and Bernie Sanders has been doing quite well in the Democratic presidential primaries. For the legal establishment, though, the year 2016 has been quite good.
Trump did not feel the need to provide a list of prospective nominees for other important positions if he wins, but he did provide a list of potential Supreme Court nominees. A man whose entire brand is based on being his own man making his own decisions said that he got his list by consulting with the Heritage Foundation. His list is fairly Establishment by almost any measure. Sure, it includes state judges, and sure, it includes people who did not graduate from Harvard or Yale. But every single one of his nominees is highly credentialed by and connected with the conservative legal elite. No Roy Moore, no elected officials, no obscure judges.
Consider legal Establishment life on the other side of the aisle. President Barack Obama gets to nominate someone to the Supreme Court to be the potential deciding vote for a generation. He nominates a federal judge whose background with and connections to the legal Establishment rival any judge's (or lawyer's) in the entire country.
Why has the year played out like this? Is it because the political forces generating anti-Establishment energy generally just do not care about Supreme Court vacancies? Is it because the political forces generating anti-Establishment energy generally are still fairly Establishment, in the sense that their off-the-wall nominees are still very much on-the-wall?
It is mid-December and time for the White House Christmas party with members of Congress. And we learn what Tom James was up to in meeting with the Speaker at the end of last week and during the party this week:James is lobbying individual House members to abstain in order to create tie delegations, denying any candidate a majority. He is then counting on winning the Senate vice-presidential vote (which is by individual, not state) and, when the House vote produces a tie fails to produce a winner,* becoming acting president when no one has qualified to be President. We particularly see the fight over two members of Congress--1) Rep. Nickerson from Colorado, who's initial agreement to vote for Meyer gives her that delegation 4-3, but whose sudden abstention makes it a tie; 2) Rep. Yeager (state not mentioned that I heard), who similarly decides to abstain, denying his state delegation to Meyer. The situation is resolved by 1) Meyer and James having sex and 2) Meyer, seemingly emboldened, threatening Nickerson (in especially colorful language) and blackmailing Yeager (who was at the party with his young female "staffer") to return to supporting her. We will see if it holds up.
[*] It is not about a tie, as the show keeps saying, but about a majority. If Selina wins 25 delegations, O'Brien wins 20, and five are deadlocked, the vote is not tied, although it does not produce a winner.
The problem with James' plan remains what I argued when they began this story line at the end of last season: Under the Twelfth Amendment as modified by the Twentieth Amendment, the plan only results in James acting as president until a president (either O'Brien or Meyer) qualifies, not becoming a president. Someone could act as president for a full four-year term, but it would be an inherently unstable situation, ending at any moment that a later House vote produces a majority and a winner who qualifies as President. James also would not have an inauguration, would not appoint a new Vice President under the Twenty-fifth Amendment, and would not be listed in the line of Presidents. Would James want that position and hope it holds up for four years? Would his apparent popularity allow him to retain public support through that instability?
The show reminds us of the magic number for Meyer: 26, a majority of state delegations. Also, note that we still do not actually know if there is an electoral tie, since we still are in December and the votes will not be counted until January 6. The show could be waiting to play the faithless-elector card as late-season trump.
Update: This review of the episode proposes a fun third wrinkle: What if, while James is trying to screw Meyer by denying her a House majority, Sidney Purcell and the Speaker (the two people James met with last week) are going to screw James by denying him a Senate majority? The Twentieth Amendment gives Congress the power to provide for the failure of both the House and Senate to pick someone; that statute provides that when there is neither a President nor a Vice President for any reason (as would be the case at noon on January 20 if both the House and Senate fail to produce majorities, so that no one has qualified for the office) the acting president is . . . the Speaker of the House. That would be a legally/constitutionally accurate twist that would fit the show's screw-your-neighbor political ethos.
Sunday, June 05, 2016
A Short Note Regarding Updates on Dan
Like everyone else, we are monitoring developments in our friend Dan's case. In keeping with our desire to focus on Dan's life, we have decided not to announce or link to ongoing updates, although it is not hard to find them. We trust that readers will understand our decision.
The Appearance of Impropriety—or Impartiality, for That Matter
Thanks to Howard and the Prawfs crew for inviting me back to be a guest blogger this month! I’ve been at Case Western for nine years now, teaching a variety of subjects (including Civil Procedure, Remedies, Transnational Litigation, Secured Transactions, and now Law, Legislation, and Regulation)—but my favorite class to teach, and the only one I’ve taught every single year, is Professional Responsibility. And within the PR curriculum, my favorite topic to cover is conflicts of interest. There’s a lot of depth there: the difficulty of spotting the potential conflicts (and the cognitive biases that sometimes make them hard to see); handling conflicts that can’t be avoided (when is disqualification warranted? When and how may clients consent to conflicted representation?); and the problems of judicial conflicts (including most recently the Supreme Court case of Williams v. Pennsylvania, which should be decided this month).
Ordinarily I love to talk about legal ethics issues in the news. But Donald Trump’s attempts to suggest that Judge Curiel has an “inherent conflict of interest” due to his ethnic heritage seemed so obviously wrong that there wasn’t much to say about it, especially given the immediate, and thorough, rebuttal from legal scholars in the blogosphere. Eugene Volokh and David Post explained why Trump’s allegations are both legally wrong and threatening to the rule of law, and Howard pointed out that procedural tools can be deployed to protect the integrity of judicial proceedings.
But then I read Alberto Gonzales’ op-ed on the matter, which I think deserves a rebuttal...His editorial doesn’t fully defend Trump’s position; indeed, it states affirmatively that “Curiel’s Mexican heritage alone would not be enough to raise a question of bias.” The editorial doesn’t stop there, unfortunately.
Gonzales cites the prohibition on an “appearance of impropriety” in Canon 2 of the Code of Conduct for U.S. Judges, which provides that “[a]n appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” I suspect that he really meant to cite to Canon 3, which focuses on judicial disqualification as opposed to ground for judicial discipline; it states that the “judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” But this is the least of the problems with the editorial.
Gonzales goes on to suggest that two “other factors” may make “Trump’s concerns about getting an impartial trial” in Curiel’s court “reasonable.” While I don’t expect Donald Trump to be a legal scholar, I do expect Alberto Gonzales—a former Texas Supreme Court justice, former U.S. Attorney General, and now Dean at Belmont Law School—to know better. His two “other factors” are no more reasonable than Trump’s; his argument fails both on law and logic.
First, Gonzales points to Judge Curiel’s membership in La Raza Lawyers of San Diego. He concedes that the group is “unaffiliated” with the National Council of La Raza, which has “vigorously condemned Trump and his views on immigration.” But nonetheless, Gonzales suggests that “Trump may be concerned that the lawyers’ association or its members represent or support the other advocacy organization.” If Judge Curiel were a member of the National Council of La Raza, there might be an interesting question about perceived bias. But being a member of an unaffiliated group, albeit one with a common word in the title? That’s roughly equivalent to confusing Rick Perry with a bottle of Perrier. They can both be a little bubbly (especially with added syrup), but the positions of one are in no way attributable to the other.
His second argument gets even more convoluted. He points out that Judge Curiel appointed the law firm of Robbins Gellar to be lead counsel in the Trump University class action, and Robbins Gellar “has paid $675,000 in speaking fees” to Hillary Clinton since 2009. Robbins Gellar’s appointment, he notes, came “before Trump entered the presidential race.” But he nonetheless suggests that “it might not be unreasonable for a defendant in Trump’s position to wonder who Curiel favors in the presidential election.” Therefore, Gonzales suggests that these circumstances “while not necessarily conclusive, at least raise a legitimate question” about Judge Curiel’s impartiality.
But the logic—or lack thereof—of this argument is stunning. One would have to believe (1) that Robbins Gellar supports Hillary Clinton for president (the firm may well hire speakers across the political spectrum) and (2) that Judge Curiel chose Robbins Gellar as lead counsel because he shared those political sympathies (unlikely; the process is normally worked out informally by plaintiffs’ counsel, and “the firm or firms that emerge as the de facto leaders only do so because of their experience and past success in prosecuting the types of claims at issue”). This is a ridiculous and unreasonable stretch of the imagination, and in no way raises a legitimate question about Judge Curiel’s impartiality.
But the final logical leap is the most pernicious one: suggesting that the question of “who Curiel favors in the presidential election” could raise a legitimate question about his impartiality. Again, the facts at hand provide no evidence as to Judge Curiel’s political leanings. Of course a politician appearing before a judge will “wonder” about whether the judge supports his or her campaign. But there is no right to appear only in front of judges who would vote for you. Taken to its logical conclusion, Gonzales’ position would allow unfounded speculation about a judge’s political leanings to give rise to a “legitimate question” about his or her “honesty, integrity, impartiality, temperament, or fitness to serve as a judge.” This is not only wrong as a matter of judicial ethics, but it undermines the very legal system Gonzales has spent his entire career serving.
Saturday, June 04, 2016
Muhammad Ali and the Law
Some law-related thoughts following the death of Muhammad Ali.
Ali's direct contribution to U.S. law is the Supreme Court decision (in a case captioned Cassius Marsellus CLAY, Jr. also known as Muhammad Ali) reversing his conviction for refusing Army induction. It was a per curiam opinion, decided on fairly narrow grounds, so nothing that would become canon or significant precedent. Ali had sought a conscientious-objection exemption, which at the time required that the person have a sincere, religiously grounded objection to war in any form. Although a hearing officer found all three elements satisfied and recommended to the Appeal Board that his status be recognized, the Department of Justice wrote a letter to the Board recommending rejection of status, based on DOJ's purported findings that Ali failed to satisfy any of the three elements. The Appeal Board denied c/o status, disregarding the hearing officer's recommendation and without explanation, although the only other available basis was the DOJ letter. Before the Court, however, the government conceded that Ali's objection was sincere and religiously based. That brought the case within precedent holding that when the basis for a selection-service (or any other government) decision is uncertain but some possible bases are unlawful or erroneous, the entire decision must be vitiated. Rather than speculating whether the Board might have relied on the one remaining basis (the objection not being to war in any form), the Court rejected the Board's decision in toto and reversed the conviction. Justice Douglas concurred; he argued that the evidence showed Ali objected to all but Islamic war against nonbelievers, a "matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute" by limiting c/o status only to those who object to all war in all forms. Justice Harlan concurred in the result, concluding that the DOJ letter could be read as claiming that Ali's assertion of C/O status was untimely, an error that called for reversal under the same line of cases as the majority relied on. The inside-the-Court workings leading to the decision were the subject of the otherwise-silly Muhammad Ali's Greatest Fight.
Ali is lionized for this stand, often through the modern laments about professional athletes refusing to take political stands or become politically involved the way Muhammad Ali did. But this has always seemed unfair. Ali was not lionized at the time. His actions were unpopular with the press and much of "mainstream" America (which did not like Ali to begin with, regarding him as an uppity loudmouth). The exception was African-Americans and young anti-war activists on college campuses. He was stripped of the heavyweight title and denied a license to fight in any state, most importantly New York (Madison Square Garden remained the center of the boxing world), costing him 3 1/2 years at the prime of his career. Although ultimately vindicated by SCOTUS, it came at tremendous cost to his career. Modern athletes asked to take political stands almost certainly do not face similar exile from their sports. But to normalize Ali* as the expectation for high-profile athletes seems unfair, a burden we do not place on other people, even other famous people, anywhere else in society.
[*] The other person forwarded as the aspiration is Jackie Robinson. But Robinson was somewhat forced to take a stand by circumstance--being the first African-American player in modern baseball made him inherently political. And the abuse Robinson took no doubt took a psychological and physical toll that contributed to him dying at age 53.
Update: Case in point from the Daily News, extolling Ali for "offer[ing] a roadmap for today’s athlete to be an activist," while 1) eliding that in 1967, this columnist almost certainly would have been lining up to excoriate Ali for talking to much and dodging the draft, and 2) perpetuating the idea that the only true activist is the one who sacrifices millions of dollars and the prime of his career, something we ask of no one else. The Big Lead provides a good critique. At the same time, it understates the point in saying "[t]here are few, if any, athletes who can match Ali’s legacy fighting for social issues. That’s what made him such an important figure." Ali's legacy is, in part, a unique product of circumstances and initially unlawful action by the United States. That is why no one can match it.
Further Update: This Slate piece goes into detail on a lot of these themes, including more background on DOJ's efforts to influence the Appeal Board and on the prosecution, which were influenced by congressional and administration pressure.
Farewell and a Final Word on Personal Jurisdiction
Thanks to Howard and the Prawfs community for the opportunity to be a guest blogger during May. I really enjoyed the discussions over the past month. Before signing off, I wanted to follow up on my previous post on personal jurisdiction in Acorda and AstraZeneca, two patent cases recently decided by the Federal Circuit. As I mentioned, the Federal Circuit avoided the thorny general jurisdiction question (i.e., whether defendant Mylan had consented to general jurisdiction by registering to do business in Delaware), and decided these cases on specific jurisdiction grounds instead. But the specific jurisdiction question was not simple either.
In most patent infringement cases, specific jurisdiction is easy to establish because the defendant sells the accused product or uses the accused method in the forum state, and that contact "gives rise" to the plaintiff's infringement claim. However, Acorda and AstraZeneca are pharmaceutical patent cases governed by the Hatch-Waxman (H-W) Act, so the specific jurisdiction analysis is more complicated. Under the H-W Act, when generic companies like Mylan file an Abbreviated New Drug Application (ANDA) expressing the intent to manufacture a drug covered by one or more patents, that constitutes an artificial act of infringement. Once notified of the ANDA, brand companies like Acorda and AstraZeneca have 45 days to sue the generic for infringement. Thus, in the H-W context, the defendant hasn't yet engaged in any infringing acts (i.e., the making, using, selling, or importing into the U.S. of the patented product), but has only expressed an intent to do so.
Although all three judges on the panel agreed that Mylan was subject to specific jurisdiction in Delaware, they disagreed on the rationale. The majority held that Mylan had sufficient contacts with Delaware because it planned to market the drug there. In other words, they relied on Mylan's future contacts with the forum state. The concurrence, on the other hand, relied on Calder v. Jones and the "effects test." While I agree that Mylan is subject to specific jurisdiction in Delaware, I'm not sure either the majority or concurrence got the rationale right. Relying on future contacts is problematic because personal jurisdiction is supposed to be decided based on the facts at the time the complaint was filed. See, e.g., McFarlane v. Esquire Magazine, 74 F.3d 1296, 1300-01 (D.C. Cir. 1996); Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 52 (2d Cir. 1991). As for the effects test, its applicability is questionable, especially after the Supreme Court's decision in Walden v. Fiore. Instead, the Federal Circuit should have focused on Mylan's current contacts with Delaware--it is registered to do business there (i.e., to sell pharmaceutical products). While those contacts may not have "given rise" to Acorda's and AstraZeneca's claims, there's a good argument that they are sufficiently "related." Because the Supreme Court recognized in Helicopteros that specific jurisdiction requires either that the controversy be "related to or 'arise out of' a defendant's contacts with the forum," it seems to me that this would have been a better basis for upholding specific jurisdiction in these two cases.