Friday, September 30, 2016
How Does an 8-Member Court Decide Bush v. Gore?
Thanks to Howard for organizing this discussion about the upcoming election. I’m excited for the conversation.
As if this particular election cycle needed more complications, a massive obstacle faces courts and litigants (and, by extension, everyone else): the Supreme Court remains shorthanded. In a world of unanimity, this wouldn’t pose too many problems. But in election law, where opinions are lengthy and consensus is fleeting, you’re lucky if you get a majority opinion, much less anything that garners the support of more than five justices. (See, for example, the many messy splits in the Court’s landmark decisions in this area.)
As a result of these deep fractures, the Supreme Court’s response to the impending election might be summed up as: paralysis. An illustration emerges from North Carolina, where plaintiffs allege that the state enacted voting restrictions with racially discriminatory intent. In an opinion issued two months ago, the Court of Appeals for the Fourth Circuit agreed—and in an effort to stay the mandate, the defendants filed an emergency application with the Supreme Court. This is an important case, with considerable practical and legal implications. The Supreme Court’s response? It needed only three sentences to tell us the single thing it could agree on: right now, it can’t count to five.It is, of course, not unusual for the Supreme Court to dispose summarily of emergency applications. But usually that is because at least five Justices agree that such treatment is warranted. Cases like the one from North Carolina, by contrast, are now turning on a fundamentally different calculation: will the Justices’ 4-4 split once again preclude a decision that could even possibly change the status quo? This problem—somewhat obscured by the posture of the North Carolina case, which was presented to the Supreme Court as a stay application—becomes even clearer once the Supreme Court has granted cert, which only requires four Justices. A petitioner very well might have its petition granted and its argument heard, but if all it can muster is a tied vote, it will never get anything it’s asking for.
This problem already has knocked the wind out of multiple cases; the last Term was defined “as much by what the Court did not decide as what it did.” Given how fractious the Supreme Court has been in the election-law context, the problem of the 4-4 split is likely to dominate this area with particular potency.
There are several ways the Supreme Court might respond to such a problem. It might attempt to minimize the appearance of paralysis by refusing to entertain cases on discretionary review and by declining to note dissents when summarily disposing of others. As Will Baude has explained, these sorts of orders reveal very little about the Court’s inner workings, including with respect to each Justice’s assessments of the merits. Alternatively, the Court might dispose of such cases through enigmatic, compromise opinions that accomplish little more than a remand. This is what the Supreme Court appeared to do a few months ago, for example, in Spokeo v. Robins, a terrifically impenetrable case on standing that initially seemed like it might have blockbuster potential. (Another high-profile example of this approach emerged out of the ACA-related dispute in Zubik.) Or the Court might do what it did in the case discussed above. It might acknowledge, quite openly, that it cannot do its job. In the North Carolina case, this distress signal was tapped out through the four noted dissents, which countered (but did not offset) the four justices voting to deny. Earlier in the Term, in the context of several deeply important cases that needed, but did not receive, resolution, the Court accomplished the same through a stark statement, framed in blank-page white: “The judgment is affirmed by an equally divided Court.”
How the Court responds each time it faces this problem will depend, as it should, on a number of case-specific considerations. Overall, however, I think that the best approach tends to be the third. Masking its own paralysis may suggest consensus, a value that we know the Chief Justice favors, but it risks confusing the courts and others watching to figure out where the law might be headed. It also makes it harder to determine—and, as appropriate, to protest—the effects of the nomination deadlock. Taking the second approach and issuing a compromise opinion, like the Court appeared to do in Spokeo, provides the litigants with at least some resolution, but the inscrutable decisions that emerge barely accomplish even this, and they threaten to muddle the case law in a way that will confound even after the Court reaches full capacity. Taking the third approach—openly acknowledging that, in this context, the Court is failing—seems to be the most effective way for this eight-member body to accomplish what little it can right now: signaling that it needs help, and minimizing the harm going forward.
Roy Moore suspended for remainder of term
The Alabama Court of the Judiciary suspended Chief Justice Roy Moore for the remainder of his term in office. The focus of the charges was a January 2016 administrative order, in which Moore advised the state's probate judges that the court's March 2015 (pre-Obergefell) mandamus order prohibiting issuance of marriage licenses to same-sex couples remained in effect. In part, Moore stated that the judgment in Obergefell bound only the parties and only declared unconstitutional the marriage-equality bans in four states, thus it did not undermine SCoAL's earlier orders.
The judiciary court rejected those arguments, relying on long quotations from Cooper v. Aaron and the view that a SCOTUS declaration of constitutional meaning is, without more, binding on everyone everywhere. So Moore's order/advice regarding conduct by probate judges in conflict with the holding of Obergefell violates various judicial canons. The court's analysis of Cooper is inconsistent with the model of judicial departmentalism I have been urging--holdings judicial opinions do not formally bind anyone beyond the parties, including lawyers and public officials, until they are reduced to judgments against those individuals, which they will be because the holdings bind lower courts. The decision also overreads Cooper by forgetting what the Court really was upholding against state resistance--not Brown, but a Brown-based lower-court injunction. Plus, it was unnecessary in this case--Moore's real violation here was ordering/advising probate judges to violate not Obergefell, but a federal district-court order to which every probate judge was party and unquestionably bound that was made enforceable in light of Obergefell. That judgment gets passing reference, but the real focus was how Moore disregarded Obergefell.
Oh well. It is tempting to say Moore's judicial career is over. But I have no doubt he could win reelection to the court if he tried.
Further Update: This is among the most inaccurate things I have read by someone with a law degree. Writing about Moore trial:
This is the heart of the issue. According to Moore and Staver, the decisions of Alabama’s highest court are not subservient to those of a federal district judge. This goes against 200-plus years of constitutional interpretation that does put state courts below federal ones, of course.
“The state courts and the federal courts have co-equal authority,” Staver argued in a phone interview before the trial. “And one does not have to follow the other if they are making a decision on the U.S. Constitution.” This is not how the Supremacy Clause of the U.S. Constitution works, though.
Just, no. State courts are not "below" lower federal courts; they are co-equal courts that are all inferior tribunals to SCOTUS. Lower-federal court precedent is not binding on state courts or state judges (unless the state court chooses to be bound by that precedent). State courts and lower federal courts do have co-equal authority as to federal law. Congress was not obligated to even create lower federal courts; had it not done so, state courts would have been the only courts interpreting federal law other than SCOTUS.
We can debate departmentalism and the binding effect of SCOTUS precedent (as opposed to judgments) on non-judicial actors. But to say that state courts are inferior to lower federal courts reflects a complete misunderstanding of the judicial structure in the United States.
Donald Trump . . .
is not Hitler; he is Woody Allen's character in Bananas.
Designated Survivor, S1E2
I think I am out.
In part, as one reviewer said, it is a network drama--everything is on the nose and explained, in a way that comes across as stilted and unrealistic. For example, when the President reveals that he had lied about undercover agents to get the governor of Michigan to order the state police to stop rounding up Muslims, his aide announced "he was bluffing." Thanks for that. In part, it takes a craven and unrealistic view of the media and the public and how they are likely to react to, and report on, this story. A lot has changed in our political and media culture since 2001, to say nothing of earlier. But I would expect that, at least during the first 48 hours, someone in Kirkman's position would get a great benefit of the doubt from the press and the public, much as Lyndon Johnson did.
Still, the show followed some interesting threads this week. Unfortunately, I am just not sure the interesting threads overcome the other, less enjoyable pieces of the show.The relevant story line (ignoring the whodunnit investigation and the drug-dealing teenage son, neither of which interests me) is that the Governor of Michigan ordered State Police to roundup Muslims in Dearborn, resulting in many arrests and the beating death of one teenager by a police officer (captured, of course, on video). The Governor explicitly rejects Kirkman's presidential authority, insisting Kirkman is not "his" President and that the Governor is the highest authority in the state.
This presents an interesting continuity-of-government problem--what if the governor of a State, an independent sovereign, declines to recognize the authority of the acting president. I believe the non-craven view of politics would prevail, at least in the early hours.
But the show goes off the rails when Kirkman looks for a solution. He speaks with two people from the Attorney General's office (or maybe two possible candidates for AG), who give absolute gobbledygook for advice. Thing 1 suggests the President can "invoke the Supremacy Clause" (a phrase which is meaningless) and issue an Executive Order requiring the governor to force his police to stand down (something for which there is no legal authority). Thing 2 says an executive order can be perceived as "hostile," instead recommending a presidential proclamation; when Thing 1 responds that would be a weak, symbolic, empty gesture (it is), Thing 2 reminds that President Bush used proclamations to secure disaster areas after Hurricane Katrina--which might have been effective because FEMA was in charge of the area, but has nothing to do with the current problem. Naturally, the lawyers both come across as useless schmucks. Later, the President's wife (also a lawyer) reminds her husband of Kennedy calling out the National Guard against George Wallace, but Kirkman rejects that as a "nuclear option."
Missing in all of this, of course, is that the President cannot simply order--via national guard, proclamation, executive order, or video phone call--states and state officials to do or not do anything. Even if the state is acting unconstitutionally, the federal government cannot simply tell the state what to do (or it can, but cannot expect the order alone to have any legal effect). The correct answer to the problem is for the US to sue Michigan for this massive constitutional violation, while perhaps bringing a § 242 prosecution against the officer who beat the kid to death. Or the US could support the private lawsuits that the ACLU (which is described as denouncing the round-ups, but nothing more) would be sprinting to the courthouse to file. And when the court orders the state to stop rounding up every Muslim in the city, either a) the governor complies with the order (because they usually do) or b) Kirkman calls in the National Guard (the show, like everyone else, forgets that Kennedy could call in the National Guard only after a federal court had enjoined Wallace from interfering with integration of the university--Kennedy did not simply annouce that Wallace had to stop interfering and then send in troops).
And even if a lawsuit takes time, the threat of a lawsuit and its enforcement might have been enough to get the governor to stand down. In fact, it might have been a good way to show Kirkman's power: "You may not regard me as 'your president,' but vested in me is the executive Power of the United States and I can still bring it down on you and your State if you do not fall in line." That would have been a better show of legal force; instead, the show went for Kirkman's cleverness (he lied that the sweep had caught up undercover federal agents, so the governor was obstructing justice) in an unrealistic maneuver.
Of course, a lawsuit would be more "hostile" than an executive order (especially because it actually would be valid in law, so it would have, you know, actual force). But here is a different narrative problem. During a public appearance at the bomb site, the public and press begin shouting at Kirkman about the civil rights violations in Michigan (interrupting his Bush-esque speech on a bullhorn), accusing him of not being concerned about such violations and of allowing Americans to be beaten. But if that is the public mood (that the Muslims being arrested are "Americans" deserving of protection), then the lawsuit and enforcement of the resulting injunction would be quite popular, or at least not seen as hostile. In which case, this ceases to be a "nuclear" or "hostile" option of which Kirkman should be afraid. The show wants to have it both ways narratively--Kirkman is under attack for not doing anything about civil rights violations, but he would be pilloried if he did something because the nation is again afraid of, and hostile to, Muslims.
Finally, we get talk of reconstituting the government. Kirkman insists on putting together a cabinet and sends his HUD aide and the WH Deputy Chief of Staff (the two clearly have had sex in the past) to come up with names. There is no mention of states either appointing Senators or calling for House elections. This raises one interesting, although unexplored, point: With no Senate (and again, no mention of appointments), no one can be confirmed as a cabinet officer; they only could be acting secretaries. Given that, would an acting president seek out new appointees to these posts? Or would he just elevate the # 2 in each department to acting secretary, to maintain some continuity within the department?
As I said, I think I am out. Because although the show has teased some interesting threads, it is not playing them in a way I find interesting or enjoyable.
Thanks to our September guests, who may be sticking around for a few extra days.
For October, we are going to try something different with our guest slate. With the election looming, we decided to do a month-long symposium, with expert guests writing about the election, election law, and related issues, such as what might happen after the election and in the new administration. I am happy to introduce Josh Douglas (Kentucky), Ned Foley (Ohio State-Moritz), Lisa Manheim (Washington), Michael Morley (Barry), Bertrall Ross (Berkeley) and Franita Tolson (Florida State). They will be with us for October and perhaps through to the election in early November.
We look forward to a great, and unique, month of posts, from our guests and our regular bloggers.
Law and Religion Moot Court at Touro
The Fourth Annual Law and Religion Moot Court at Touro is coming up in April. More information is available here.
Thursday, September 29, 2016
Thanks for having me!
It's been great to be here at Prawfs this month. Thanks to everyone at here for having me, and to the Prawfs community for sharing your thoughts with me.
You also shared useful thoughts on the job of being a professor. In case you missed those, I posted about letters of recommendation here, assigning videos for class here, and whether to sign onto amicus briefs, comment letters and the like here.
I'm going to continue to write about bankruptcy issues and higher education. I'm always glad to read your work on these issues, so feel free to share drafts. If you want to read my own work, you can find it on SSRN. I also tweet fairly often about bankruptcy, contracts, higher education, and consumer law (and about food and bicycles). You can find me on Twitter @Prof_Bruckner.
Until next time!
Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?
For various reasons--medical, spiritual, and intellectual--I have not followed the election closely and have increasingly tried to stay away from much election commentary. Having made up my mind long, long ago who I think ought not be president in this election, much of the coverage has been fairly irrelevant to me, and therefore fallen into the unnecessary-tsuris category, or into the category of things one reads not because they constitute a form of civic education or engagement, but as a kind of luxury good or type of entertainment. I worry about that seemingly widespread taste on a normative level--and I have not found the content especially entertaining anyway. The average commentary has not interested or pleased me much for similar reasons, especially social media commentary. Friends elsewhere have suggested to me, somewhat persuasively, that for some, engaging in this commentary can serve some kind of therapeutic or emotional or self-expressive need, although the need for those people to speak has little to do with anyone else's obligation to listen. Some of it, being aimed fairly clearly at people who already hold the same view, can fall under the category of solidaristic expression, which is just something that has never interested me; oddly, although I'm a big supporter of pluralism and of institutions, I'm not much of a joiner.
And a lot of the commentary, perhaps especially on legal blogs (or maybe I just have a biased sample, since I am more likely to read legal blogs than other sources), bothers me because it strikes me as simultaneously being inexpert and attempting to trade on the ostensible authority of the writer. I feel fine about "experts" engaging in speech and action as citizens, and without the use of their "name tag"; I would like to see a lot more of it, in fact. But I'm less comfortable with "experts" who opine publicly on things outside their sphere of expertise, or ostensibly within it but drawing more (or entirely) on their personal civic and political views than on anything having to do with their expertise as such. It's not just that this strikes me as an illegitimate use of one's ostensible authority that has bad long-term consequences for democratic politics. It's that I think it serves as a kind of costless luxury good or form of entertainment for the person doing the opining him- or herself, and thus as a distraction from the kinds of things he or she should or could be doing qua citizen. Your mileage may vary, of course, or you just might not mind getting your entertainment in this particular form.
There is one question I would like to raise, though. I think it would be unfair to say I raise it as an expert. I teach constitutional law and legislation/regulation (although I'm just starting in on the latter subject), but that hardly constitutes expertise across the whole range of questions and sub-topics that this entails. It's more accurate to say I know enough to find the question interesting and to raise it, but would rely on others, hopefully more expert, for interesting answers to the question. The question is, if Donald Trump is elected president, how will the body of government employees I will generally lump as the "civil service" react? Will they faithfully implement the government's policies? Will they resist doing so, but only insofar as those policies violate professional, legal, and/or constitutional norms? Will they resign in larger numbers? Will they engage in somewhat passive resistance or "uncivil obedience," by dragging their feet on implementation in a way they would not do for another administration? Or will they rebel more directly and forcefully--if perhaps not always openly? Administration changes often see a big shift of appointed government officers into regular civil service positions, a practice called "burrowing." If Trump is elected, will this happen on a larger scale than usual, precisely to facilitate this kind of resistance?
I have not seen much on this, although I haven't searched too thoroughly. There are more stories asking what Trump will do to the civil service than asking the reverse question. There is a New York Times piece by Eric Posner--the most interesting, because most dispassionate, legal academic who has written on the election, in my opinion--on "What President Trump Could or Couldn't Do," the last three paragraphs of which address this question. It comes up in this Vox piece (although I should note in all candor, if perhaps in slightly off-topic fashion, that I loathe Vox), which notes early on that "a massive civil service bureaucracy has a will of its own--and the kind of job security that The Apprentice never had to deal with." I would be remiss if I didn't note this Glenn Harlan Reynolds piece, even if I am highly dubious of its bottom line.
If there is more, I haven't seen it, although one assumes there is more out there. In particular, I wonder whether the subject has come up on blogs, listservs, Facebook pages, and other sites for, by, and drawing (likely anonymous) commentary from career civil servants. It strikes me as an interesting and obvious question, and the kind of question for which there are at least a few experts out there who might have something to contribute that actually is expert. It also strikes me as something that has immediate positive aspects, but also obvious potential for serious negative long-term consequences. People who have seen other, useful discussions are welcome to email me with links, of course.
[Two updates: A friend points me to this post on Lawfare. And another friend reminds me that another form of resistance would likely be via complaining and/or leaking to Congress and the press.]
Wednesday, September 28, 2016
In Search of the Great Academic Novel
Over the past couple years, I’ve stumbled upon a small but, for me, enjoyable genre of fiction: the academic novel. My sense of my job, and of academic life generally, is mainly a product of my personal experiences and a fair amount of nonfiction reading on the subject, be it in scattered books or articles in the Chronicle. But these resources don’t allow you to escape the present, to view it from the outside and see what it truly is, or what it might be. The academic novel allows you that, and I’ve found it extraordinarily refreshing.
It turns out that others are fond of this genre as well. Here are a couple posts that collect some books—here and here. For my money, however, one of the best books in this genre is Stoner by John Williams.Stoner is an astounding novel about a William Stoner, an English professor at University of Missouri. The first page of the book tells you much about Stoner:
“William Stoner entered the University of Missouri at a freshman in the year 1910, at the age of nineteen. Eight years later, during the height of World War I, he received his Doctor of Philosophy degree and accepted instructorship at the same University, where he taught until his death in 1956. He did not rise above the rank of assistant professor, and few students remembered him with any sharpness after they had taken his courses. When he died his colleagues made a memorial contribution of a medieval manuscript to the University library. This manuscript may still be found at the rare book collection, bearing the inscription: ‘Presented to the Library of the University of Missouri, in memory of William Stoner, Department of English. By his colleagues.’
“An occasional student who comes upon the name may wonder idly who William Stoner was, but he seldom pursues his curiosity beyond a casual question. Stoner’s colleagues, who held him in no particular esteem when he was alive, speak of him rarely now; to the older ones, his name is a reminder of the end that awaits them all, and to the younger ones it is merely a sound which evokes no sense of the past and no identity with which they can associate themselves or their careers.”
Stoner, as this first page intimates, was not a shining star of the academy. The story chronicles his dedication to teaching and scholarship, but also his numerous professional and personal setbacks. Stoner tends to leave readers with one of two reactions. Some readers feel sorry for Stoner. They see how life and university politics chewed him up and think he lived a tragic and partially wasted life. Other readers, including me, see a beautiful life. We see not that Stoner stumbled and suffered over and over again; we see that Stoner's love of teaching and study sustained him through his hardships. The book always makes me feel grateful for my job, and helps me to remember the central mission of my job as well.
The book also says something useful about the idea of academic legacy. The first page of this book, by telling us about a man held “in no particular esteem,” suggests that Stoner’s legacy is negligible. And maybe it is. But Stoner lived, in my opinion, such an admirable life that it seems odd to discredit his life simply because he did not leave a "legacy." I think there is a quasi-religious aspect to thoughts of legacy. Just as it is hard for many to conceive of death without an afterlife, it's also hard to conceive of a life of work without a legacy. But thinking about our legacy can distract us from what actually matters--which is teaching a room full of students on a rainy Tuesday morning in February, or spending the summer in the basement of a library trying to discover something about the world that no one has yet even imagined. Whether I'm remembered for doing these things is, in my mind, a poor measure of whether I did them well. I remember several teachers who taught me well, but I'm sure I've forgotten others. Their contributions have not been lost because I do not remember them. To be a great academic, in a sense, is to live for the rainy Tuesday mornings or quiet summers in the library. This is the way Stoner lived and, legacy or not, I would be proud to live such a life.
So, as you can tell, Stoner is special book to me. But I'd love to read others. If you know of other great academic novels, please share. I'm always on the lookout for another.
Tuesday, September 27, 2016
Letters of recommendation
I come from a family that overwhelmingly worked in blue-collar jobs. Growing up, my father was a stagehand and my mother was a homemaker. In addition, very few members of my (large) extended family went to college. Having grown up without a lot of professional mentors myself, I've since worked to seek them out. Now that I'm a law professor, one of my favorite aspects of the job is the opportunity to mentor students. Maybe that's why I consider helping students find jobs to be part of my own job description.
One of my colleagues recently asked me if I would write a letter of recommendation for a student that did above average in two of my classes (i.e. A-, B+) but was in the bottom third of the graduating class. He seemed surprised when I responded that I am willing to write a letter of recommendation for any student. I'm curious to know if I am the outlier. Would you write a letter for the student so-described? Some further thoughts on my own approach after the break.When a student asks me for a letter of recommendation, I invite them to meet with me to discuss their career goals. I find that these meetings help me get to know the student a bit better and often provides useful color for my letters. It also affords me the opportunity to ask students to name three qualities about themselves that they would like me to comment and to discuss the possible basis for these comments. For example, if they'd like me to comment on how bright they are, perhaps they'll note that they received a very high grade in my course. Or if they want me to comment on their public speaking, they'll remind me that they served as a group spokesperson during some of our in-class exercises. To my mind, this discussion serves multiple purposes. Particularly for my 1Ls, it is a continuation of our work in class, where I constantly seek to teach them to connect facts to law to reach legal conclusions. It also helps me flesh out the substance of my letter. Finally, it helps to set expectations about what I can and cannot say. I do make clear to students that they should consider whether I'm the best person to write a letter for them based on our prior interactions, their performance in my class, and the their other alternatives. But if I'm the best they've got, I work to write them the best letter I feel comfortable with.
My colleague worried that he would debase the value of his other recommendations by writing a letter for any student that asks. As a result, he said that he refuses to write anything other than letter of unqualified praise. By contrast, I think that there are always positive attributes that I can comment on and I believe that even our weakest students deserve my help to get a job. Apparently, I'm more willing to write a broader range of recommendation letters from those providing "the strongest possible recommendation" all the way to encouraging the employer to "consider" the applicant.
What do you think? Am I failing to adequately safeguard my reputation?
Follow Up on Academic Vitas
Just because of the comments and interest the original post elicited, a few more thoughts.
I’m grateful for the comments, which helped me understand both the problem and also at least one way in which I was unclear.
I’d begin though by expressing my heartfelt sympathy for how frustrating the market is. I spent much of my earlier career on hiring committees, but most of my last decade and a half helping prepare academic candidates for the market. I know just how maddening it can be, and how difficult it has become with the relative scarcity of jobs. As I assist candidates, year after year, I feel the pain.
I will say there is no magic. As opaque as it can appear, committees and faculties want good minds and folks who will be good colleagues and teachers. I get frustrated with many of the purveyors of advice who are looking for a silver bullet, some clever new tactic, when it is primarily about hard work and preparation and putting your best foot forward in logical ways. (I also have many thoughts about the way the market has moved, and its preferences, maybe for another day.)
But on this subject of vitas, I was partly understood and partly misunderstood – my bad of course, I should have been clearer.
I don’t actually think it matters hugely what order the blocks on the vita come in, i.e. whether professional positions come before publications come before education. I agree with our stellar director of academic careers that there is no one right answer. I suppose if I had my preference – but it is just that and little more – it would be education, professional positions, publications, courses, references. Maybe with presentations tossed in toward the end. (For what it is worth that is how my vita still is, though I’ve wondered if I should just toss education down below – does anyone care anymore?)
What I and others have noticed this year – and I agree there has been gradual creep – is the profusion of subcategories (academic positions, professional positions, clerkships; academic writings, professional writing; other). Even this would be fine; but what really gets my goat is how categories that are logically-grouped (all jobs together; all publications together) are on some vitas divided up and scattered throughout the vita. I see why it is happening – folks want to shove any conceivable academic aspects up top – but I still think it is a bad idea.
What anyone reading your vita wants to be able to do is understand the arc of your career. How you were trained, what positions you have held and experience you have had, and what you have been writing. It is important for a reader to get that. To get you. And when the various aspects of a vita are subdivided and scattered in an effort to get anything academic-y up top, it gets difficult to get a grasp on the whole person.
That’s my only point. The rest is preference and reasonable strategy.
With that, good luck.
Monday, September 26, 2016
Random thoughts on a Monday morning
Because none was worth its own post:
1) Having now watched the pilot of Designated Survivor, I still cannot decide whether to stay with it. As I said before, some of the exposition about succession and about Kirkman's position--designed to show his resolve and the Kal Penn character coming to believe in him--would never be uttered by anyone working in the White House. (Although I did like that the Penn-Kirkman conversation began through the wall of a bathroom stall, so Penn had no idea who he was talking to). Otherwise, the show looks like a story of 1) hero FBI agent who wasn't even supposed to be on the scene shows up, convinces boss to let her stay rather than to do what she is supposed to, and immediately starts ordering everyone around as if no one beside her had any clue about how to do an investigation and 2) evil deputy chief of staff and evil warmongering Chair of Joint Chiefs plot to seize power away from the only lawfully authorized executive (hint: That is more than "close to" treason). And neither of those types of shows interests me (your mileage may vary, obviously). I will watch again next week, but I am not sure how long I will stick around.2) Sandy Levinson hypothesizes a 269-all tie (or faithless Republican electors worried about President Trump) producing Acting President Kaine, followed by Acting President Kaine being displaced by President Romney or Ryan soon thereafter. Of course, what Sandy describes is, in part, the last season of Veep, confirming my point that such events would produce a genuine constitutional and political crisis, not the calm, happy, celebratory (for everyone but Selina) inauguration the show depicts in the final episode. Sandy's further point is that it would fly in the face of any conception of how a rationally democratic electoral system should work.
3) I will not watch the debate this evening. I already know the outcome: Trump will be deemed to have "won" the debate because he "seemed Presidential" by standing behind a podium and speaking without behaving like a raving lunatic or explicitly calling for the arrest or assassination of his debate opponent (implicit calls will, of course, be fine). And that will be true even though the words spilling from his mouth will be 1) provably false (but unchallenged), 2) incoherent word salad betraying a complete lack of understanding beyond the simplest of ideas and slogans, and 3) provably false. Nothing Clinton can do--no matter her policy expertise and ability to debate ideas--will overcome media comments about her demeanor and appearance and the lowered expectations for Trump, under which he wins by looking a normal human being, regardless of what he actually says. And that will carry the "conventional wisdom" day.
4) I have shut-out all election news for the past few days (in particular, no peaking at poll forecasters). Count me among the anxious. I, as an unabashed Democrat, rooted for Trump to win the GOP primary because I believed he would be the easiest opponent to beat--I simply did not conceive of a world in which someone so obviously unqualified and ill-suited for high office could capture sufficient votes. What I did not realize until the past few weeks is that the institutional mechanisms for checking Trump's worst abuses--lies, media manipulations, inability to control himself, appeals to some subset of voters attracted to bigoted ideas and policies, economic ties to a frisky foreign rival, policies that are constitutionally suspect, lack of basic understanding, incompetence, and more lies about all of it--did not exist, at least not in the robust fashion I imagined. Either the press is not talking about it. Or, to the extent they are, no one who matters is listening. I do not know if it is possible to float through this as ignorant as possible and be surprised (one way or another) on November 9. But I may try.
5) To the extent anyone is talking about Merrick Garland anymore, the comment is often made that this would be the first time since 1968 the Court had a Democratic majority. But to the extent that is code for it being the first time since 1968 there has been a liberal majority, the two do not overlap. The 1968 Democratic majority was Black, Douglas, White, Fortas, and Marshall. But the liberal voting bloc was comprised of Warren and Brennan, not White, who was not a consistent judicial liberal on many issues The distinction matters and should be highlighted, because it illustrates the shift in who gets appointed to the Court by both parties. As has been the case since Sotomayor and Kagan replaced Souter and Stevens, judicial ideology perfectly aligns with party affiliation.
What’s Happened With Academic Job Market Vitas?
What is up with the CVs that academic job market candidates are circulating this year? Something seems seriously off the rails, and I hope folks will take note and consider fixing it for the future.
This year’s job market CVs are a weird mash-up in which job market candidates are shoving to the front anything that seems to them relevant to an academic job, and then pushing down below a variety of other information including most of a person’s professional career. Work experience, publications, presentations, all are broken into strange, small, and often unfathomable categories.
Although the intention seems to be to put one’s qualifications for an academic job up top, the real effect is to make it extremely difficult (and in some cases impossible) to piece together the candidate’s professional career.
Take note: I’m not the only person thinking this is bizarre. Our entire hiring committee is scratching its head, and I’ve yet to talk with any hiring committee member who believes it makes any sense. (I’m confident a contrarian will surface here in the comments, blogging being what it is, but still, market candidates, take note.)
I’m not sure who started this trend, or who is promoting it as the right thing to do. But here’s a pro tip: it is not helping you, and folks should stop it. Indeed, my free legal advice is to think about getting to schools that are seeing you an old-fashioned vita, the kind that actually tells people how your career has proceeded.
That’s what a CV is. A summary of your professional life. It’s designed to let readers know what you have done. It is fine to rework the CV to emphasize aspects of your career that favor the particular job for which you are applying. But it is quite another thing to design it in a way that hides essential information.
Schools want to know what you have done professionally. They want to be able to make logical sense of your career and education to date. They very much want to know if you have professional experience, including practicing law. Indeed, I do not know one school where having actually worked in some practice setting is a negative. It is almost always a positive. It is true that we are hiring PhDs without this experience. (And we are even hiring non-PhDs without this experience, though I for one am dubious of candidates who neither have PhDs nor some serious practice experience, even if only for a couple of years.)
When I look at a CV I want to know about someone’s education, about their professional positions, and about their publications. Divided into those three categories and those three alone, not subdivided into tiny pieces, so that I can make sense of it. I don’t want clerkhips in one place, practice in another, and random teaching gigs yet somewhere else. I want publications to all fall in one place on the CV. And sure, I’m happy to learn about presentations – though I don’t care that much – or about other things that may be worthy of mention. But if I can’t get the basics, I’m frustrated and not likely to be impressed.
And, again, I don’t think I’m alone in this.
So I’d suggest we let go of the latest trend, and go back to the old-fashioned way with CVs. I’m all for innovation, but not when it is a step backward.
Sunday, September 25, 2016
Submitting to online journals
Saturday, September 24, 2016
JOTWELL: Erbsen on Gilles on arbitration and doctrine
The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law (U. Ill. L. Rev.), exploring how the use of private dispute resolution, especially arbitration, affects the evolution of legal doctrine.
Thursday, September 22, 2016
Learning Outcomes as the New Strategic Planning
As any law school seeking to comply with the standards of the American Bar Association's Council on Legal Education knows Standards 30, 302, 314, and 315 have been revised to require law schools to adopt learning outcomes and then to evaluate their curriculum for compliance. Whether or not this process will actually improve legal education is not a topic on today's table. But it is a process with a vocabulary and best practices and an increasingly number of law school specific sources of information. By now, most people know about a still exceptionally helpful book, Student Learning Outcomes and Law School Assessment by Professors Lori E. Shaw and Victoria L. VanZandt. The purpose of this post is to suggest that regular Google searches are likely to turn up more law school specific sources of information.
Likely to be a "go to" for many schools is the new Law School Assessment Blog by Vice Dean Larry Cunningham at St. Johns University School of Law. Not only does the blog contain information to translate what can sometimes be impenetrable educational jargon into plain English, it also provides some very easy to adapt models for evaluating a curriculum in terms of it's compliance with the learning outcomes a law school has set for itself.
The next phase of this process will be to develop strategic plans based on these assessments. As this article by Hanover consulting explains, the process is somewhat different than traditional law school strategic plans that consistent of aspirational statements across the spectrum of law school activities with very little specific focus on outcomes assessment in the curriculum. These plans are still relevant and important, but they are not what's needed to comply with the new ABA standards.
The current project is to develop plans more narrowly focused on curriculum and the results of the assessments that each individual law school are now conducting. Time will tell the extent to which either learning outcomes or these plans will improve the the law school experience for students, but regardless of outcome, we will all be creating these plans and it is certainly helpful to have emerging sources of information.
Accessing Title IV $$: 90/10 or 85/15... does it matter?
The U.S. Department of Education takes a pretty hands-off approach to deciding which colleges are entitled to receive student financial aid under Title IV of the Higher Education Act. Generally, institutions must merely be licensed by the state in which they operate, accredited by a federally recognized accrediting agency, the institution's former students may not exceed certain default rates on existing Title IV loans, and, as I previously pointed out, they also cannot have filed for bankruptcy. For-profit education companies must satisfy some additional requirements, including the gainful employment rules and the 90/10 rule. This post is about the 90/10 rule.
The 90/10 rule allows for-profit institutions of higher education to derive up to 90 percent of their revenue from Title IV's loan and grant programs. The purpose of this limit is to use students' willingness to have some "skin in the game" as a proxy for that school's quality, thus obviating the need for the federal government to separately consider the school's quality. However, the way the regulations are written, VA and other military tuition assistance benefits are not included in the 90 percent calculation. One result is that for-profit colleges have aggressively recruited veterans. To the extent the 90/10 rule could have been an effective proxy for institutional quality, this loophole virtually ensures that it is not. Because of this loophole, in 2014, more than 130 for-profit colleges were almost completely taxpayer subsidized and hundreds more were close to hitting the 90 percent cap. If nothing else, this loophole should be eliminated.
DeVry Education Group, one of the nation's largest, for-profit college chains, recently announced that it would "voluntarily limit the amount of revenue that each of its six Title IV institutions derive from federal funding to 85 percent." In addition, it promised to stop using the military benefits loophole, and count military tuition assistance benefits, such as benefits under the G.I. Bill, in that 85 percent figure. My response below the fold.
DeVry describes the move as underscoring its "commitment to finding solutions to the issues facing higher education today,” as "part of a broader effort to . . . demonstrate the quality and value of our programs.” Others consider the move to be "a response to broad criticisms of the for-profit education industry." To me, however, this just seems like marketing. Reportedly, none of DeVry's campuses currently receive more than ~ 80 percent of their revenue from federal funds. And, as pointed out by Inside Higher Ed, "There is growing and bipartisan support for returning to the 85 percent limit on federal funds and for closing the veterans and military funds loophole." In other words, DeVry announced that it would adhere to a limit it wasn't currently exceeding, and that may be forced upon it one way or the other. That's smart business, but nothing to write home about.
But even if the 90/10 rule reverts to being the 85/15 rule (which was the rule from 1992-98) and the military benefits loophole is closed, it's not clear that these are sufficient improvements to ensure that colleges aren't siphoning off taxpayer dollars while granting students worthless degrees. For example, a number of for-profit colleges have been accused of using private loan programs to subvert the 90/10 rule. These private loans count toward the ten percent of non-Title IV loans that a school must demonstrate it receives. For example, now-defunct Corinthian Colleges used a private loan program dubbed "Genesis" to circumvent the 90/10 rule. While approximately 60 percent of the half a billion dollars in Genesis loans reportedly defaulted within three years, these private loans allowed Corinthian to remain Title IV-eligible. Was Corinthian Colleges providing the type of high-quality educations we want taxpayers to subsidize? Was ITT Tech? Is DeVry?
It seems that a different regulatory approach is needed. Preferably an approach that doesn't use teenagers' assessments of the future value of their degrees to assess whether an institution should be Title IV eligible.
Wednesday, September 21, 2016
Election Day and law schools
The following comes from Beau Tremitiere, a 3L at Northwestern-Pritzker School of Law, the EIC of the Law Review, and the organizer of the Election RAVE Campaign. Administrators, faculty, and/or students interested in finding out more can contact Beau at ([email protected]). Thanks to Friend-of-Prawfs Jim Pfander for passing this along.Law faculty may want to know about a burgeoning nonpartisan national movement, the Election RAVE Campaign, which encourages law students to participate on election day in the 2016 Presidential Election. Northwestern Law has cancelled all classes for this purpose, and at least five other law schools have taken the day off. Many others are encouraging professors to reschedule election-day classes individually. By encouraging students to spend the day volunteering at the polls, law faculty can provide an enriching learning experience, reaffirm our profession’s commitment to public service, and significantly reduce the risk that voter suppression, intimidation, tampering, and honest mistakes will disenfranchise large swaths of voters.
We believe active participation in our elections should be part of American legal education, offering experiential learning to enrich the classroom discourse and contextualize abstract concepts. Moreover, active engagement may enable law schools to satisfy their institutional commitment to public service. By dispatching volunteers into our local communities to assist elderly, ESL, and otherwise at-risk voters, we can improve our schools’ standing within a sometimes skeptical public. Finally, your students could be the difference between a free, fair, and peaceful election and one that further entrenches distrust and conflict. Law students offer problem-solving skills and familiarity with technology that can shorten wait times and prevent honest administrative errors; in many instances, their mere presence can deter would-be troublemakers.
We recognize that rescheduling class is an inconvenience, but among your students are future professors, deans, judges, legislators, and governors. By rescheduling one day of class and encouraging your students to be active civic agents, you can empower, inform, and inspire this next generation of legal, intellectual, and political leaders.
A Lawyer Reads an Ad ... Or Are Parsers People?
You see this all the time, and it's usually less nuanced than this (there's been an example on a billboard you see from the eastbound Mass Pike near Fenway Park): an airline claims it has the "most non-stops" out of a particular city.
What bugs me is that EVERY flight is a non-stop, so it's a stupid claim when phrased that way. All they are saying is that they have the most flights.
This one is a little more nuanced because it has invoked layovers. That makes more sense, but what Jet Blue has to be saying is not that it has the most non-stops, because they are all non-stops; rather, of all the airlines flying out of Boston, Jet Blue's travelers have the highest percentage of reaching their final destination without a layover. But that still doesn't really mean the most non-stops out of Boston.
I posit this entire thought process as an example of the lawyerly mind gone berserk. Normal human beings don't do this.Normal human beings only care about whether the words convey the gist of the meaning. My wife is a volunteer in a community organization. It has a contract to use certain facilities seasonally - i.e. over the summer. The contract has historically has been renegotiated every year, but last year they agreed to terms for two years. Somebody in the organization said something to the effect that it was a change because the organization had always had a "tenancy at will." When my wife first implied that a LAWYER had said that, I had a mild conniption. When I understood it was a non-lawyer who said it, I could see how somebody could be expressing that there was an at-will aspect to the relationship - just that it kicked in once a year. I'd call it a "year to year" contract, but the "at will" meaning isn't that far off in context.
Years ago, when I was a young associate, another lawyer in the firm told me about a client who said he had purchased a boat on "land contract." Of course that's not possible, but normal human beings would understand that he bought a boat on an installment plan, and didn't get title until he paid it off.
I can't recall whether I had this sickness before I went to law school or that I went to law school because I had this sickness.
State v. Dharun Ravi: Invading the Sexual Privacy of LGBTQ Persons
*This post is based on a contribution to the Boston University Law Review symposium on Danielle Citron's Hate Crimes in Cyberspace.
Invading the sexual privacy of LGBTQ persons is particularly devastating. In a world characterized by homophobia, exposing someone as gay, publicizing his or her sexual activities to others, and transforming him or her into a sexual object means that LGBTQ victims of sexual privacy invasions face stigma and discrimination.
Cyberharassment devastates its victims. Anxiety, panic attacks, and fear are common effects; post-traumatic stress disorder, anorexia and bulimia, and clinical depression are common diagnoses. Targets of online hate and abuse have gone into hiding, changed schools, and quit jobs to prevent further abuse. Some lives are devastated in adolescence and are never able to recover. Some lives come to tragic, premature ends. According to one study, almost three-quarters of cyberharassment reports come from women. Nearly half of all lesbian, gay, bisexual, and transgender (LGBT) youth experience cyberharassment each year, and LGBT teens are three times more likely than heterosexual teens to be harassed online and twice as likely to receive threatening or harassing text messages. As a gendered and sexualized phenomenon, cyberharassment plays a role in the continued subjugation of women and members of the LGBT community.
For sexual minorities, institutional discrimination amplifies cyberharassment’s horrors. This is not to say that heterosexual victims are crying wolf; to the contrary, cyberabuse is an equal opportunity offender. But LGBTQ victims face three additional hurdles. First, the personal psychological effects of cyberharassment are likely worse when victims live in jurisdictions with laws that discriminate against them. And despite some notable advances, anti-gay discrimination is still more the norm than exception. Second, when patterns of cyberharassment also involve “outing” the victim as gay, rampant discrimination and lost opportunity can follow. And third, for those LGBT and questioning youth who, by virtue of their families’ geographic and cultural isolation, lack local LGBT friends and role models, cyberharassment transforms the internet, ostensibly a door to a wider digital world of opportunity, into a danger zone. This enhances a no-where-to-turn sense of hopelessness that, although experienced by many victims of cyberharassment, is felt by none more acutely than LGBT youth.
Institutional discrimination faced by LGBT victims of cyberharassment metastasizes psychological effects because, as Mark Hatzenbuehler has shown, institutional discrimination enhances all mood, anxiety, and psychological disorders. In a 2010 study, Hatzenbuehler found that institutional discrimination can have a statistically significant negative effect on the mental health of LGB persons: lesbians, gay men, and bisexual individuals who lived in states that banned gay couples from marrying experienced mood, anxiety, and psychiatric disorders at higher rates than LGB persons living in equality states. It makes sense, then, that LGBT victims of bullying and harassment rival only homeless LGBT youth in the frequency and severity of psychological injury in the community.
As a means of “outing” gay persons, cyberharassment also triggers an onslaught of potential discrimination in employment, housing, and the provision of health care. “Outing,” or the revelation of another’s identity, is a frequent element of cyberharassment targeting members of the LGBT community. It is a central reason why antigay cyberharassment is an invasion of an LGBT person’s privacy. Though emotionally harmful, the closet may be a necessary evil in a discriminatory world: in 29 states, you can be fired, denied a home, and denied public accommodation just for being gay. Consider the story of Mark C., one of the many LGBT victims of cyberharassment with whom I have spoken in the course of my research.
Many LGBT youth, in particular, also experience acute effects of cyberharassment because of their unique dependence on online social networks. Often faced with geographic isolation from fellow LGBT individuals, gay youth rely on online social networks to replace non-existent face-to-face communities because they allow roughly anonymous virtual interaction with like-minded individuals. Therefore, these adolescents are not only frequent internet users, but also completely reliant on the virtual community they create for social support, information about their sexuality, and answers to any questions they have about being gay. Empirical data bears this out. As early as 2001, more than eighty-five percent of LGB adolescents reported that the internet had been the most “important resource for them to connect with LGB peers.” Destruction of that online social support network through cyberharassment is, therefore, particularly harmful because it turns what might have been a gay student’s safe space into a danger zone. Gay and lesbian adolescents’ dependence on online media makes them more susceptible to those who would use it as a sword against them.
None of this is to say that cyberharassment does not devastate all its victims. But while it is clear that cyberharassment is a modern weapon used to subjugate sexual minorities, it also makes institutional discrimination worse. Cyberharassment turns second-class citizens into third-class denizens by ballooning psychological harms and triggering discrimination in employment, housing, and the provision of benefits. And it takes away a virtual world of great opportunity from those who need it most.
Tyler Clementi may not have been a victim of cyberharassment. But he was "outed" by his roommate's invasion of his privacy. That Mr. Ravi acted with such disregard for Tyler's humanity makes this story reek of injustice. The criminal law, as written by New Jersey's legislature, may not have been the best tool for addressing the problem. In my next post, I will discuss a few options--beyond the criminal law--for making the internet safer for us all.
"Like Pulling Teeth": Lessons for law schools from the 1980s dental school crisis
Eric Chiappinelli (Texas Tech) recently posted a new article on SSRN that analyzes the dental school crisis of the 1980s to draw lessons for currently struggling law schools. It is a very interesting article. Highlights and my thoughts after the jump.While readers of the blog are surely familiar with many of the issues facing law schools, I assume that most are less familiar with the dental education crisis of the 1980s. As Chiappinelli explains, an influx of federal spending (through research grants and federal student loans) encouraged the proliferation of dental schools (from 39 in 1943 to 60 in 1980). And students flocked to these dental schools, with the number of dental school students increasing from ~12,000 in 1950 to ~23,000 in 1980. However, like with law schools, darker days were ahead.
Although the inflection point for law schools appears to have been the 2008 financial crisis, fluoride was the game-changer in the dentistry world. By the late 1970s, enough people had grown up drinking fluorinated water that demand for dentistry's bread and butter services--filling cavities, pulling teeth and creating dentures--flattened. Around the same time, Congress grew concerned that it was contributing to the build-up of excess dentists and dramatically pared back its financial support for dental schools. In 1981, dental schools found that their revenue had suddenly declined by one-third, but their expenses continued to steadily increase. In short, dental schools were in a crisis that appears remarkably similar to the law school crisis.
Like other financially strained post-secondary education institutions, dental schools sought to balance their budgets by shifting away from tenure-track faculty and toward adjunct and other untenured faculty. Dental schools sought additional support from state governments, but state governments had their own financial troubles. Chiappinelli reports that many dental schools were able to shift some costs to students by significantly raising tuition. As a result, dental student debt increased by over 50% from 1978-1981 and doubled by 1990. However, rising debt combined with a lack of good dental jobs resulted in "a rapid and severe reduction in the number of people applying to dental school." Applicant quality, measured by their incoming credentials, dropped simultaneously. Again, echoes of the law school crisis.
Eventually, 12% of all U.S. dental schools closed. While every closed school operated at a loss, Chiappinelli notes that many that were operating at a loss did not close. Clearly, finances were only part of the story. In Part IV of his article, Chiappinelli works to identify other factors that were relevant to determining whether to close a dental school and to apply those lessons to struggling law schools. Rather than finances or operational aspects of dental schools, Chiappinelli concludes that a "school's intentional focus on mission and engagement . . . are particularly important . . ." Thus, law schools should--in Chiappinelli's view--do the following: (i) "ensure that their actions are aligned with the university's mission", (ii) "engage with their university and their relevant professional and lay communities", (iii) use clinics to demonstrate that the law school is aligned and engaged with the university's mission, and (iv) hire deans who can highlight for the university that the law school's mission is aligned with the university's, including how the law school brings prestige to the larger university.
I think that Chiappinelli's broadest point is clearly correct. In times of retrenchment, every enterprise needs to (re)consider its value proposition. Any law school that finds itself out-of-step with its affiliated university risks finding its support dry up. And I think the analogy from dental schools to law schools is a valid one, which is why I've also been working on a piece comparing distressed dental schools to other distressed colleges and universities. There are important lessons that can be learned. Nevertheless, there are at least two reasons to question the comparison.
First, it is my sense that many universities see their law schools as a "crown jewel" of the university system. As such, law schools may simply be viewed differently than dental schools, which apparently were often (but not always) perceived to lack prestige and quality compared to the rest of the university. Second, dental schools were never profitable, "as nearly every dental school loses money from continuing operations, if for no other reason than the clinical aspects of dental education cost more than they produce in revenue." By contrast, law schools were long seen as profit centers for their universities. As such, a university might be willing to subsidize losses for a longer period of time if university officials can be convinced that the law school crisis will eventually abate.
Glad to share more thoughts, but this post is already too long. It's my view that 3-4 paragraphs is the ideal blog post length. But if you're still with me, thanks for reading the whole thing.
Tuesday, September 20, 2016
Nonconsensual Pornography and the "Gay Bachelor"
Logo TV, an LGBTQ-themed television network, is running a sort-of reality show called "Finding Prince Charming." I hear it's absolutely terrible. It looks a lot like ABC's "The Bachelor," except Logo's version is about gay men. Its star is a statuesque man named Robert Sepulveda Jr., a model, interior designer, and, apparently, a former escort. Because Mr. Sepulveda is on television trying to become famous, a celebrity gossip website thought it was "newsworthy" to publish explicit photos of him from his escort days without his consent. The photos have now been "unpublished." As far as we can tell, Mr. Sepulveda used those photos during his days as an escort. He didn't publish them online for everyone to see. Posting graphic or explicit photos of another without his or her consent is called "nonconsensual pornography" (NCP), more commonly known as "revenge porn." And it is a crime in 35 jurisdictions and counting.
Most NCP victims are women. But gay men are frequent victims, as well. Lokies Khan, a gay Singaporean man, had a sex tape posted online without consent. Speaking on the YouTube channel, Dear Straight People, Mr. Khan said he felt "violated," "scared," and undermined by the incident: “Things that I post on Instagram are things that are within my control, are things I want people to see, [that] I’m comfortable with people to look at. But these gifs of me on Tumblr are not within my control. I did not give consent. I did not know it was there.”
In my own research, I have spoken to more than 20 gay male victims of NCP. It usually happens in one of two contexts:
- As with many cases of NCP, generally, ex-boyfriends sometimes post nude or graphic images of their former partners on Craigslist, pornography websites, or use them to impersonate victims on social networking sites.
- Some gay male NCP victims participate in gay social networking apps. Those apps require their users to post a profile photograph, but social norms on the platforms often make sharing more intimate photos a de facto requirement of participation.
One person I spoke to was a victim of NCP at the hands of a photographer who enticed the victim with promises of free professional headshots for casting calls. Many victims felt "vulnerable"; others felt angry about a person stealing their photographs. Almost all of them found different ways to express how NCP is a devastating erosion of trust.
Victims sent intimate photos to their former partners when they were apart, as kind of a modern day love letter. And many victims were indignant when their friends, acquaintances, or online commenters blamed them for taking and sending the not-suitable-for-work photos in the first place. On gay social networking apps, in particular, a background trust exists. As one man said to me, "We're all gay on here. We're all part of the same tribe, looking for community and companionship in a tough world. You are expected to share photos, with your face and your body. If you don't, people don't talk to you. To have that thrown back in your face is really devastating."
NCP can destroy its victims, as Danielle Citron and Mary Anne Franks have described at multiple points in their work. The fact that photos may be "unpublished" does not make the situation any better. The original publisher may have changed his mind, but the photos, once available online, could have been downloaded, uploaded, and reposted thousands of time. Nor is it a publisher's First Amendment right to publish anything he wants about others. Even celebrities enjoy a right to privacy, which, in fact, fosters more, better, and diverse speech.
Despite having his private photos published online, Robert Sepulveda may be doing fine; he hasn't, as far as we know, experienced the kind of professional, personal, physical, and emotional abuse faced by many NCP victims. But he has been the subject of repeated ridicule online for his past as an escort. The attacks have been a combination of different types of shaming (those who both look down on male escorts and those who think he is a poor role model for the LGBTQ community). Whatever we think about escorting or "sex work" or his absolutely excruciating show, no one deserves to have his or her privacy invaded by transforming them into the subject of the prurient interests of others without consent.
Monday, September 19, 2016
Aargh, avast yee, ATS plaintiffs
Today is International Talk Like a Pirate Day. Unfortunately, I did not find that out until late today. Because this morning in Fed Courts, I taught the Alien Tort Statute and Sosa, which identified piracy as one of the acts that could be the basis for an ATS claim. The confluence would have been perfect. And, like Thanksgivukkah, the opportunity will not come around again for years.
The Next Personal Jurisdiction Issue for the Supreme Court
In the past couple years, the Supreme Court has decided a spate of personal jurisdiction cases. Most of the cases turned out more or less as expected; the Court clarified some issues and filled in some gaps, but did not significantly change the law. In Daimler A.G. v. Bauman, however, the Court did something unexpected: it put an end to so-called "general jurisdiction." Before Bauman, large corporations doing business throughout the country (e.g., Walmart) could be sued in just about any state. After Bauman, a plaintiff wishing to sue a large, nationwide corporation was basically limited to 2 or 3 states: (1) the state in which the company's maintained its principal place of business, (2) the state in which the company was incorporated (if different from state of its ppb) and (3) the state where the company established contacts that caused the harm (if different from the state of ppb and state of incorporation).
When the court abolished general jurisdiction, it delivered a big blow to the plaintiffs bar. Plaintiffs' lawyers had gotten used to filing suits in the most favorable forums in the country--often called "judicial hellholes" by defendants mired in litigation there. After Bauman, plaintiffs' lawyers had to regroup and find a new way to shop for the best forums. Their new strategy, and the next personal jurisdiction issue that the Supreme Court will decide, is after the jump.With general jurisdiction gone, plaintiffs' lawyers turned to consent. Specifically, they argued that, when a company registers to do business in a state, it consents to jurisdiction there for any and all claims that might arise throughout the world. Because every state requires companies wishing to do business in the state to register, this argument would re-establish the nationwide jurisdiction that Bauman took away. Although these registration statutes do not usually specifically say that the act of registration operates as consent, the statutes usually require the registering company to appoint an in-state agent to receive service of process. By appointing an agent, the argument goes, the company has either evinced its openness to being sued in the state, or at least made itself vulnerable to jurisdiction through service of process (see Burnham v. Superior Court).
Courts are split on the issue. Some courts buy the logic stated just above. Other courts think that the consent argument runs headlong into Bauman. The whole point of Bauman, these courts reason, was to put an end of nationwide jurisdiction over large corporations. Such jurisdiction, under the Due Process Clause at least, was fundamentally unfair. Courts on the other side of the matter point out that unfairness arguments collapse when a company consents. Bauman was a case about forcing companies to stand trial in a state, not a case about whether they can consent to it.
Helpful scholarship on the issue is here, here and here. My own contribution is here, where I argue that personal jurisdiction based on registration/consent violates the Dormant Commerce Clause in cases where the plaintiff is a nonresident injured out of the forum state. In a nutshell, states that require companies to consent to jurisdiction for any and all claims (regardless of where they arose) discourage out of state companies from entering the state to do business. Lots of regulations, of course, discourage companies from entering a state to do business. But what makes these regulations different--and unconstitutional--is that the regulations are not justified by any state interest. In cases where the plaintiff is a non-resident injured out of state, the forum state has no cognizable interest in adjudicating the dispute. Thus, the state can't justify its jurisdiction-via-registration scheme.
Even though there is a clear split right now, the split is mostly confined to federal district courts and state courts. The Delaware Supreme Court is the first state supreme court (that I'm aware of) that has tackled the issue. It held that jurisdiction-via-registration was impermissible in light of Bauman. My guess is that the issue will percolate up to the Court by the October 2018 term, but that's just a wild guess.
Supreme Court Fellows Program – Call for Applications
The Supreme Court Fellows Commission is accepting applications through November 4, 2016, for one-year fellowships to begin in August or September 2017. The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission. Fellows gain practical exposure to judicial administration, policy development, and education. In each of the four placements, the Fellow will be expected to produce a publishable paper and will have unique access to federal judges, and to officers and staff of the federal judiciary, in connection with the research project.
The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service. Fellows will receive compensation equivalent to the GS-13/1 grade and step of the government pay scale (currently $92,145) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary. Appointments are full-time and based in Washington, D.C. A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2017, and finalists will be contacted on selection decisions within one to two weeks after interviews.
Secret surveillance in Baltimore and Dayton (and elsewhere?)
I listen to a lot of podcasts. Some, like Alec Baldwin's "Here's the Thing," I listen to solely because I find them interesting. Others, like Planet Money, are both interesting and directly relevant to my teaching. I even assign them sometimes (like this one on debt collection). Radiolab is one of my general interest podcasts. For those who are unfamiliar, Radiolab describe themselves as "a show about curiosity." Their episodes often have a scientific edge to them, like their excellent episode about CRISPR.
This morning, I listened to an update called Eye in the Sky and thought that Prawfsblawg readers might be interested. As described by Radiolab, the story is about a man and his superpower: Ross McNutt can "zoom in on everyday life, then rewind and fast-forward to solve crimes in a shutter-flash." Ross McNutt's company, Persistent Surveillance Systems, has used high-flying aircraft to secretly record hundreds of hours of ordinary life in major U.S. cities, such as Dayton and Baltimore. The company reportedly uses a cluster of cameras mounted to its airplanes that allows it to snap a series of digital photographs over a 32-square-mile area. In a city like Dayton, that means that one plane can effectively monitor half the city at a time. Once a crime is reported, McNutt's company will scan backwards through their saved images until they reach the time the crime was committed and then can scan forward through the saved images to see where the alleged perpetrator goes. McNutt's company can then report that location to the police, who can make an arrest, if appropriate. This is just one of the technology's many features.
I'm not a constitutional scholar and so I present this merely as an interesting FYI. Or maybe its more appropriate to describe it as an ICYMI, since the story is not brand new. Nevertheless, I thought that folks might be interested in talking about the implications of this technology. At a community forum in Baltimore, apparently 25% of the ~70 people in attendance were very much in favor, 60% had questions or concerns, and 15% thought this technology represented something like an "existential threat to democracy, civil liberties and Constitutional rights." If it helps, the Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
State v. Dharun Ravi: A Culture of Homophobia
Dharun Ravi existed in and contributed to a suffocating culture of homophobia. It helped keep Tyler Clementi in the closet and devalued Tyler's life to the point where Mr. Ravi and his friends consciously or subconsciously felt that Tyler did not deserve a right to privacy. This is the context in which LGBTQ individuals (and many women and other marginalized groups) live: they are seen as "less than" and less deserving of equal rights. For many, it is easy to harass them, assault them, ignore their protests, and invade their privacy because their second-class status means they don't really exist as fully realized humans. The cavalier way in which Mr. Ravi and his friends approached invading Tyler's privacy contrasts with the particularly grave consequences of "outing": openly gay individuals face latent and overt discrimination in society that could make coming out terrifying and dangerous.
There were several pieces of evidence to show that Mr. Ravi himself was explicitly uncomfortable with gay people. When he heard that his roommate might be gay, he texted to a friend, "Fuck my life. He's gay" (8). He tweeted a sarcastic "yay" after seeing Tyler make out with another man on September 19 (12). His sent a dismissive tweet--"they're at it again"--on September 21. He was "shocked" at what he saw when he spied on Tyler on September 19 (20) and did not want to go back to the room afterward, suggesting he was creeped out or that there was something dirty about what Tyler did (20).
Mr. Ravi also participated in a particularly nasty homophobic exchange with a high school friend.
M.H.: hahahahha your gay roomie that. . . did you really see him make out with some guy lmao
DEFENDANT: Yeahh omg [M.W.] saw it too. He was older and creepy and def from the internet
M.H.: that's so nastyyy ew watch out he might come for you when you're sleeping! hahaha jk
DEFENDANT: Omg everyone keeps telling me that. I haven't seen him since then
M.H.: hahaha good luck with thatt
DEFENDANT: He just texted me asking when I was coming home omg.
M.H.: maybe his gay friend is in your Ed bed*
DEFENDANT: I set my computer to alert me if anyone is in it when I'm not there LOL
M.H.: really?? how lmao that's so cool
DEFENDANT: My webcam checks my bed hahaha. I got so creeped out after sunday
M.H.: hahaha that's so crazy
DEFENDANT: Yeah keep the gays away
M.H.: I saw a lesbian Asian couple today but they were like nerdy fobby asian and it was gross
DEFENDANT: Ewwww. When we were in ny we saw two guys making out on a stoop
M.H.: NY that's pretty normal though hahha one of my friends is this gay Asian guy who has his ear pierced lol I mean bellybutton pierced*
In addition to this evidence suggesting that Mr. Ravi looked down on gays and contributed to the culture of homophobia at Rutgers, there is even more evidence that Mr. Ravi knew that antigay stigma permeated his group of friends. His friends said they were "shocked" and that it was "scandalous" two men would make out with each other (11, 14). One called it "weird" (11). Everyone was gossiping and laughing about it (14). There were at least 6 people who were gossiping and whispering and pointing to the man with whom Tyler hooked up (26). One student tried to brag that being told Tyler was gay "should have fazed" her (18).
Perhaps most indicative of the fact that a culture of homophobia contributes to a devaluing of gays lives is that everyone thought what Tyler was doing in his dorm room was their business. Mr. Ravi's friends wanted to "grab a glimpse" (19). They were "curious" (14). Mr. Ravi thought nothing of purposely positioning his webcam to focus on Tyler's bed (10, 19) and tweeting out invitations to his friends to watch the sexual encounter (18, 20). And his only response to a friend asking if Mr. Ravi actually spied on Tyler was "LOL" (23).
By the end of this story, more than 18 people knew that Tyler was gay and that Mr. Ravi could spy on him. This number included Ravi's friends from high school (7-8, 21), a young woman across the hall (9), her boyfriend at another school (12), her roommate (13), a friend from class (13-14), friends of the young woman's roommate (14), other friends from college (17, 19), and the members of Mr. Ravi's ultimate frisbee team (20, 21). When Tyler found out that Mr. Ravi had been spying on him, it would be hard for him to deny that his secret was out. He decided to commit suicide shortly thereafter.
Mr. Ravi cannot be directly blamed for Tyler's suicide. But the homophobic context in which he acted and to which he contributed should be relevant when considering both the gravity of the invasion of privacy and Mr. Ravi's state of mind. Mr. Ravi remained willfully blind to the consequences of his actions.
Should willful ignorance of the effects of invading the sexual privacy of a closeted gay person should be enough for sentence enhancement? That is clearly not the way the New Jersey statute invalidated in Pomianek was written; that statute made the state of mind of the defendant irrelevant. But could a re-written statute include both intentional targeting and willful ignorance of the effects of such targeting? Antigay bias is not just using antigay rhetoric--"I hate gays" or "Gays deserve to die"--and then purposefully acting on those impulses. Antigay bias includes contributing to a culture of homophobia that devalues the lives of gay persons.
What do you think about an antibias sentence enhancement provision that gets triggered either when someone purposely acts to discriminate on someone's identity or when someone acts with reckless disregard for the discriminatory consequences of his or her actions?
Friday, September 16, 2016
The New Constitutional Right to Post-Conviction Habeas
For decades, the dominant working assumptions of the Supreme Court's post-conviction habeas corpus jurisprudence have been that (1) federal post-conviction remedies are generally a matter of legislative grace; and (2) as Justice Alito reiterated last Term in his concurrence in Foster v. Chatman, "[s]tates are under no obligation to permit collateral attacks on convictions that have become final, and if they allow such attacks, they are free to limit the circumstances in which claims may be relitigated." In a new paper we've just posted to SSRN, Carlos Vázquez and I argue that, in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court directly rejected the first assumption, and, in the process, indirectly but necessarily undermined the second.
To make a long story short, although Montgomery looked like a fairly typical habeas retroactivity case under Teague v. Lane (asking whether Miller v. Alabama fit into an exception to Teague's general bar on retroactive enforcement via habeas of "new rules" of constitutional law), it had a jurisdictional wrinkle--to wit, why the Supreme Court had appellate jurisdiction over the Louisiana state court's holding that Miller was not retroactive under Teague. Although the parties defended the Court's jurisdiction on the ground that the state court's analysis of Miller was "interwoven" with federal law (and thus not independent thereof), Justice Kennedy's majority opinion based the Court's jurisdiction on a much broader conclusion--that the exception to Teague for new "substantive" rules of constitutional law is constitutionally grounded, and thus directly binds the states (as a matter of federal law) in their post-conviction proceedings. Thus, Montgomery recognized for the first time at least some circumstances in which the Constitution (and not just the federal habeas statute) confers a right to a post-conviction remedy--at bottom, to enforce new "substantive" rules of constitutional law handed down by the Supreme Court after the petitioner's conviction became final.
The much more interesting question (to which we turn in Part II of our paper) is the forum in which such a remedy is constitutionally required. As we argue (in some detail), the Supreme Court’s Supremacy Clause jurisprudence, especially the 2009 decision in Haywood v. Drown, establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts—even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. Indeed, as we explain, the state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction (even implicitly) over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and that the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.
Needless to say, this analysis calls into question at least some features of contemporary post-conviction habeas jurisprudence (especially for second-or-successive federal petitioners), and raises a bunch of questions about how far beyond Teague's substantive exception this newfound right to collateral post-conviction review extends. We try to sketch out some thoughts on these issues in Part III, but if we're right about the importance of Montgomery (especially in light of Haywood), then we hope our paper is the beginning of a much broader academic and judicial reassessment of the scope and shape of contemporary collateral post-conviction remedies, not the end.
And, although it should go without saying, we'd surely welcome comments, suggestions, and feedback...
Thursday, September 15, 2016
I think I agree with this
From David Wasserman (no relation) at Cook Political Report: "Beginning to think beyond-pale Trump statements are the oxygen Clinton needs to sustain large polling leads. Last few weeks, been in a lull." We can debate whether there has been a lull in beyond-the-pale statements or whether the press has stopped reporting on them because they have become so commonplace and the press would rather write about emails. But I think the basic idea is correct.
Wednesday, September 14, 2016
Some Resources for Grading
Given the article in the New York Times the other day and Prof. Preis’s Post, I want to share some observations about and resources for grading from both a statistical and educational perspective. First, it’s important to get on the table that there is a persistent and deep-seated misunderstanding that there is something “scientific” about assigning grades based on a “bell curve” or “normal curve.” Neither concept is relevant to the actual scores law students receive on exams. An equally problematic misconception is that just because you can put things in rank order means you know the interval between them. Imagine an A,B,C, and D. grading scale. If the top five scores on an exam are 99 and there are only five A’s, then the first student getting a B (student number 6) could have scored 98.
How much less does student number 6 know the material than students number 1-5? Hard to tell without a lot more information. But what if the top five A’s were 98, 90, 85, 72, 70 and the first B a 65. Would you feel comfortable that the two “B” students probably had the same level of competence? Remember how little we like rank order when it comes to ranking colleges.
The whole concept of a comparative grading scheme rather than measuring against external measures of success is problematic. Imagine the catastrophic results if the Navy did this with pilots who land on aircraft carriers—advanced students through training by comparing their skills to the group rather than to objective criteria of generally agreed upon success. (they don’t). Sometimes students (and faculty) point to curving grades as protecting students from variations between classes in that it guarantees that some students will get A’s and B’s and that not everyone will get an F. But comparative grading also can mean that until the bar exam, it can be hard for the student (and for us) to assess how much "torts" or "contracts" he or she really knows.
Also, looking back to yesterday, by artificially limiting high grades, we run the risk of discouraging students who really are achieving at levels very similar to their peers with higher grades but who may drop back from intensive study once they realize that they will always be at the middle of the pack.
What to do? Well, first of all, it’s helpful to remember that there is an entire literature devoted to grading. Second, it's likely that the focus on learning outcomes is going to be very helpful here because a core concept is that before you can effectively assign grades, you have to know what you want to measure.
The Possible Relationship Between Course Design and the Curve
Like just about every law school out there, our school periodically reviews its grading policies. I was involved in such a review last year and at some point, the following question occurred to me: why is the curve is mostly confined to higher education? In other words, why are K-12 students usually graded on their performance alone (rather than their relative performance) but college and grad students more often graded on a curve? I don’t know the answer to this question, but I’m willing to hazard an educated guess. I think the curve is mostly confined to higher education because higher education, unlike primary and secondary education, tends to allow its teachers significant discretion in choosing course content. I’m not arguing that such discretion is good or bad; I’m simply just suggesting that, where such discretion exists, we are more likely to see the curve.
More after the jump.
To see why, think first about primary and secondary school. For grades K-12, the curricular agenda is clear. We want kids to learn the three Rs, history, science, and civics, etc. In most places, this isn’t just a matter of tradition, it’s a matter of law. Most states have boards that dictate what must be taught and what students must know in order to graduate to the next level. Teachers in primary and secondary school thus have little discretion in what to teach and what to test. Moreover, many of the teaching and testing materials have been subjected to various levels of scrutiny to validate them. This is not universally true, of course. There are bad books and bad tests out there, but in general, the K-12 teaching and learning process is supported by fairly robust superstructure of regulation and pedagogical expertise.
This is not the case in higher education. Although colleges offer plenty of basics in fields like math and science, they also offer a wide variety of other courses on topics like Latin American social movements, climate change policy, eighteenth century political philosophy and the like. The professors who teach these courses are normally given discretion to teach the class more or less as they wish. If Professor X in the economics department wants to spend 5 classes Karl Marx and 1 class on Milton Friedman, she is generally free to do so. Indeed, the discretion is so significant that professors often create their own classes. See, e.g., Lady Gaga and the Sociology of Fame. When the professor is given broad discretion on what to teach, a robust superstructure that provides quality teaching materials and assessment tools is unlikely to develop. Such a system will only develop if there is relative uniformity in the material being taught; otherwise, the system is simply not cost-effective. For this reason, professors are usually left to write their own test and decide for themselves what constitutes a sufficient level of mastery.
But this is a lot harder than most people realize. First you have to decide what topics you want to test, then decide what level of knowledge will constitute mastery, and finally you have to craft questions that will allow you to discern various levels of mastery. This is hard stuff. Indeed, there are people who get PhDs in assessment. Most professors, of course, don’t have PhDs in assessment and, to a large extent, have not received meaningful training in the field. Their tests are therefore likely to be imperfect. Sometimes the tests are horrendous, but more often than not, they are simply flawed in one way or another. And this is where the curve comes in; the curve is used to correct the flaw.
Students, by and large, hate the curve. My goal here isn’t to defend it or criticize it. My goal is simply to suggest that the curve is in some sense tied to professorial discretion in choosing what to teach. Unless higher education is willing to dictate the content of specific courses, professors will end up teaching more or less what they deem appropriate. To the extent this happens, there will be flawed testing and the curve will be more likely to pop up. Or at least that is my hypothesis right now.
In the law school context, this suggests to me that there may be a good argument for abolishing the curve in first year classes. There is relatively wide agreement on the knowledge that first year students should acquire, just as there is relatively wide agreement on the knowledge that 12th graders should acquire. The big difference is that 12th grade teachers have significant assessment support whereas law professors do not. So why not come up with a way to provide that support? Just as a state board of education works with experts in the field to set up standards of learning and valid assessment tools, why couldn’t the AALS team up with civil procedure experts (in and outside the academy) and develop a list of what students should learn and offer validated assessment tools to see whether students, in fact, learned what they were supposed to.
To be clear, I would not make these standards mandatory on any professor or school. They would operate as a resource, not as a requirement. Professors could adopt the entire package of standards and assessment tools, or simply pick and choose. Picking and choosing will undoubtedly happen where, for example, a professor thinks the Erie doctrine is much more important that the AALS civ pro crowd thought it was. If that’s your view, fine. Go for it. But if Erie is not your specialty, and all you want to do is make sure the students get the standard Erie story, then fine, just use the AALS materials.
There is one, potentially fatal, problem with this approach. If the standardized questions will be used to determine grades, and the questions are from a centralized bank that could be used nationwide, there is major risk of cheating. Any enterprising law student can take a quick picture of a question on his or her phone. Students can set up an anonymous website where these questions can be submitted and posted, and voila, the whole system is done. The only ways to solve this, as far as I can see, are (1) very close proctoring of exams (but that’s not the norm at most law schools, and a single error could have nationwide effects) or (2) write new questions every year like the bar examiners do (but that is a huge cost, and may not even work because exams will be given at different times).
In the end, I’m not certain whether this approach would ultimately work for law schools. Aside from the cheating problem, I may be overestimating the degree of agreement on what we want 1Ls to learn. Can you just imagine 10 law professors sitting in a room debating Erie? But even if my AALS suggestion goes nowhere, I feel on stronger ground in suggesting a link between the curve and professorial discretion in course design. Any thoughts?
Involuntary collegiate "do not resuscitate" orders
In an earlier post, I sought to analogize from Enron's collapse to the recent failure of ITT Tech, a for-profit chain of colleges. I highlighted a number of similarities, including that both were former darlings of Wall Street and both were accused of fraud. I then pointed out that Enron sought to reorganize some of its operations in a chapter 11 bankruptcy proceeding but that there is virtually no chance that ITT Tech will attempt something similar. The reason I suggested that reorganization was off-the-table for ITT Tech is because colleges and universities immediately and permanently lose access to Title IV funds (the federal student loan and grant programs) if they file for bankruptcy. So, while legally possible for a college to seek to reorganize, most colleges would find it is practically impossible to do so (Morris Brown, notwithstanding).
One commenter noted that my earlier post suggested that the common link between Enron and ITT Tech was fraud, but that I had ignored the major difference between the two entities: the sources of capital available to each entity. While Enron's ability to reorganize depended on the availability of private capital, ITT Tech's ability to reorganize was doomed only because federal student financial aid would no longer be available. The question was thus implicitly posed: why should ITT Tech (and other financially distressed, for-profit college chains) continue to enjoy access to federal support?
I had focused on the fraud link between Enron and ITT Tech because concerns about "unscrupulous profiteers and their fraudulent schools" appears to have driven Congress' decision to sever a college's access to Title IV if it files for bankruptcy. But I agree with the earlier commenter that concerns about fraud simply cannot explain the difference in treatment. For various reasons I'd be glad to explore separately (let me know in the comments!), bankruptcy court oversight would seem to make further fraud less rather than more likely. But I soon also realized that access to federal support cannot explain the difference either.
In my current project, I compare the treatment of financially distressed health care providers to that of financially distressed higher education providers. There are "striking" similarities between the two industries. Both industries involve an unusual mix of for-profit, private nonprofit and public enterprises. In addition, both industries are under tremendous strain, with many hospitals, nursing homes, colleges and universities expected to shut down in coming years. And, most importantly, federal support is the dominant source of revenue in both industries. Yet colleges lose access to Title IV funds if they file for bankruptcy but health care enterprises retain access to Medicare and Medicaid. Any thoughts on why this should be?
The thesis of my new project is that Congress simply botched things by cutting off Title IV access for bankrupt colleges while preserving it for virtually every other type of entity, including bankrupt health care enterprises. I believe that preventing colleges from reorganizing is a mistake because bankruptcy’s reorganization provisions were designed to increase social welfare by allowing distressed enterprises to return to viability despite their past mistakes. Bankruptcy reorganization is a critical tool for addressing financial distress, and should be available to all distressed entities, including colleges and universities. In a future post, I intend to explore how bankruptcy reorganization works to provide something akin to financial life support for down-and-out enterprises. Until then, I welcome your comments.
State v. Dharun Ravi: The Appeal
In my last post, I summarized some of the basic facts of the Tyler Clementi/Dharun Ravi story. After he was convicted on all counts, Mr. Ravi appealed his convictions. He made various arguments, but his appeal was given an enormous boost by the 2015 New Jersey Supreme Court decision in State v. Pomianek, 221 N.J. 66 (2015), which declared unconstitutional a key statute upon which Mr. Ravi's conviction was based.
N.J.S.A 2C:16-1(a)(3) states:
A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of [certain specified] offense[s] ... under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (emphasis added).
This provision was the basis for 4 of the 15 counts in the State's case against Mr. Ravi (Ravi, 2-4). Related evidence also permeated the prosecution's case, including counsel's moving closing statement (45-48). But on March 17, 2015, in Pomianek, the New Jersey Supreme Court declared the provision unconstitutional: it was void for vagueness in violation of the Fourteenth Amendment.
Pomianek involved several workers at the Gloucester Township Department of Public Works. The defendants, all white, and the victim, a person of color, were assigned to an old garage that Public Works used for storage. Inside that garage was a large metal cage that could be padlocked closed. The workers had been "horsing around" in the garage, including in and near the cage. As part of a ruse, one of the defendants approached the victim and told him that their supervisor needed some supplies from the cage. Once the victim was inside, the defendant closed the cage door and locked it. A number of workers started laughing, and one of the defendants said, "Oh, you see, you throw a banana in the cage and he goes right in, which triggered more laughter among the men." The victim felt there were racial overtones to this statement. Another worker unlocked the cage door within 3 to 5 minutes. The victim testified that he felt "humiliated and embarrassed." After the victim was released, the defendant was heard saying, "You all right, buddy? We were just joking around."
The defendants in Pomianek were charged, among other things, with bias intimidation in violation of 2c:16-1(a)(3). The jury convicted them on those counts because, considering the racist overtones of the "banana" comment, the victim could reasonably believe that the act was committed on the basis of race.
The problem with this provision was that unlike every other bias crime statute in the country, this law was based on the state of mind of the victim, not the intent of the defendant. The New Jersey Supreme Court concluded that this violated the Fourteenth Amendment. A core element of due process is that a law must clearly define forbidden conduct so that individuals can tailor their behavior to conform with the law. Section (1)(a)(3) did not do that. By hinging guilt on what is going on in the victim's mind as opposed to the defendant's mind, the statute does not put a "reasonably intelligent person on notice when he is crossing a proscribed line."
Based on Pomianek, any part of Mr. Ravi's conviction based exclusively on (a)(1)(3) was void as a matter of law. But, according to the Appellate Division, evidence of Tyler's perception of the events was a "pillar" of the prosecution's case (41). It came up often, including in the closing statement. In fact, it came up so often that it "render[ed] any attempt to salvage the convictions under the remaining charges futile." It therefore was "unreasonable to expect a rational juror to remain unaffected by this evidence" (6). Evidence of Tyler's state of mind was prejudicial and not harmless beyond a reasonable doubt. As such, the court overturned Mr. Ravi's conviction in its entirety.
I am not so easily convinced. The Fourteenth Amendment does not protect people from punishment enhancement based on their indifference and willful ignorance to the plight of their victims. "Bias" should be understood as more than just stating, "I hate gays." But let's assume that Pomianek is correctly decided. The statute was poorly worded; the trial judge noted that. And it is hard to imagine convicting someone of a bias crime without any evidence of bias. There was, however, a lot of evidence that Dharun Ravi existed in a contributed to a culture of homophobia that discriminated against Tyler and devalued his life in the eyes of others. I will discuss this point in my next post.
Though we were all shocked by Tyler's suicide, it is not clear that turning to the criminal law is always the right answer. The New Jersey legislature had good intentions: it wanted to recognize that the pain of the victim, the monstrosity of the attacker, and the social context in which attacks occur matter. But maybe those considerations are best left for tort law. Clearly, evidence of the gravity of the harm and the homophobic context of Mr. Ravi's conduct could be important in a civil case against him.
Stay tuned for more!
Tuesday, September 13, 2016
Learning from Some Great Educators--President Freeman Hraboski
One of the things I learned on the way to getting a Ph.D. in higher education is that very little research on how college and graduate students learn ever makes its way into law schools. And almost no one does large scale, generalizable research on law school learning—probably because there isn’t any money to fund it. In law, at best, we now have schools studying their own students retrospectively to identify factors that might correlate with bar success or high grades--but these studies tell us nothing about what we could be doing differently or better in the classroom. And yet law schools are changing how we teach.
My neighbor up the road, Prof. Deborah Merritt of the Ohio State University Moritz College of Law, recently proposed some explanations for the slight rise in MBE scores after a period of steady decline, one of which was "improved preparation." And by that she didn't just mean direct bar preparation but changes in teaching methods that involved more feed-back and more frequent assessment. This change is an example of using research on effective learning done in other areas of higher education and applying it to law.
To start the discussion, I'd like to share the work of a visionary educator, Dr. Freeman Hraboski, President of University of Maryland, Baltimore County whose institution sends more African American men to medical school than any other college in the country. This TED talk reflects how he is using the research generated by one of the most generously funded topics in education today, increasing the number of students who succeed in STEM fields. See here, here, and more accessibly, here. This is antithetical to many STEM fields which pride themselves in weeding out, not encouraging, students. There may well be some things for us to learn as well.
House subcommittee hearing on complete diversity
The House Judiciary Committee/Subcommittee on the Constitution and Civil Justice held a hearing (includes video) Tuesday on whether to eliminate the requirement of complete diversity in the basic jurisdiction statute. Witnesses were attorney Charles Cooper, Joanna Shepherd (Emory), and Ronald Welch (Dean, Baltimore). (H/T: Jim Pfander and Patricia Moore). Both Cooper and Shepherd argued for adopting minimal diversity as the statutory standard, Cooper for constitutional reasons (that do not hold up to the prevailing doctrine or theory) and Shepherd because it would have only a minimal effect on the federal docket that could be minimized by filling judicial vacancies or ratcheting up the amount-in-controversy requirement (which has not moved in more than 20 years).
The paradox of expanding the jurisdiction of the federal courts in this way (largely for defendants seeking to remove) is that the goal is to take advantage of the merits-based and procedural narrowing of access to the federal courts (via Twiqbal, limits on discovery, etc.) against the plaintiffs. In other, moving to minimal diversity would open the courthouse doors in order to slam them shut.
The proposal will not go anywhere, not least of all because federal district judges, who were not heard from here, hate diversity jurisdiction. Nevertheless, it is interesting to see how the shifting political positions with respect to federal jurisdiction, particularly in these state-law cases, in which the supposed Republican commitment to federalism would require deference to state power and state institutions.
Two additional points, as I think of them. First, Cooper's testimony recasts diversity as a measure for protecting interstate commerce generally, as opposed to protecting outsiders who cross state lines. So recast, diversity becomes about anti-corporate bias writ large, since corporations are the ones seeking to "be" everywhere at once. Second, I wonder what Cooper would make of the Hulk Hogan/Gawker case, where the big conservative money was Peter Thiel and Hogan, but minimal diversity would have allowed Gawker to remove and likely to win before a smarter federal judge more willing to respect the First Amendment.
Monday, September 12, 2016
"Freedom Of, For, From, and In Religion: Differing Dimensions of a Common Right?"
This past weekend, I attended a fascinating, rich conference at St. Hughes College, Oxford, that was organized by the International Consortium for Law and Religion Studies (ICLARS). The theme was "Freedom Of/For/From/In Religion: Differing Dimensions of a Common Right?" (more info here). Here's the conference blurb:
Freedom of religion or belief (FoRB), once considered to be the “first” freedom, has become a controversial right. In particular, the practical possibility of implementing FoRB in impartial ways are increasingly questioned. Critics argue that FoRB cannot deliver what it promises: an equal share of freedom for people of different or no religion. Further, it is claimed that the right of FoRB, as it is regulated in international and constitutional law, is intrinsically biased because it reflects its Western and Christian origins.
Part of the problem is due to the fact that FoRB is a complex notion, including different dimensions that require careful consideration. Freedom of religion or belief, as a right recognized for every human being, is the first dimension, but not the only one. Freedom from religion, that is the right to live one’s life without being compelled to perform religious acts, is another and freedom for religion, which concerns the institutional side of this right (what was once called “libertas ecclesiae”) is a third dimension that demands consideration. Finally, freedom in religion concerns the rights that the faithful (and sometimes not so faithful) are entitled to enjoy within their religious communities.
Besides the fact that the conference gave me an excuse to re-visit some of my favorite pubs from my undergraduate days, it was rewarding and fascinating to hear papers, and hear about experiences and impressions, from scholars, lawyers, and activists from outside North America and Europe. Doing so puts some things in perspective, both because others were dealing with very different issues (e.g., bans on conversions and proselytism) and because they were dealing with similar issues (e.g., religious exemptions) but in different ways. I also thought the "four pronouns" device suggested in the theme was really insightful and provocative. (My own paper was called "Freedom For Religion: (Yet) Another View of the Cathedral." Not exactly original, I know . . . .) Hats off to Cole Durham, Brett Scharffs, and Donlu Thayer, of BYU, for organizing an excellent event.
One of the best things I've ever read about 9/11
I'm not a student of the events of 9/11. Like a lot of people, my knowledge comes mainly from reading newspapers and magazines and watching a documentary or two. But there is one thing that I read back in 2005 that has stuck with me ever since. It was an article in Harper's by Rebecca Solnit titled "The Uses of Disaster." (Here, but behind a paywall.) The article, and the book that grew out of the article, describes the incredible, beautiful communities that spontaneously form in the wake of many disasters. Without prompting from government or other authority, strangers simply start caring for each other. "You hungry? Well just sit yourself down then. I'm serving." "No, I won't hear it. You're sleeping here tonight. And I don't care how long you stay." "How 'bout I drive to your uncle to Detroit? The airports will be closed for days and he'll be safer there." Disasters, it seems, shock us out of our daily routine and somehow turn us into wonderful people.
The part of the Solnit article that captured this best for me was a quote from somebody describing New York life in the days after 9/11: "Nobody went to work and everybody talked to strangers." Solnit labels this "the most succinct description of an anarchic paradise that I've ever heard." I'm not sure I share Solnit's anarchist views, but I too see the scene as paradise. Day after day, I sit at my desk and do my job. It's the best job in the world for me, but I don't talk to strangers much. And when I do, I often talk about law. Talking to strangers would be good for me, and I suspect, most of us.
Of course, no one wants a disaster to happen just so they can experience this type of paradise. And that's not Solnit's point, either. Her point is that disasters, when they do occur, are something akin to the "clear all formatting" command in Microsoft Word. When the formatting of the daily grind is swept away, what do we find? We find that our natural disposition is to care, give, share, help, listen, hug, love. I'm sure some evolutionary biologists out there could explain these behaviors as community, and thus self, preservation. That may be entirely true, but it doesn't change how wonderful it is to see it happen.
University of Michigan Law School Society of Fellows
This new program might be of interest to Prawfs readers:
The University of Michigan Law School, in connection with the longstanding Michigan Society of Fellows (MSOF), now welcomes applications for a highly competitive interdisciplinary fellowship for aspiring legal academics (whether currently completing a degree, conducting postgraduate research, clerking, practicing, teaching, or otherwise engaged in law related activity). The application deadline is Tuesday, September 27, 2016, 1:00 PM EDT.
The Michigan Society of Fellows selects 8 fellows from over 900 applicants nationwide to join the Society, and to affiliate as a junior (non-tenure track) member of the faculty with one of the University’s departments or professional schools (including the University of Michigan Law School). The fellowship is offered for a term of three years (to begin in September 2017), although fellows affiliated with the Law School may go on the academic job market during the fall of their second fellowship year.
The fellowship provides a unique opportunity for aspiring academics to develop and produce high level scholarship in a supportive and intellectually challenging environment within the Society, the Law School, and the wider University community. Fellows will also begin to develop their teaching skills in a substantive area of the law while availing themselves, as desired, of Michigan’s pioneering Center for Research and Learning on Teaching. The strong focus of the fellowship is on research and the production of significant scholarship. Teaching obligations are minimal. The fellowship comes with a stipend of $55,000 per year plus participation in the University’s benefits programs. It is supported by the Ford Foundation, the Horace H. and Mary Rackham Funds, and the Andrew W. Mellon Foundation.
- See more at: https://chroniclevitae.com/jobs/0000329437-01#sthash.stt8P1HL.dpuf
Should financial unstable colleges be required to post surety bonds?
The New York Times posted an editorial last Thursday calling for more vigorous federal regulation of for-profit colleges and arguing that without federal oversight these college chains have been free "to prey on veterans, minorities and the poor by saddling students with crushing debt and giving them worthless degrees in return." This editorial focuses on ITT Technical Institute ("ITT"), which was also the focus of my prior blog post. The Times describes a litany of abuses by ITT, including (i) targeting desperate potential students, (ii) spending more on recruiting students than on teaching them, (iii) allegedly pushing students to take high-risk loans, (iv) allegedly concealing material financial information from investors and committing fraud, and (v) misstating its job-placements results.
The editorial ends with two recommendations. First, the Times called upon the U.S. Department of Education (the "ED") to "adopt and vigorously enforce recently proposed rules that shield the taxpayers from loss when a school is forced to close." Second, the Times suggests that for-profit college chains should be forced to "put aside money for debt relief for students" once these chains "show signs of financial instability — like being sued by federal entities or state attorneys general or failing to meet requirements for receiving federal aid." While I support the vigorous protection of vulnerable populations, I worry about the Times' recommendations. Isn't requiring financially unstable colleges to post surety bonds likely to harm some students even as it protects others?Contrary to the tenor of the editorial board's letter, the ED had actively monitored ITT's finances and operations for at least two years. ITT was subject to "heightened cash monitoring," which required the chain to provide, among other things, bi-weekly cash flow projections, information about all "important financial transactions," and a monthly student census. In addition, the school was required to post a $94 million letter of credit to protect the ED in case ITT closed and the ED was forced to discharge federal loans made to ITT students. But when the ED required ITT's parent company to post an additional $153 million letter of credit, ITT shut the doors of all its campuses. Was forcing ITT to close really in the best interests of all ITT students?
According to the ED, former ITT students ought to:
- transfer ITT credits to a new school, if that school will accept the credits or
- apply to have their federal student loans discharged.
However, ITT has reportedly warned students that "it is unlikely that any credits earned at the school will be transferable or accepted by any institution other than an ITT Technical Institute," and private student loans are not covered by the ED's closed school discharge provisions. Even worse, veterans who used their G.I. Bill benefits to attend ITT have used up those benefits. Veterans are reportedly not credited for the months of eligibility already expended at ITT. In other words, veterans may be left with credits they cannot transfer and cannot be returned to their ex ante position (minus their time) like non-veterans. Of course, no ITT student is likely to be able to discharge their private student loans, absent Congressional intervention. Are former ITT students truly better off now that their campus has closed? Isn't it fair to presume that at least some of these students, particularly the veterans, would have been better off with a degree than a bunch of non-transferable credits and a used-up G.I. Bill education benefit?
Requiring financially distressed institutions to post large surety bonds (ITT's bond was reportedly more than 40% of the amount of federal financial aid it received in 2015) will almost surely contribute to some of these institutions closing. Instead of scurrying to do something after schools reveal that they are financially distressed, perhaps more proactive monitoring--like the ED's gainful employment rules--represents a better approach to protecting students from predatory schools.
I don't mean to suggest that ITT was a model institution, but it's far from clear to me that the ED's actions (or the Times' recommendations) represent the correct approach. What do you think?
State v. Dharun Ravi: What Happened?
On September 9, the Appellate Division of the Superior Court of New Jersey released its opinion in State v. Dharun Ravi. Dharun Ravi, of course, was the roommate of Tyler Clementi, a young Rutgers student who, after Mr. Ravi and his friends spied on him during an intimate encounter with another man, committed suicide on September 22, 2010. The court overturned all of Mr. Ravi's convictions.
To refresh our memories, here's what happened. (All numbers in parentheses refer to the page numbers in the Appellate Division's decision).
Tyler and Mr. Ravi were roommates at Rutgers University. Shortly after being notified that Tyler would be Mr. Ravi's roommate, one of Mr. Ravi's friends found out that someone using Tyler's email address had posted on a forum for gay people (7). So, Mr. Ravi came into college with at least an inkling that his roommate was gay. Tyler, however, was not open about his sexuality. Tyler was still in the closet.
On two occasions in September 2010, Tyler asked for some time in the room by himself (10). He had met a man using a gay social networking platform and invited him to his room (24). Mr. Ravi left. On the first occasion, which took place on Sept. 19, Mr. Ravi actually came back into the room within a few minutes and appeared to "shuffle some papers" on his desk. It turned out he was also adjusting the position of his webcam to face Tyler's bed. Mr. Ravi then used his technical skills to have his video chat platform automatically accept all calls. This allowed anyone who called him to see through his webcam. On both Sept. 19 and Sept. 21, Mr. Ravi tweeted out several comments about Tyler being gay, that he asked to be alone in their room, and that he was hooking up with another man (12). He encouraged others to call his account and watch (18). Mr. Ravi and quite a few of his friends watched live video of Tyler and another man "making out" on Sept. 19 (11). They tried to do so again on Sept. 21.
By reading some of Mr. Ravi's public tweets, Tyler found out that Mr. Ravi had invaded his privacy and made him the subject of others' prying eyes without his consent. Tyler then complained to his resident advisor and asked for either a private room or a different roommate (26-27). On Sept. 22, Tyler's RA notified Mr. Ravi about Tyler's request for a new room and explained Tyler's allegation that Mr. Ravi had invaded his privacy (29). At 8:46 PM that evening, Mr. Ravi wrote Tyler a text that (sort of) apologized (29-30). Shortly thereafter, Tyler, who had already left campus, used his cellphone to write on his Facebook page: "I'm going to jump off the GW Bridge. Sorry." Moments later, he did so (30).
On April 20, 2011, a grand jury returned indictments against Mr. Ravi for invasion of privacy, bias intimidation, witness tampering, and hindering apprehension or prosecution. On March 16, 2012, the jury convicted Mr. Ravi on all counts. After denying a motion for a new trial, the trial judge sentenced Mr. Ravi to 3 years probation, dependent on serving 30 days in jail (4). Mr. Ravi also had to complete 300 hours of community service, attend counseling on cyberbullying and diversity, and pay $10,000 (which was to be dedicated to helping victims of bias crimes) (5).
September 2010 was a difficult month for the LGBT community. Tyler was just one of 10 gay adolescent boys to commit suicide. Billy Lucas, 15, died on Sept. 9. Cody Barker, 17, died on Sept. 13. Seth Walsh, 13, died on Sept. 19. Asher Brown, 13, died on Sept. 23. Harrison Brown, 15, died on Sept. 25. Raymond Chase, 19, died on Sept. 29. Felix Sacco, 17, died on Sept. 29. And Caleb Nolt, 14, died on Sept. 30.
Tyler's death brought extensive media attention to the problems of suicide in the LGBTQ communities and antigay bullying. Celebrities, including Ellen Degeneres and Anderson Cooper, spoke out about both issues. Antigay bullying is indeed an epidemic facing our schools and our communities. But it is worth asking: Was Tyler a victim of "cyberbullying"? In one sense, it doesn't matter. Tyler's story brought much needed attention to a problem that needs to be addressed, and his parents have joined the fight against bullying and cyberbullying in the years since his death.
But definitions are important. There are a host of definitions of “cyberharassment” or “cyberbullying” milling around. And imprecise and inconsistent definitions frustrate our ability to understand, talk about, and solve the problem. Danielle Keats Citron, author of Hate Crimes in Cyberspace and the leading cyberharassment scholar, defines cyberharassment generally as repeated online expression that intentionally targets a particular person and causes the targeted individual substantial emotional distress and/or the fear of bodily harm. There are five core elements to that definition: repetition, use of digital technology, intent to target, targeting, and substantiality of harm.
Cyberbullying is a subcategory of cyberharassment that includes all five of those elements but is focused squarely on youth-to-youth behavior. It can be understood as repeated online expression that is intended to cause substantial harm by one youth or group of youths targeting another with an observed or perceived power imbalance. This definition retains those five factors and adds two important elements: youth and power imbalance, the latter of which is actually common in many forms of cyberharassment. The asymmetry of power, which could be based on identity (i.e., a member of the majority attacking a member of a traditionally marginalized and discriminated minority), draws the line between schoolyard teasing and bullying. It should come as no surprise, then, that young members of the LGBTQ community are uniquely susceptible to bullying and its tragic consequences. They are bullied because they deviate from the norm and because antigay bullying is either tacitly or explicitly condoned by antigay bigotry and homophobia in society at large. This definition of cyberbullying captures the worst online aggressive behavior while excluding the otherwise mean, hateful, and distasteful speech that free speech norms tend to tolerate. Cyberbullying is, at bottom, cyberharassment involving youth. And it is an epidemic affecting our schools.
Although Tyler was targeted because of his sexual orientation and Mr. Ravi's behavior caused Tyler to experience substantial emotional distress, it is not clear that what happened to Tyler involved repeated behavior that rises to the level of a course of conduct. However, I am not sure that matters at all. Mr. Ravi was not accused of violating an anti-bullying law; he was accused of invading Tyler's privacy, which is exactly what he did.
With this background, I would like to use several forthcoming posts to explore several theories and questions about the Appellate Division's decision in State v. Dharun Ravi. Stay tuned for the next post!
Sunday, September 11, 2016
I am intrigued by the new ABC show Designated Survivor (long trailer after the jump, premiere on Wednesday, 9/21), which shows the HUD Secretary (played by Keifer Sutherland, wearing a Cornell hoodie and glasses to show that he is an egghead and no Jack Bauer) becoming acting president (not president) when the Capitol is destroyed by a terrorist attack during the State of the Union address.
I am curious where the show goes. It would be interesting to see the process of reconstituting a government, especially Congress. It also would be interesting to see the process of the executive trying to do anything without a legislature (as opposed to a legislature that just will not do its job). I am not particularly interested watching a revenge fantasy a la 24 (this gut-reaction preview suggests it feints in the latter direction at times). Nor The West Wing without political legitimacy, a basic political drama.
Instead, I hope the show recognizes, and plays, the uniqueness of the premise. This is more than a political drama or even a political drama about an individual thrust into circumstances for which he may not be prepared and having to grow into the job (think Harry Truman). This is that, but in a last-gasp, no-alternative situation, in which our basic governmental structure is gone or has to be recreated on the fly. I hope the show embraces that.
Around the 1:35 mark in the trailer, Sutherland is talking with a speechwriter played by Kal Penn. As the scene is shown here, Sutherland asks whether Penn thinks he should step down, Penn says "I do," and Sutherland responds that he may be right, but for the moment he is all they have. It is a good line, designed to show Sutherland's steely resolve to rise to the occasion. But the conversation undermines the show's premise or the intelligence of its characters. That is a conversation you have when there is a choice ("Sorry, A, but B would be a better president). Who does Penn want Sutherland to step down in favor of? Or who does Penn believe Sutherland could step down in favor of? He is literally the only person on the planet legally authorized to wield the executive Power of the United States. Anyone else acting as president would do so contrary to law (put aside whether we would accept and retroactively ratify such actions). Sutherland's "For now, I'm all you've got" drives the point home. But the head WH speechwriter, someone who presumably knows something about how the government works, already should know that.
Plus, the situation allows for depictions of genuine political intrigue that at least merit discussion, rather than ginned-up stories of Machiavellian chiefs of staff. Suppose one member of the House (not the Speaker) survived the attack, declared himself elected as Speaker by a majority vote of one member, and tried to argue that he had prior authority to act as president (raising some quorum concerns that have never been resolved). Or suppose the duly elected Speaker of a reconstituted House insists he has prior entitlement. Section 19(d)(2) (providing, in a convoluted fashion, that a cabinet member acting as president cannot be supplanted by a legislative officer acting as president) seems to resolve that, but this is all new ground and arguments always can be made. The show also could depict the holes commentators and advocates (including me) have identified in the succession statute, especially post-9/11: The absence of a mechanism to quickly reconstitute the House; the need for a special presidential election when an unknown, inexperienced, lower-level cabinet secretary (who may have been fired that morning) takes the executive power. But I doubt this creates enough drama compared with Jack-Bauer-in-glasses-and-a-Cornell-hoodie.
Finally, I never looked into the designated survivor practices when I was writing about this, so I was not aware of a paradox, in terms of political legitimacy. The highest cabinet officer ever to be the designated survivor has been the Attorney General on three occasions (John Ashcroft, Alberto Gonzales, and Eric Holder), which is fourth on the cabinet list. Secretaries of State, Treasury, and Defense are never designated, even though they are the highest-profile and most likely to have political, and even presidential, experience (of the last four Secretaries of State, two had run for president and one was a top military official who everyone had wanted to run for president) that would be important in the event of a catastrophe.
Anyway, I look forward to beginning to watch this. I hope they do something good with it.
Saturday, September 10, 2016
What To Expect This Month
Hi, Prawfs! It's such a privilege to be back here blawging this month. For those who don't know me, my name is Ari Waldman. I'm an associate professor at New York Law School. I research and write about online social interaction, including legal, sociological, and ethical issues related to data privacy, online disclosure, social media, and cyberharassment. I have a couple of ongoing projects that I'm pretty keen on: one is a book project on how we can use trust among individuals to help us define expectations of privacy and the other is a study on how, if at all, norms about privacy trickle down from executives to the engineers, programmers, and designers creating data-hungry products.
Some of my posts this month will be about those two ongoing projects. But most of them will be about the recent decision by the Appellate Division of the Superior Court of New Jersey in State v. Dharun Ravi, the Tyler Clementi case. Full disclosure: I am a member of the Board of Trustees of the Tyler Clementi Foundation, a family foundation started by Tyler's parents. Its mission is to combat online and offline bullying. I am also the Founder & Director of the Tyler Clementi Institute for CyberSafety, a program at New York Law School that includes, among other things, the first ever law school clinic dedicated exclusively to representing victims of online harassment. Neither these roles will have any effect on my thoughts on the case. I wasn't involved in any aspect of the criminal case.
Thanks for reading this month! Stay tuned ...
Here we are at the beginning of another school year, and once again I am trying to come up with metaphors that help the 1Ls understand that the law is not a thing, but a language in which we convert narratives in the real world into a series of logical propositions that churn out a legal conclusion.
Walking the dog this morning, I decided on "Artichoke IRAC." It is my means of explaining that there is a difference between mere issue-spotting, on one hand, and developing a legal theory in which many issues may be embedded, on the other. Inevitably when I'm grading an exam, a student who has drunk the naive IRAC Kool-Aid will organize the answer to a question in which I have embedded perhaps twenty issues into a vastly incomplete four paragraph answer, beginning with ISSUE and identifying one of them, stating one RULE, and so on. And this has the effect of earning the student minimal points, if any.
Today's discussion (the third hour of my first unit in Contracts) will be the legal analysis of a little play-acting in which Student A goes into a restaurant, orders a meal, eats it, and leaves without paying the owner (Student B) for the meal or leaving a tip for the waiter (Student C). We will start the discussion of developing legal theories and defenses in the cases of B v. A and C v. A.
"Artichoke" or "Big" IRAC is the overarching theory of the case. I ask Student B: Now that you feel aggrieved, what is the legal theory that you will employ to make things right? The artichoke here is the contract, and the overarching theory - the RULE in Big IRAC - is that B needs to establish per Restatement 2d of Contracts § 1 that there was indeed a promise or set of promises for which the law provides a remedy or for which performance of the promise is a duty.
Well, that's perfectly fine as a theory, but it barely begins the complete analysis. The leaves of the artichoke are metaphors for the elements of the legal theory. To establish a contract (or the existence of the artichoke) we need to establish the elements. Here, the first leaf or element is the existence of a promise. The second is something that would cause the promise to become enforceable (the dreaded consideration issue).
Depending on the facts of the situation, peeling the artichoke doesn't end there. Suppose in my hypothetical the claim is that the promise occurred by way of a series of eye blinks that said in Morse Code: "I presently intend to pay you Tuesday for a meal today." The element of promise now turns out to have two relevant sub-elements, deeper leaves as it were. One is whether the eye blinks constituted a manifestation. The other is, even if the blinks were a manifestation, did it constitute a commitment to act (versus a mere present intention)?
So we can have a theory, or Big IRAC, about the whole artichoke, but almost certainly we are going to have to construct the theory out of a series of Little IRACs or leaves. And every time we look at a leaf we have to decide if there are fruitful (no pun intended) leaves or sub-sub-elements if we keep peeling.
There is a fun series of articles on this theme, from Bayless Manning's conception of "hyperlexis" and the "conservation of ambiguity" to a more recent piece by Andrew Stumpff entitled The Law is a Fractal: The Attempt to Anticipate Everything, 44 Loyola U. Chi. J. 649 (2013).
In some ways it's easier to think of this from the standpoint of defending a claim. How many leaves deep into the artichoke do I have to go before I find something contestable in the plaintiff's legal theory? But, of course, if you are the plaintiff, you need to be anticipating precisely that, either to prepare a counter-argument or to give your client realistic advice about the possible outcome.
Friday, September 09, 2016
Commitment to furthering social change
A friend at another law school shared the following (the story is made anonymous, and non-gender-specific, for the benefit of all parties):
My friend wrote an empirical article, concluding that the data did not support removing military commanders from the courts-martial system in sexual assault cases. She/he submitted it to a law-and-social-policy/social-change journal at a t20 school. The journal rejected it, writing the following: "Our editors felt that your piece provided interesting data analysis; however, we do not feel that your framing of the issue and your ultimate conclusion align with our journal's commitment to furthering social change."
This is a staggering thing for an academic journal to say out loud, even if many people believe such biases exist in publication decisions, in law and other disciplines. It is more staggering for an empirical article. If editors disagree with an author's conclusions in a normative or theoretical piece and reject it on that basis, that is troubling, although separating evaluations of quality from agreement with the conclusion is a difficult intellectual exercise. To reject an article because the conclusions from the empirical data do not "align" with a commitment to "furthering social change"--while not questioning or challenging either the data or the data analysis--is nakedly anti-intellectual. Not to mention counter-productive: If you are committed to furthering social change in the area of military sexual assault, wouldn't you want to rely on data that helps identify the best solution to the problem and directs you away from solutions (pulling commanders from the process) that will not resolve the problem? (This problem is not limited to law, but extends to the hard sciences).
JOTWELL: Thornburg on Gilles on class actions and low-income litigants
The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Myriam Gilles' Class Warafre: The Disappearance of Low-Income Litigants from the Civil Docket (Emory L.J.), which explores the disparate effects of restrictions on aggregate litigation on low-income litigants.
A Take on Domnarski's Posner Bio
The really quick take is that I largely agree with Peter Conti-Brown's review. But perhaps a little more content than that is okay.
Like many ardent fans and sometime critics of Richard Posner, I was very excited by and had huge hopes for Richard Domnarski's Posner biography, which is now available. And I was equally dismayed when the physical book arrived on my doorstep. Quantity is not quality, God knows. But the book on first appearance struck me as very thin for a life that is packed with such intellectual ferment and set in such interesting times. A doorstop is not a classic by virtue of being big, but some subjects require more than a pamphlet. The structure of the book, on which more below, struck me as exacerbating the problems caused by the book's brevity. And the index is incredibly, and surprisingly, inadequate, both too small and too arbitrary. One may be somewhat charitable toward the author about this, at least if one has ever prepared one's own index. But the fact remains that someone--the author or the press, or both--released an academic biography into the world more or less lacking what I consider an obvious and necessary appurtenance.
I warmed up to the book considerably on reading it, in many respects. And, more or less like Conti-Brown, I think the best part of the book is its first two chapters--not incidentally its most traditionally biographical chapters. Posner's writing is unusually available and accessible. Of course a description and assessment of it must form much of the meat of the book. But learning about Posner the man, or about the interaction between the man and his work or the man and his times, would be something relatively new, Larissa MacFarquhar's New Yorker profile aside. And Posner gave Domnarski access to his archive and especially his correspondence, which provides many of the most interesting, human, and seemingly revealing moments in the book. More--much more--of that would have been great, but Domnarski makes very good use of it.
Especially good, perhaps, is the introduction and its weaving of themes that pop up (but could have been even better developed) throughout the book. His observation (on page 8) about Posner forcing lawyers out of their advocacy role in oral argument and thus leaving the client "suddenly without a lawyer" and giving Posner "an open field" is interesting. So is his general comment on the same page: "Looming over our look at Posner's unfolding careers as an academic, judge, and public intellectual is the fact that Posner has never thought of himself as a good fit for the law. He has described himself in an interview as not being fully socialized into the law." Of course I view these qualities as virtues, for Posner at least, and they are not news, but Domnarski uses them well in examining Posner's life and work. Generally, the interviews Domnarski conducted and the correspondence he uses provide some of the most interesting (and gossipy), if briefly used, connective tissue. And, because he is unconstrained by the structure that makes up the last two-thirds of the books, he can range more freely and insightfully in the first third into Posner's early life and professional career up to his appointment to the bench.
After that, for the most part, an "If it's Tuesday, this must be Belgium" spirit of list-making takes over. Domnarski opens the book by writing, "If anything, [Posner] seemed destined for a literary life. The core of his life as it has unfolded has been such a literary life, even within a career in the law, so that he has always been a writer first and a lawyer second." A literary biography that proceeded purely by list-making and precis ("In late 1940, Auden wrote 'September 1, 1939.' It was about the war. In early 1941, Auden wrote...."), without either digging deeper into the most important works or analyzing them through the writer or his times in a serious way, would be the wrong approach to a writer's life. The structure Domnarski adopts for the biography, with its repeated categories and bite-sized treatments, is too close to that kind of approach, and imposes a harmful stricture on the book. Reading a two or three page summary in every chapter that lists Posner opinions taken up by the Supreme Court, with short summaries and a count of Posner's "success" or failure on review, is not a major contribution, and the repetitive nature of such such sections grows tedious. Given Posner's own skepticism toward judicial biography and at least occasional fondness for data-mining and influence assessments as substitutes for biography, one can see why Domnarski might feel caught betwixt and between in his structural choices. But Posner is first and foremost a writer, not a judge, and Domnarski should have ignored any such preferences on Posner's part. Perhaps he did, and chose the structure independently; if so, he chose wrong. I would add, Posner-style, that many of the things that Domnarski does of this sort in the book could have been relegated more efficiently to appendices, where the approach could have been more unapologetically data-driven and the narrative of the book left to develop more fully.
This is not to say there are not many good moments in last two thirds of the book. There are; if my patience flagged after the first two chapters, it didn't run out. But these promising shoots are mostly strangled by the surrounding structure instead of flourishing. And, as Conti-Brown notes quite aptly, just as the book does too little with the life of Posner, it also does too little with his times. One might argue about whether Posner's life really demands a "literary" biography, but one can't argue that, if he is to be treated as a judge and academic who engaged highly with his culture and the politics of his times, then a judicial biography of Posner must treat those issues more deeply. Not because the intramural academic fights and their relations to the times are fun and gossipy--although, hell yes, that too--but because they are relevant and revealing and place Posner and his influence in a more meaningful context.
A last point: The key for Domnarski's book, at least in his thinking about the biography itself, shouldn't have been Posner's Cardozo study, but his 1995 book Aging and Old Age. It is not Posner's most famous book or the key to unlocking his life's work. For me, that would be the 90s trilogy of jurisprudential books, although a combination of his Economic Analysis of Law and Sex and Reason would do nicely too. But a biography of Posner appearing at this date (Posner is 77) must be, in some measure, an assessment of Posner in the winter of his years. That's especially true because, despite Domnarski's efforts to paint Posner as unchanging (albeit unchanging in his combativeness and contrarian sensibilities), Posner has been especially disputatious of late, the disputes have been especially public, and some of his quotes about the disputatious issues have been especially casual. Depending on one's perspective, it is at least reasonable to speculate about some changes in his positions, manner, approach, or concern for systemic constraints and consequences, for himself or others.
Of course Domnarski mentions this, but briefly and rather dismissively. Posner is "getting older," he notes, but "there's little direct evidence of his age having an effect" on him. And he quotes Posner saying, in a 2014 interview, "As long as my physical health holds up and senility holds off, I will continue to work as I have. I am one of those people who dread retirement. I hope I won't overstay my welcome."
That's not enough. Old age, Posner writes in his book, and the words are still true, is a subject that "carries a heavy emotional charge. . . . It is not so taboo a subject as sex [is that still true? I'm not so sure], but considerable reticence, embarrassment, and denial surrounds the public discussion of many aspects of it." The taboo should be broken, in this book of all places. To be clear, not every suggestion that a famous person of advanced years has changed, or declined, or gotten more careless in certain respects, is tantamount to a loose accusation of "senility," which in any event should not have been Posner's benchmark. Indeed, as Posner argues in the book, "A refusal to acknowledge normal, and in particular normal cognitive, aging can create exaggerated doubt about the competence of old people," by pretending there is nothing, no change or slowing in function, between total vitality and utter senility. Posner argues that federal judges show fewer signs of decline with age, for various reasons, including the nature of the job and the staff structure that has grown around them. But he also argues that the aged are on average "worse listeners and less considerate speakers than young people," "invest less in the creation of human capital and therefore have less to gain from receiving inputs of information from other people," and "have less incentive to conceal egocentrism and to engage in cooperative rather than self-aggrandizing conversation." Are Posner's recent public statements, and even some of his recent written work, so very far from those words? Are the constraints on aging effects he mentions as relevant to a judge's extrajudicial statements--or even to his judicial writing, insofar as it is not hemmed in by a clerk-driven model of judicial work?
But these kinds of questions are still largely verboten. One might expect people to be more willing to ask these questions of Posner, given the number of antagonists he has encountered over the years. But two factors, at least, inhibit them. One is that his recent animadversions have involved statements and views, on things like same-sex marriage and the failings of the late Justice Scalia or the Roberts Court, that are catnip to liberal legal academics. These individuals form the vast majority of the legal academy, which is not especially distinguished by candor or disinterestedness. And another is that most of us are well aware that Posner still has us licked in terms of smarts and productivity. (A 75-year-old with a history of "extraordinary capabilities" may still be far "capable than a mediocre 30-years-old," he writes. That observation hits home well enough.)
And there is a third factor restraining people from asking these obvious questions, which is that Posner is a famous and much-admired judge. Law professors have long said they are all Legal Realists now, but most are, at best, a sludgy mix of Realists, courtiers, high priests, and client-less appellate lawyers. It is striking that Justice Ruth Bader Ginsburg's extrajudicial statements about the election this summer were examined from many angles--but rarely if ever from the obvious one of asking whether they signaled a decline in reasoning function or, more plausibly and charitably, an age-related decline in prudence and judgment or an indifference to institutional considerations from someone who will not be around long enough to care much about systemic consequences. Asking the obvious questions--whether about Ginsburg or Posner, and whatever the ultimate answers--would not have hurt anything other than their feelings. Those are not serious academic concerns anyway--especially for academics, who love to boast of "speaking truth to power." Does anyone doubt that judges--even the ones we like--have power?
My point is not accusatory. It's true that I have been disappointed by some of Posner's recent output, relative to my all-time favorites among his writings. But if this is decline, then, to paraphrase the lady at the diner, "I'll have what he's having." Still, a pre-posthumous biography of Posner is necessarily going to be heavily concerned with his declining years, especially given that they have been so crowded with public incident. Asking more about whether and how he has aged should be a natural part of the book. It would have contributed to a sense of Domnarski having produced a life of Posner, not just an inventory. And it would have been a proper tribute to Posner, as well as a sound biographical move, to ask those questions more forcefully and forthrightly.
Thursday, September 08, 2016
Enron & ITT Tech
In the late 1990s, the energy company Enron was regarded as "a new-economy maverick" that was able to up-end the energy sector's traditional business model. As a result, it quickly became a Wall Street darling and was soon "one of the nation's ten largest companies." By November 2001, Enron's fates had changed. It was revealed that Enron had been using special purpose entities to hide bad debt and toxic assets from its investors and creditors. This tactic--along with "deceptive bookkeeping" and its executives' criminal actions--swiftly caused the company's collapse. The company's collapse left tens of thousands of employees without jobs, wiped out ~$70 billion of its investors equity, and roiled the financial markets. Within a month, Enron filed a voluntary petition for bankruptcy.
In the late 1990s, the prospect of an Enron bankruptcy would have been unthinkable. But by late 2001, bankruptcy was the best path forward for preserving value for the company's creditors. Indeed, more than $14.6 billion was returned to creditors through Enron's chapter 11 bankruptcy case, an amount that exceeded early estimates by more than 225%. Most notably, Enron's chapter 11 bankruptcy filing allowed the company the opportunity to reorganize its business under a new name for the benefit of the company's creditors and employees.24%. ITT was one of the nation's largest for-profit college chains and was often the most profitable one. But, like Enron, ITT saw its fates quickly change. Like Enron, ITT executives were accused of perpetrating a massive fraud. Just this week, these allegations and concerns about the chain's "organizational integrity" and "financial viability" precipitated the U.S. Department of Education's decision to subject ITT to heightened financial oversight and ban it from enrolling new students that require federal financial aid. As a result, ITT abruptly announced that it was immediately closing all of its schools.
Unlike Enron, ITT will not reorganize in bankruptcy. There will be no opportunity for ITT to restructure its operations and emerge from bankruptcy court protection because colleges are functionally prohibited from bankruptcy reorganization. As a result, ITT's creditors are likely to obtain a minimal recovery, ITT's faculty and staff will all lose their jobs, and ITT's students will have to try to make other arrangements for completing their education. Why the difference? What justifies treating the ITT's of the world differently from the Enron's of the world? In a series of articles (including this forthcoming one), I have sought to explain why I think that this sort of differential access to bankruptcy reorganization is inappropriate. And in future blog posts, I look forward to explaining some of my thoughts and reading your responses.
Wednesday, September 07, 2016
Watching a Tragedy Unfold—the Spread of the Zika Virus and some teachable material about Federalism
While it’s considered sensationalistic in public health circles to make an analogy to AIDS every time a new virus emerges, the FDA’s recommendation that we begin screening all blood donations for Zika raises that question on its own. So far, there is no effective treatment or vaccine.
Congress has the power to authorize funding to develop both, but they also have the power to stand by and watch. Starting with a vote last February, Congress has refused to authorize the $1.1 Billion that the CDC and the Department of Health & Human Services (and other Agencies) need to develop a vaccine, treatment, and prevent strategies. Congressional dysfunction is hardly a surprise. Nor should it be a surprise that the latest pretext is that Planned Parenthood may be involved in what is so far the only effective way of preventing pre-natal infection, contraception.
Could it be that we will look back at Congress’ failure to fund a Federal response to the Zika virus as another tragically lost opportunity? Is Zika really that bad? Well, the WHO released new guidelines today that although couched in terms intended to reassure, are no better than a placebo. It’s couched as helpful, but Zika isn’t like some kind of soil contamination that can be avoided by cordoning off a few blocks in a major city. Not only are the mosquitos quite good at hitching rides, it is clear that the virus can be transmitted through bodily fluids and, very much so, from mothers to their unborn children. And, as both the CDC and WHO well know, advice to avoid pregnancy is not realistic. By some estimates, over 45% of pregnancies in the US are unplanned and there’s no reason to think the number is significantly lower anywhere else.
As is almost always the case in a time of public health crisis, there are balance of power lessons to learn.
The President of the United States does not have direct power to protect the public’s health—that authority rests in the individual States under the Police Powers Doctrine. But he could act alone to combat Zika if he were willing to declare it a threat to national security. The CDC has compiled a very helpful document outlining these powers, but as explained, in presidential transition memo the consequences to the rule of law in using them are enormous. And in retrospect almost never justified.
So the coming of Zika to the United States presents a clear illustration of the limits of our powers of federalism. As so often happens in these cases, states are trying to fill the gaps. But in the end, no individual state has the resources to mount the billion dollar response required to get ahead of this menacing threat. For now, the CDC is diverting its own resources to the states, but that is at best a “stopgap.”
Last Call for Nominations for Annual Award for Best Untenured Article on the Law of Federal Jurisdiction
The AALS Section on Federal Courts is pleased to announce the fifth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school -- and to solicit nominations (including self-nominations) for the prize to be awarded at the 2017 AALS Annual Meeting in San Francisco, CA.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2016 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2016), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (and questions about the award) should be directed to Prof. Bradford Clark at George Washington University Law School ([email protected]). Without exception, allnominations must be received by 11:59 p.m. (EDT) on September 15, 2016. Nominations will be reviewed by a prize committee comprised of Professors Curtis Bradley (Duke), Bradford Clark (George Washington), Tara Leigh Grove (William & Mary), Gillian Metzger (Columbia), and Caleb Nelson (Virginia), with the result announced at the Federal Courts section program at the 2017 AALS Annual Meeting.
Reality, Experience, Video and the Law
A recent article in the New York Times (here) caught my attention. The article tells the story of John Lewis, who plead guilty to killing a police officer that interrupted Lewis’ armed robbery of a Dunkin’ Donuts. A key issue in penalty portion of the case was whether Lewis acted with premeditation. He argued that he did not; he simply panicked when he saw the cop on the scene and shot him. The state, on the other hand, argued that the murder was premeditated.
A key piece of evidence for both sides was the store's videotape of the crime. The videotape showed Lewis shooting the officer within 2 seconds of seeing him—which allows (but does not require) the conclusion that the killing was not premeditated. But would your view change if you watched the video in slow motion? That’s exactly what the state did in this case. Lewis opposed the slow motion replay, arguing that it would prejudice him because it would make it look like he had more time to think through his actions. Lewis argued the point all the way to the Pennsylvania Supreme Court, where he lost. The court held that the video was more probative than prejudicial. A short news story is here.
My first thought on this issue was: if the state has the right to play the tape in slow motion, does Lewis have the right to play it in fast motion? He wouldn’t actually want to do this, of course, because it would suggest that he was trying to obscure something. But why? Why aren't we assuming that the prosecutor is trying to obscure something by playing it too slow? I guess the answer here is comes down to our general appreciation for slow motion. We tend to think that slow motion, generally speaking, helps us better assess what actually happened. Slow motion replay is a big part of many sports, for example. In those contexts, we seem to think that slow motion helps us “get it right.” So why not use slow motion in the courtroom?
The authors of the New York Times article give us a reason. In a study they conducted, they found that “juries who saw the slow-motion video were nearly four times more likely to return a unanimous first-degree murder verdict than juries who saw the regular-speed version.” (The video they are referring to was not Lewis’ video, but a video from a different incident. You can view the regular-speed and slow motion versions here.) This makes sense, doesn’t it? When you slow down the tape, the viewer’s sense of time is distorted. And time is relevant to discerning premeditation.
I’m on board with this, but it seems to complicate our assessment of video evidence. If a court were to rely on this study to prohibit slow motion replay, the court's holding would be based not on the video itself, but rather the viewers’ experience of the video. Put differently, the court would be holding that, even though the video is factually accurate, it is experientially inaccurate. That may be a defensible holding in cases like Lewis (where we have some scientific data) but what do we do with the all other video evidence out there?
Consider Kelly v. California, a California Supreme Court case involving the admissibility of a victim impact video. After obtaining an conviction against Douglas Kelly for the murder of 19-year-old Sara Weir, prosecutors put on a 20 minute video that described Sara’s life mostly by using still photos set to music. Here. If you have the time, I encourage you to watch it; I’ve seen it several times, but watching it again today reminds me how we (or, at least I) too often forget the pain and suffering that crime inflicts on families.
The video illustrates the possible stakes in choosing between factual and experiential accuracy. Consider the last scene of the video (it starts at the 19:00 mark): it's a scene from southern Alberta with two horses riding across a river. Sara was Native American and her ancestors apparently haled from this area, and she also loved to ride horses. So the scene made a lot of sense. But what’s odd here is that the scene is just stock video; the video is not of Sara or any of Sara’s family. Nor, apparently, had Sara ever ridden horses in this place. The final scene is thus factually inaccurate, but I think all of us can appreciate that it might nonetheless be experientially accurate. The scene conveys much about who Sara was, what she loved, how she saw the world.
But how far will we let this go? What if the entire video were stock footage? Or better yet, what if Sara’s uncle was Steven Spielberg and he created an entirely fictitious movie that, through skillful metaphor and allegory, powerfully conveyed the essence of Sara? The question, in short, is this: when should factual accuracy give way to experiential accuracy, if ever? I don’t have an answer here—I’m not an evidence guy and I don’t know metaphysics. But it’s a question that I think will somehow have to be answered as video evidence becomes more and more ubiquitous.