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Wednesday, November 30, 2016

Political parties and constitutional mechanisms

Piling on Lisa's post about the next steps in the presidential election (recounts in three states and the Electoral College vote on December 19):

1) Lisa correctly argues that 37 faithless electors are highly unlikely, because electors are party regulars. This shows another way that the not-accounted-for rise of political parties affects constitutional structures. The electors do exercise independent judgment. But the exercise of that judgment is affected by the existence of political parties as the unit around which elections, including the selection of electors, are organized. Electors retain independent judgment, but party affiliation affects how they exercise that judgment. It is the Daryl Levinson/Rick Pildes thesis applied to the election process.

This is why one proposed Electoral College gambit revolved around getting those 37 electors not to vote for Clinton (which partisanship deters them from doing), but to vote for a third, acceptable, competent, compromise Republican (e.g., Kasich or Romney seems to have been seduced by the cuisine of the Dark Side), who could then be chosen by the Republican-controlled House (with support from Democrats) in the contingency election.

2) In early writing on presidential selection and succession, I argued that selection mechanisms could be based on any of three competing structural principles: Political parties and partisanship, democracy, or separation of powers; one or another rising to the top on different issues, principles interact in unexpected ways, and principles change over time. There is no right or wrong answer on any of this; it is a matter of which principles one favors and why.

The current discussions illustrate the point. I argue above that the current operation of the Electoral College represents the triumph of political partisanship. The calls from many that faithless electors should vote for Clinton because she won the national popular vote obviously preference democracy (at the national level).

3) Lisa points out that Clinton needs to flip all of Michigan, Pennsylvania, and Wisconsin to flip the election.

There are arguments that a nationwide popular vote is unworkable in a country the size of the United States and that it makes sense to run things as a series of 51 statewide elections, as we functionally have under the Electoral College (where electors will virtually always vote for the winner of their state election). The undemocratic nature of that system is due, in part, to the inclusion of equal Senate representation in the total for each state. So one way to keep the current system, but to make it slightly more popularly representative, is to base the number of votes from each state solely on population-based House representation. (Note that I am not endorsing this idea, only pointing out the arguments).

Under that system,  there are 436 electoral votes (sorry, Nate Silver, you will have to rename your site), with 219 necessary for a majority.* Trump would have 246 (including MI, PA, and WI) and Clinton 190, with Clinton needing to flip 29 to win. Under this system, she could win by flipping only MI (14 votes) and PA (18), even without WI (8), although WI and one of the other two would not be enough.

[*] Under this system, Al Gore would have won in 2000 even without Florida, 225-211.

4) If any of those threw the election into the House (that is, if life imitated Veep), what would that election look like? Remember that each state caucus casts one vote based on its internal caucus vote. The likely breakdown for the new House will be 33 majority-Republican states (this includes Louisiana, whose results are not in, but which was 5-1 R this Congress and unlikely to change), 17 majority-Democratic states, and one evenly divided state (Maine). (New Jersey will flip from evenly divided to majority-Dem).

Now a lot depends on what structural principle individual House members choose to honor. It could be partisanship (as I expect it would be), in which case the Republican wins handily. It could be democracy, by looking to popular-vote results, although each must consider what level to look at--national, home state, or home district.

Posted by Howard Wasserman on November 30, 2016 at 05:01 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Who Will Be Inaugurated on January 20? (Almost Certainly Donald Trump)

Recent days have seen a surge in efforts to change the 2016 presidential results. Jill Stein is spearheading calls for recounts. Democratic-affiliated electors are joining attempts to convince their Republican-affiliated counterparts to vote faithlessly on December 19. In response to questions about these post-election developments, I thought I would provide a few quick thoughts. The punchline is straightforward: none of this activity is likely to change who will become the 45th president. The following discussion provides more context.

First, for those trying to understand the recounts, state law is what governs. As a result, the rules governing recounts vary, and the answers to legal questions—including when and how to demand a recount and which standards govern the proceedings themselves—depend on whether one is seeking to recount votes in Wisconsin, or Michigan, or Pennsylvania. Despite such variation in the rules, the ultimate outcomes of these recounts are likely to be the same. Because taken either together or individually, they are very unlikely to make a difference in the 2016 presidential race.

By my count, the outcome of the 2016 presidential race changes only if recounts flip the results in all three of these states. This is because Donald Trump’s current elector total is 306, which means he has 36 more than he needs. In other words, Trump would need to lose the votes of 37 electors in order to drop below 270. Wisconsin provides 10, Michigan provides 16, and Pennsylvania provides 20. (There is, of course, the possibility that some of the Trump electors—that is, some of the electors who were selected based on Trump’s statewide victories—will prove to be “faithless,” thereby dropping Trump’s totals under 270 without all three of these states necessarily being flipped. See below for why this is unlikely to occur and why, even if it did occur, it is unlikely to change the result.)

What are the odds that recounts will change the outcomes in all three of these states? Based on historical evidence, the odds are minuscule.

In recount terms, the apparent margins of victory in the 2016 election are huge. As a result, there is not a single modern precedent for even one of these states to experience a reversal. Supporting the conclusion that there is “essentially zero chance” that recounts in these states will reverse Trump’s lead, Josh Douglas observes that, in the last 15 years, a statewide recount has flipped the outcome of an election only three times. Each of these reversals occurred in a really close race. According to FairVote, the first of these unicorns was spotted in 2004, where a recount in Washington State swung the margin by 390 votes, which translated into 0.014% of the votes cast. The second emerged in Vermont in 2006, where the recount swung the margin by 239, or 0.107% of the votes cast. The third could be found in Minnesota in 2008, where the recount swung the margin by 440 votes, or 0.018% of the votes cast. As FairVote concluded, based on its comprehensive analysis of all the recounts (consequential or otherwise) over a ten-year period, recounts tend to “change the margin by insignificant numbers.”

The problem for Stein and others hoping for game-changing recounts? The 2016 presidential vote totals do not turn on insignificant numbers. Current estimates indicate that in Wisconsin, Donald Trump is ahead by over 20,000 votes (equaling approximately 0.8% of the total votes cast); that in Michigan he is ahead by over 10,000 votes (approximately 0.3% of the total); and in Pennsylvania he is ahead by over 65,000 votes (approximately 1.2% of the total). The idea that standard-issue recount proceedings would flip the outcome not only in one of these states, but in all three, seems beyond the realm of possibility. This reality might help to explain why Marc Elias, the lead attorney for the Clinton campaign, has repeatedly insisted that “Hillary Clinton’s campaign didn’t want this recount and doesn’t think it will change anything.”

Some nevertheless have suggested that illegal hacking—rather than innocuous errors—might explain Donald Trump’s leads. Under this theory, the prior recount precedents are not on point. The trouble with this theory is that there appears to be no compelling evidence to back up the hacking claims—and under any of the states’ election laws, unsubstantiated theories about the possibility of hacking (or other forms of fraud) are far from enough to overturn the results. This is, incidentally, a very good thing; the democratic process is threatened by baseless accusations of election malfeasance.

In short, it seems close to certain that recounts in Wisconsin, Michigan, and/or Pennsylvania will fail to change the outcome of the 2016 presidential race. In making this assertion, it’s appropriate to acknowledge that many observers of the 2016 elections placed far too much faith in historical precedent and various forms of statistical analysis when predicting how the election itself would turn out. And it’s important not to do the same here. Still, given the wide margins in these three states (and the fact that a “recount” is, at core, simply a reconsideration and re-tallying of an already analyzed set of ballots), it really is hard to understand how the ultimate outcome of the presidential race possibly could be flipped.

This, finally, leads to the question of whether a separate effort—that is, the effort to convince sufficient electors, among those who were selected based on Trump’s statewide victories, to go rogue and vote for someone other than their candidate—has any chance of changing the result. Again, the magic number is 37; anything less than that, and Trump still has the 270 votes he needs. (And, to be clear, the 37 electors need to come from states that went for Trump; it doesn’t change anything if, for example, a Washington State elector carries through with his loudly proclaimed promise not to vote for Hillary Clinton.) Among the 306 Republican-affiliated electors who have signed up to vote for the Republican candidate, is it possible that over 10 percent of them will refuse, in the face of clear election results, to cast a vote in favor of their state's preferred candidate?

Such a development is not literally impossible, and it is true that at least one such elector (from Texas) already is refusing to vote for Trump. But this outcome again seems exceedingly unlikely. Remember that these electors are not random voters or dispassionate observers; quite to the contrary, these are people selected through Republican party apparatuses to be entrusted to vote on December 19 for the candidate selected by the party. Moreover, refusing to vote for Trump would not be the same as deciding, in a vacuum, which candidate happens to be the elector's preferred choice. Rather, it would require each of these political operatives to disregard the will of their own states’ voters, who just a few weeks ago voted not for Hillary Clinton, and not for some third party candidate, but for Donald Trump. To this end, it is telling that the Trump-averse elector from Texas will not be voting for another candidate on December 19; rather, he has resigned his position as elector, thereby allowing someone who is willing to vote for Donald Trump to replace him.

And here’s the kicker to all this: even if dozens of Republican-affiliated electors were indeed to refuse to vote for Trump, thereby reducing his total to under 270 electoral votes, even that likely would not stop him from taking office. Rather, the 12th Amendment requires that, in the absence of any candidate receiving 270 votes, the decision then go to the House of Representatives. Which will be Republican controlled. And which therefore, in all likelihood, would then vote for (you guessed it): Donald Trump.

What's more, as Ned Foley has pointed out, a bizarre and convoluted statute—the Electoral Count Act of 1887—very well may empower Congress to reject rogue electors’ votes even without the 12th Amendment backstop. Without getting too much into the (deep, disorienting) weeds, the Electoral Count Act seems to empower Congress to choose between competing claims over electors. In the face of Trump challenging votes cast by faithless electors, and with Republicans set to control both the Senate and the House, it seems highly likely that Congress would avail itself of this option.

Assuming (notwithstanding all indications to the contrary) that Congress would not take such a step, it is true that there does exist a route for avoiding a Trump presidency. In this scenario, at least 38 Republican-affiliated electors (note that an additional elector, in this scenario, would be necessary) would need to cast their votes for Hillary Clinton, rather than for Donald Trump, or for some other candidate, or for no one. At that point—again, assuming Congress simply were to accept such an unprecedented and controversial result rather than to resist it via the Electoral Count Act—that would bring Clinton’s electoral vote total to 270, and she would be entitled to the Presidency. A similar outcome would adhere if at least 270 (!) electors collectively broke ranks and voted for what faithless-elector advocates are referring to as a "compromise candidate." It is an understatement to say that neither of these developments seems practically or politically realistic, particularly when their success would require the tacit acquiescence of a Republican-controlled Congress.

I have one final point concerning the idea that sufficient electors might break ranks to change the outcome. In the exceedingly unlikely case that the scenario somehow were to come to pass, it is hard for me to imagine what the reaction might be from the approximately 62 million people who voted for Trump—that is, from the approximately 62 million people who voted for the candidate who seemed to have won the election but, as a result of faithlessness on the part of a handful of political insiders, suddenly lost the presidency. For those who suggest that this development could garner legitimacy—for reasons that purportedly are candidate-neutral—I would invite them to consider what their own reactions might be if the shoe were on the other foot. If an Election Night victory for Hillary Clinton, when set against the faithlessness of a relatively small number of electors, turned into a Donald Trump presidency, would they accept such a result? Do they really predict that Trump voters would?

All of this is not to say that these post-election efforts have no value. To the contrary, they constitute a protest of sorts by those who are deeply concerned about the results of the 2016 presidential election. Still, for various practical, political, and legal reasons, these efforts remain exceedingly unlikely to change which candidate, come late January, will be facing the Chief Justice with one hand in the air.

Posted by Lisa Manheim on November 30, 2016 at 03:19 PM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (7)

Sponsored Post: Learning Criminal Procedure

The following post is by Ric Simmons (The Ohio State University Moritz College of Law) and Renee M. Hutchins (University of Maryland Carey School of Law) and is sponsored by West Academic.

The ABA, employers, and students themselves tell us that law schools must do more to produce students who are better equipped to enter the practice of law.  The goal of complete practice-readiness might be something of a tall order.  True competence in even one area of the law may take five or even ten years to develop.  We have our students for just three.  But, there is certainly much more we can be doing to make our students what we will call “practice-primed.”  There are steps we can take during those three years to ensure that the students have the basic knowledge they will need as young lawyers.  There are things we can do to ensure students are exposed to a fuller array of the skills they will need in practice, not just the narrow range that has been the focus of more traditional approaches to the curriculum.  This is a large part of the reason we came together to write the Learning Criminal Procedure.

And, so many former students report back that they are using the book precisely as we intended:  First, as a learning tool to expose them to criminal procedure doctrine.  And, then as a desk reference to help them navigate the early years of practice as defense attorneys or prosecutors.

As a learning tool, Learning Criminal Procedure eschews the traditional method of law school teaching, which asks students to read cases and then derive the law by parsing through the court’s decisions.  Instead, the book presents the applicable legal rule to the students in the very first section of each chapter. The next section uses case summaries to explore the scope and policy behind the rule. The book takes this approach because it frees up class time for you and your students—instead of guiding them through the cases to eventually arrive at the rule, you can start with the rule and then use the text in class to engage students with the doctrine in the many ways students will see the doctrine deployed in practice.  For example, when teaching students about Terry’s stop-and-frisk doctrine, you might first work through each of the review problems that we present at the end of each chapter, allowing students to immediately apply the knowledge they have learned and use the law as a practitioner would.  After you have a sense that students have a preliminary grasp on the material, you can then do a deeper dive.  For example, you might explore one of the simulations mapped out in the Teacher’s Manual and require your students to use their newly acquired knowledge in the dynamic environment of role play.

As a desk reference, your students can use the book to refresh their knowledge and inform their thinking after they have moved out into practice.  The book’s clear organization and direct approach to presenting the law make it easy for new lawyers to refer back to the book when they have a specific legal question.  Indeed, former students routinely report back that the book has been essential to them as they bridge the gap between law school and the early years of practice.  Just the other day, a former student reported that his first draft of a response to a suppression motion had been adopted with few changes by the supervising attorney at the state prosecutor’s office.  “Your book was essential to that draft,” the student said.  Mission accomplished.

Posted by Howard Wasserman on November 30, 2016 at 09:31 AM in Article Spotlight, Blogging, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

What’s Going On?

While it has been fun for me to check news headlines against my data (of 109 divorce cases involving children from Marion County filed over 3 months in 2008), my law review articles resulting from this data look at how closely the Indiana courts follow legislative mandates and national trends on property division and child-related matters in divorce.

First in regards to property-related issues, Indiana has moved toward limiting spousal support, like other states.  According to the Indiana family law code, rehabilitative maintenance can be awarded for up to 3 years, or as long as the spouse can’t work due to a health issue or a child’s health issue.  Indeed, in my sample of divorce cases, only in 3 cases did a spouse receive spousal support.  This may be in contrast to many people’s expectations regarding alimony.  The Marion County courts also seemed inclined toward approximately a 50/50 property division, as the rebuttable presumption in the Indiana family law code requires.

Second, in regards to child-related matters, while the mother received primary custody in a bit more than half of the cases, there seems to be an effort to closely involve both parents no matter the custody arrangement.  In my data, visitation was very liberally awarded, as can be seen by the fact that many parents had a parenting time credit applied toward their child support, which aims to offset the child’s daily living costs during extensive visitation.  About 1/3 of cases had child support arrears, which is in line with difficulties in child support collection around the globe.

It’s been really interesting to see all this data to check against family law theories and headlines.  While it’s just one set of data, it’s been a useful glimpse into what’s going on today.

Posted by Margaret Ryznar on November 30, 2016 at 06:13 AM | Permalink | Comments (0)

Tuesday, November 29, 2016

Tools of the Trade

We don’t have many “tools of the trade” as law professors.  Last year, my daughter had to take “something mommy or daddy uses at work” to preschool for show-and-tell.  Given that my husband and I are both law professors, we were in a bit of a pickle: putting a 10-pound casebook in her tiny backpack seemed like a recipe for a back injury, and handing her a single piece of chalk seemed like a cop out.  We finally settled on a copy of the Constitution which was almost certainly underwhelming for the 4-year-olds in her class, particularly compared to what the other kids (with significantly cooler parents) brought in.  In my next life, remind me to be a paleontologist.

Her assignment made me reflect on the few tools that I do use and whether they are the best available for the job.  I’m currently working on the fifth article that I’ve written with Scrivener, the word-processing program and “project management tool” designed for long-form writing.  I made the switch from Microsoft Word about three years ago, and I haven’t looked back.  My sense (solely from reading Scrivener’s online discussion boards and talking to colleagues) is that the program is fairly popular with our counterparts in the social sciences and humanities, but that only a small – but extremely devoted – cadre of law professors has adopted it.

My writing process hasn’t changed much in recent years and Word always seemed completely sufficient for my purposes, so I was skeptical about whether learning a newer and more complicated program was worth the effort.  Within a month of switching, though, I had become somewhat of a Scrivener zealot among my friends and colleagues.  It has increased my efficiency and almost eliminated the typical shuffling of papers that writing a scholarly article entails.  Having the ability to organize and access my sources, outlines, drafts, and data all within one interface has been a game changer for me.

The Scrivener experience has made me wonder what other workplace tools I’ve been missing.  What’s been working for you?

Posted by Tracy Hresko Pearl on November 29, 2016 at 03:17 PM | Permalink | Comments (8)

Law, Social Activism, and Political Change

Since a few weeks ago I have been thinking more and more about social movements and the law. A few years ago, I published an article called The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics, published in the Harvard Law Review. I wrote it because I wanted to sound the alarm that progressive lawyers and activists were criticizing the law and the power of governmental institutions to bring change in counter-productive ways and at the same time, conservative social movements were in fact using the courts, the legislature and the executive branches in more effective ways. Here is the abstract. I might have written the article differently today but the core of it is still very much relevant to 2016:

The limits of law in bringing about social change have long preoccupied legal thinkers. A recent development, however, is that new schools of thought build upon the critical understanding of these limits to produce a body of literature that privileges in a variety of ways extra-legal activism. These writings present themselves as alternatives to the path of legal reform, avoiding the risks of cooptation and deradicalization which have been the fate of earlier legalistic activism. Three extra-legal focal points emerge in this literature: (1) a move away from professionalism to "lay lawyering"; (2) a move from the legal arena to an "autonomous sphere" of action; and (3) a departure from formal legal norms to softer, "informal" normativities. The article demonstrates how these recent developments are misdirected, as they draw erroneous conclusions from critical understandings about the cooptative risks of legal strategies. In particular, contemporary proposals of extra-legal reform strategies fail to recognize ways in which such alternatives are frequently subject to the same shortcomings they seek to evade by opting out of the legal arena. Linking historical examples of critical analysis of the labor and the civil rights movements to contemporary public interest literature, the article charts a more nuanced map of legal cooptation critiques, which include distinct claims about resources and energy, framing and fragmentation, lawyering and professionalism, crowding out effects, institutional limitations, and legitimation. The article argues that the contemporary manifestation of a critical legal consciousness has eclipsed the origins of critical theory, which situates various forms of social action on more equal grounds. The new extra-legal truism, which rejects law reform as a transformative path for social change, consequently risks reinforcing the very account that it sets out to resist - that the state is no longer able to ensure socially responsible practices in the 21st century economy.

Posted by Orly Lobel on November 29, 2016 at 02:05 PM | Permalink | Comments (0)

The return of flag burning? (Updated)

Donald Trump tweeted this morning (after the sun was up, so no 3 a.m. jokes to be had) "Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!" Jonathan Chait suggests this is misdirection to cover Trump's pending kleptocracy and the (from Democrats' perspective) extreme policy ideas of his cabinet members, a red-meat issue to rile up both his critics and supporters

But it raises the question whether a flag-burning amendment is coming in the new Congress and whether it might, finally, pass. The last time it moved to a vote was 2006, the last time Republicans controlled both houses and the White House; it passed the House and fell one vote short in the Senate. And that was without an unpopular Republican President making it into a thing. With a very different, more conservative Senate and a Republican president willing to making it an issue that appeals directly to his base, might the amendment finally get out of Congress? Plus, Republicans control both chambers in 30 states and Nebraska's unicameral legislature seems likely to go for it, given the state's politics. Are there seven more states to be had in a new political environment?

Another thought: Maybe Trump's target is not Barack Obama's legacy or Lyndon Johnson's legacy, but William Brennan's legacy.

Update: A number of Republican Senators and Representatives, including Mitch McConnell, reminded Trump that the First Amendment protects flag burning and the right to "disgrace" the flag. Of course, one could see many people pivoting from such "is" statements about flag burning to support an amendment that creates a new "ought." To his credit, McConnell seems more categorically opposed to messing with the First Amendment.

Second Update: What would the vote be if flag burning came anew before the current Court? The only current justice I could see ruling against flag burning being protected, based on recent First Amendment cases, is Justice Alito.

Third Update: I should add that, under the theory of departmentalism I have been espousing here and elsewhere, Trump's threats are constitutionally permissible and appropriate. If he believes flag-burning can constitutionally be punished, he is free to seek to prosecute, jail, or strip citizenship from those who burn flags. He will lose when he tries. But his actions are consistent with his oath and his Take Care obligations.

Posted by Howard Wasserman on November 29, 2016 at 01:51 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Five lessons on body cams

Elizabeth Joh (UC Davis) has this piece in Slate identifying five problems that have arisen with the implementation of police body cameras, which she turns to five lessons on the limits of technology to, alone, resolve problems. I especially appreciate points # 2 (do not adopt technology without also working out the regulatory details of how the tech will be used) and # 3 (rank-and-file police may, and have, resisted new technology). I have covered both in my writings on the subject.

Posted by Howard Wasserman on November 29, 2016 at 09:18 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, November 25, 2016

JOTWELL: Walsh on Bray on national injunctions

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Samuel Bray's Multiple Chancellors: Reforming the National Injunction, which uses traditional equity principles to critique the increasingly run-away practice of district courts entering nationwide (more accurately, universal) injunctions prohibiting enforcement of federal law against all persons in all places, beyond just the named plaintiffs. Amanda Frost reviewed the same piece for SCOTUSBlog.

And the timing is appropriate, as District Judge Amos Mazzant of the Eastern District of Texas did it again this week, issuing a nationwide injunction against the new Labor Department overtime regulations.

Posted by Howard Wasserman on November 25, 2016 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

What the what? Ben Carson to head HUD!

(And the real story of segregation, Detroit, AFFH, and busing)

Far be it for me to try to make rhyme or reason of Trump's cabinet picks(!), but while I wondered and worried last week about who he'd tag for HUD, Ben Carson's name didn't even come to mind. I hoped for someone like Pamela Patenaude or even former Senator Scott Brown, who instead now seems headed to be secretary of Veterans Affairs. And I worried that Trump would, instead, name someone like Robert Astorino, Westchester County Executive who has been long been fighting HUD on fair housing issues in suburban NY. Instead, we have Dr. Ben Carson, whose only experience with fair/affordable housing issues seems to be that he grew up in center-city Detroit. Carson is not a housing expert, but he has made a few discouraging (and fairly incomprehensible) statements on housing policy, for example in his 2015 op-ed in the Washington Times.

In his Washington Times op-ed, Carson calls HUD's AFFH rule "another failed socialist experiment" and draws parallels with mandated busing to de-segregate schools.  In his op-ed, Carson says that busing was a failure because (1) it did not improve school integration (the percentage of blacks attending majority black schools stayed essentially the same), and (2) was "unpopular among both blacks and whites."  Carson then states that mandated busing led to white flight because anyone with the means to do so moved to the suburbs "to escape mandated busing" which "contributed to a blighted inner cities in which poverty and school segregation became even more concentrated."  

What the what?

First of all, I'm pretty sure that Carson means "social experiment" not "socialist experiment" (and yes, Mr. Brain Surgeon, there is a big difference).  

As far as Carson's bizarre description of school busing and white flight, let's do a brief history lesson about segregation and busing in Carson's home town, Detroit.

Housing Segregation - and why we have it: Detroit is, and has long been, one of the most racially segregated cities in America (if not THE most segregated). As in other cities, segregation in Detroit was not just a naturally occurring social phenomenon. Rather, it is product of decades of deliberate governmental policies:  

  • The Federal Housing Administration actually created maps that disallowed lending in minority neighborhoods and then created a handbook to help neighborhoods keep their communities white (ahem..."financeable") by creating racial restrictive covenants.
  • At the same time as the federal government was teaching real estate professionals how to best discriminate, it was subsidizing white home-buying in white communities into the suburbs.
  • And local governments got into the discrimination game with use-based zoning laws designed to keep poorer populations "in their place" away from the more affluent, white communities.

White flight: Carson's decried "white flight" actually really started when the FHA (remember - the agency that would only lend to whites) established all sorts of policies and procedures to promote homeownership as "The American Dream," and then eased the burden of buying a home in the new, white suburbs. This is what started the trend of massive flight of whites from inner cities. So, yes, white flight was, in fact, caused by a social engineering funded and directed by the federal government, but the social experiment that caused this was the FHA policies of the 1930s-60s, not busing in the 1970s (to which Carson refers). (And since the federal gov't broke it, it has to buy it!)

During Carson's youth in Detroit (and in the decade before he was born), the demographics of the city profoundly shifted as whites fled to, but blacks were kept out of, new suburbs.  This all started with post-war industrialization, when black workers migrated into the city, much to the alarm of its white residents. White residents moved into white-only suburbs when blacks moved into the city, this move aided by federal funds with segregation provided by the FHA and local zoning boards.  Although it is true that banks, landlords, realtors, and wealthy homeowners had joined in a strong unholy alliance to keep minority households concentrated in high-poverty areas, it was the federal government who legally and financially established and enabled these efforts and for decades turned a blind eye to the horrific inequalities that resulted. 

Race Riots and Fair Housing:  When Carson was 16 years old, (1967), the Michigan Civil Rights Commission (the “CRC”) determined that 90% of the state’s nonwhite population lived in residentially segregated areas, having been “forced to live apart in urban ghettos.” (Note - This was BEFORE the busing that Carson mentioned in his op-ed.)  This was not a separate-but-equal situation: minority neighborhoods had vastly inferior and higher-rent housing.  The huge disparity in opportunity and quality of life that this intense segregation and inequity caused is what exploded in the deadly 1967 Detroit race riots (which, surely, Carson remembers since he was there and a teenager at the time). Michigan's fair housing legislation, enacted in 1968 just before the federal Fair Housing Act, was pushed through under the leadership of Governor George Romney (Republican) and attempted to address the huge social consequences of government (and private) housing discrimination. 

Fractionalization of Detroit and Busing Schemes: Detroit is cut up into small political subdivisions - the city proper and numerous small white suburban enclaves. This reflected the white-flight development patterns of the 1940s, 50s, and 60s, and was enabled by the home-rule political approach to municipal authority in Michigan.  Once the Fair Housing Act and Brown v. Board of Education became the law of the land, the Detroit region was legally required to affirmatively further fair housing AND integrate schools "with all deliberate speed." But if each small suburban enclave was its own school district, there would be no diversity in the schools at all. Furthermore, the predominantly minority areas would have far less resources (property tax revenues) to spend on schools (as well as more municipal fiscal demands). So the Detroit Board of Education passed an integration and decentralization plan that redrew school district boundaries in order to increase school population diversity, but a group of white citizens lobbied to recall the board members and got the Michigan State Legislature to pass legislation voiding the redistricting plan. This legislation also localized school districts and further fractionalized the metro area. 

The NAACP tried to fight back by filing a lawsuit claiming that the legislation was unconstitutional because it perpetuated historic segregation. The district judge agreed and struck it down. On appeal, the 6th circuit affirmed that holding and further held that since there was no longer a proposal on the table to redistrict in a way that increased diversity, Detroit metro area would have to engage in busing as the only possible way to fulfill Brown v. Board's mandate of school desegregation. (So the busing plan was NOT put into effect by HUD, Dr. Carson. Rather, it was the only option left to de-segregate schools after the housing de-segregation efforts flopped and local governments used home-rule to defeat school redistricting plans).  Not only was this busing plan unpopular (as Carson states), it was eventually rejected as not constitutionally required by the US Supreme Court in Milliken v. Bradley (1974).  It was the Supreme Court’s decision in Milliken v. Bradley that accelerated white flight, expanded the inner-city racial ghetto, and spelled the end of school desegregation in Detroit. 

FYI: Here's what I've said about busing and housing segregation (in an an upcoming law review article) "Admittedly, mandatory busing schemes are emotionally charged and politically difficult. So perhaps the problem could be better addressed directly, in terms of affirmatively desegregating housing. Instead of attempting to have a regional school desegregation occur through busing, integration of residential housing would achieve desegregated schools in a more natural way. Much like the issue of school segregation, the segregation problem in housing must be considered and addressed at the regional level, not individual by each small political subdivision. Localism in housing control must give way to fairness, sustainability, and fair housing (and fair schooling) constitutional mandates."

And now -- Back to Carson's Housing Op-Ed:

After his false statements and intimations re: busing and white flight, Carson criticizes the Affirmatively Furthering Fair Housing Rule of HUD as relying on a "tortured reading of the Fair Housing laws to empower HUD to “affirmatively promote” fair housing, even in the absence of explicit discrimination."  In fact, no tortured reading is required at all - the affirmatively further mandate has been there since 1968, in the original Fair Housing Act. 

The Fair Housing Act: The Fair Housing Act (and most state fair housing legislation) actually has two mandates. First, it outlaws overt discrimination based on a protected class (race, but also several other impermissible grounds). Second, it requires that local communities who receive HUD funding "affirmatively further fair housing." This second mandate was acknowledged and promoted by George Romney back when he became the Republican secretary of HUD (although he had to fight Pres. Nixon to do so).  Even now, affirmatively furthering fair housing remains not only the letter of the law but somewhat of a bipartisan issue in an era of party politics extraordinare. When some republicans (Sen. Mike Lee from Utah) tried to defund HUD after the most recent rule implementing the 1968 affirmatively furthering mandate, 13 Republicans crossed the aisle to vote down that measure.  

Carson, in his op-ed, characterizes the AFFH approach as a brand new approach, but of course that isn't true. This is a return to the actual mandate of the 1968 Act - a revival that took 50 years of struggle to achieve, sadly, because Washington hasn't shown too much concern with the intractability of racially segregated housing in our society - even though it is incredibly harmful. 

Housing segregation harms include, but are not limited to:

  1. de facto school segregation & disparate educational opportunities & outcomes for children of different races
  2. gap in achievement in school & graduation (high school) and college attendance
  3. gap in labor force participation rates & earnings
  4. high single parenthood in minority communities
  5. racial wealth gap and homeownership gap
  6. increased rates of infant and adult mortality in minority communities
  7. lower civi participation in minority communities
  8. increased incidence of predatory lending (and destabilized capital, housing, and financial markets )
  9. neighborhood decline, failing urban cores, and distressed neighborhoods w/vacant homes and high crime
  10. racial tensions and violence

etc. etc. etc. 

Detroit is the poster child for the public harm that housing segregation causes.  The city spun into an accelerating cycle of decline.  Loss of its wealthiest residents and their contributions to the city in which they worked (the city's per capita income fell 20% in the first decade of the 21st century and its population has fell by 25% during that time) ultimately led Detroit to declare bankruptcy in 2013 - the largest municipality to ever do so.   

Ben Carson to head HUD

Trump offered Carson the HUD position on Wednesday, and although Carson said that he wanted to ponder the offer over the long weekend, in a Facebook post today (and as reported on FoxNews and confirmed in online media late Thursday evening), it appears that Carson is set to accept the appointment. In his Facebook post (and can I just pause here to note how bizarre it is that we are quoting public figures' policy beliefs based on their social media postings nowadays), Carson states that "I feel that I can make a significant contribution particularly to making our inner cities great for everyone. We have much work to do in strengthening every aspect of our nation and ensuring that both our physical infrastructure and our spiritual infrastructure is solid."

Already many in the media have decried the selection of Carson for HUD.  (See this thoroughly articulated New York Times story, this snarky NY Magazine piece, this interesting piece from The Atlantic, and this Slate article suggesting that Carson will "lobotomize" HUD.)

It is hard to know what impact Carson's leadership will have on HUD. As I mentioned, he has zero experience in housing, and his sparse commentary on HUD and housing issues disclose a profound lack of understanding of history and the Fair Housing Act. Based on the cryptic statements in his Facebook post and his negative statements re: placement of affordable housing units in single-family suburbs, it may be that HUD under Carson will focus on repairing and improving inner cities (gentrification with an eye to desegregation, perhaps? We can hope), rather than efforts to integrate poorer minority housing aid recipients into white affluent suburbs. 

I nope that Ben Carson will not turn out to be a horrible choice for HUD. After all, he does have a personal background that should allow him to sympathize with and perhaps understand the challenges faced by declining urban cores - and it is hugely important to address inner cities in terms of infrastructure/community decline, rental affordability, and persistent segregation.  Maybe his anti-affirmatively furthering fair housing statements in that one op-ed merely are the result of his lack of knowledge of the issue and the Fair Housing Act. 

The New York Times article on Carson's appointment helpfully explains (to Carson, perhaps?) that the AFFH Rule actually is not some ill thought-out governmental meddling in local affairs. It states: 

"In practice, the rule provides those communities with detailed data on factors like racial demographics, poverty rates, school quality and housing voucher use to help them determine whether lower-income and minority families are isolated from good schools or segregated from opportunity. The rule requires communities to use that information to draft plans to reduce segregation where it exists. Those that habitually defy the requirements risk lose funding from the agency."

 

Our country is in the grips of a housing affordability crisis.  Fifty-year-old fair housing legislation has done little to de-segregate housing in the nation, and racial tensions continue to intensify.  At the same time, pockets of the nation (many city centers) are in steep decline. Even though under many Republican presidents, the HUD secretary was a throwaway appointment, Housing and Urban Development is actually a critically important Department in the government. I hope that Dr. Ben Carson is up to the job, I hope he studies and learns about both aspects of fair housing law as well as affordability and revitalization issues with an open mind. And I hope that in the next 4 years we can take a step forward when it comes to housing equity in this country, rather than take two steps back.

Posted by Andrea Boyack on November 25, 2016 at 01:33 AM in Constitutional thoughts, Current Affairs, Law and Politics, Property | Permalink | Comments (4)

Thursday, November 24, 2016

And still more restrictions on student-athlete speech

So the Harvard soccer and Columbia wrestling teams were suspended over the speech--private schools all, dealing with arguably "official team" speech. Then four ULL football players were suspended over a "fuck Trump" video--justified by some as occurring in the locker room and thus in the team context.

Now we have four Kansas cheerleaders suspended over a snapchat photo in which three male cheerleaders were photographed standing side-by-side in what appear to be intentionally-ugly Christmas sweaters with the Kansas "K," over the message "Kkk go Trump." (Photo after the jump). The female cheerleader/photographer insists someone took her phone and posted the picture; the mother of one of the men insists they were old sweaters.

The photo apparently was taken at a dorm party. It was not in the locker room, not part of an official team or university function, and not made in any team-wide forum or context. Moreover, the photo cannot be squeezed into any category of unprotected expression and reflects, albeit in a snarky way, a political message. So we now have a clear case of treating student-athletes differently than their non-athlete classmates for First Amendment purposes even when they are speaking as students and not as athletes.

The only justification is if student-athletes are employees who speak for and represent the university--a tough sell, given the rest of the NCAA's agenda (as a commenter on a prior post noted). And even employees (including university employees) do not speak in their employment positions at all times and enjoy something closer to ordinary First Amendment protection when speaking as citizens on matters of public concern. We long ago rejected the Holmesian idea that "There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman," at least as the First Amendment limit. We would similarly reject the idea that "There may be a constitutional right to speak, but there is no constitutional right to be a Kansas Jayhawk cheerleader." Somewhere there must be a point at which a student-athlete speaks for herself and not as the university, and thus cannot be stripped of her university position because of her private speech.

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Posted by Howard Wasserman on November 24, 2016 at 09:01 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Housing Bubble (Toil & Trouble)

The 2008 Foreclosure Crisis seems like only yesterday.  Surely we must still remember the lessons learned from the crash and will not again allow real estate prices to inflate above a sustainable level... right?  But here's a little chart that sort of scares me - note that we're at the top of the second peak in this roller coaster ride called the housing market:

Case-Shiller-SF-natl5-15

Yesterday the FHFA announced an increase to the loan limit for prime loans, with the new maximum home mortgage loan for one-unit properties set at $424,100 for 2017 (more in higher-priced markets). This is the first maximum loan dollar increase since 2006. Unless you follow real estate or are in the market for a large mortgage loan, you may not have recognized the significance of this increase. The Housing and Economic Recovery Act of 2008 prohibited any increase in the loan limit above $417,000 unless and until the average U.S. home price returned to its pre-decline level.  That hasn't happened until this year.  The FHFA just announced that "that average home prices are now above their level in the third quarter of 2007."  I guess we're back, baby.

In a way, it isn't that surprising that housing prices have been growing back toward their record peak levels, particularly in some parts of the country.  The government has done its utmost to help us "recover" from the market meltdown.  For one thing, the Federal Reserve has aggressively pushed down interest rates for the past several decades - and they keep setting a new record for "how low can you go?"   Such extremely low interest rates means very low cost of capital, and cheap capital makes it smart to borrow and stupid to save.  Is it any wonder that rational consumers borrow and borrow and borrow, and hardly ever save? (this chart shows interest rates over time - better version of it is here).

NEW-LISTY-FED-TARGET-Artboard_5

Now, some types of borrowing are more available than other types. There were times when anyone with a pulse could get a credit card, and for several years in the run-up to 2008, anyone who owned or wished to own a home could obtain a mortgage loan for nearly the entire sticker price or appraised value of the home. A little not-so-long-ago-history primer: easy mortgage credit fueled a buying and re-fi frenzy for homes that drove up prices, all premised on the idea that real estate values always go up. It couldn't last. It didn't last. 

While it has been popular during the past 8 years to blame lack of regulation for the Housing Crisis, I concluded back in 2010 that the low interest rates played a very key role (along with imaginary underwriting) in the out-of-control mortgage lending. Other analysts have agreed (see also here and here). The Economist is similarly skeptical that high housing prices indicate a booming economy, pointing out that "despite efforts to fix the plumbing of the American mortgage market, housing in the United States remains a dangerous menace to the world economy" and explaining that soaring property prices in America are "underpinned by low interest rates."

The "bubble" that we now find ourselves in is different. For one thing, mortgage credit has become more difficult to obtain, due in part to the (somewhat) more attentive FHFA underwriting approaches, the (slightly) more stringent requirements for loans to qualify as prime, and the (marginally helpful) disclosure obligations mandated by the CFPB.  But if you can get a home loan, it's cost is still very low because of low interest rates. Cheap capital enables rising prices.  Another thing that is arguably different this time around is that the supply of homes has not increased as quickly as previously, and in some parts of the country, shortage of supply may be helping to prop up property sale prices (see CNBC story here). 

The Trump win, analysts believe, will lead to multiple increases in these record-low interest rates, policy makers have indicated that this could happen in December 2016, and bank stocks have brightened at this news (after initially falling, Wall Street rallied after Trump's unexpected victory - see story here). Of course, the Fed had previously promised to raise interest rates this year, but that has not really happened (see NY Times story here).  If interest rates really do increase (and I tend to think they finally will, see Wall St. J article here), will this cause housing prices to drop in 2017? Would that necessarily be a bad thing?

For more stories re: Housing bubble 2.0, the 2016-17 edition, see herehereherehere and here.  Some of these are major news outlets, others more fringe-y, but they raise issues that those of us who watch the housing market with baited breath should not ignore.

Posted by Andrea Boyack on November 24, 2016 at 12:55 AM in Corporate, Current Affairs, Law and Politics, Property | Permalink | Comments (0)

Wednesday, November 23, 2016

Another random predictor: Ending sports droughts

Returning to random sports-related electoral predictors: It occurred to me that there is a correlation between teams (in all sports) breaking legendarily long championship droughts and Republican electoral success. Consider:

1980: Philadelphia Phillies win their first World Series, becoming the last original/non-expansion team to win a Series. Ronald Reagan wins the presidency, beginning the political regime in which we still find ourselves.

1994: New York Rangers win the Stanley Cup for the first time since 1940, a 54-year drought. Republicans take the Senate and the House (for the first time since 1954) in the Gingrich Revolution.

2004: Boston Red Sox win the World Series for the first time since 1918, an 86-year drought. George W. Bush reelected, surprising many pollsters and commentators.

2010: Chicago Black Hawks win the Stanley Cup for the first time since 1961, a 49-year drought. Republicans reverse most of the Democratic gains of 2006-08, retaking the House, closing the gap in the Senate, and ending Barack Obama's opportunity to achieve anything through the legislative process.

2016: Chicago Cubs win the World Series for the first time since 1908, a 108-year drought. And we know what happens in the election.

This is nothing we could use as a regular predictor, since legendary droughts are not broken that often. And, of course, we have to figure out how long or how much attention must be paid to make a championship drought "legendary." Still, the correlation is interesting.

Can people think of other examples? Are there counter-examples, in which some significant streak was broken and the Democrats achieved electoral success?

Posted by Howard Wasserman on November 23, 2016 at 09:03 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (2)

(Last) Fact or Fiction: Is It Really Over?

Almost exactly two years ago, I posted to this blog a tearjerker shampoo commercial in China that ended with the statistic that approximately 100,000 couples reconciled in the previous year out of 3 million divorces, or 3.33%.

Indeed, there are a lot of songs about this.  For example, the Sugar Ray lyrics go something like, “When it’s over / That’s the time I fall in love again.”

So, is it really true?  What chance does Brangelina have?  These questions burned in my mind, and so I looked into my data from 109 divorce cases involving children that were filed in Marion County in 2008.

Is there hope for reconciliation? 

Don’t hold your breath.  Only 4 couples in my sample of 109 divorcing couples reconciled at some point, or, 3.67%.  This is very similar to that Chinese statistic.  Coincidence, or the universality of human nature?

Posted by Margaret Ryznar on November 23, 2016 at 02:22 AM | Permalink | Comments (0)

Tuesday, November 22, 2016

Happy Thanksgiving

And good luck dealing at dinner with your sober liberal nieces and nephews who voted for Clinton (or, more likely, Jill Stein, which is partly why we're in this mess).

Posted by Howard Wasserman on November 22, 2016 at 03:31 PM in Howard Wasserman | Permalink | Comments (4)

Shop 'Til You Drop

This week, millions of Americans will wake up early to overindulge, squabble with those in close proximity, stare at television sets, and test the elasticity of waistbands.  I’m talking, of course, about Black Friday.  If you plan to be amongst the hordes descending upon your local mall or big box retailer, I urge you to take precautions because, as I have argued here and here, neither statutory law nor the civil justice system will protect you from a surprisingly common source of injury in this country: crowd crush. 

There is not a single law in any jurisdiction within the United States that requires anyone planning a large-scale event to prepare a comprehensive crowd control plan.  Currently, event organizers and venue owners need only comply with local fire code and sanitation regulations which are, at best, very weak stand-ins for proper – and well-proven –  crowd management techniques.  Beyond that, these entities may choose to employ additional crowd control tactics (which can range from the fairly ad hoc to the extremely sophisticated) or do virtually nothing at all.  My research suggests that, overwhelmingly, entities choose to do the latter, trusting that the presence of law enforcement alone will be enough to prevent stampedes and crushes.  It’s not.  (For an excellent, but devastating, look at the consequences of leaving the responsibility of crowd control to law enforcement, I highly recommend the “Hillsborough” episode of ESPN’s 30 for 30 series, currently available on Netflix).

Experts estimate that somewhere between 5,000 and 10,000 people are injured in the United States each year by the forces of the crowd around them.  People are suffocated, stepped on, crushed against barriers, and violently bumped and jostled at nightclubs, concerts, sporting events, and, yes, Black Friday sales.  Most often, these injuries occur in small numbers, but, occasionally, mass injuries and fatalities occur.  (Check out this video to see the start of a 2010 crowd crush in Los Angeles that injured over 200 people).  These incidents date back almost a hundred years, and yet we have done almost nothing to get a handle on the problem.

As I argued in my first article about this issue, courts have overwhelmingly mishandled crowd crush cases, making it extremely difficult for plaintiffs to recover.  Rather than relying on the fairly robust body of crowd science that is available (and that amply shows both (a) that crowd crush injuries are foreseeable in many situations and (b) that even very inexpensive and simple precautions on the part of venues and organizers can virtually eliminate the risk of such injuries), courts have fallen back on conventional wisdom about crowds, over-relied on compliance with posted capacity numbers to assess the adequacy of crowd control measures, and blamed victims themselves for poor behavior or for assuming the risk of injury.  State legislators, in turn, have succumbed to pressure from the entertainment industry to keep events jam-packed and have thus failed to pass laws that would mandate even very basic crowd control measures. 

So what is a deal-seeker to do? I recommend staying at home and waiting for Cyber Monday.  If you can’t resist the lure of low prices and choose to brave the wild and wooly world of your local big box store, avoid the initial surge of the crowd into the venue.  Crowd crush injuries are most likely to occur while entering a venue.  You may miss out on that deeply discounted PlayStation (there were only 5 of them available, anyway), but you will greatly reduce the risk of dropping before you shop.

Posted by Tracy Hresko Pearl on November 22, 2016 at 11:08 AM | Permalink | Comments (0)

Monday, November 21, 2016

They're Coming for Your Cars...

A little over a year ago, as I became fully immersed in my research about driverless cars, I had a conversation with a colleague in which I managed to convince him (I think) that mass adoption of fully driverless vehicles will be an overwhelming net positive for society.  I talked about how these vehicles will dramatically improve highway safety, reduce traffic, increase productivity, and enhance the independence of disabled and elderly individuals.  As the conversation wound down, however, he noted that, despite everything I had said, he would always love driving.  He asked whether, once fully driverless cars are widely available, he would still be able to drive his own car.  I quickly reassured him he would always be able to do so, but as we parted ways, I questioned what I had just told him.  If autonomous vehicle advocates are correct about the dramatic safety gains fully driverless cars stand to offer, might the government eventually outlaw human-driven cars on public roads?  

The more I research and write about this topic, the more I’m convinced that (eventually) the government both will and should.  After over a hundred years of human-driven motor vehicles on U.S. roads, the data is clear and abundant: taken as a whole, human beings are pretty terrible drivers.  According to the National Highway Transportation Safety Administration (NHTSA), 94% of all driving accidents are caused by human driver error.  We drive drunk, fall asleep at the wheel, make bad decisions, fail to react quickly enough, steal right-of-ways, miss the cars in our blind spots, and panic when it rains or snows.  One recent study, moreover, found that 7.8% of drivers on the road at any moment are texting or using a hand-held phone.  The impacts of these driving deficiencies are staggering.  Each year, motor vehicle accidents kill approximately 33,000 Americans, the equivalent of a major plane crash happening five days a week.  There are several million more non-fatal accidents. 

Although the technology is improving and advancing at a fairly blistering pace, there is still a lot of work to be done on fully driverless vehicles before we can say with any level of confidence that they are definitively safer than human-driven cars.  That time, however, is coming, and when it does, experts predict that the safety benefits and reduction in injuries and fatalities will be profound.   Indeed, researchers believe that if even just 10% of the motor vehicles used in the U.S. were fully autonomous, 1,100 fewer people would die on roadways each year.  At 50%, 9,600 lives would be saved and 2 million fewer traffic accidents would occur annually.  At 90%, 21,700 lives would be saved and there would be over 4 million fewer crashes each year.  At that point, one of the most significant public policy questions will be whether we are willing to continue tolerating the risks created by human drivers.  I don’t know how anyone can look at the long history of motor vehicle accident statistics and say, in good faith, that we should.

One of the great questions posed in torts is when a given precaution should be adopted as the standard of care such that those who fail to adopt it can be found to have breached a duty.  In everyone’s favorite tugboat case, The T.J. Hooper, Judge Learned Hand says, essentially, that it doesn’t matter that everyone in an industry has been doing something one way for a very long time, adherence to custom shouldn’t be the final word on whether someone has been negligent.  As technology improves, individuals and companies are obligated to make changes when doing so would greatly reduce the chances of injury, particularly when the burden of making those changes is low.

Switching from human-driven to fully driverless cars is certainly more burdensome than installing weather radios on boats, the issue in The T.J. Hooper, but with significant numbers of car manufacturers actively developing autonomous versions of their vehicles, fifteen or twenty years from now, it may be the case that driverless cars are just as accessible and affordable, and significantly safer than human-driven ones.  When that’s the situation, might the choice to drive your own vehicle be a negligent one? Should the government take that choice away from consumers altogether? 

As I noted above, as the technology improves (and human driving presumably doesn’t), I think the answers to those decisions will become fairly clear.  The question is whether public acceptance of these new technologies will keep pace with their development.  Will members of the public embrace their new motor vehicle robot overlords and the safety benefits they offer or, forty years from now, will there be a protester standing on the steps of the Capitol, holding up a steering wheel and proclaiming, “From my cold dead hands”?  And, with driving-related fatalities being what they’ve been, might members of the opposing movement respond, “Exactly”?

Posted by Tracy Hresko Pearl on November 21, 2016 at 10:35 AM | Permalink | Comments (17)

Fact or Fiction: Women More Likely to File for Divorce

The holiday season brings about a lot of divorces in the New Year.  Often, it’s because either people delay divorce in order not to ruin the holidays, or they spend so much time together that they realize it’s over.  

There has been much said about the fact that it is women asking for divorce.  The speculation is that women become unhappier and benefit less from marriage than men, often due to the traditional gender roles that set in after marriage.  Interestingly, men and women are said to end non-marital relationships at an equal rate.

So, is it true that most divorce initiators were women?

You bet.  In 79 of the 109 divorce cases in my data set consisting of several months of divorce cases from 2008 in Marion County involving children, the wife filed for divorce.

Only 7 of the 109 divorcing couples had adultery in the marriage and only 7 of 109 couples had drug or alcohol issues. 

Posted by Margaret Ryznar on November 21, 2016 at 07:52 AM | Permalink | Comments (7)

Saturday, November 19, 2016

2016 Election and random predictors

Apparently it was not only the polls that were fooled in this election. So were the random predictors/correlations, sports-related and otherwise.

1)  The World Series was wrong: A Republican won the presidency despite a National League team winning the Series. This is the first miss of the 21st century. It is now 17/28 overall, 12/18 since the end of World War II.

2) A twist on the World Series connection: In 8 of the years in which the Series winner predicted the election winner, the World Series went seven games. And those represent all 8 times a World Series had gone seven games in a presidential election year prior to 2016. The one time before this year that a Series went the distance without predicting the winner was 1912; that Series went 8 games (one game ended in a tie), with the AL Red Sox winning the Series and Democrat Woodrow Wilson winning the presidency. Seven-game Series are now 8/9 as a predictor.

3) Irony alert: The first World Series played in a presidential election year was 1908 (the World Series began in 1903, but was not played in 1904), when Republican William Howard Taft was elected. Which, of course, was the last time the Cubs won the World Series before this year. So we can look at this two ways: 1) When the Cubs win the World Series, a Republican wins the presidency, or 2) the Cubs just screw up the World Series/president connection.

4) The Washington Professional Football team was wrong. The team won its final home game before the election (beating the Eagles on October 16), which usually means the incumbent party retains the White House. This is now 17/20, although it has missed the last two years (the WPF lost its final home game in 2012, but the Democrats retained the White House).

5) Harvard and Yale were right. Yale beat Harvard today, which correlates (ex post, since the game is almost always played after the election is over--2000 was the lone execption) to a Republican president. This is now 21/33 historically, 10/13 since 1968, and 9/10 since 1980.

6) Finally, a semi-sports one: My daughter's Reform Jewish day school went overwhelmingly for Clinton. Looking at the schools attended by her seven basketball teammates (among whom the election was a regular subject of conversation between shooting drills): a Conservative Jewish day school, a public school, and  a secular private school went strongly for Clinton; an Episcopal school went close for Clinton; and two Catholic schools went for Trump. Make what you will of those last bits of information.

Posted by Howard Wasserman on November 19, 2016 at 05:41 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)

Another View of Hamilton's "Politics"

Dan Filler has an interesting take on the Pence-Hamilton pseudo-event (in Boorstin's terms). He notes a debate among "progressives," a term that still begs for definition and certainly does not necessarily mean leftists, about whether the actors' action was strategically wise or not. And he argues that we should treat "Hamilton as a piece of explicitly political art, not an anodyne feel-good musical about a founding father." I note that there need be no conflict or contradiction between the two, and I doubt there actually is in the case of the Hamilton musical. 

Perhaps I am too mired these days in my interest in social class, in the frequent cluelessness of my own class (I mean that generally, not about Dan, and I mean it at least as much about myself), and in what I will, with some deliberate provocation, call the "actual" left as opposed to liberals and progressives. But I had a somewhat different take on the politics of Hamilton and of this episode. (As a purely practical political matter, I think Jack Shafer is probably wiser than both of us in this case.) I shared it on Facebook, not here, because one can be slightly freer on Facebook and because law professors, for bad reasons and with bad consequences, are always fascinated with other law professors' politics and eager to make shallow assumptions about them, of the "supports X so must be liberal, supports Y so must be conservative; therefore a wonderful/terrible person" variety. (We are not always subtle thinkers, especially about politics.) Clearly it was wiser to post it there than here. But what I wrote fits so nicely as a counterpoint to Dan's post that I cannot resist posting it here as well, with a few of the expletives deleted:

Now that I've read the actual statement [made by the actors], it doesn't seem like a big deal. Of course the "we" is contestable, but almost every invocation of "we" in the American context is a rhetorical and political statement that involves contestable definitions, identifications, and usually inclusions and exclusions. People may agree or disagree with particular such assertions but should always understand them as political and not statements of fact. There is a broader question whether we should care what paid performers have to say, any more than I'm especially interested in my barista's view on agricultural policy. But except for the possibility [I would say here, the certainty] that caring too much about what celebrity performers have to say is a sign of a weak democracy and politics, I don't object to actors and singers and baristas having opinions. Even if I did, there's not much I can do about it.

Then there's the broad question whether we should be concerned about the politicization of the consumer marketplace, of which theatrical enterprises are one sector, just as Wal-Marts are another. But expressive businesses, like theaters and wedding photography businesses, are often involved in politically significant expression and should be able to use or not use their voices accordingly. Plus, this was a seemingly unusual and good opportunity.

What I find slightly more interesting and, given what I know about the political self-satisfaction of the class of people that can afford tickets to Hamilton, less likely to be noted outside of actual left or right circles, is what the decision to speak once necessarily implies about all the decisions not to speak. Every day, especially given both ticket prices and the nature of its audience and cultural appeal, Hamilton plays to an audience of neoliberals, militarists, wielders of economic power, beneficiaries of massive corporate corruption and economic and political inequality, people who exploit connections in a relatively closed circle of the rich and powerful, etc. And those are just the nights when Hillary Clinton catches the show! A substantial part of its consumer base and business model is brokers, corporate lawyers, legacy admits to the Ivy League, executives, managers, investors, media elites, and so on. Its audience base is people who can afford to complain about the help, or praise their nannies (who they may or may not pay well or legally), not the nannies themselves. No doubt the regular audience could do with a pointed extra-script lecture or two as well! But that would be bad for business, and disturb the audience-validating, as opposed to audience-challenging, function that is the essence of musical theater. None of this yet reaches Hamilton Inc.'s cozy relationship to President Obama, and the mutual benefits and ego-stroking that were involved in it. Maybe the PBS documentary cut this part out, but I don't recall the actors at the White House performance of Hamilton breaking script to say, "Mr. President, we, sir--we--can't help but notice that you have raided and deported the hell out of undocumented immigrants in record numbers. Also, what the [deleted] is up with the drones, or Syria, or...." I suppose that actually would have been seen as rude in people's eyes. But once you start picking and choosing your exceptions and special occasions, of course you are making a political statement, conscious or not, about all the morally complicit and dubious audiences you are happy to flatter, the number of questionable actions--deportations, assassinations, killings, etc.--you are willing to "normalize," and so on. 

Again, I think the actual remarks to Pence were far from harassing or rude, and he belongs to what I expect to be an unusually awful and dangerous administration, and so it's not a big deal for me. It runs mildly against the usual protocol of respecting the office and generally being nice to guests, but the remarks were mild and polite. But Hamilton itself should be understood as being closer to a fundamentally conservative bourgeois enterprise and not to some actual left or even especially vigorous progressive endeavor, except by those who are bemused and bedazzled by identity politics. If it were otherwise, it wouldn't be such a big hit in the first place.

 

Posted by Paul Horwitz on November 19, 2016 at 04:10 PM in Paul Horwitz | Permalink | Comments (0)

Friday, November 18, 2016

Fact or Fiction: Firstborn Daughter = First Signpost on the Road to Divorce?

To celebrate my forthcoming series of empirical family law articles, my next few blog posts will use my data to prove or disprove salacious news headlines about family law.  My data is based on 109 divorce cases filed by couples with children in Marion County, Indiana (which includes Indianapolis) for 3 months in 2008.

Let’s start with the headline story that couples are more likely to divorce if they have a firstborn daughter instead of son.  At first, this caused speculation that daughters were less valued and less likely to keep people in a marriage.  Then, a study suggested that, in fact, female embryos were hardier than male ones, being able to withstand a stressed mother due to a tumultuous marriage.  Thus, girls were more likely to be born to a bad relationship already on the road to divorce.

So, is it true?  Was I able to replicate that more divorces occur when the firstborn is female?

Yes, indeed.  62 of the 109 divorcing couples in my data had a firstborn daughter and 36 had a firstborn son (although I am missing gender data in 11 cases).  Among these 36 divorcing couples who had a firstborn son, 14 had a daughter as the 2nd or 3rd child.

So, having your firstborn be a daughter sure seems to indicate a higher chance of divorce.

Posted by Margaret Ryznar on November 18, 2016 at 07:42 PM | Permalink | Comments (6)

Remarks on "The Future of Religious Liberty" at the Federalist Society's National Lawyers Convention

I participated yesterday in a panel discussion on "RFRA and the Future of Religious Liberty" at the Federalist Society's annual National Lawyers Convention.  After noting that recent events had dramatically undermined any confidence one might have in my ability to say anything useful about "the future", I briefly discussed "one big-picture idea, two reasons for cautious optimism, and three causes for concern."  

The big-picture idea (such as it is) was this:  In any society where there is (a) religious and moral diversity and (b) an active, regulatory welfare state, there will -- necessarily -- be conflicts and tensions between (i) duly enacted, majority-supported, generally applicable laws and (ii) some citizens' religious beliefs and exercise.  What Justice Jackson called "the uniformity of the graveyard" is not an attractive way to manage these conflicts and tensions; the toleration-and-accommodation strategy, however, is.  RFRA-type laws are, in my view, effective and workable mechanisms for carrying out the latter strategy and so, yes, I think such laws are and should be part of the "future of religious liberty."

The two "reasons for cautious optimism":  First, the (unanimous) Hosanna-Tabor case shows that the Court recognizes that religious freedom is not entirely about "balancing interests" but also imposes, in some contexts, real limits on the government's ability -- even when its pursuing important goals like reducing employment discrimination -- to interfere with individuals' and institutions religious decisions.  Second, as the (unanimous) Holt case (among many others) illustrated, outside of a few well-known cases (e.g., Storman's) and hot-button-issues (e.g., wedding ventors), religious-liberty claimants are very often winning.  The Becket Fund, etc., and the Department of Justice, do a lot of good work.

Next, three causes for concern -- that is, three demographic, cultural, and sociological facts and trends, or three things about the culture (and "law is downstream from culture") that were true before and are still true after the election:  (1) the "rise of the nones" presents the danger that fewer people will see themselves as having a "stake" in the religious-freedom issue (when, in fact, we all -- whether or not we are religious -- do); (2) the relative decline in the role and footprint of religious institutions and communities (whether because of scandals, or atomizing individualism, or something else) reduces a sense of solidarity and makes it more difficult for people to resist incursions on religious liberty when they threaten; and (3) the increasing willingness of the government to shrink the civil-society space and to expand the "public" sector, by leveraging its licensing, accrediting, spending, grant-making, taxing, contracting, and social-welfare functions -- that is, by using conditions in addition to regulations to affect non-state actors' practices.

Then followed a lively discussion!

Posted by Rick Garnett on November 18, 2016 at 12:40 PM in Religion, Rick Garnett | Permalink | Comments (0)

What Next?--Part II: Avenues of and (Mostly) Revivals in Legal Scholarship

This post on "what to do" in response to the election of Donald Trump is long but shorter than my last. It involves more easily attainable and less disruptive action, but also has little if anything to do with real-world impact. I ask here what I would like to see in the next few years by way of responsive legal scholarship that is more or less in my field.* I'll dispense with the easy stuff first and relatively quickly, then add a few suggestions about what I would like to see, and one more suggestion about what one might see. Either direction would be interesting in its own way.

It is obvious and therefore uninteresting that one may expect an uptick of interest in separation of powers and federalism. A couple of conservative legal scholars have idly wondered, on blogs and listservs, whether their calls during the last eight (or eight-plus) years for limits on presidential power, and their interest in a vigorous separation of powers and federalism, will get more respect now that the shoe is on the other foot in a rather dramatic way. My prediction on that point is somewhat depressing and perhaps too cynical. I certainly think there will be an increased interest in these positions. But I doubt somewhat that mainstream liberal law professors will draw heavily on the work of conservative legal scholars who have made even relevant and helpful arguments along these lines. I think they are more likely to draw on the existing conservative literature a little, but much less than one might expect. Instead, they will adopt a mix of the following: invoke work from past eras when progressives favored such measures; write pieces advocating separation of powers, a more restrained or constrained executive, and federalism on the basis of their own existing work and methodology, drawing on the strands that would advance the Trump-resisting project, even if and when the bulk of their conclusions in that past work runs in the other direction; give more attention and more favorable and extensive treatment to federalism- or separation-of-power-favoring liberal scholars, like Heather Gerken, than they may have up until now; and, per the usual methods of many legal scholars, treat whatever they are writing in this new political direction as "novel" or the "first" to advocate this or that, sometimes because it really is novel but more often out of genuine and/or phony amnesia. As I say, all this may be too cynical. But I do expect existing arguments from legal conservatives along lines that might restrain Trump to get less attention than one might expect. Citation and prestige networks will remain more or less as much (or as little) of a closed loop as they always are. 

I wrote here a while back, before the election, wondering whether a Trump election might presage a revolt within the civil service. I also touched on it yesterday in my post, in which I suggested that one possible response of law professors in light of the election would be to go to work as government lawyers and civil servants in the Trump administration. I do think the ground-level mechanics and sociology of the civil service, and modes of bureaucratic entrenchment and resistance to the chief executive, overt and covert, will become a growing topic of interest, which is a good thing. (One hopes people will also write about the potential long-term consequences of such a model.) In addition to the couple of things I linked to in my earlier post, check out this online piece, rather confirmatory of my general prediction, by Jennifer Nou in the Yale Journal of Regulation blog, on "Bureaucratic Resistance From Below."

A pivot between the more and less obvious things I would like to see in legal scholarship over the next few years is the possibility of a more widespread interest in things like legal pluralism, mediating institutions, and subsidiarity. That is good news for those whose excellent books on First Amendment Institutions would make a superb Thanksgiving or Christmas present. I cannot say I would have predicted this on my own. But when The New Yorker--the New Yorker! home of generalized cosmopolitanism and attachment to centralized government!--suddenly expresses a post-election interest in Charles Taylor and specifically in subsidiarity, muses that subsidiarity could help us "get a grip on our political selves, and be less inclined toward nihilism on the national scale," and titles the piece "How to Restore Your Faith in Democracy," one gets the hint that something is up. I don't want to overstate this prediction. Based on what I have seen of about half of the current political commentary, it is just as likely that scholars of a political hue will simply argue more forcefully--and more successfully this time, or so they will swear--for more of the same. But I do think there will be some increased interest in things like legal pluralism and subsidiarity, in quarters that have in recent times been somewhere between uninterested in and forcefully opposed to these ideas. 

Let me suggest three other topics or approaches I would like to see more of in the next couple of years. They're all offered sincerely enough, but since I'm interested in and working on all three things and have been for some time, my vision may be distorted by my own preferences. I deal with them after the jump, so here's a list: 1) Critical Legal Studies; 2) Robert Cover's "Justice Accused" book; and 3) social class. I'll wrap up with the possibility that, instead of any of that, mainstream legal scholars will either stick with the same-old same-old or, more strikingly, return to the conventional views of earlier and seemingly superseded generations of scholarship.  

The first possibility I'm interested in is a revival of interest in Critical Legal Studies. To the extent that that school was viewed as an organizing mechanism for thinking about resistance to a conservative (or "Liberal") status quo and saw the left (as opposed to mere liberals or "progressives") as operating from a minority position against the prevailing tide, it would be a natural time for more people to pick up an interest in it again. To the extent that the election causes a few liberals to focus more on class issues, on the legitimating effects of the current system, and on the degree to which establishment liberalism, including establishment liberal legal scholarship, partakes of these problems and structures, again this would be a natural school to focus on and revive.

Since most legal academics are establishment liberals, one shouldn't overstate the degree to which they will suddenly become interested in formerly-outre left theory. I think they should be interested in it. I have seen a fair amount of recent liberal legal scholarship that really does seem to recapitulate, in its unthinking doctrinairism and unquestioning use of contestable premises, everything the Crits wrote about and against, while operating at a fairly high level of either bad faith and denial, or amnesia. I think CLS scholarship and thinking would be worth reviving even if--perhaps especially if--the establishment liberal had won. A CLS revival certainly wouldn't have happened in that event. But at least a little revivalism is more likely now. (I'm currently working on--and tragically behind on--a piece about CLS, although it has a somewhat different focus.)  

The second, more specific item is a renewal of interest in Robert Cover's classic book Justice Accused: Antislavery and the Judicial Process. That book, which asks what a judge should do "when he must hand down a ruling based on a law that he considers unjust or oppressive," will be or seem to be of renewed interest under the current regime. And the questions it asks will be of particular interest not with respect to judges, but with respect to the mid- and lower-level government officials and civil servants I mentioned earlier. (Cover's book is of interest to me because of a long-term project on oaths and the Constitution. It remains decidedly long-term as a project. But one might expect increased interest in that general topic as well.) 

Finally, it would be nice to see an increased interest, within legal scholarship, in social class. (Final self-serving note: I'm under contract and working on a book--and, again, woefully behind on it--about social class and the American legal academy.) Certainly that topic came up, in various ways (including self-critical ones), in the Crit literature. And the ClassCrits remain interested in it, although I don't sense that they currently have a huge audience. And both the facts on the ground in the past decade and the popularity of the Piketty book have caused an uptick of interest among legal scholars about economic inequality. But that interest doesn't necessarily translate into an interest in social class as such. (A recent symposium issue of the Texas Law Review, some of which is directly about class but much of which is not, is illustrative of this point, I think.) I know a couple of rising and established legal scholars are interested specifically in social class and the law. Given one of the possible lessons of the election for members of the establishment or elite, I expect and hope that this topic will become more popular. One might well start with a recent commentary by law professor Joan Williams, who to her credit has been working on these questions for a long time.

I suggested above that mainstream, establishment legal liberals might not take a sudden interest in the Crits, and wrote that liberal "scholars of a political hue" may simply follow a substantial number of their establishment confreres in politics and political commentary and "simply argue more forcefully...for more of the same," a prospect nicely captured here. So one possibility is that nothing much will change by way of thinking, scholarly agenda, methodology, or jurisprudence among the legal liberal mainstream, elite or otherwise, although naturally some of the current issues will change. From a political and--perhaps more important for many legal academics, if less openly acknowledged--a professional standpoint, that may turn out to be perfectly sensible, even if I personally think it would be unfortunate.     

Another, more intriguing, possibility is that liberal legal scholars will instead turn to arguments and approaches from the past--arguments and approaches that in many cases have been superseded, or criticized in the intervening decades, to the extent of being pronounced dead. Much of that will depend on the precise state of play of the federal judiciary. But maybe we will see everyone suddenly writing straight doctrinal work (or more straight doctrinal work, since there has already been an uptick in doctrinalism), or invoking and acting as latter-day followers of Bickel, Wechsler, or Ely. The uncertainties of the 1970s brought us Happy Days. The current situation may bring us a revival of the Greatest Hits of Past Liberal Legal Scholarship. If this happens, it would be especially interesting if scholars writing in this re-mined vein do so un-self-consciously and as if the critiques of the past few decades didn't exist. But even if they are more self-aware than that, as times change we will inevitably end up recapitulating whole earlier histories of argument, thrust, and counter-thrust, although faster and perhaps more farcically.    

* I deal mostly with general constitutional law and theory here. I don't address my own sub-field of law and religion. I have some ideas of what might happen here, but not much. Per my post yesterday, my answer on that question is "I don't know yet." 

Posted by Paul Horwitz on November 18, 2016 at 12:22 PM in Paul Horwitz | Permalink | Comments (1)

What if the press is only a bulwark of its own liberty?

One reason many people (including me, I admit) believed Donald Trump would not win the presidency was that political institutions designed to protect against untruthful authoritarians and demagogues would expose him and his lies and his threats to American liberty, and the public would take heed. Chief among these was the institutional media. That did not happen, for a variety of reasons that people will be writing about for many years, especially if the Trump administration goes as badly as many fear.

But one idea floating around is that the election exposed a fatal flaw in the narrative of the press as bulwark of liberty: It cares about  its own institutional liberty and stands up only against threats to that liberty. But where the threat is directed elsewhere (e.g., Muslims or Mexican immigrants or his political opponents or African-Americans or the rest of the world), the dogged and outraged coverage wanes (or is outweighed by other shiny objects, such as emails). There might be something to this. If we think about the conduct and statements that triggered media coverage and outrage during (and after) the election, most involved direct actions or threats against the institutional media: stripping publications of access to rallies (and the similar threat to deny White House credentials); successfully ginning up anger at rallies directed toward the media generally and news organizations such as CNN in particular; direct attacks on particular journalists (Megyn Kelly, Katy Tur, etc.); the promise to "open up" libel laws; the refusal to disclose his tax returns (which would be reported through the press to the public). The latest is Trump ditching the press pool to go to a restaurant, after informing reporters he was done for the evening, a breach of the "transparency" the media demands.

These are not unimportant acts, they do threaten the ability of the press to perform its "Fourth Estate" function of checking government abuse and informing the public, and they warrant discussion and publicity. But they arguably receive outsize coverage, more coverage than many of Trump's other, arguably more serious, sins.

Posted by Howard Wasserman on November 18, 2016 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Thursday, November 17, 2016

Designated Survivor trailers

As promised, I have not gone back to Designated Survivor, despite it being a hit and haled by many critics. Last night, I caught the trailer for the upcoming episode, which confirmed that decision. Based on the snippets I saw, it appears the plot has turned to Kirkman seeking to nominate a Vice President (who, naturally, seems creepy and possibly linked to terrorists).

But this is constitutionally and legally wrong. An acting president under § 19 cannot appoint a Vice President under the 25th Amendment. For one thing, § 1 says "the President" shall nominate a Vice President. But an Acting President is not a President for this Amendment, which expressly distinguishes the two titles and the two offices. Textually, therefore, an Acting President cannot perform this function. For another, any appointed Vice President arguably would have a greater statutory claim to the presidency. A cabinet official acts as President until "a qualified and prior-entitled individual is able to act." That would seem to include a newly constitutionally nominated and confirmed Vice President. So by nominating and having a restored Congress confirm the creepy guy, Kirkman puts himself out of a job.

If I misunderstand the plot, please let me know. Or maybe Keifer Sutherland isn't supposed to be the star of this show after all.

Update: I just realized that acting-president-selects-VP is a common mistake when television depicts presidential succession--Veep did the same thing in its storyline of a plot to have a deadlocked House making the VP (selected by the Senate) Tom James acting president, then having James select Selina Meyer, the Presidential candidate, as his VP. The problem there was that the vice presidency was not vacant; James had been elected VP and become acting president when the president failed to qualify, but he never would have resigned the vice presidency (which is the source of his power to act as president until the disability is removed). But my reading of the 25th Amendment adds an additional layer to this show's mistake.

Posted by Howard Wasserman on November 17, 2016 at 05:42 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (3)

What Next?—Part I: Action—Some Options for (Former?) Law Professors

Orly’s post below asks, “How are you changing your scholarship, teaching, and service in light of the election?” It is a potentially interesting question and something many of us have been musing about for some time. Here are some thoughts about options for law professors in response to and in light of the election. In a separate post I’ll talk about what I would be interested in seeing in legal scholarship itself post-election.

As usual, this post is long. (It’s a big question! It demands either a long answer or a really good short one—and I doubt I’m capable of the latter.) I move back and forth to some degree below between taking as a given the assumption that Trump represents a serious threat to “X,” where X represents the rule of law, the welfare of particular vulnerable constituencies, the survival of the United States, and so on, and remaining agnostic on those questions. It seems obvious that answers to the “what next” question depend in part on one’s view on those questions, and on one’s view of both the degree of harm potentially involved and the probability that these harms will occur. One may remain agnostic about some of those questions but still decide to change one’s approach radically, if one believes that the risk of harm may be low but that the harms that might eventuate are immense and difficult to repair. For the most part, I ask about scholarship and teaching in the long run, and less about immediate pedagogical reactions in class to students in the immediate wake of the election, although that aspect of “what next” figures in some of my analysis.*

Two potential responses on the scholarly front to the question “what will you change” may not be voiced by as many people, even if many people share these answers, although they do come up in the comments to Orly’s post. The first is: “Not much, if anything at all.” Like other academics, legal academics work in particular silos and on particular subject matters. I would not expect astronomers’ scholarship to change in light of the election. Law—all law—is a more political enterprise than astronomy under present conditions, or so I assume. But one might write in a legal field or on a topic within that field that one anticipates will not change. A contract law scholar might well have this answer. I leave open the possibility that one may find, or look for, ways in which this subject might provide tools for resistance, reveal underlying structures that support or reify a class or economic structure that makes the current situation possible, and so on. Even if that is possible, one assumes both that some people have particular scholarly interests in such a field that are distant from such concerns, and that others might agree that these questions are valuable but doubt their own ability to contribute much to such work.

A second response is “I don’t know yet.” Again, surely many people would agree with such an answer, even in fields that are very much likely to be affected by the election, but they are likely to be less vocal than those who believe they already know what needs to be done in their field. But even if one has a timeline shorter than Zhou Enlai’s, one may believe it’s simply too soon to tell.

There is a third, important or consequential answer that is possible. It is relevant both to those whose subject areas are likely to be affected by the election and to those whose subjects are unlikely to be affected by it. The answer, in short, is “I’m going to quit, or take a leave from, law teaching.” And one possible thing to do upon quitting is to join the Trump administration, while another is to not do law at all. I explore the reasons why one might quit, and the kind of work one might take on, after the jump.

So: Let’s say that you believe strongly in Trump’s threat to “X,” and either disagree with or for other reasons want to resist any urge to “normalize” his election. Let’s further assume that you believe that in such circumstances, you have a moral and/or professional duty to act accordingly. Set aside, for purposes of discussion, the possibility of leaving the country, although if you believe in the “X risk” that surely is a possible and perhaps a wise response. But you intend to stay and act. For such people, leaving the legal academy, temporarily or permanently, seems like a perfectly logical response and should at least be considered. And in considering it, one should be wary of a perfectly natural and human tendency to rationalize away the reasons to disrupt one’s own life to that degree.

Why leave law teaching? If you believe strongly that there is a high risk of X and that you are obliged to act in response to it, you still have to ask how to act. And there is no reason to assume that the best way to act, the most valuable response you can offer, is in your current job. It might be. But that’s hardly pre-determined. In particular, you are (or, these days, may be) a lawyer as well as a law professor. If you believe action is necessary and that this action includes legal work, you might examine your options and conclude that you can do more important “resistance” work as a lawyer than you can as a legal academic. Maybe you will write some piece that really changes things, or effectively teach resistance strategies to a large number of students, a sufficient number of whom will use those strategies. But maybe you won’t. You almost certainly won’t accomplish the first, and the second is at least uncertain.

On the other side, you might be able to perform concrete legal work for potential victims of the new regime that will make a concrete difference in their lives. It could take a variety of forms: immigration work, criminal defense, estate or small-business planning, real estate, employment law, health law, benefits appeals, or even constitutional litigation. In any of these areas, you might be better able to effect necessary (perhaps urgently necessary) change than you can in your current job as a law professor. Resistance movements or revolutions may require house intellectuals (although they needn’t serve in the academy). But they don’t require a lot of them, and you might do more concrete good as a foot-soldier practitioner than by trying to be one of those house intellectuals. So: Just do it. Quit—or take a leave of absence, if you feel more comfortable with that—and be a foot-soldier practitioner. (A very small number of law professors are elites and unusually qualified and skilled in both practice and the academy. Maybe they would not end up as “foot soldiers,” but as generals. They, too, will have to weigh doing elite work in the academy against doing full-time elite work as a “general” in practice, and may reasonably conclude that they will do more good as the latter.)

One counter-consideration is that an increasing number of law professors have limited practice experience and that many of them have a highly academic set of skills and experience, including doctoral work in some non-legal field. This is a common complaint of critics of the legal academy, both internal and external, of course. Wherever one comes out on the normative question, there is much descriptive accuracy to it. Maybe the comparative advantage calculus will be different for these people. But the benefits to others may still favor quitting even for these individuals, at least assuming they have a JD and either belong to a bar or are eligible to join it. Others might benefit more from a competent but inexperienced lawyer, doing small things, than an expert legal historian or lawyer-sociologist dreaming of big things.

If you decide you can do more good in response to the election outside the legal academy than inside it, where would you do most good? Let me mention three possibilities, leaving aside the rare answer of being a “general.” One is, as I mentioned, as a foot-soldier: an individual lawyer handling “basic” concerns, like helping immigrants on immigration or benefits matters. You might not teach in that area or have significant practice experience in it, but you could learn, and do some concrete good for specific individuals and communities along the way. There’s no glamor or celebrity in it, but neither was there in being a member of the infantry in World War II, and we needed more infantrymen than generals, or logisticians back in Washington.

Two other options seem more intriguing and less likely to have been considered by as many people. The first is: Go to work for the Trump administration. Or, more accurately, go to work as a civil servant, whether as a lawyer or not. Again, I’m thinking of the basic bureaucrat-civil servant level rather than some fancy position. (If you don’t want to “normalize” the election, you might prefer to work at a “low” level rather than a high level.)

You might have two reasons for doing so. First, the government needs lawyers and other symbolic analysts who will loyally uphold the rule of law, follow norms of care and reason rather than arbitrary or punitive action, act consistently with and not against the Constitution and laws, etc. If you worry about this regime being lawless, you can do some good for others by being a loyal and lawful civil servant. A dinosaur has a small head and smaller brain and a big body, and messages from the head to the body take a while to get there. Even if the chief executive is dangerous, or dangerously small-brained, a lot of routine but, to its subjects, important work will continue to be done and need to be done, and a lot of it can take place before or despite whatever messages are being conveyed to the “body” of government from its head.          

Second, you might go into government specifically to resist or subvert the new president. You could do all sorts of things in this capacity: insist on the letter of the law being followed where its spirit is dangerous, and vice versa; “work to rule” where some new governmental policy ought to be slowed or resisted; leak to the press; insist on obedience to the Constitution where you think your orders compel you to violate it; and generally be a spanner in the works or a body slowing the machine. You might, in short, turn the executive branch into a vehicle for resistance to the chief executive. You might do both: work loyally and well insofar as your job allows you to serve and protect others, and act subversively insofar as orders from the top are pushing you to do otherwise.

A third job/response possibility is that the most important work you might do—more important than whatever you might accomplish as either a law professor or a lawyer—might be civic or activist work of an entirely different kind. I’ve argued here and elsewhere that there are systemic dangers to law professors and other academics tending to prefer to speak and act as “experts” rather than as plain citizens. It reinforces the sense of a status-seeking elite or of rule by technocrats, resistance to which was one factor in the election outcome; and it de-emphasizes the importance of general, mass civic action in one’s capacity as a citizen. Maybe you would do the most good, in response to the election and the risk of “X,” in your civic capacity than as either a legal academic or a lawyer. The civil rights movement needed lawyers, leaders, and planners, but it also needed bodies on the line. To call them “foot soldiers” deprives them of the dignity and importance of their efforts. But it’s still the case that any such movement needs a lot of people to follow orders, to march and/or be jailed, to storm the barricades, and so on. It needs citizens acting for civil rights by putting their bodies on the line, perhaps more than it needs “Historians for Civil Rights” or even a twenty-first or twenty-second civil rights lawyer.

You needn’t quit your job to do such work. But to the extent that you believe “X” demands action, you might believe the risk of “X” is so great that it demands full-time action, or that it needs more bodies in Montana, or south Texas, rather than Manhattan or Austin. There are at least reasons to consider the possibility that the best response is for you to become a full-time activist, or to take a job of whatever sort so you can pursue activism somewhere other than where you currently live and teach. It might also be the case that you would be too busy as a law professor, despite the luxuries of time the job generally permits, to pursue activism to the extent you believe is necessary given the urgency and importance of the threat of “X.”

You could decide, instead, to keep your job but devote more time to your activism and much less time to your official work as a professor and scholar: you could stop doing scholarship for a few years and phone it in as a teacher in order to devote more time to civic activism. Perhaps the circumstances justify it, although I’m not sure why keeping your academic job is necessarily a relevant “circumstance.” On the other hand, plenty of people want jobs as legal academics, and some of them might be better qualified than you—either in general, or better qualified to do good for the cause as law professors than you are. And tenure is not, or isn’t supposed to be, a sinecure. It’s an academic protection, not a form of job security for its own sake or a highly paid place to be a journalist, or op-ed writer, or mountain biker, while barely doing your actual work. If you are going to spend most of your time as an activist, whether in a legal capacity or not, maybe you have a moral and professional duty to give up your berth in the academy to do so. Michelle Alexander, to her everlasting credit, gave up her tenure as a law professor because she believed she could do more good elsewhere, and/or that it was more appropriate for her to give up her position for someone else if she was essentially going to pursue work as something other than a “law professor.” And that was before the election. If the election and the regime it brings to power is indeed “non-normal” and the times demand urgent and unusual action, you might decide that your work is most needed elsewhere than in the legal academy, and that under those circumstances it is also right for you to surrender your coveted spot there to someone else.    

I am not urging people to do any of this. I am suggesting that to the extent that the election was non-normal and the risk of “X” is great, not every response to it needs to be undertaken as a law professor. What you personally would like to do is, from this perspective, less important than your carefully, logically considering what needs to be done. If you run that analysis, you might conclude that you would do the most good for the most (or most vulnerable) people not as a law professor, but as a lawyer, a civil servant, or in a purely civic capacity as an activist. Maybe not! Maybe you can do the most good in response to the election by continuing in your present job, with or without changing (or chancing much) what you do on a day-to-day basis. But if you accept the operating premises I have used here, you cannot simply assume this to be the case. And in considering your options, you should avoid the tendency—again, a perfectly natural human tendency—to rationalize yourself into the conclusion that other than changing your syllabus, or picking up a new course, or doing more work on the side as a lawyer or citizen-activist, nothing really needs to change for you.

Although nothing here says any of this, I know how some people are likely to read, or read into, this post, and so I suppose it’s worth adding some denials or clarifications. I understand that few people are likely to actually take up any of these suggestions. In some cases it will be because they conclude that they can be of the most good in their current jobs—although, again, I think there is reason to second-guess such a conclusion and be wary of rationalization. People might therefore conclude that law professors who don’t do anything different, or who really only change little things rather than taking big and bold steps, are hypocrites. I’m not suggesting that. For one thing, I think accusations of hypocrisy are generally made too lightly and quickly and are a conversational dead end. For another, because most people live with and in all kinds of inconsistencies, I don’t consider such charges either especially devastating or especially interesting. In any event, my goal here is neither to set up such an accusation nor even to challenge people to take the possible steps I’ve outlined above. I simply want to offer an analysis of the options available to law teachers who sincerely believe that something needs to change in their work in response to the election, and who believe it for civic reasons and not just because they think the election poses some new questions of largely intellectual interest.

Another conclusion people might draw from law professors doing only a little in response to the election—changing their syllabus and so on—rather than acting more boldly is that these individuals really are normalizing the election, or believe the risk of “X” is smaller than their more urgent rhetoric suggests, or something like that. That may well be true for some law professors. It is surely true for at least some of them. But I would not make that a general assumption. Law professors, like everyone else, are capable of inconsistency, imperfection, devotion to considerations—family and job considerations, financial considerations, and so on—other than the needs of others, etc. Maybe academics are more prone to these tendencies, given the comfortable and enviable nature of their jobs and the relative contentment and inertia of the managerial-professional class; I don’t know. But nothing about such tendencies is unique to them. They may sincerely believe in the importance and urgency of the situation, even if they do relatively little about it. Again, my goal here is only to explore calmly some of the broader options and implications of the basic question of what law professors ought to do in light of the election.     

* Well, it was supposed to, anyway, but I didn't get around to it, so I'm adding it here. One option, or response to the options presented here, would be to envision one's primary response as offering support, sympathy, and guidance for students who are upset about the election result as such (perhaps a more academically questionable function, although I don't think sympathy, about a variety of issues, is out of place as a general function for teachers), have been made the subject of hateful and threatening remarks (easily within any teacher's purview, I think), and feel that they or their loved ones or communities are vulnerable. One can certainly understand this as a response, without any foreknowledge about whether this reaction will be indefinite or short-term and ease or increase with time. But it is not clear that it is sufficient as a reason to stay in the legal academy as opposed to choosing one of the other options discussed here. Going out of the academy and into other communities might give one an opportunity to offer the same comfort and sympathy to people who feel even more vulnerable, have been subjected to even worse threats and abusive language or conduct, and possess even less of an institutional or community support system. Obviously both possibilities are factors to be weighed. 

Posted by Paul Horwitz on November 17, 2016 at 07:34 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, November 16, 2016

Two Roads to the Future

As I posted last week, driverless cars are coming to U.S. roads, and they’ll be arriving much sooner than you might think: probably within five years.  In the meantime, semi-autonomous cars, which can act a lot like fully driverless cars but require constant human supervision for safe operation, are already on our roads, although not yet in large numbers.  Thus far, we haven’t gotten a regulatory handle on either fully or semi-autonomous vehicles, although it’s the latter that I argue we should be most concerned about.  Legislators, however, seemingly disagree.  Before explaining why, let me provide some context...

Companies are taking one of two approaches to the development of fully driverless cars: a gradualist approach or an “all-in” approach.  Traditional automakers are taking the gradualist approach: slowly phasing in greater amounts of autonomy into their models with the goal of producing fully self-driving cars at some point in the future.  This approach is a conservative one that allows consumers to grow more comfortable with surrendering more control to their vehicles over time. Public acceptance of driverless cars is indeed a huge issue.  A January 2016 poll by AAA, for instance, found that 75% of U.S. drivers would be afraid to ride in an autonomous car.  Another poll reported that 75% of respondents believe that they can drive better than a computer.  Even political attack ads have begun capitalizing on fears of these vehicles.  One local campaign ad in Florida attacked a candidate for voting to legalize driverless cars.  The commercial seems to suggest that driverless cars might run down elderly women in the streets.  Gradually introducing autonomous technologies to consumers seems likely to mitigate some of concerns.

At the opposite end of the spectrum, tech companies and Ford are taking what I have deemed an “all-in” approach.  This strategy involves developing and road-testing fully driverless vehicles immediately rather than phasing in greater amounts of autonomy over time.  Google’s current prototype, for example, lacks a steering wheel and pedals.   Presumably, these vehicles will not be released until developers are satisfied that they are as safe, if not safer, than human-driven cars. 

All-in companies, however, have a public relations problem.  As noted above, the general public is very skeptical of fully driverless cars, and very few consumers seem to be clambering to get into the passenger compartments of these vehicles.  What these companies have in their favor, however, is something seemingly far more important: safety.  These companies believe that semi-autonomous vehicles are inherently more dangerous than their fully autonomous counterparts.  The available evidence strongly suggests that they are right for two reasons.   

First, both anecdotal and study-based evidence shows that humans have a very difficult time focusing on the road while driving in semi-autonomous vehicles, even when repeatedly instructed to monitor the vehicle.  Last week, for instance, I posted links to YouTube videos showing Tesla drivers playing games, sleeping, and even arm wrestling while their cars’ Autopilot features were engaged.  Google had similar issues with the test drivers of early versions of their cars, some of whom actually climbed into the backseat while their test car was driving.

More formal studies have shown that high percentages of drivers of semi-autonomous cars spend significant portions of time looking away from the road, with some drivers spending up to a quarter of their time reading.   Don’t believe the studies or think you’d be more responsible? I challenge you to test drive a semi-autonomous vehicle.  After the initial thrill of witnessing the car “drive itself” wears off, see how long it takes before your attention and your eyes wander.  I only lasted 5 minutes the first time I drove one of these cars, and I had spent much of the prior day writing about this exact problem and how dangerous it can be.

Second, studies show that humans cannot quickly retake control of cars that have been driving in semi-autonomous mode.  Testing conducted by Audi, for instance, showed that it takes an average of 3 to 7 seconds for a driver to snap to attention and regain control of a car that has been driving autonomously, even with flashing lights and automated warning announcements.  This is far too long in many (if not most) driving scenarios, when reactions and decisions often need to be made in the blink of an eye. 

Semi-autonomous cars, however, rely on humans to retake control quickly in many situations.  Most of these vehicles are not capable of handling many types of common roadway scenarios.  Tesla’s Autopilot system, for instance, cannot keep the car within the center of a lane when lane markings are faded or otherwise not clearly marked.  When driving down a highway at 70 miles per hour, a gap in the lane markings could mean that the vehicle veers into another lane fairly quickly if the driver is not paying careful attention.  With studies showing that most drivers likely will not be, this should raise significant concerns.

Contrast these cars with the fully autonomous models being built by the all-in companies.  By their very nature, these vehicles must be able to handle all driving situations before coming to market.  Remember: many of them lack steering wheels and pedals that would allow a human to intervene at all.  Rather than letting the technology slowly improve and relying on human drivers to pick up the slack in the meantime, these companies are opting to skip what studies suggest is likely to be a very dangerous middle point in the development of these cars: the point where the cars are not quite safe enough to drive themselves without human supervision, but consumers either treat them like they are or simply cannot react quickly enough when the technology fails.

Even though states are scrambling to get driverless car laws on the books, not one of them, thus far, has addressed this issue.  Instead, if anything, existing state laws tacitly favor semi-autonomous cars over fully autonomous ones.  The District of Columbia, for instance, requires driverless cars to have a human operator who is prepared (and has the ability) to retake control of the vehicle at any moment.  Oregon requires driverless cars to have brakes, accelerators, and a steering wheel.  Driving a fully autonomous car – at least as they are currently configured – in either of these states is thus presumably illegal. 

Legislators throughout the country appear to be operating under the assumption that human supervision of and intervention in the operation of driverless cars optimizes highway safety.  But, as discussed, all available evidence seems to suggest that human drivers – even well-intentioned ones – either can’t or won’t be able to do either particularly well. Moreover, this issue will likely get worse over time: as humans grow more reliant on autonomous driving technologies, their own driving skills will likely diminish, leaving them less and less able to intervene appropriately and successfully. Worse yet, these types of laws do nothing to prevent developers from pushing autonomous technologies that have not yet been fully tested or optimized into their vehicles on the theory that human drivers will be able to intervene when the technology fails. The new NHTSA driverless car guidelines begin to tackle that issue, but I am not yet fully confident that we’ve gotten a handle on it.

If our end goal as a country is (as it should be) to enhance highway safety, the far better approach seems to be to ban the use of all autonomous technologies on public roads until they are safe enough to be driven without the need for any human monitoring at all.  This will require a much more significant public relations effort once fully driverless cars are ready for the road – convincing consumers that they are safe may be a difficult task – but it may save lives in the meantime.  More importantly, it may prevent an outright public relations and highway safety catastrophe: if semi-autonomous cars wind up causing large numbers of fatalities now, convincing consumers to accept fully autonomous ones later may be next to impossible, even though experts predict that the widespread use of fully autonomous vehicles may eventually save tens of thousands of lives per year.

Next time: How I learned to stop worrying and love fully autonomous vehicles.

Posted by Tracy Hresko Pearl on November 16, 2016 at 01:20 PM | Permalink | Comments (6)

The voting/protesting fallacy

Building on some comments from an earlier post:

A recurring theme of the past week (and counting) of anti-Trump protests is whether the protesters have voted. This report notes that of 112 protesters arrested in Portland, 39 are registered in Oregon but did not return ballots and another 36 are not registered in Oregon (although they gave Oregon addresses, indicating they did not vote elsewhere). The reporter adds that "[n]ot turning up to vote and then taking to the streets to protest the result of the election is a tough position to defend." Actually, it is not a tough position to defend. But this has become a recurring theme, and we should reject it in strongest terms.

Whether someone voted should never be relevant to whether they can or should engage in protest or otherwise speak out on public issues, including the election result.  There are many ways to express one's political views and to try to bring about political change--voting is one, public protest is one,  and there are others. None is necessarily preferable to any others. More importantly, none is a condition precedent to any other. The right to petition government for redress of grievances is not conditioned on a person first having tried to affect the content of the government through the vote; voting and petitioning are independent rights.

The argument seems to be that a person cannot complain about something (such as the election results) if she did not first try to affect that thing (such as by voting in the election).  There are several problems with these assumptions.

First, one voter does not affect the result of the election, which is why many regard voting as an irrational act for an individual. Second, this point is heightened for the Oregonian protesters. They voted (or would have voted) in a state election that Clinton was certain to win, such that their additional individual votes in Oregon would not have affected the outcome in that state. And they would not have affected the presidential election, which depended on separate elections in 50 other places, unaffected by the margin of victory in Oregon. (One of the arrested protesters made this point in explaining why he did not vote).

Third, one perhaps can better make herself heard as one voice among hundreds of protesters than as one compulsorily anonymous voter among millions. The Tea Party garnered more attention and influence for the movement, at least initially, through its public protests during 2009-10 than through the ballot in 2008. (And, for what it is worth, I do not recall Tea Party protesters, many of whom complained about "feeling disenfranchised" under the new Obama administration, being asked whether they had voted). Fourth, this all assumes that people are protesting the election result and Trump becoming president (a legal inevitably), as opposed to what Trump stands for and what he will try to implement as President. Protesters can, and should, make their voices heard in an attempt (futile though it might be) to get Trump to think about what he will do as President and not to pursue particular policies that the speaker does not like. (This is why "not my president" is an unfortunate slogan--it allows for conflation of the two).

Fifth, the underlying assumption is that speech and protests are not mechanisms for change or results, but merely complaining and whining (and, again, you cannot complain about something if you did not first try to change it). But that is a hollow conception of speech.

Finally, we protect speech in part as a "safety valve," giving people an opportunity to blow off anger about something, rather than turning that anger into violence or forcing it underground. So even if the protests reflect disappointed non-voters blowing off steam, there is constitutional value in their blowing off steam.

The last week has revealed  a frightening attitude towards public protest, certainly among Trump and his transition team, but also reflected in media coverage. Speaking out in public is whining and complaining by thugs and spoiled millenials, worthless and meaningless, unavailable to non-voters, who are not entitled to question the "will of the majority" (according to a leading choice for Secretary of Homeland Security). It could be a bad few years.

Posted by Howard Wasserman on November 16, 2016 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Tuesday, November 15, 2016

Three Neutral Principles for Civil Political Discourse

As the recent election illustrated, Americans disagree foundationally on many substantive issues. I’d like to think though that while there may be profound divisions on core political values, one thing we may be able to agree on is that it would be helpful to our democracy to improve our public discourse about these matters.

But what does it mean to have a truly democratic, and perhaps even productive, public discourse? This aim may seem like a lost cause after over a year of toxic mudslinging, disingenuous character assassination, and an increasing unwillingness to tolerate opposing viewpoints—all of which were amply in evidence from supporters on both sides of the aisle.

I was given some sense of hope on this issue, though, during an incident shortly before the election in which President Obama was interrupted by a Trump-supporting protester during Obama’s speech at a political rally. The crowd immediately began to boo in order to shout down the protester, but Obama pushed back in his defense, and his reasons for doing so, I’ll argue below, may be taken as three core, nonpartisan principles that we may all be able to agree on as baselines for engaging in civil political discourse.


I enumerate these three principles after the break.

“First of all, we live in a country that respects free speech.” That platitude is obvious. But what Obama said before this was more meaningful. His lead-in to this statement was: “You’ve got an older gentleman supporting his candidate. He’s not doing nothing. You don’t have to worry about him.”

“He’s not doing nothing.” The idea that others’ political expression does not harm us should be obvious too (it’s really just a version of the old schoolyard rhyme about sticks and stones not breaking bones), but in modern America, it’s not. Expressing a point of view that others disagree with is increasingly more likely to get you shouted down than heard out. It might even get you suspended on a liberal college campus or beat up at a conservative political rally.

The empirical point behind the informally phrased “He’s not doing nothing” is that the expression of others’ viewpoints are nothing more than what they are: Descriptive claims about another person’s state of mind. Another person’s claim about their own beliefs does not make those beliefs true, and it certainly does not compel us to agree with or even respond to it, or do us any harm.

This attitude is easier to describe than to adopt. Hearing someone express an opinion that you consider wrong or even profoundly harmful can be infuriating, as the level of public discourse in this past election season illustrates. But this is why adopting the “he’s not doing nothing” perspective is so important. The notion that others’ political opinions are nothing more than data indicating their viewpoint (rather than traumatizing or treasonous) not only facilitates core constitutional speech rights, it also enables a psychological freedom from others' expression that makes us free to form our own opinions as well.

Because like it or not, we're a nation that is committed to honoring free speech. This principle means something only if it requires tolerating respectfully even speech with which we profoundly disagree. And that toleration becomes much easier when we regard such speech as nothing more than information about someone else’s state of mind, rather than a threat or a harm being inflicted on us.

Second of all, it looks like maybe he might have served in our military and we got to respect that. Third of all, he was elderly and we got to respect our elders.” These next two points can be collapsed into one very simple principle: See others generously, including and even especially those with whom you disagree. When this Trump supporter popped up at the rally the other week, the attendees may well have dismissed him as a threatening, unstable crank bent on shouting down the President, possibly even for racist reasons—hence their desire to shout him down in turn.

But these kind of uncharitable assumptions are as baseless as they are unhelpful. Maybe the protester lost his job to outsourcing and was trying to express support for protectionist trade policies that he felt were critical to having a job and being able to support his family. Maybe he was unhappy with the direction of the country under a Democratic administration and expressing his passionate support for going in a different direction.

Seeing the protester in a generous light—an elderly man with possible military service—is a key step in having a decent conversation. Stereotyping political opponents makes them easy to demonize and dismiss them without engaging. Regarding a Trump supporter as a fanatic foaming at the mouth with irrational race-hate makes it easy to conclude that he does not merit respect or deserve to be heard out. But seeing that same person as an older gentleman who fought in Vietnam and cares deeply about the fate of the country yields a different result.

Much the same is true in reverse. An effete urbanite reflexively supporting Obama and Hillary out of a sense of liberal guilt amounts renders the speaker a mere stereotype that can be categorized and ignored with ease. But if you regard the same person as someone who is partaking in a tradition of dissent that dates to the Revolution in the interest of protecting values like racial and social justice that are embedded in our Constitution you’re more likely to take them and their ideas more seriously.

Regardless of political valence, the choice to see someone in a more generous light is thus a prerequisite for having the kind of decent discussion about issues that has a better chance of producing mutual understanding rather than descending into a pointless shouting match.

“Fourth of all, don’t boo. Vote.” At first glance, this one may appear a bit more complicated. “Don’t boo”? Isn’t cheering and booing what people do at rallies? It certainly is, and I don’t think the point is that people should sit quietly and clap only on cue when they are attending these kinds of events. Rather, I think the general idea expressed by this statement goes something like this: If you hear an opinion you disagree with, it’s better to create a positive dialogue that expresses your own point of view rather than spending your efforts attacking the speaker or trying to eliminate their speech from the public sphere.

Because while I said above (and still believe) that others’ opinions need not lead us to want to shut them out or shout them down, democracy also cannot function if people do nothing more than engage in calm observation when they hear ideas they think are wrong or dangerous. The problem is that increasingly the immediate reaction to opposing viewpoints is to personally direct animus or worse toward the speaker. The suggestion of “don’t boo, vote” is that there are more and less effective responses to speech you disagree with. Silencing speech tends to be ineffective and harmful. By contrast, using one’s disagreement as a call to democratic engagement in the interest of your own beliefs, whether that action is the simple act of voting or a deeper commitment to a movement or cause, is the more productive alternative.

Let me be clear about the limits of my claim: I have no idea if Obama was intentionally trying to propound core principles for engaging in civil political discourse in his brief interaction with the protester at the rally, but regardless I think at least a few of those principles (first, you are not harmed by others’ speech; second, see others in a generous light; third, add your voice rather than squelching others’) are immanent in his response.

Finally, I should emphasize that while I think these are constructive principles for civil political discourse, this does not mean they are easy to practice. On the contrary, we’re hardwired to do pretty much the opposite in all of these instances. Hearing opposing viewpoints tends to engage the fight-or-flight response, which helps explain both the rancor of this election and the growing polarization of our nation as people increasingly surround themselves with other like-minded people to avoid the discomfort of regularly facing disagreement.

But nothing truly valuable is easy. And restraining our immediate instincts—tolerating speech we dislike, accepting a President we didn’t vote for—is in many respects what defines democracy, and distinguishes it from its many inferior alternatives. It is this kind of restraint in the interest of the greater good of our country and the maintenance of our system of government that represents the “better angels of our nature” that Lincoln described in his first inaugural address, and that I hope may still prevail even after a dispiritingly ugly election season.

Posted by Dave_Fagundes on November 15, 2016 at 12:45 PM in Constitutional thoughts, Culture, Current Affairs, Deliberation and voices, Law and Politics | Permalink | Comments (1)

Monday, November 14, 2016

Post-Election Research Agenda and Teaching

This question came up on my Facebook feed to fellow law professors -- how are you changing your scholarship, teaching, and service in light of the election? There were many interesting responses, describing the first day of classroom teaching after the elections and new projects that, for example, shift focus from federal legislative reform to local/international arenas.

I thought I would pose the same question here to Prawfs readers. Did you comment on the results of the elections in class? Are you selecting new research projects or shifting focus of current projects?

 

Posted by Orly Lobel on November 14, 2016 at 07:33 PM | Permalink | Comments (6)

Recovering Child Support (and from a weekend of writing)

This weekend has been entirely devoted to finishing an article at the top of my to-do list.  This article will join a themed issue on child support in the Journal of the American Academy of Matrimonial Lawyers, which will feature several family law professors working on child support today.  My contribution proposes an update to the current child support system that would allow in-kind child support (goods and services by the noncustodial parent instead of cash or check).

Increasing numbers of children in the United States continue to be reliant on the child support system.  Over 22 million children lived with only one parent in the spring of 2014, composing 26% of all children in the U.S.  Yet, child support continues to be in crisis, and collection of child support often fails and arrears are at high levels, leaving many custodial parents in poverty.  I identify 2 major problems prompting this crisis—noncustodial parents’ disengagement with their children and some noncustodial parents’ inability to pay.

I offer ways in which in-kind child support can target these problems.  Specifically, regarding the current disengagement of noncustodial parents, allowing noncustodial parents to direct their child support to certain expenses regains a stake in their children to some extent.  Meanwhile, regarding the current inability of low-income noncustodial parents to pay child support, in-kind child support could be used as a tool to help them meet their child support obligation by giving them an alternative method of doing so to avoid prison and other sanctions that keep them from earning money toward child support.    

Despite the benefits of in-kind child support, I recognize that a rule permitting in-kind child support will not work unlimited—or else it would have existed already.  There are some good and concrete reasons to limit it.  First among them is the administrative burden of in-kind child support, including valuing and tracking it.  Second are any negative impacts or inconveniences to the custodial parents.  In this article, I offer some solutions to help address this, such as capping it to a percentage of the child support award and providing schedules for the value of everyday items frequently used as in-kind child support, as well as judicial approval or custodial parental agreement.

Interestingly, the current family law system already recognizes the benefits of an in-kind child support allotment in different contexts, and thus has features like the parenting time credit and joint custody, which acknowledge to some extent that parents make some financial contributions directly to their child in terms of goods and services.  Recognizing in-kind child support goes one step further, but is not a dramatic shift from current family law principles. 

There is also some evidence already that custodial parents accept, appreciate, or even prefer in-kind support.  In fact, some mothers receiving public assistance do not aid the government in establishing paternity for fear that a formal child support order will end the only support they are likely to receive, which is in the form of in-kind support.  Studies also show that parents with little to no income prefer to give their child tangible items rather than cash to the custodial parent.

Although I didn’t do much else this weekend, I am happy to report that I’m done with the article, and you can find it here.

Posted by Margaret Ryznar on November 14, 2016 at 07:23 PM | Permalink | Comments (0)

Sunday, November 13, 2016

Several post-election things I agree with

1) This, from Clare Foran at the Atlantic. Blaming women for not coming around or blaming Clinton for not being sufficiently appealing to women is both empirically inaccurate (she won with women overall and with every category except non-college-educated white women) and reflects the misogyny that marred the election.

2) This, from Frank Pasquale at CoOp. The question is whether it is possible to solve modern problems in such a non-complex way. Or, alternatively, whether it is possible to sell complex solutions in these simpler terms.

3) "Not my President" is an unfortunate slogan, if only for its ambiguity. If it means that Donald Trump is not the President of the polity of which I am a citizen and the head of the executive branch of my federal government, it is: a) wrong, b) smacks too much of the nonsense that many Republicans pulled the last four years, and c) opens protesters to the simplistic insistence that they "get over it" because Trump will, in fact, be President. If it means that I do not support Trump or the things he is likely to do as President, that should be shouted from the rooftops. I reject the idea that Clinton voters must "give Trump a chance," just as Tea Partiers were not obligated to give Obama a chance in 2009. The problem, as I discussed, is that media coverage of Tea Party accepted the idea that Obama was doing something wrong or denying some core of the public its rights by proceeding with his agenda, even in the face of those who were not giving him a chance. I doubt the media coverage of Trump's first 100 days will drop similar suggestions that Trump should try to win over the people protesting in the streets. Trump's first Twitter reaction (from which he, or someone working for him, backtracked) was that the protesters were not real citizens, but professional agitators ginned up by the media and that they all were being unfair to him. Trump's prerogative to govern as he sees fit, helped by legislative majorities, means all his opponents have left is taking to the streets to protest. And that must be non-negotiable. It is why I agree that the best chant from Saturday's New York City protests was "This is what democracy looks like."

4) The idea of a mandate is one of the dumbest political concepts going right now. George W. Bush entered office having lost the national popular vote and won a close electoral vote, but  insisted he had a mandate, governed as if he did, and the media fell in line. Donald Trump is setting up the same narrative. by contrast, Barack Obama won, in modern terms, popular and electoral landslides. But Republican officials and activists he did not have a mandate and the media fell in line. All it takes is people shouting loudly enough that someone does or does not have a mandate to make it so.

Posted by Howard Wasserman on November 13, 2016 at 07:44 PM in Howard Wasserman, Law and Politics | Permalink | Comments (8)

ULL suspends four players for caring about the election

I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue  has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.

But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.

If we are looking for a situation in which punishment triggers a genuine First Amendment claim, this is it. ULL is a public school, so the First Amendment is in play. The players were engaged in core political speech and it is unquestionable that the use of the word fuck and associated gestures as part of a political message is also constitutionally protected. The attempt to frame this as a problem with profane lyrics and gestures, apart from the political message, is unavailing. According to this piece, Hudspeth has made rap music part of the team culture, celebrating a 2011 bowl victory with music blaring in the locker room and having music playing over speakers during practice. And that includes rap songs containing profanity.  So profane rap music is ok, as long as it does not offend a political candidate? It seems to me the First Amendment, if anything, demands precisely the opposite conclusion.

We now are left with the question of whether student-athletes are different than ordinary students because they play for, and represent, the school, making them more like employees. The university statement got at this in its statement when praising Hudspeth for "continu[ing] to educate the team on how their actions are a reflection of the name on the front of their jerseys." This is twisted in two respects. First, a university should be educating players less about the name on the front of their jerseys and more about their opportunities and obligations to be politically engaged citizens. You complain about young people and athletes not being engaged, they you punish them when they are. Second, even if student-athletes are analogous to employees, even public employees enjoy some protection when speaking as citizens on matters of public concern--this would seem to qualify.

This is moot, of course, since it is unlikely the players will challenge their suspensions. Which is too bad, because this looks like a situation in which the school has overstepped, both its role as an athletic institution and as an institution supposedly committed to educating the next generation of citizens.

Posted by Howard Wasserman on November 13, 2016 at 10:42 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Saturday, November 12, 2016

A post-election thought on athlete speech

This has been a significant year for athlete speech--Colin Kaepernick (joined by several other players) and national-anthem protests, the opening speech by four NBA stars (LeBron, Carmelo, Wade, and Chris Paul) at the ESPY Awards, protests against police violence by several WNBA teams, and everyone taking sides in the presidential election. It is ironic that this occurs in the year Muhammad Ali, one of the most significant activist athletes, passed away.

But reactions to the election results highlight an important qualifier to discussion of speech within sports--different sports feature and express very different political attitudes and ideas. When we think of athlete speech, we must parse it by sport and even role within the sport.

Consider recent comments by coaches in different sports about the election. Two NFL coaches--Bill Belichick of the Patriots and Rex Ryan of the Bills--were high-profile Trump supporters; Trump read a letter of support from Belichick at one of his final rallies on Monday. Meanwhile, three NBA coaches--Stan Van Gundy of the Pistons, Steve Kerr of the Warriors, and Gregg Popovich of the Spurs--reacted angrily to Trump's election. Kerr spoke about the difficulty of talking to his daughters and facing his players in the wake of the misogyny and racism of the campaign. Popovich, a thoughtful and well-read guy, went with empathy--"I'm a rich white guy, and I'm sick to my stomach thinking about it. I can't imagine being a Muslim right now, or a woman, or an African American, a Hispanic, a handicapped person"--and history, stating he feared we have become Rome.

The difference is explicable. The NBA is a "player's league" and is overwhelmingly African-American, so it makes sense that coaches would be more sympathetic to the targets of Trump's rhetorical ire. Meanwhile, football coaches all fancy themselves as George Patton, so their affinity for the authoritarian Trump is understandable.

Along the same lines, there was discussion earlier this fall about the absence of anthem protests in Major League Baseball. Adam Jones of the Orioles explained that baseball is a white sport, with fewer African-American players (8.3 % of players) who are easily replaceable and thus less willing to put themselves in position to get kicked out of the game by taking unpopular stands, especially within the game.

Posted by Howard Wasserman on November 12, 2016 at 05:33 PM in First Amendment, Law and Politics, Sports | Permalink | Comments (4)

Friday, November 11, 2016

Hands on the Wheel

In May, the United States suffered its first fatality in a car accident involving a partially self-driving vehicle.  Joshua Brown was “driving” his 2015 Tesla Model S in “Autopilot” mode when his vehicle drove under the trailer of an 18-wheeler that had turned left in front of the Tesla moments before.  Mr. Brown was pronounced dead at the scene. 

The Autopilot feature on Mr. Brown’s Tesla allowed him to sit in the driver’s seat and do essentially nothing with regard to conventional driving duties.  In Autopilot mode, the vehicle could keep itself centered within a lane, maintain a set speed, speed up or slow down based on surrounding traffic, scan for parking spaces, and parallel park on its own.  The only responsibility left for Mr. Brown was to pay attention.  Tesla’s Autopilot system is not yet designed to operate fully independently.  It is a semi-autonomous system rather than a fully autonomous one, meaning that human supervision is required for safe operation.

Tesla has been fairly transparent about the limitations of its Autopilot system, repeatedly warning customers that the feature is not yet reliable enough for a driver to stop supervising their vehicle when it is engaged.  Many Tesla drivers, however, feel differently.  A large number of videos on YouTube show Tesla drivers doing pretty much everything other than paying attention to the road when Autopilot is on: playing board games, sleeping, leaving the driver’s seat and sitting in other parts of the car, and (in at least one case) having a plastic lightsaber battle.  Thus, while tragic, it was not particularly surprising when post-accident reports revealed that a DVD player had been found at the scene of Mr. Brown’s accident and that he may have been watching a Harry Potter movie rather than monitoring his vehicle at the time of his death.

While the Tesla Autopilot system can sense if a driver is paying attention and will issue both visual and auditory warnings if the driver removes their hands from the steering wheel, even going so far as to slow the vehicle to a stop if the driver repeatedly ignores those warnings, Tesla drivers point out that those warnings often do not issue for several minutes after a driver removes his or her hands, a long enough period of time for the vehicle to encounter a situation that the driverless technology is inadequate to handle while the human driver is distracted.  It is that gap between human attention and the capabilities of semi-autonomous cars that concerns me immensely both as a scholar and as a driver. 

States throughout the country have either already passed or are actively considering laws that regulate the use of autonomous cars on public roads.  The motivation to legislate in this area is understandable.  Industry experts predict that fully autonomous cars will be commercially available by 2020.  Nissan, Cadillac, Ford, and Toyota have all publicly commented that they hope to have driverless models of their cars available by then.  Tesla’s fully driverless model may come even sooner.  Even the most conservative estimates have these cars, at most, 10 to 15 years away.  (Here’s an interesting way to think about this: if you have young children in your life, there’s a very good chance they may never need to learn how to drive).  So, legislators are scrambling to get laws on the books. 

In the meantime, however, companies are rolling out semi-autonomous features on their vehicles with very little regulatory oversight.  Thus far, everyone seems far more concerned about regulating the fully autonomous cars that are coming rather than the semi-autonomous cars we have now.  I think that is a critical mistake, as I argue in my forthcoming article.

Next week, I hope to convince you both (a) that we should be far more concerned about semi-autonomous cars than fully autonomous ones, and (b) that, eventually (and perhaps counter-intuitively), we should heavily regulate in favor of fully autonomous cars over human-driven ones.  Stay tuned.

Posted by Tracy Hresko Pearl on November 11, 2016 at 01:45 PM | Permalink | Comments (8)

JOTWELL: Grossi on Klonoff on introducing the study of American law

The new Courts Law essay is a guest piece by Simona Grossi (Loyola), reviewing Robert Klonoff's casebook Introduction to the Study of U.S.Law.

Posted by Howard Wasserman on November 11, 2016 at 09:25 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

With a Little Help from My Friends

After Tuesday's election, we must keep waiting for our first Madam President.  We have strong female leaders in the pipeline in both political parties, so it should be just a matter of time. 

In legal academia, there also continues a gender gap in terms of who’s occupying the top realms in the form of chairs and deanships.  There is significant literature that this gap can be reduced through mentoring by filling the pipeline with good candidates.

I have been involved in a fascinating project at my law school, where all the junior untenured folks happen to be women.  With the support of the dean and many senior faculty, this cohort applied for and received an internal university grant to specifically support mentoring.  With several empiricists involved in this grant, we also ran an empirical study of the effects of mentoring support, the results of which we hope to publish soon.

Although the results are not surprising, they do provide support for establishing a faculty mentoring program at law school (whether aimed at junior folks or everyone), and insight on how to structure it.  Our program included very modest programming and travel funding of $1,500 per year for each participant to build and maintain a mentoring network.  Participants most often used their travel stipend to attend a conference, extend their time at a conference, take a trip solely for mentoring purposes, or visit another institution.  Participants most often sought advice and mentoring on milestones frequently sought by junior scholars, including publishing a first book.

This program was sufficient to increase the junior faculty’s satisfaction across 10 factors.  There was at least a 1-point improvement on a 5-point scale in the following factors: 1) Participants now feel substantially better informed of the mentoring resources available to them within the law school and the university campus.  2) Participants express much greater confidence that they know how to effectively cultivate a network of mentors to help them achieve excellence in research, and 3) that they have the necessary resources to do so.  4) Participants report substantially stronger relationships with their mentors after the program.  These measures suggest that participants feel significantly more empowered to cultivate their own networks of research mentors—the core goal of the program.

We look forward to continuing our focus on mentoring and publishing the full results early next year.

Posted by Margaret Ryznar on November 11, 2016 at 01:45 AM | Permalink | Comments (7)

Wednesday, November 09, 2016

Inner convictions and the Republican agenda

Taking off from Rick's point that Donald Trump may have no core convictions and thus may not govern as he ran: If true, that is precisely why Paul Ryan and Mitch McConnell were exactly right to support Trump. They hoped/expected/prayed that, once in office, he would simply sign the Randian/Norquistian legislative agenda that Ryan and McConnell are going to pass and to appoint the originalist justices that McConnell and the rest of the Senate GOP want him to appoint. Trump, without the authoritarian rhetoric and actions, is Warren Harding--not very bright or dynamic, likely to turn the real work over to those around him and sign-off on what they want.

This is also why I do not buy the suggestions by many pundits that, although the Republican candidate won, the old Republican Party does not exist anymore. I am not convinced. I believe there is a good chance--perhaps because of the pathology Rick mentions--that Trump will not govern much differently than George W. Bush, hand-in-hand with arch conservatives such as Ryan and Pence. As I commented to a friend, Trump's speech sounded much like a W speech, with fewer complete sentences.

Posted by Howard Wasserman on November 9, 2016 at 02:02 PM | Permalink | Comments (3)

The Divided States of America

The election map from last night and the depth of devastation and fear expressed by many people today shows clearly the disparity in opinion that exists in this country with respect to some key and emotionally charged issues.  This presidential election provided empirical evidence of how divided we remain as a nation.  We are divided urban and rural, rich and poor, black and white, native-born and immigrant, and even male and female.  Both Trump and Clinton have given speeches in the last 12 hours that recognize this deep divide and both have asked their followers to assist in bridging it.  In Trump's speech, he stated, "Now it’s time for America to bind the wounds of division; have to get together. To all Republicans and Democrats and independents across this nation, I say it is time for us to come together as one united people."  These are noble sentiments, and I hope that he is truly committed to "binding the wounds of division."  In Clinton's speech, she similarly told her distraught supporters, "We have seen that our nation is more deeply divided than we thought. But I still believe in America, and I always will. And if you do, then we must accept this result and then look to the future. Donald Trump is going to be our president. We owe him an open mind and the chance to lead."  Of course, Clinton did not say that accepting the election result and giving Trump a chance to lead means falling in line with particular policies. She urged people to "never stop believing that fighting for what's right is worth it."

It is high time that we as a nation take a long, hard look at our deep wounds of division and chart a path to healing them. The first step is honestly recognizing the fact we are very, very divided. For every person who thinks "X" on a particular issue, there is another who thinks "not X."  Fortunately, we are blessed with an inspired and inspiring Constitution that can preserve liberty and civil rights and establishes a framework for a balanced and checked government. It is abundantly clear why these checks and balances are so important, and it is imperative that we, as professors, lawyers, and citizens, work our hardest to preserve these systemic protections.  But we must do even more than that.  Lawyers are fundamentally society's problem solvers.  And we have a problem of disunity.  We each need to figure out a way that we can help the people of the United States live and work and function together as a nation in a mutually respectful way. Perhaps that means a return of more decision-making authority to individual states, as was initially intended by our Founding Fathers. Perhaps that means shoring up the division of powers among the branches of the federal government. It also means working to dismantle structures that create and perpetuate societal divisions in the many contexts in which these occur.  Because I write on Fair Housing,  making real strides to integrate neighborhoods is something that immediately leaps to my mind, but there are similar inequities and divisions in all areas of the law and our society.  Like Clinton, I believe that "we are stronger together." And like Trump, I too want "a better, brighter future" for myself, my family, and my country.  Therefore, we have to unite these Divided States.

It is time to do some soul searching and consider how we really can come together and make America not only "great" but unified, effective, respectful, and worthy of respect.  Let's take a deep breath, roll up our collective sleeves, and get to work.

Posted by Andrea Boyack on November 9, 2016 at 12:47 PM in Current Affairs, Deliberation and voices, Law and Politics | Permalink | Comments (12)

"We are all Trumpistas, We are all Clintonians"?

Well, Trump did not exactly echo Jefferson's first inaugural about Federalists and Republicans -- but his victory speech was unexpectedly conciliatory, containing the following two sentences:

“Hillary has worked very long and very hard over a very long time, and we owe her a debt of gratitude for her service. I mean that sincerely.”

These are odd words coming from a candidate who called for Clinton's imprisonment and led crowds in chanting "Lock her up!" at campaign rallies. That profession of sincerity can, therefore, be taken with a pound of salt

But it might be that Trump's lack of any inner core principles, a trait that is either Machiavellian or just pathologically narcissistic, could be a saving grace of his presidency. If his willingness to say anything to win immediate applause at the moment causes him to forget his campaign rhetoric about mass deportations, imprisoning political opponents, and prosecuting newspapers that criticize him, then more power to his pathology. His campaign rallies are over: Those crowds of the "poorly educated" that Trump said he loved have now dispersed. The praise he seems to crave, therefore, must come from the people who pay attention to governing in between elections -- more politically attentive folks who generally disapprove of putsches and witch hunts.

I realize that taking comfort in Trump's utter lack of any inner convictions sounds like a forlorn hope. But it is my current cold comfort as I sit in Shanghai in dismay.


Posted by Rick Hills on November 9, 2016 at 07:55 AM | Permalink | Comments (3)

Tuesday, November 08, 2016

Law School Election Night Blogs

This year at least three law schools are holding Election Night events to watch returns come in and provide election law commentary.  I'm currently with 10-12 members of the UK Election Law Society, and students are blogging here (after I approve the posts).  William & Mary law students are blogging here.  And Ohio State's Election Law @ Moritz students and faculty are providing insights here.  

These events are a great way to engage students in election law issues while also providing important commentary to the community.  I'm proud that a few years ago some students formed the UK Election Law Society on their own, and the event tonight is largely student-driven.  Please hop on over to the website throughout the evening!

Posted by Josh Douglas on November 8, 2016 at 06:46 PM in Blogging, Law and Politics, Weblogs | Permalink | Comments (0)

Lawsuits on Keeping Polls Open Late

One story of election law tonight will be requests to courts to keep the polls open late because of some mishap today.  We already have one lawsuit filed in Durham, NC, and another one is brewing in Colorado.  I've written an Op-Ed for CNN suggesting that courts, in general, should grant these requests.  Here is the intro:

Long lines are a routine part of Election Day in many places. So too are requests that courts order polls to stay open late. When in doubt, judges should grant these requests.

Florida Democrats already won an order to keep polls open late in one Miami polling site during early voting on Sunday night due to road closures earlier in the day. The judge wrote that extending the polling hours was necessary "to avoid abuse and to protect and preserve the Constitutional and statutory voting rights of Miami-Dade County citizens."
 
In previous elections, however, some courts have not been so welcoming of requests to keep the polls open past the statutory closing time. During the 2000 election, a Missouri court of appeals reversed a trial court decision that had ordered the polls open late in some St. Louis precincts. The court wrote that "commendable zeal to protect voting rights must be tempered by the corresponding duty to protect the integrity of the voting process."
 
Similarly, in 2002, the Arkansas Supreme Court reversed a lower court decision that had extended the closing time for an hour and a half in one county because that county did not have enough voting booths or supplies. The state supreme court ruled that the closing hour under the state's election law was "clear," failing to recognize that the decision would have a tangible effect in disenfranchising some people who had come to the polls earlier but had not been able to cast a ballot.
 
This formulation is backward.
 
Read the full piece here.

Posted by Josh Douglas on November 8, 2016 at 06:03 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Yet more support for cameras in the courtroom

Tuesday's hearing in the Trump Campaign's absurd lawsuit in Clark County, NV, was livestreamed. So everyone got to see (or go back to watch), in real time and with their own eyes, an unprepared and ill-informed lawyer and a knowledgeable judge who was, quite properly, having none of it (and likely more than a little aware that the purpose of the suit was not any sort of legal relief, but to set-up the "rigged" narrative for this evening).

Posted by Howard Wasserman on November 8, 2016 at 04:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

New RegBlog Essay: "Expanding the Right to Vote"

Looking for some mid-Election Day reading?  RegBlog at the University of Pennsylvania Law School has just published my essay, Expanding the Right to Vote.  Here is the intro:

A common storyline on voting rights is that conservative legislatures, like those in North Carolina, Texas, and Wisconsin, are attempting to pass strict laws that make it harder for some people to vote—all in the name of curbing so-called “voter fraud.” Yet in the face of these unfortunate new rules, a positive trend is developing in other places: states are enfranchising more people and making voting easier. As voters head to the polls today, we should take note of and learn from these successes so that we can replicate them nationwide, extending them far beyond Election Day 2016.

From expanding the electorate, to adopting online voter registration or automatic voter registration, to making the voting process itself easier and more convenient, states and localities are actively engaged in democracy-enhancing efforts.

Read the whole thing here.

Posted by Josh Douglas on November 8, 2016 at 01:15 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Where to Riot: A Modest Proposal

As a non-citizen, I will, alas, not vote today. (I am in the process of applying for American citizenship, and the election is one but only one of the reasons why I am finally getting off my duff and applying. Another reason is that I teach con law, and am tired of introducing the Constitution by talking about "You the People.") In this election in particular, I have felt a mix of seriousness about and frustration with both the election and the state of discussion (or "discourse," to maintain my academic credentials) around and about it. I also take the view, which is a personal view and one that I do not insist applies to everyone, that following the moment-to-moment headlines, commentary, and pseudo-news on days like this does not necessarily demonstrate or indicate a commitment to politics as a serious and weighty activity. To the contrary, it may have as much to do with treating politics as a fairly weightless leisure activity or, in Stephen Carter's words, "[politics] as a hobby." (Others, in fairness, will spend the day engaged in more meaningful and direct political activity, such as going door-to-door or driving poorer voters to the polls, although they will be vastly outweighed by the hobbyists.) I will therefore spend much of the day avoiding television and social media. Instead, I will sit quietly and read Virgil--I have been spending the election season, which was coincident with recovering from surgery, reading classical literature--and Duncan Kennedy.

I do want to make one modest proposal, however, before the returns are in and before we know what will happen on the streets in response to the election. There has been much discussion and speculation--some serious and sincere, some frivolous, and probably some that is both--about whether one outcome or the other, or the absence of a definite outcome tonight, will lead to rioting. A while back, for instance, Sandy Levinson mused about possible "(justified) rioting in the streets" if Trump wins by a close vote. And there has been general discussion about the possibility of riots by the "alt-right" or populist supporters of Trump if Clinton wins. I don't welcome the prospect of rioting in either case. (Others are, perhaps, more ambivalent about it.) But I won't discuss the "will they (we)/won't they (we)" or "should they (we)/shouldn't they (we)" questions here. I address a more practical question: Where should one riot?  

My modest suggestion is that any group deciding to riot, or encourage and organize rioting, should reject the usual rioting sites: general central gathering places, the downtown or business districts, or--worst of all--the most underprivileged and vulnerable neighborhoods, which are often where rioting occurs. Instead, if people riot--which, again, I hope they don't--they should riot in the residential neighborhoods of what we might broadly call the elites or the upper middle class.

I am perhaps less concerned with rioting in downtown or business districts as such, insofar as they are more likely to lead to property damage to insured businesses than to more "personal" damage. (I am not here making the argument, popular in some circles, that violence directed against property is not "real" violence.) On the other hand, the idea of targeting these areas tends to rely on a stereotyped vision of some idealized place that consists of nothing but the headquarters of banks, brokerage houses, and multinational corporations. Perhaps that's realistic in a few places, thus suggesting among other things the tendency of the popular imagination to view all places as cities, and all cities as large cities--and, at that, all large cities as basically four or five of the largest cities, those most likely to draw a narrow class of individuals. My downtown/business district has some local branches of banks and a couple of Starbucks. But it also contains a lot of small businesses, run by individuals whose lives and resources (and those of their employees) are closely tied to making a living through those businesses. Damage to those businesses is real damage to the well-being of workers and other individuals on the ground. Even the "name-brand" consumer businesses in my downtown are more likely to be franchises owned by fairly "regular" individuals, some of them recent immigrant families. As for the more idealized version of rioting as a kind of Fight Club scenario aimed at gargantuan consumer businesses and safely empty corporate buildings, I see little evidence that it has been effective in the past, and I question whether it is especially well-aimed. In its standard-cultural-tropeness, it also may come closer to the "hobby" model of radical political action than to a serious commitment to politics, radical or otherwise.

As for rioting in the neighborhoods of the poor and disadvantaged, a tendency that may be exacerbated by residential segregation by class and race and a lack of transportation resources, it seems really poorly aimed. And its potential harm is great, striking as it does at the homes and businesses of those who are least likely to be fully protected by insurance, who live and work in these neighborhoods and can least afford damage to them, and who depend on local businesses for food and other staples. Some of these neighborhoods are still recovering from, or will never fully recover from, riots that occurred in those areas decades ago.  

In various ways, both on the left and the right and--at least in an abstract and perhaps not deeply felt (or, in a bad-faith way, actively denied) way, in the liberal and maybe the conservative center--many people believe that the causes of the current election and its discontents, and the causes of the discontents that led to the current election, can be laid at the feet of those people who have the most actual control over and power in the current political, economic, and cultural system. That doesn't just mean the 1 or 2 percent, the Kochs and Soroses. (In any event, they are most likely to be fully insulated in their homes and neighborhoods by public or private security forces and by geographical isolation.) It means something like the top ten or twenty percent of income-earners in the country. It comprises those individuals most likely to have effective political representation; to be contributors to, workers in, or complicit in big-money politics and the party establishments; to work as professionals in those institutions that reinforce or reify the current system, among which I would include the academy; and to be most effectively insulated from the costs and harms of that system and its unequal allocation of power and representation. Insofar as one might want to "bring the war home" to those who are most responsible for the current state of affairs, to force the relevant individuals and institutions to internalize the full consequences of a system whose benefits they richly enjoy and whose costs they effectively externalize, and to make more urgent the need to restructure a system that draws dissatisfaction and anger on the part of the dispossessed, those on the left and right and at least some in the center ought to consider the value, if there are riots, of literally bringing those costs "home" to the class that bears the most responsibility for an ineffective, gridlocked, more or less oligarchical and/or elite-favoring system.

If that's right, then people planning to riot or organize riots might start their planning work by looking at the many websites that provide a look at individual zip codes by household income and other socio-economic factors. The median household income in the United States in 2014 was $51,939. National averages are problematic because of variance by state and locality, but according to this measure the top 20 percent in the United States has a household income beginning at $111,000; higher up the steep curve at the top end of the distribution, the average household income of the top 10 percent begins at $155,000. I would go with the top 20 percent, but I acknowledge that there is room for debate. Whatever your starting point, if you're going to riot, or organizing a riot, or more or less gently excuse or welcome such rioting, why not start with those neighborhoods? Isn't it better and more politically relevant and responsible to riot in Park Slope, or Hancock Park or the west side of LA, or Mountain Brook in Birmingham, or Walnut Creek in the Berkeley area, or Hyde Park in Austin, or in my downtown historical district or the "north of the river" area in Tuscaloosa, than in some neighborhood whose residents are least likely to either be responsible for the current power structure or able to handle the costs of the rioting?

Social media provide a positive benefit here. They make this kind of organization more possible, and also facilitate a kind of shared civic involvement in this radical direct action. Let's say you consider such rioting "justified." One could use social media generally, or institutions like the hashtag, or sites like change.org and other popular petition-gathering and organizing sites, to start a movement in which you acknowledge your privilege, and your complicity in and the advantages that you receive from an unjust political structure, and invite rioters to start with your high-income zip code. Just imagine the wonderful hashtags that you could use on Twitter in inviting the rioters to visit your neighborhood! "#PleaseRiotInMyNeighborhood," "#I'mWithThem," "#IGaveAtHome," "#ThePurgeStartsHere"; these are just a few suggestions. Users of social media are nothing if not inventive and clever about these sorts of things. 

Of course there will be some regrettable inconveniences. But if you are one of the people in an affected neighborhood--and I take it that many readers of this blog, including legal academics generally, will be in that class, both by virtue of the individual income of the legal academic and the likelihood that he or she is in a dual-professional-income household--you should be better able to deal with those inconveniences than others. It is easy enough to keep one's children in a safe place; they probably already enjoy disproportionate educational and other institutional advantages over others, and you probably already read to them and engage in other forms of close parental involvement in education, so they can most easily afford some time off from school; and you are probably well-protected by insurance. (In some cases, you could also retreat to a vacation home or second home.) And surely you can bear any harms more easily than genuine small-business owners whose resources are all tied up in their business--and much more easily than those who live in poor and disadvantaged areas.

It's just a modest proposal, to be sure. And, of course, there may be few or no riots. Certainly I hope that is the case, whether the riots are "justified" or not. Still, it makes a lot of logical, political, and moral sense to me.

And with that, I return to Virgil and Duncan Kennedy and wish everyone well on this election day. 

           

 

        

Posted by Paul Horwitz on November 8, 2016 at 09:52 AM in Paul Horwitz | Permalink | Comments (0)

What's your record?

This is the eighth presidential election in which I have voted. I am looking to move two games over .500 at 5-3.

Update: Looks like I'm falling back to .500.

Posted by Howard Wasserman on November 8, 2016 at 09:13 AM in Howard Wasserman | Permalink | Comments (6)

Monday, November 07, 2016

Mickey Mouse for President? The Law of Write-In Voting

Many voters this year have expressed dissatisfaction with both major party candidates. My own politically precocious 12-year-old has grilled me about the viability of several third-party candidates (to which questions I replied with Socratic questions of my own until he gave up and did his own research that, incidentally, led to an article in his school paper giving a thumbnail sketch on Clinton, Trump, Johnson, Stein, and McMullin).  But even he did not profile the ubiquitous write-in protest vote (for a voter's favorite defeated primary candidate or a voter's mother or, as in one case, a voter's deceased dog).  Apparently, a few poll workers in Kansas were instructed to tell voters that "write-in votes don't count," but the actual rule varies by state.  It is worth considering the applicable rule before you write in anyone, however, because it very well may be that writing in a random name is, literally, throwing away your vote (meaning, it is actually thrown out).  There is a lot of misinformation about this out there, so I did a little bit of research this morning and here's what I came up with (this from a non-election law expert, so please be gentle).

States can (and many do) prohibit or limit a voter's ability to write in a candidate on the ballot. Kansas, for example, is one of the states that seems to limit one's ability to vote, restricting your choices to (a) the enumerated candidates or (b) those write-in candidates that have filed with the KS secretary of state an "affidavit of write-in candidacy for the offices of president and vice-president" before "12:00 noon on the 2nd Monday preceding the general election for those offices." For this election, that means that in order for a vote for a particular write-in candidate to be considered (and count) in Kansas, that write-in candidate must have filed this affidavit before October 24th. Kan. Stat. Ann. § 25-305 (West). This statute has been tested and upheld by the 10th circuit on the basis of a state's interest in voter education (Hagelin for President Comm. of Kansas v. Graves, 25 F.3d 956, 960 (10th Cir. 1994)). 

Limits on a voter's ability to write-in a candidate may seem unconstitutional to you (and to me), but it has been upheld by the Supreme Court (Burdick v. Takushi, 504 U.S. 428, 441 (1992)). The Supreme Court case upheld Hawai'i's ban on write-ins. Oklahoma's complete ban on write-in votes for presidential and vice-presidential elections was deemed constitutional in Coalition for Free and Open Elections, Prohibition Party v. McElderry, 48 F.3d 493 (10th Cir. 1995). The Supreme Court denied certiorari in that case. Other states have now and in the past completely banned write-ins as well, but the more common approach seems to be to require registration or to state that ballots that are not printed legibly won't be counted (well, duh!).

In Kansas, voters are not completely barred from writing in candidates in a presidential election, but only votes for registered candidates will count. (FYI, Kansans are also barred from writing in to indicate affiliation with a non-enumerated party in their voter registration. This rule was upheld by a federal court in 2011 and affirmed by the 10th circuit. Constitution Party of Kansas v. Biggs, 813 F. Supp. 2d 1274, 1276 (D. Kan. 2011), aff'd sub nom. Constitution Party of Kansas v. Kobach, 695 F.3d 1140 (10th Cir. 2012)).  

People are often confused about write-in rules, particularly since states apparently change them periodically and since they vary widely among jurisdictions. It doesn't help when poll workers are told that "write-ins are illegal," which of course they are not (what, are you going to be fined because you write a candidate in? I can't believe that ever would be the case!).   

All this raises a good question that a friend of mine articulated - Why on earth would anyone write in an unregistered candidate at all? Someone who hasn't announced he or she is running for President and who likely will get all of ONE vote (yours)? Well, in cases that have considered the question of legality of write-in bans from the point of view of the voter, rather than the candidate, the right to write-in is equated, once again, to a type of free speech.  The idea is, of course, that a vote for "Mickey Mouse" is a protest vote, a "none-of-the-above" vote, and that casting this sort of vote should have some sort of speech-related impact, something beyond staying home on Election Day.  This sort of speech could only have any actual effect if write-in protest votes were to be aggregated, tabulated, and announced.  If 10% of voters wrote in some random protest name at the polls, say, perhaps that fact in itself could be newsworthy and suggest a high level of dissatisfaction with the process and candidates.  If you have a write-in ban or limitation to registered (or real, live) people, however, then you lose the ability to be part of this sort of collaborative, grassroots protest voting speech.

Thus, even though I really, really want to write in Lin Manuel Miranda for President (because how awesome would that be!?), I guess I will have to restrain myself tomorrow. 

Happy Voting, everyone!

 

Posted by Andrea Boyack on November 7, 2016 at 04:41 PM in Constitutional thoughts, Current Affairs, Deliberation and voices, First Amendment, Law and Politics | Permalink | Comments (4)

Weak parties, strong partisanship

This Ezra Klein piece is instinctively appealing--our system has weak parties that are unable to control who is nominated (because of the relatively modern prevalence of primary elections) combined with polarization of the parties combined with strong partisanship such that most supporters and leaders of one party will fall in line with the party nominee, whoever she/he is. Klein argues that this explains how Trump, for all his beyond-the-pale craziness, is as close as he is to the presidency. Klein closes with the following:

But if he loses, it will be because he is a crude, undisciplined demagogue. The world also produces clever, disciplined demagogues. And they are the ones who truly threaten republics.

It helps that parties are not built into the federal constitutional system and may have been a somewhat unexpected development. That the Constitution itself does not speak to, or control, this practical feature of the political system means it is free to develop on its own, perhaps in a way that undermines the constitutional structure.

Posted by Howard Wasserman on November 7, 2016 at 04:13 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

STRESS-S-S-S-S-S-S-!

With everyone stressed about the elections, I will stick to this general theme and discuss my forthcoming article on stress testing, which is a method of bank regulation popularized by the Dodd-Frank Act in which the Federal Reserve sets adverse economic scenarios to examine whether big banks have enough capital to survive an economic crisis that stresses them to the limit.  Maybe the next stress scenario should be a crazy election?

There are currently no guiding models for stress testing, and this article fills the void by suggesting and deriving a Bayesian model, which is a kind of model that takes into account prior inputs.  In this context, the priors would be the previous Federal Reserve adverse scenarios because of industry belief that the Federal Reserve adapts its scenarios to stress certain portfolios, but remains consistent with its prior scenarios in terms of economic intuition.

The article concludes that, indeed, failure to consider these prior scenarios could underestimate a bank’s loan losses significantly in an adverse economic scenario – by as much as 25%.  This could be the difference between a successful stress test and a failed stress test.  A  failed stress test can be stress-inducing for bank clients, and, unlike elections, stress-testing is an annual event.

You can read the paper here.

Posted by Margaret Ryznar on November 7, 2016 at 03:49 PM | Permalink | Comments (0)

Best writing practices

Hi all, it’s good to be back at Prawfs for another guest stint. I’ve written for this site more times than I can count, but this is my first time guesting as a Texan, having just joined the faculty of the University of Houston Law Center, where I’m also serving as research dean.

In that latter capacity, I’ve been thinking a lot about how to encourage productivity both for others and for myself, and this has led to some reflection on best practices for optimal writing. I’ve found that working on scholarship is the easiest part of the job to put off. Teaching and service typically happen on regular, no-exceptions schedules—classes and meetings require your presence and start and end at specific times—while writing can almost always be delayed until some theoretical future time of idealized productivity.

So in this initial post, I’ll share three of the leading suggestions I’ve read about how to maximize writing productivity based on my admittedly casual perusals of the surprisingly vast literature on this topic (the existence of which leads me to believe I’m not alone in often finding it challenging to stay on-task with respect to writing). The question I’m most interested in is whether these general best practices for writing translate into good practices for legal scholars, and/or whether there are other techniques folks have found helpful.

All this follows after the break.

First: write early. Whether there is an ideal time during the day to write is to some extent idiosyncratic. Charles Dickens and Ernest Hemingway were morning people who cranked out the words when they got up and finished by afternoon. Robert Frost and Hunter S. Thompson were nightowls who got their best work done later in the day. But there is some evidence that most people are best served by writing earlier on, particularly soon after waking up. For one thing, to the extent that writing requires mental focus and will power, those qualities are at their peak earlier in the day, especially the morning before other tasks and distractions have the chance to sap our energy and attention. Neuropsychologists have also found that the part of the brain associated with creative activity—the prefrontal cortex—tends to be the most active earlier in the day, so that if you’re thinking through issues or working out a particularly difficult conceptual problem, you’re more likely to succeed after your morning coffee than your evening dinner.

Second: write regularly. Whether you get your best work done in the dark of the earliest morning or of deepest midnight, one universal nearly all productive writers agree on is: find a pattern you like and stick to it. Part of this is about efficiency. Making writing a regular part of your life makes it increasingly likely that you’ll actually write, turning it into an expected and standard part of your day rather than something you have to spend time and effort making time for. But there’s also the related point that writing regularly makes what can be a challenging task easier. Haruki Marukami unsurprisingly put this much more eloquently than I could in describing his own routine: “The repetition itself becomes the important thing; it’s an act of mesmerism. I mesmerize myself to reach a deeper state of mind.”

Third: write often. One of my favorite quotes about writing comes from the late, great Roger Ebert, who said something along the lines of “I’ve developed a reputation as the fastest writer in town. But I’m don’t write faster than others. I just spend less time not writing.” This is certainly closely related to having a regular schedule (if you commit to writing every day, you’ll likely be writing more often just by virtue of committing to doing so on a daily basis). And this one rings true to me for intuitive reasons. The analogy seems that writing is like a muscle. Exercise it frequently and it gets stronger. Fail to do so and it atrophies.

The question for this audience is: Do these notions, most of which come from looking at novelists or essayists, hold true for legal and/or academic writers as well (I’m not sure that Marukami’s self-mesmerism is something that would be helpful in writing scholarship)? There are a number of potential distinctions: scholarship requires research and entails a different sort of creativity (persuasive argument as opposed to something more akin to pure creativity). And since writing is only part of the professor’s job, is it reasonable to expect to have a regular writing schedule given the need to prioritize students and the competing demands of service? Or does that mean that picking and insisting on a schedule is all the more important?

Finally, consider one alternative approach I’ve observed in some colleagues, which I’ll call the binge-writing model. The notion here is that given the inherent disorder of the academic schedule, it’s not really possible to write regularly, and perhaps not even that effective. I have colleagues who sincerely believe that writing is best in concentrated marathon chunks when blocks of time open up (or if they don’t, in a mad series of sleepless nights). The idea, I suppose, is that this kind of fugue-based approach produces more interesting and coherent work than plodding along gradually, adding a bit at a time.

Again, it’s good to be back and Prawfs and I look forward to thoughts on these or any other best writing practices.

DF

Posted by Dave_Fagundes on November 7, 2016 at 11:29 AM in Life of Law Schools, Science, Teaching Law | Permalink | Comments (7)