Saturday, December 31, 2016
Will SCOTUS Finally Pick Up the PACER?
"At a time when almost every other federal court has a readily accessible electronic database, why can’t the Supreme Court?"
That was how I ended a post from August 2014. By then, it was already long past time for the Supreme Court to develop something like the PACER electronic docket system that has operated for many years in the lower federal courts.
Actually, #PACER4SCOTUS would be setting our sights too low, since the Court has an even higher obligation to promote transparency. I accordingly argued that the Court should "leapfrog PACER and supply free public access to all filings (with appropriate exceptions, such as for materials under seal, of course). The Court should become a leader in promoting judicial transparency, rather than remaining woefully far behind."
A few months later, Chief Justice Roberts addressed the PACER Problem in his 2014 Year End Report by including the following statement, with my emphasis added:
The Supreme Court is currently developing its own electronic filing system, which may be operational as soon as 2016. Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website.
Two years have now passed since the Chief revealed his plan, but the Court still lacks a digital filing system that affords the public free, instant access to important documents.
Later today, the Chief will issue a new Year End Report. I hope that he'll include the development of a free docket system among his new year's resolutions.
Friday, December 30, 2016
Two Cheers for old Hickory: How Trump’s revival of Andrew Jackson’s patriarchal politics protects us from white nationalism
Numerous commentators have noted the psychological parallels between the individual personalities and collective followers of Donald Trump and Andrew Jackson. As individuals, both Trump and Jackson shared grandiose narcissism, unhinged anger at personal slights, and love of violence. Trump’s supporters likewise strongly resemble Jackson’s base in their geography and apparent motivation. Both groups hailed from more rural areas of the West and South and seemed motivated by resentment toward bankers and cultural elites perceived to dominate in the nation’s Eastern seaboard centers of education (Boston) and finance (New York City and Philadelphia). The authoritarian beliefs of Trump’s supporters matches the authoritarian personality of their standard bearer. As Herrington and Weiler show, Trumpistas favor “Daddy style” politics – “spanking” rather than “time out” in their memorable phrase – in which a macho leader protects the nation from treasonous insiders (“Crooked Hilary”) and dangerous outsiders. Likewise, Rebecca Edwards has shown how nineteenth century Democrats favored a politics of patriarchy, scorning Whigs and Republicans as effeminate meddlers bent on interfering with the father’s prerogatives to run his household as he pleased.
Should Trump’s opponents be sanguine or scared about the parallels between Old Hickory and Trump? Guided only by the Whigs’ predictions about Jackson’s likely behavior in office, the Jacksonian precedent should give Trump’s opponents plenty to worry about: The Whigs’ alarm sounds almost identical to today’s anxiety about the impending Trump Presidency. Like Trump, Jackson was branded by his enemies as an illiterate, impulsive, thin-skinned would-be tyrant. Jackson did not merely issue authoritarian tweets but actually acted on his authoritarian impulses, arresting a federal judge in New Orleans during his self-proclaimed regime of martial law and hanging British nationals during the Seminole War against the recommendations of his own officers. Henry Clay named his party the "Whigs" precisely to highlight "King Andrew's" allegedly despotic tendencies.
If one looks at the track record of Jacksonian democracy, however, there is reason for Trump’s opponents to take just a little heart. While embracing the same sort of macho rhetoric shared by Trump’s supporters, Jacksonian Democrats actually practiced a libertarian politics extremely friendly to Irish Catholics, the most despised of immigrant groups in the 1840s. Indeed, Jackson’s followers made rejection of Whig and American Party nativism a central plank of the Democratic Party. Moreover, nineteenth century Democrats made protection of personal liberty their Party’s slogan, fighting off efforts to abolish Catholic schools, prohibit the consumption of alcohol, or ban the teaching of the German language.
After the jump, I will suggest that the libertarian and immigrant-friendly tendencies of the Jacksonians were not mere coincidences but had a paradoxical connection to their patriarchal and authoritarian ideology. To summarize, macho patriarchy in America tends to be self-defeating, at least as a path to authoritarian domination. That self-defeating tendency was a boon to nineteenth century democracy, and it might also save us today from any European-style fascism rooted in white identity.
Consider three reasons why a constituency that favors Trump’s style of authoritarian politics is likely eventually to follow the precedent of the nineteenth century Democratic Party by (1) picking fights rather than making peace with educated white voters; (2) keeping the federal police powers relatively weak; and (2) seeking votes from recent, non-“European” immigrants. All three tendencies have the effect of undercutting the sort of white nationalism that right-wing parties in Europe are now trying to achieve.
1. In America, authoritarian patriarchy tends to alienate a wide swathe of white voters, preventing the coalescing of a unified white identity.
White nationalism, much in the news today, is nothing new in America: The creation of a white nationalist identity that would transcend class and sectional lines was the fond project of many in antebellum America, including John C. Calhoun. Calhoun’s “positive good” theory of slavery, announced in an 1837 speech, was connected to the idea that rich and poor whites could unite around a common racial identity, thereby “exempt[ing] us from the disorders and dangers resulting from [class struggle].”
Pietist Protestant reformers, however, threw a wrench into the white nationalist project. The major obstacle was the Pietists’ rejection of patriarchy. Nineteenth century pietist reforms focused on limiting domineering male prerogatives – drinking alcohol, gambling, use of prostitutes, dueling, and, prior to the Thirteenth Amendment, enslaving other humans – that endangered the welfare of women and children in the home. Pietists were a hefty portion of northern whites, spreading out in a great Yankee diaspora from New England through the “burnt over district” in New York to the Great Lakes. With their nosy intrusions into male control of the household, these reformers managed to alienate Irish Catholics and German Lutherans as well as white Southerners, thereby forging together an otherwise coalition of ethnocultural minorities intent on resisting Yankee intrusion into their home, saloons, schools, and churches. (For some standard accounts of this ethnocultural divide, see Richard Jensen, Paul Kleppner, and, more recently, Jon Gjerde).
By 1840, the Democratic Party proclaimed itself the defender of this coalition of Southerners and immigrants, declaring in its 1840 platform that
“liberal principles … which makes ours the land of liberty, and the asylum of the oppressed of every nation, have ever been cardinal principles in the democratic faith; and every attempt to abridge the present privilege of becoming citizens, and the owners of soil among us, ought to be resisted with the same spirit which swept the alien and sedition laws from our statute-book.”
In short, the Party of white supremacy was also the enemy of Pietist nativism championed by an important group of northern whites. This division in white opinion destroyed Calhoun’s dream of a unified white nation until the turn of the twentieth century. (By the 1890s, northern and Southern evangelical reformers for the first time united around a polite racism directed against both the freedmen and the new wave of immigrants from Southern and Eastern Europe. Abandoning both the libertarian rhetoric and blunt, anti-intellectual camaraderie of Jacksonian democracy, the Democrats eventually endorsed in 1912 the bigotry and middle-class reform of Woodrow Wilson, a genteel racist with a Princeton sheen and a loathing of both blacks and the Irish of Tammany Hall).
The same divisions between patriarchy and reform operate today to reduce the odds of a unified “white nationalist” coalition. Put crudely, the racism spouted by Trump’s supporters is accompanied by a boorish brawling masculinity that tends to repel women, people with a college degree, and anyone with a minimal sense that the fraternity antics of males should be curbed by norms of social and domestic responsibility. Wherever urbanity flourishes – college towns, big cities – Trumpism wilts. A standard-bearer peddling racism more polished than Trump’s might reduce these objections of college-educated whites – but such polish would also reduce the enthusiasm of his patriarchal followers. In short, the vice of social snobbery may have counteracted the vice of racism.
Contrary to many liberals’ fears, Trump’s enthusiasm for Queens-style pugilistic rhetoric is not an accident easily corrected: It is essential to his appeal. And that appeal is not something that Trump invented: It is instead a deep tradition of American politics with its roots in Andrew Jackson’s personality and the patriarchy that Jackson transformed into the defining characteristic of the nineteenth century Democratic Party.
2. Advocates of authoritarian patriarchy tend to be suspicious of federal bureaucrats:
Authoritarian patriarchy not only alienates a sizeable number of whites but also causes the patriarchs themselves to be distrustful of the federal government – the very instrument of national power that patriarchs need to realize their policy goals. The distrust springs from the disparity between the brusque macho rhetoric that is the galvanizing force of the patriarchs (“just do it,” in Trump’s phrase) and the norms of legal due process and rational policy analysis required by a complex organization like the federal government.
Authoritarians tend to have less formal education than non-authoritarians. The federal bureaucracy, by contrast, tends to be more educated than average American, and the disparity is (unsurprisingly) highest for officials in management positions.
One might predict, therefore, that authoritarians in America would tend to distrust the federal workforce and seek to weaken rather than exploit federal power. This was true of Andrew Jackson and his followers, and, over the long haul, it is likely to be just as true of the Trumpistas. Put simply, they know that they will never dominate the federal bureaucracy, and this knowledge dampens their enthusiasm for building up federal capacity to fulfill authoritarian goals.
Take Trump’s proclaimed their goal of speeding up the deportations of unlawfully present aliens. Toward this end, Trump promised to triple the number of ICE agents, but he has said little about clearing up the backlog of a half-million cases pending in the docket of EOIR’s immigration courts. In theory, the Trump Administration could hire several hundred more immigration judges to process cases. But why would Trump or Jeff Sessions trust them? Trained lawyers do not observe the authoritarian creed: They will likely bog the entire project down in a quagmire of due process that legally trained professionals tend to insist upon before upending a respondent's life with deportation. One might, therefore, see the goal of accelerated deportations gradually fade from Trump’s rhetoric, replaced by other policy goals that do not require the cooperation of the federal civil service.
More generally, from a patriarch’s point of view, federal agencies staffed by educated and skeptical bureaucrats are simply too unreliable a tool. Authoritarian politicians in the United States, therefore, are more likely to spike the cannons of federal power that they capture in elections rather than convert federal officials into authoritarian instruments. It is significant that the Republicans want to abolish the U.S. Department of Education rather than convert it into a tool for advancing a conservative educational agenda: They apparently distrust their own capacity to get the agency to advance authoritarian policy priorities. For parallel reasons, one might reasonably predict that Trump-style authoritarians will give up on the idea of vastly enlarging the budget or personnel of Homeland Security.
2. White nationalists just do not have enough white votes—and recent "non-European" migrants often provide the most likely supporters of their patriarchal views.
In the 19th century, the Democratic Party courted Irish Catholics because they needed electoral support against Yankee reformers. As Scott C. James has shown, Democrats could not win the Presidency relying only on white supremacists from the American South: They needed to win New York, and, to win New York, they had to have the support of Irish Catholics. Likewise, as Richard Jensen has documented, Democrats could compete in Midwestern states like Illinois only by courting German Lutherans.
Trumpistas will find themselves in the same electoral trap: They need to find some socially conservative voters to supplement their dwindling white ranks. One place to look is among Hispanic voters, whose views tend to be more conservative on family matters than the average American’s. The leaders of the nineteenth century Democracy knew that they could not fight off Pietist Yankee reformers and Irish Catholics simultaneously: They had to cut a deal with the latter to beat the former. Likewise, the more far-sighted Republican leaders know that they cannot simultaneously fight college-educated whites and ethnocultural minorities like Hispanics: From their point of view, recent Hispanic migrants are not the barbarians at the gates but rather the cavalry coming over the hill. Trump is not a far-sighted kind of guy, but even he apparently can sense that deporting Dreamers is a political loser.
In sum, the type of authoritarian politics first defined by Andrew Jackson has several qualities that render it self-defeating as a tool for European-style fascist oppression. None of this is to say that “it can’t happen here.” I do not assume that the Trump Presidency is likely, let alone predestined, to follow the precedent of the Jacksonian Democrats. I suggest only that, if Trump follows in Old Hickory’s footsteps as he seems inclined to do, then the damage that he can do to our constitutional order is limited.
So lift a glass in praise of Old Hickory and the self-defeating tradition of macho bravado that he invented. It kept America safe from a unified white nationalist party in the nineteenth century, and, with luck, it may keep us safe from the darkest dreams of white nationalism today.
Sponsored Post: Experiencing Trusts and Estates
We’re delighted to have the chance to talk about a casebook that we have forthcoming from West Academic in its Experiencing Series. The key idea behind the books in the Experiencing Series is to incorporate more experiential lessons than the typical casebook. While seemingly all casebooks are making that move these days, trusts and estates lends itself to this approach in particular. We are building on the really terrific teaching materials that have been out for decades now in trusts and estates by keeping many of the well-known cases and building out more documents and some of the key issues that students who will be in small firms will likely face on a regular basis.
We start Experiencing Trusts and Estates with planning for the physical act of death -- that is, planning for durable powers for attorney for health care and for financial matters. We introduce right up front those very basic documents, and the statutes that govern them, to give students a sense of what those documents look like, how they can prepare them using statutory precedents, and some of the problems that attend (particularly) durable powers of attorney for financial matters. Then we introduce the basics of the estate and gift tax regime and the basics of the probate process. All this material gives students a 360-degree view of the field and gets them ready for lessons in the drafting and execution of wills and trusts. Our focus is to introduce students to planning documents and to see how those documents (like spendthrift trusts) are written and interpreted. One of our hopes is that this approach prepares students with the vocabulary and the basic understanding of how documents relate to the more esoteric wills and trust doctrines that they’re learning about. And to make things a little more entertaining, we draw a lot of examples from “wills of the stars” -- from George Washington to Elvis, Michael Jackson, Katherine Hepburn, and Whitney Houston. Experiencing Trusts and Estates will be published this spring and available for fall 2017 classes.
Thursday, December 29, 2016
Streamlining Your Twitter Routine
Twitter can be an epic timesuck, but it doesn't need to be. Here are some tips to make the most of it, for both creating content and consuming it.
For creating content and tracking activity, consider these suggestions:
- Use a scheduling tool. This is my single biggest trick for keeping active on Twitter: I use Buffer. Buffer, like Hootsuite and others, is a scheduling tool that lets you schedule tweets to post at a later date and time (and on multiple social media platforms and profiles). You can also use Buffer plugins that work directly in the apps or websites you are using. My routine includes reading relevant stories on Feedly (which aggregates multiple legal news sources and tech blogs), composing tweets with links to interesting content, and using Buffer to schedule tweets throughout the day rather than tweeting them all at once.
- Tweet a lot at once. If you have a lot to say on one topic, it's okay to occasionally do a series of tweets in short succession (called a tweetstorm, because why not). This article helps explain the mechanics of tweetstorming, and has links to apps that help. Using tweetstorms too often may be spammy, but it can be a good way to focus your energy on tweeting more detailed content in one big burst.
- Set up alerts. You should pay attention to retweets and replies to your tweets, but it can be distracting to always have Twitter open. Instead, set up email notifications or push notifications on your phone. That way, you can respond to replies and monitor activity as needed without being lured to your always-open Twitter tab. Conversely, if you get a lot of activity on Twitter and it's a distraction, disable alerts and instead set aside specific time frames to check your account.
- Don't obsess about follower counts. I don't have a ton of followers, but it's the quality not quantity that matters to me. It takes consistent tweeting and interacting with others to create a meaningful base of followers. You'll frequently gain and lose random followers who have nothing to do with your subject areas -- it may just be someone looking to get followed back (because they, unlike me, are focused on quantity). And occasionally a tweet will make your follower count dip a little immediately afterwards (leaving you to wonder if it was something you said?). For sanity's sake, tune out and pay less attention to the real-time ups and downs of your follower count.
- Check Twitter analytics. It can be frustrating to feel like no one reads your stuff, which seems like a common lament for law professors generally. But Twitter gives you analytics to help gauge the impact of your tweets (such as total impressions, mentions, retweets, and changes to your follower count over time). You can get a lot of info from Twitter analytics from the web version and more limited tweet activity stats in the mobile app. Social media management tools like Buffer also give you analytics. Of course, focusing too much on these metrics can be a timesuck of its own, but it's fun and, if you notice some content always falls flat, you can readjust.
- Accept that your activity will ebb and flow. Resolve to tweet more but certainly prioritize other work and scale back as needed. Consistency may be important but going silent for a stretch of time won't necessarily torpedo your efforts. Don't give up just because you took a hiatus.
For consuming content, Twitter moves fast and you will always miss some updates. Accepting this fact is the key to avoiding frustration, but there are ways to tailor what you see and decrease clutter. Twitter "lists" are the main tool, along with using special apps.Lists let you group updates from certain Twitter accounts in one view, so that you create a mini-newsfeed on a targeted topic. Once you create a list, you can then click on that list to see tweets from only the list's members. Here are additional tips for using lists:
- Subscribe to other people's lists. Sometimes other users have already created helpful lists. Rather than reinventing the wheel with a new list, you can subscribe to theirs.
- Use both public and private lists. Public lists are visible to all, and the list members get a notice when you add them. This is useful because you may want them to know you included them (as long as you picked a flattering list title), and other people may then subscribe to your list. Private lists function as organizational tools and are only visible by you. Members don't know you added them to private lists.
- View lists on the mobile app. The location for lists in the mobile app is not ideal, but if you go to the "Me" tab, click on the wheel with spokes, and select "lists," you can see tweets by list.
- Add accounts to lists without following them. Lists let you add accounts even if you don't follow them. This means that you don't have to clutter up your main twitter feed with updates that go to a list.
In addition to using lists, here are other content management tips:
- Avoid following binges. It's tempting to follow every account remotely related to your interests, but try not to clutter up your main feed with marginally relevant content. You can always add accounts to lists without also following them.
- Unfollow liberally. Declutter your news feed by removing accounts that don't interest you. Most people won't even notice. The only drawback is you'll see fewer replies between other people (which are only visible in your main feed if you follow both accounts), but this may be a good thing.
- Remove duplicative content. If you read a news source regularly via mobile app or an RSS feed, perhaps unfollow them on Twitter. Decide what to prioritize in what platform.
- Use a Twitter dashboard. I'll admit I haven't tried this yet myself, but apps like TweetDeck and TweetBot can be especially useful for curating what you see in Twitter. They help you manage multiple accounts, view multiple lists at a time, and otherwise streamline your Twitter usage (some are complete social media management tools that also let you schedule tweets across multiple accounts). Advanced features include muting content based on hashtags or keywords, which seem particularly useful for tailoring what content you see.
I welcome other suggestions in the comments, as I too am trying to implement new management tips in 2017.
Give us your huddled victims of flying scales
In the category of things I should have known but just learned: Justice Cardozo and Emma Lazarus were first cousins. Esther Nathan and Rebecca Nathan were sisters, Esther older by nine years. Esther married Moses Lazarus and begat Emma; Rebecca married Albert Cardozo and begat Benjamin. That piece of the family tree (from a family tree of the earliest Jewish families in America at the National Museum of American Jewish History) is here (forgive it turning sideways).
Wednesday, December 28, 2016
Tips for Tweeting (Including New 2016 Features)
I've put together some tips for tweeting, which may be useful for those who are new to Twitter or who don't tweet much. And for more experienced users, I've included info on some of the 2016 changes to Twitter.
Twitter's most distinctive trait is its 140-character limit for all tweets. This format cuts down on text and allows for a quick view of a lot of content. The 2016 improvements to Twitter largely altered what counts towards the character limit (Twitter toyed with the idea of allowing much longer posts but changed course following backlash).
First, as to content, in 2015 Michael Risch at Faculty Lounge analyzed what law professors tweet, among other data. In general, law professors include a combination of links to new content, retweets of others' content, or statements without links that may be informational (or for purposes of self-promotion). Certainly various content options are possible, and it's best to strive to tweet about a combination of the following:
- Substantive content. Pick a theme, such as your area of scholarly expertise, and focus on tweeting about things you find interesting on that theme.
- Interactions with others. Retweet people, reply (always politely) to things others say on Twitter, and mention people.
- Law school promotion. Retweet official announcements from your law school, your colleagues' tweets, and positive press.
- Self-promotion. Announce new publications, speaking engagements, and accolades. Retweet press about you or tweets that mention you. Live-tweet from events, as long as the event organizers or presenters allow it.
- Other hobbies or interests. Sprinkle in the occasional personal detail or point of interest that goes beyond your academic pursuits. Don't overshare or adopt some fake online persona, but don't be afraid to show a little personality.
Second, understand some of the nuances of how Twitter works:
- Share links. You can copy and paste URLs into the tweet you are composing. Links are worth 23 characters regardless of link length. This means that using link shorteners, like Bitly, is not necessary (even links shorter than 23 characters still count as 23 characters). You can also share on Twitter directly from other apps or websites with the Twitter plugin (just click on the website's Twitter button, though you can still modify the text before tweeting). Rumor has it that Twitter will do away with URLs counting towards the character count at all, but this has not happened yet.
- Use hashtags. Hashtags allow folks interested in a topic to find your tweets more easily. Just add a pound sign (#) before a common term and it'll become a hashtag. If you want to find popular hashtags, check out what is trending on Twitter (usually your Twitter home screen will have a column with trending topics). Or, for those who want to get fancy, you can use various analytic tools and apps to find popular hashtags.
- Add images. Thanks to Instagram and Snapchat, images are increasingly important on all social media platforms. Twitter just made a change so that images no longer count towards the character limit. And images now automatically display in Twitter feeds, making them even more visible. Consider incorporating more images as a way to expand on your ideas.
- Retweet others. Twitter lets you retweet someone else's entire tweet so that it appears on your profile with the original author's handle and profile image. If you learn something from someone else but don't want to retweet the content, it's nice to give credit anyway -- usually indicated with "via," "HT," or "H/T" followed by the originator's Twitter handle.
- Quote tweets. One major 2016 update to Twitter is the revamped Quote Tweet function. It lets you retweet something with your own commentary added, and you now get a full 140 characters for your comment. Before the 2016 changes, people had to squeeze their comments into the remaining characters of the original tweet. Thus, tweet authors tried to save room for comments by using fewer than 140 characters in an original tweet. Now, you get a full 140 characters for your comments on a quoted tweet, plus you no longer have to add "RT" to indicate a retweet or "MT" for a modified tweet. You now can also quote your own tweet, if you must.
- Reply to tweets. An option for engaging in a conversation, a reply includes the original author's Twitter handle and is linked to the original tweet. Just click on "reply" and type your text after the auto-filled Twitter handles. But don't confuse DM (a private direct message) with a reply: replies are essentially a public conversation. [EDIT: When you click reply, that reply is only visible in the news feeds of those that follow both parties. The reply does appear on the profile page of the person who wrote the reply.] One new change is that the characters in the Twitter handles for replies don't count towards the 140 character limit. For experienced Twitter users, note that replies used to be visible to only certain Followers, but they are now visible to everyone even if the tweet begins with a Twitter handle. This means the ".@" workaround is no longer necessary to keep replies broadly visible. [EDIT: Old Twitter treated any tweet that started with a Twitter handle as a reply. So, if you started a tweet with "@" fewer people would see it. The period or dot before the Twitter handle was a pro-tip for users wanting to make tweets beginning with "@" more visible. Under the 2016 changes, a newly composed tweet that begins with "@" is visible like any other tweet, so the dot is not necessary. But when you hit the reply button, visibility is still limited. Thus, the ".@" convention is not totally dead yet (and this requiem for the .@ may be premature). This help page explains tweet visibility more. But the best practice may be to retweet anything you're mentioned in (replies or otherwise) if you want them to be seen.]
Next up: ways to streamline your Twitter routine.
Northwestern Law Review exclusive submissions
Northwestern University Law Review has instituted a system of exclusive submissions for the upcoming cycle. Authors can submit exclusively until January 28 and will receive a response by February 17. It is a good way to get a jump on the submissions cycle. Full details on submissions here.
Tuesday, December 27, 2016
New Year's Resolution: Tweet More
I doubt "spend more time on social media" is a top New Year's resolution for many, unless it's to combine Facebook time-sucks with a treadmill. But in 2017, it may be worth striving to use social media more for professional purposes. And for academics, Twitter is the place to be.
Before this past election, Twitter's relevance may not have seemed obvious. Now, with Trump's tweets making news on an almost daily basis, it's a hard platform to ignore. Back in April, Chris Walker posted on PrawfsBlawg about the benefits of Twitter for academics, and I tend to agree that Twitter is a worthwhile endeavor. I was discouraged from maintaining my professional Twitter feed in 2013 when I was a fellow preparing to go on the market, mainly out of the legitimate concern of not being taken seriously as an aspiring professor. Focusing on long-form scholarship and serious academic inquiry is of course the main focus, though in my view not inconsistent with tweeting (the debate rages on, however). I stuck to Twitter because, without it, I was missing out on important law & tech updates. Frankly, the scholars I cite in law review articles use Twitter to discuss their work and share ideas. I've learned through Twitter about calls for papers, articles posted to SSRN, and important tech developments. I may have learned these things on other platforms eventually, but I peruse Twitter during free moments and catch quick updates that otherwise may slip through the cracks in an email or other announcement. And Twitter can be fun -- from following live tweets of major events like the Super Bowl or premiere of Sharknado to nerding out when someone you admire retweets you. Fortunately, my colleagues at Toledo Law have embraced Twitter as well, or at least recognize its benefits for increasing law school visibility for scholars, students, and prospective students.
I don't intend to rehash the debate over Twitter's utility, but instead want to post some concrete tips for first-timers and power users, including how Twitter works, what to tweet, and tools to streamline your Twitter routine. Staying active on Twitter does take some effort (though substantially less than blogging, as I'm learning first-hand this month), but I am making it a goal for next year to keep active on Twitter. Today I'll get into the basics of setting up an account, and future posts will contain more advanced tips and tricks.To start, consider creating a Twitter account just to observe rather than tweet. Even then, set up the account with an eye towards sticking with it in the long run:
- Don't bother with a private account if you're using Twitter for professional enrichment. Set it to public, but remember that your conversations are visible to all and essentially a permanent part of your online identity.
- Be sure to pick a good Twitter handle (your "@" username). It should be short so as not to take up too many characters when someone mentions you. And it should be professional and meaningful -- think of it as part of your personal brand. Mine is @socmediaJD, which is actually shorter and easier than my name but not particularly great.
- Add a profile photo (rather than the default egg image) so that people know you're an actual human being.
- Add your 140-character profile description. You can list your title and affiliation, perhaps even your bio link, but be aware of your institution's social media policies.
- Check out other people's Twitter feeds. Start with your friends, colleagues, favorite news sources, and reporters. If you like the content, you can follow those accounts so that their tweets show up in your news feed (note that the folks you follow get a notice that you're following them, and anyone can see the list of who you follow).
Tomorrow I'll add suggestions on what to tweet about, some mechanics of how Twitter works, and other Twitter-specific conventions.
Sunday, December 25, 2016
How Federalism Saved Baby Jesus
There are plenty of reasons for a federalism-loving con law prof to like the Christmas stories in Luke and Matthew. Take, for instance, Joseph's returning to Bethlehem to be registered for taxation purposes: According to one strand of (albeit contested) Biblical scholarship, Luke was implicitly acknowledging a peculiarity of imperial fiscal policy whereby a taxpayer could choose to pay their taxes in either their place of current residence or their ancestral home where they owned real estate. In other words, the entire trek back to Bethlehem recorded by Luke 2:2 may have been an instance of taxpayer forum-shopping to reduce tax liability.
The much more important instance of federalism-based foot-voting in the Christmas story, of course, is the Flight to Egypt recorded in Matthew 2:13-23, in which the Holy Family flees from Judea to Egypt after being tipped that Herod the Great was seeking to exterminate potential political rivals -- including infants. Unlike the Roman tax system and the Census of Quirinius, which is a perennial topic of debate among Biblical scholars, the Roman Empire's system of asymmetrical federalism is well-documented. Different jurisdictions within the empire were governed by different legal regimes: Judea, for instance, was a client state in the process of being romanized by Herod the Great, while Egypt was an "Augustal prefect," meaning that the Emperor, not the Senate, appointed its chief executive.
The beauty of asymmetrical federalism from the point of view of imperial administration is that it allows the regime at the center to cut separate deals with different local elites based on their relative strength. But the advantage of such systems from the subject's point of view is that they magnify opportunities for foot-voting, because the administrative differences between the jurisdictions help insure that a single political regime will not control every unit. Herod the Great simply had no ties to the prefect of Egypt, because they were promoted through entirely different routes, so the Holy Family could flee confident that there would be no extradition back to Judea. (This interjurisdictional asymmetry between client states and imperial bureaucrats also featured in the Passion story of Luke 23:2, when Pontius Pilate sent Jesus to Herod the Great's son ostensibly enforcing a domicile-based theory of penal jurisdiction but really a buck-passing gesture akin to Pullman abstention, in my view).
In short, whether you are a believer or a skeptic, you can still enjoy the Christmas story as an example successful foot-voting in a federal regime. There is a lesson here for modern America, I think, as Year I of Trump Imperator looms. So have a merry federalism-loving Christmas!
Friday, December 23, 2016
Spoliation in the Age of Snapchat
According to Douglas Adams, a set of three rules "describe our reactions to technologies: 1. Anything that is in the world when you're born is normal and ordinary and is just a natural part of the way the world works. 2. Anything that's invented between when you're fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. 3. Anything invented after you're thirty-five is against the natural order of things." Rule 1 explains why I collect vinyl. Rule 2 describes my career trajectory. But I started to move into Rule 3 with Snapchat.
Both anecdotal evidence from my students and industry stats show that Snapchat is here to stay. I'll admit that the first time I tried to use Snapchat, my Discover page of news stories included Seventeen Prom and something about the Kardashians. This made me feel old and silly, and I waited another month or so before I actually began using it. And now I get it - Snapchat can be fun. It steers us away from polished highlights and instead is meant to capture little moments throughout the day from the account-holder's perspective (Snap Inc.'s plan to create camera glasses will further this trend). But the biggest thing is the sense of freedom it creates with the promise of disappearing content. Snapchat stands for less permanency and more spontaneity.
As Snapchat stakes its claims as a social media powerhouse, new legal issues arise in the litigation context.What are the duties to preserve data on ephemeral apps like Snapchat? Some ethics opinions make clear that lawyers must advise clients about their own social media usage, which may include instructions to preserve social media content. Certainly intentionally deleting Facebook content when there is a duty to preserve can lead to sanctions. But is there an issue with using self-destruct apps instead? Do the broader safe harbors in the 2015 amendments to the Federal Rules of Civil Procedure help address these potential issues?
These are some of the questions I'm exploring in my work-in-progress, Social Media Spoliation. More broadly, I am curious how the law should adapt to the fact that we, as individuals, have become stewards of large amounts of data. We create vast digital archives about ourselves through our online activity. While many social media platforms store our personal data, they also may encourage modification or deletion of content through normal usage. The impact of ephemeral apps, like Snapchat, signals a new realm of potential discovery and spoliation issues - not to mention an epidemic of ridiculous selfies.
Thursday, December 22, 2016
"The Spiritual Crisis of the Modern Economy"
I don't agree with everything in this piece by Victor Tan Chen, but I think it makes a number of plausible, challenging claims -- echoing, in places, things that Rusty Reno has been saying at First Things, that Murray, Putnam, and Vance have highlighted in their recent books, and that our own Paul Horwitz has blogged about. It is particularly worth a read, maybe -- as we're grading law-school exams, writing recommendation letters, etc. -- by those of us who are privileged/blessed to work in institutions that play such a large role in driving the competitive, exhausting meritocracy and in providing the credentials, merit-badges, and networks that are increasingly required for access to the upward mobility, social status, and the cognitive and other elites. Here's just a bit:
One possible answer . . . is the notion of grace—a stance that puts forward values that go beyond the “negatives” of the narrow secular creed and connect with individuals of diverse political viewpoints, including those hungry for more in the way of meaning than the meritocratic race affords. . . .
The concept of grace comes from the Christian teaching that everyone, not just the deserving, is saved by God’s grace. Grace in the broader sense that I (an agnostic) am using, however, can be both secular and religious. In the simplest terms, it is about refusing to divide the world into camps of deserving and undeserving, as those on both the right and left are wont to do. It rejects an obsession with excusing nothing, with measuring and judging the worth of people based on everything from a spotty résumé to an offensive comment.
. . . At the same time, grace reminds the well-educated and well-off to be less self-righteous and less hostile toward other people’s values. Without a doubt, opposing racism and other forms of bigotry is imperative. There are different ways to go about it, though, and ignorance shouldn’t be considered an irremediable sin. Yet many of the liberal, affluent, and college-educated too often reduce the beliefs of a significant segment of the population to a mash of evil and delusion. . . .
Really, though, the people who could learn from grace are the prosperous and college-educated, who often find it hard to empathize with those . . . who live outside their sunny, well-ordered worlds. When people are not so intent on blaming others for their sins—cultural and economic—they can deal more kindly with one another. Grace is a forgiving god.
Wednesday, December 21, 2016
Ahead and behind in the Merrick Garland debacle
Merrick Garland will not be on the Supreme Court. Garland has resumed participating in cases on the D.C. Circuit (for the past 240 days, he had only been performing his administrative chief-judge tasks) and is scheduled to sit on a panel in mid-January. Some still hold out hope that President Obama will surprise everyone and make a recess appointment on January 3. But as I wrote previously: 1) that is not Obama's style and 2) because the Republican Senate will not affirm the appointment, it would end at the close of the next session of Congress in December 2017, leaving Garland without a job (since he will have given up his D.C. Circuit seat) at only 65 years old, a deal I do not see him taking. We might add as a # 3 that if Obama did this, Congress could enact a law in January declaring the first session of the 115th Congress over immediately, thereby terminating Garland's recess appointment immediately.
For now, I want to consider who within or around the Court comes out ahead and who behind in this debacle.
Obviously, Garland is worst off, as he never will take a seat on the Court despite being as qualified as any recent nominee. The other person who is worse off is Justice Kagan, whose role on the Court has changed, perhaps for the whole of her tenure. She is now the best, most engaging writer on the Court. Given the opportunity to work with a liberal majority with Breyer or Garland as the Court's median, Kagan might have assumed the William Brennan role of the intellectual heart of the liberal majority, crafting doctrine and decisions to hold that majority together and perhaps even appeal to the rest of the Court more broadly. Particularly once Justice Ginsburg left the Court, Kagan might have been the intellectual center of a liberal Court.
The obvious person to come out ahead is whoever Donald Trump puts on the Court, who otherwise would not have gotten there. The other is Chief Justice Roberts. He avoids the prospect of being a Chief regularly in the minority and assigning dissents rather than majority opinions (the scramble to find an historical example of a Chief in that situation landed on Charles Evans Hughes during the New Deal, although he was not a consistent vote in favor of the validity of New Deal legislation). Or the alternative prospect of regularly moderating his own constitutional views to join the majority in order to retain the assignment power.
Prenups, Millenials, IP & Gender
Should prenups assigning ideas and inventions not yet born be enforced? In my book Talent Wants to be Free I analyze the vast expansion of pre-innovation assignment agreements in employment relations -- generic employment contracts that assign in advance any idea, whether patentable or not, whether copyrightable or not, whether it was conceived during work hours or not, whether it builds on company R&D or not -- to the employer. In related research, including The New Cognitive Property, Driving Performance, and Enforceability TBD: From Status to Contract in IP, I warn that these developments can have negative effects on innovation as well as problematic distributional effects.
A related trend is the rise of couples signing prenups which pre-assign ideas and not-yet-developed IP -- films, songs, software, brands and apps - to the partner who plans to develop them. Today in the New York Times I write about this rising trend and in particular raise the question about potential gender inequities. Are millennial-dominated start-up communities prone to the following pattern: The wife holds a steady job while the husband works on his app. They share the risk now, but if they divorce, the husband reaps the rewards of his intellectual property, and the prenup ensures his ex-wife, often wife # 1, gets nothing.
Would love to hear your thoughts - comment here or in the comments section of the NYT.
[WITH UPDATE] Doubling Down AND Walking Back on "Abandoning Defensive Crouch Liberal Constitutionalism"
I figured it would not take long, between the election itself and Randy Barnett's slightly parodic (I think) recent counter-post, for Mark Tushnet to revisit his notorious Balkinization post on "abandoning defensive crouch liberal constitutionalism." My assumption was that he would (a) double down on his original post, (b) walk it back in various ways, or (c) do both. Yesterday he put up a post on the question. It is titled "Doubling Down (on 'The Culture Wars Are Over')." Despite the title, my reading is that he went with (c).
Yes, Mark writes that he will "double down on the point that clearly was most annoying--the claim that the culture wars are over, and that liberals won." I think there is a pretty good basis for that claim. The election does not directly refute it, by any means. If the election results are read as a result of economic concerns, or of working-class populism, or of nativism, they can be read as irrelevant to the culture-war questions Mark focuses on and thus not refuting his argument. If they are also read as having do to in part with a combination of those concerns and the arguable failure of the Democratic nominee to run a sufficiently smart and locally responsive campaign, or the fair and/or unfair negative perception of the candidate, or the foolishness and complicity of the party apparatus in doing its best to install a longstanding establishment candidate and her machine rather than spend the last eight years building and encouraging new candidates, or some combination of these and other factors, some within and some beyond her control, then the election results are even weaker as a refutation of Mark's argument.
The best argument against a general and confident claim that "the culture wars are over, and that the liberals won," I think, has more to do with the general nature of culture wars, which counsels against hubris or premature declarations of victory. It may be that culture wars are more or less permanent features of the American landscape, that they subside or change focus but do not simply go away, and so cannot so easily be declared "won" or "lost." I think there is some truth to this point, but also that there are strong grounds for saying that on some issues there are long-standing, seemingly permanent changes in social views on some issues. On some of the issues that Mark picks out in implicitly defining what he means by the "culture wars," there is an excellent case that the "liberals" won on those issues. We should be specific in saying that these are liberal victories, not necessarily leftist or radical victories, and that some of those victories may involve or rely on some domestication of the issues under conflict or of the "victorious" position, as in the strategic shift over a couple of decades by the LGBT movement away from some issues and positions and toward a focus on the bourgeois institution of marriage, understood and depicted as such. Although I think something was lost by steering away from more radically "queer" positions and marginalizing queerer thinkers in favor of more powerful establishment types and their views, as a fairly bourgeois person myself I can't complain too much about this. In any event, there is no doubt that there have been real changes and genuine liberal victories on some important culture-war issues among those selected by Mark. (On others, I think the "victory" is less clear or stable than he suggests, and that some of his language implicitly concedes this possibility.)
So, on the one hand, he doubles down. On the other, I think there are also significant signs of walking back his argument. Here, the evidence is less what he does say, and more what he doesn't say and how he characterizes his earlier post. Consider that line again: "I'm going to double down on the point that clearly was most annoying--the claim that the culture wars are over, and that liberals won." Given that Mark received deplorable hate mails in response to his post, I am happy to posit both that some readers (or, more likely, some readers of others writing about his post) indeed found that the most annoying point, and that he is arguing this in good faith, and with plentiful personal justification. But my take on both the original post and on much of the (public, polite) reaction to it is that for many, that was not the most annoying point of Mark's original post, nor its central or most important point. For those readers, what mattered most was not, say, the assertion that liberals had "won" on gay marriage, in a culture-war as well as a legal sense. Rather, it was the point that, after all, formed the title of the post: that liberals should "abandon [a] defensive crouch" and take a "hard line" in dealing with "the losers," complete with historical comparisons casting those "losers" in the role of the Axis powers in World War II and the Confederacy in the Civil War. [Note an update below the fold. I don't think it changes the general argument I make here, but it does add a cite to another post by Mark shortly after his initial one.]
Again, I don't doubt that Mark's most vicious correspondents were focused more on the substantive culture-war issues themselves than on the advocacy of an aggressive, uncompromising consolidation and advance on these issues by liberals, perhaps or even presumably led by a cadre of elites of the sort Mark teaches every day. But I read the public reactions to the post, at least in those media intended for generally educated readers of a conservative bent, as focused much more on the latter than the former point. And on that point, there is a contestable but fair argument that the election results, along with interviews, reporting, and some polling data, do show both that this concern was relevant and that many voters reacted strongly, not to particular substantive issues themselves, but to the idea of having centralized establishment elites entrenching their own power and using it by hook or crook to push their victories into new territories on new positions and take a "hard line" against those "losers."
On those issues, Mark's new post at a minimum deemphasizes them, on the whole is fairly silent about them, and to the degree that he addresses them seems to take a different tone, if not a different position. The earlier post acknowledged that people may differ on "question[s] of tactics," but argued that "taking a hard line . . . is better than trying to accommodate the losers. He added: "When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won." The new post contains this language:
But, what about accommodations for those with religious objections to providing business services to members of that community? Here everything turns on details, which the gloaters seem to ignore. From the outset I thought -- and wrote, but of course no one paid attention to it -- that we were likely to end up with a limited form of accommodation. I thought that it would be for relatively small owner-operated businesses whose owners had religious objections to providing what I'd describe loosely as "expressive-related" services. And I still think that's where we're going to end up, though there will be variations in the details -- size, what counts as an "expressive-related" service, and the like. For me, this sort of accommodation was itself an indication of the "we won" position.
It is true that Mark elsewhere has been more accepting of some accommodations than others have been or are. But the "abandoning defensive crouch" post certainly doesn't spell that out, and I'm not sure it's fair to tax the "gloaters" with having ignored any especially clear language on that point in the earlier post. (You can read it for yourself, of course, and may read it differently than I do.) Nor do I think they would have been out of line in reading the tone of the earlier post as being very different from the tenor of the paragraph quoted above. It appears to move from having treated accommodation and compromise as something that used to make sense but no longer does, and about which there is little good reason to compromise or accommodate either tactically or for its own sake (because "liberals regard [the positions on which accommodation or compromise is sought] as having no normative pull at all"), to now treating any future accommodations as just further confirmation of the liberal "victory."
I think it is fair to read all this as showing a degree of walking-back. [See the end of the post for an update.] And the other evidence of walking-back is more general but equally important: it's the shift in focus that is effected by treating his earlier post, or reactions to it, as having been principally about whether "'we' won" the culture wars, when I think it would be fair to read the earlier post as having been about what to do next--namely, to take a "hard line" against the "losers." That shift allows Mark simultaneously to "double down" and to remain mostly silent about a great deal of the post and the public reaction to it. That reaction includes the election results, which in their own way suggest that Mark's post contributed imperceptibly to a Trump victory and thus weakened, rather than strengthened, the liberal culture-war victory or the possibility of advancing it. (Although I firmly oppose Trump, I do not mean this as a condemnation. Good academics should write what they think and write as academics, not treat themselves as PR specialists or apparatchiks of a party or political movement.)
At the end of his earlier post, Mark wrote: "Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries." It may have seemed like a throwaway line at the time. But I think it's right, or at least that constitutional doctrine around the specific culture-war issues Mark was writing about is less important now than other issues. The effect of that prospect on the culture wars is, I think, complicated, and I've written about that elsewhere in a forthcoming book review. It is possible that Mark's own blogging and writing will reflect that change in focus. But I hope he does continue to revisit these issues, and my sense is both that there will be continuing occasions to do so and that "doubling down" will not be enough. Some reconsideration of the earlier post in light of subsequent events will continue to be necessary, and will require either some genuine revisions or still more walking-back.
A couple of side issues: 1) Mark writes that another feature of the reaction to his earlier post by various critics was a "systematic misreading of the post as advice to liberal judges rather than to liberal academics--a misreading that does not give one a great deal of confidence in those who assert that they are interested in interpreting the Constitution's text as written; if they can't read a blog post's text accurately, why should we think that they can read the Constitution's text accurately?" I think the snark is not justified by the original post. If that was the intention of his earlier post, it was not so clear as to make the "misreading" egregious, let alone to justify labeling that "misreading" as "systematic." Again, you can read the post and decide for yourself. I think it is certainly true that it does not read as giving advice to judges. But neither do I read his earlier post as addressed to a "we" composed entirely of "liberal academics," or at least of liberal academics acting as actual academics. To me, it reads as advice to a "we" composed of liberals actually engaged in wielding power (possibly including judges). To the extent that it is addressed to liberal academics, they appear to be addressed in the role not of academic writers writing for academic purposes and audiences, but as writers of amicus briefs and op-eds, advisors to interest groups, advocates and strategists, and so on--in short, as apparatchiks and political actors, not academics or intellectuals, and in no way distinct from many other sectors of the political establishment. To be sure, there may be some academics, liberal or conservative, who think of themselves in precisely those terms (alas), who tailor or trim their academic writing to serve those ends, and/or who believe, with whatever hubris or self-deception, that even their law review articles are an important part of their political work. And certainly arguments can be made about the indistinctness between purely "academic" and purely "political" writing and work. Suffice it to say that I think the natural reading of the earlier post is that it was intended for an audience of fundamentally political actors acting for political purposes, and that it did not seem to place any emphasis on academic readers in particular, as opposed to elite liberal lawyers more generally. Reading it as addressed only or specifically to judges would be an error; reading it as not being addressed only or specifically to "liberal academics" would not, in my view.
2) I continue to be skeptical about the helpfulness of the historical analogies Mark offers. My earlier post, linked to in the previous sentence, registers some doubts about the analogies he used in his earlier post. In the new post, he now offers the suggestion that "[t]he gloaters are like Robert E. Lee preparing for the the battle at Gettysburg -- they expect to win, of course, but they're going to be surprised (I think)." That may be true for the awful gloaters he heard from. It is not, however, my sense of the view of more respectable and serious conservative writers, as well as some liberals and pluralists, who were disturbed by his earlier post. My sense is that at least some of those, including some of the better thinkers, do not expect to win and would not be surprised if they lost. (As for the liberals and pluralists who disagreed with his "hard line" views, as well as a number of conservatives, some of them agree strongly on some or many of the positions Mark focuses on, while disagreeing with his view of what to do next and how to do it.) They may well think, however, that the map, the ground of conflict, and the order of battle has changed significantly as a result of the election campaign and outcome, and is still changing, in a way that makes it difficult to settle on any useful historical analogy as yet.
3) Readers interested in these general issues may also be interested in this op-ed by my friends Micah Schwartzman, Nelson Tebbe, and Rich Schragger in Vox (insert usual note about Vox here), arguing that while it was common before the election to hear claims that the "left" had won the culture war--I insist again that "left" is an unhelpful term in this context, not least because treating the culture wars as one of, if not the dominant, grounds of political battle itself represented a long-term shift that emphasized certain sectors of liberalism or progressivism and marginalized other ideas and constituencies who also used to be the "left," and also because, as I argued above, liberals won some of these issues by making them more liberal than left in orientation--"all that has changed" now. As the sub-headline argues, "Trump wasn't elected as a culture warrior. [But] [h]e may govern as one." I agree with some aspects of the piece and disagree with others. I will limit myself to a few observations about it. First, the two sets of writers should engage with each other, because there are obvious differences between them, which can certainly be papered over by superficial argument but shouldn't be. Second, I cannot say I find its basic point surprising, whether I agree with all its specifics or not. It seems like a pretty settled practice to me that Republican administrations, even those whose presidents are either relatively moderate on or unconcerned about culture-war issues, understand that a price of political victory is to hand over particular cabinet departments to the cultural conservative wings of their party, and thus that whatever the president's own views are, cultural conservatives are going to get to enjoy particular fiefdoms within the executive branch. Unsurprisingly, it is also true that for Democratic presidents, including those who are relatively moderate or unconcerned about culture-war issues, it is generally understood that the cultural-progressive wing of the party is going to be handed particular cabinet departments and advance views that may be further left than those of the president. That practice is both a matter of custom and a necessary element of marshaling and satisfying political coalitions within a single party. Presidents win elections and "lead" administrations, but not without settling accounts with and giving plums to key party constituencies. Thus it is that, at least for people who oppose that president, it is a frequent complaint that the president is governing further "left" or further "right" in his or her administration than the campaign or the president's own statements and inclinations suggested. No surprise here. Third, it seems silly to rake the president-elect for having no good answer to the debating-society question how one can pledge to nominate judges who will treat some cases as "settled" while also vowing to overrule other decisions that are arguably equally well settled. On that question, they could profitably read Mark's post--or a century of legal academic writing in general, or the countless decisions of countless judges. Finally, and regardless of which issues I agree with them on and which I disagree with them on, I'm glad that the op-ed focuses on political and civic action, local as well as national, rather than on Justices or judges.
UPDATE: As evidence that if there has been any "walking back" or, to put it less combatively, clarification, it actually occurred much earlier and not just post-election, a post by Mark has been pointed out to me--one that I should have remembered, so my apologies--that he put up shortly after the initial "defensive crouch" post. It can also be used to argue, against what I assert above, that Mark has been clearer about the possibility of accommodation on the blog itself, and in a context closely related to the initial post, if not in the initial post itself. On the other hand, I should note that the subsequent post--which is titled "What Does 'Taking a Hard Line' Mean?"--also lends evidentiary support to the argument I make here, that it is fair to read the main reaction to the initial post, and more tendentiously the main point of the post itself, as having to do with the "hard line" argument and not the "culture wars are over" argument. (The latter argument is tendentious because Mark, in the post, calls this "one parenthetical comment." Again, one will have to judge for oneself, by reading the original post, whether one believes the "hard line" argument was parenthetical or central to the post.)
Tuesday, December 20, 2016
A student-athlete tries the First Amendment
Noriana Radwan was a freshman soccer player at UConn in 2014, when she was seen flipping-off an ESPN camera during the team's on-field celebration after winning the conference championship. She was suspended indefinitely and stripped of her scholarship, then transferred to Hofstra. Radwan has sued UConn and the responsible officials in federal court. Her primary focus is equal protection and Title IX, alleging that male athletes have done worse and been reinstated). But Count IV claims a violation of the First Amendment, stating that her conduct was "offensive and inappropriate," but still protected speech by a private citizen on a matter of public concern.
It could be worth following the First Amendment piece.
IRB-based Legal Research - the barriers
Thanks to Christine's thoughtful comment to my post about confidential academic informants, I was wondering what the barriers are to more IRB-approved legal research. It seems to me that there are 2 big ones: (1) the lack of methodological training for the vast bulk of legal scholars with regard to human subject research, and (2) the tenure review process. They both are certainly barriers to my own pursuit of such research, maybe especially the second one. As long as the tenure review process gives the same credit for law review articles that involve reading court opinions and other law review articles as it does for empirical legal research involving human subject observations and interviews and coding and interpreting data and everything else that goes along with IRB-approved research, there is a strongly reduced incentive for pre-tenure legal scholars to branch out into empirical legal research (which may be for the best, if no empirical work is better than deeply flawed empirical work).
Any other thoughts on why so few legal scholars pursue IRB-approved research?
Training wise, there are resources: there is an annual Conference on Empirical Legal Studies, and an annual Conducting Empirical Legal Workshop at WashU (which didn't happen last year?). For those who might be looking to make the plunge into empirical legal research, what other resources can you recommend?
How Madison’s Constitution (contrary to Eric Posner) constrains President Trump
With the Trump Administration looming a few weeks away, it is only fair to say a word in praise of Madison and his fellow constitutional designers. The risks of a Trumpian tyranny are, I think, radically reduced by the constitutional ground rules set in place in 1789. Praising Madisonian ground rules as a limit on the Presidency, however, seems naïve to Eric Posner. Eric dismisses separation of powers as “a flimsy constraint” and instead cites “political” and “bureaucratic” safeguards that make a Trump coup unlikely. If Trump is unpopular and nominates tyrannical agency chiefs, then Eric notes that the Senate will dig in its heels. If an unpopular Trump gives tyrannical orders, then Eric notes that bureaucrats will dig in their heels -- and the courts, emboldened by the polls, will back them up. According to Eric, all of this heel-digging is somehow unrelated to the Madisonian ground rules: The limits are all “political” rather than “constitutional.”
I tend to agree with Eric that dire predictions about the Trumpian threat to our constitutional order are overblown. But Eric’s distinction between “constitutional” and “political” constraints (a distinction also touted in Executive Unbound, his 2010 book co-authored with Adrian Vermeule) strikes me as confusing and unhelpful. The constitutional ground rules define the political constraints. Saying that politics rather than “separation of powers” constrains the President is like saying that athletic difficulty, not the rules of football, constrain quarterbacks from scoring touchdowns. In football, the athletic difficulty is defined by the rules of the game. (Quarterbacks, for instance, must run or pass ten yards, not one yard, to get a first down). Likewise, the political capital needed to appoint an agency chief or fire a recalcitrant bureaucrat is likewise a function of those constitutional ground rules that Posner dismisses as “flimsy.”
To belabor the obvious, President Trump needs Senate approval of his nominations only because the Constitution says so. A latter-day Caesar would simply bypass that pesky Article II constraint by directly appointing his lieutenants. Likewise, the bureaucrats can dig in their heels to demand adequate procedures and reasons for Trump’s proposed regulations only because (1) the Civil Service laws bar Trump from summarily firing recalcitrant bureaucrats, (2) Trump lacks any dispensing or legislative powers to set aside the Civil Service laws or decree new ones, and (3) the courts will enforce those civil service laws. Of course, (2) and (3) are purely constitutional constraints designed by Madison & Co.
So enough of this pointless distinction between politics and law as constraints on the Presidency. The latter plainly depends on the former (and vice versa), and, contrary to conventional wisdom, the former are alive and well – thank goodness for that!
The Social Networks Law Students Use
I've taught my Social Media Discovery seminar three times now, and each year I expect to be surprised by some new social media trend (will Kik come up? The now-struggling Yik Yak? GroupMe?). But two social networks consistently dominate among my students: Instagram and, even more so, ephemeral app Snapchat.
This anecdotal evidence lines up with industry trends. Stats show that most Instagram and Snapchat users are 24 and younger. And Snapchat recently surpassed Twitter with more daily users. Facebook, on the other hand, is attracting fewer young folks as its core audience is growing older.
From what I've gathered, many of my students tend to save Facebook for big life events or other safe-for-grandma posts. They may use messenger or check their news feeds regularly, but most of their social media interactions now happen on other platforms. Students also seem savvier about the digital footprint they are creating and how it may impact their career (though some are still shocked when we go over this chart of all the info Facebook compiles on us). Twitter still seems like a source of information for students, but only some tweet at all (whether public or private). Twitter, like Facebook, is not a top choice for communicating with others.
So why Instagram and Snapchat? Both are highly visual and emphasize pictures or video over text. Instagram has a clean and functional layout, with fun built-in tools for editing pictures. It allows comments and likes but its layout de-emphasizes these aspects. Snapchat's hook is its self-destruct model for content (stories disappear after a day; private messages within seconds). And it takes photo filters to a goofy extreme. Snapchat also does not allow visible likes and comments. Thus, while people can share stories broadly, Snapchat ultimately encourages private conversations that leave no trace (well, sorta--Snapchat has faced scrutiny for its privacy claims).
Realizing that Instagram and Snapchat take the lead for my students has motivated me to use more pictures and videos in class. And I am doing my best to accept that Snapchat -- and similar ephemeral apps -- are here to stay. This means my own research now includes some of the unique legal issues these apps pose (more on that later).
Baseline Hell and Sanctuary Cities: Can Trump deputize cities' cops to work for the feds against the cities' will?
There have been both cautionary warnings that Trump might deprive "sanctuary cities" of federal money and reassurance that NFIB v. Sebelius might curb "anti-sanctuary" conditions on "unrelated" federal funds. I have seen less discussion, however, of another question: Can Trump simply deputize law enforcement officers to assist the feds even if the city's leadership opposes their officers' assisting with immigration?
The question is not only of immediate practical interest but also implicates one of my favorite academic topics -- the problem of baseline hell. The question turns on the constitutional distinction between the feds' "commandeering" local governments' action (forbidden) and prohibiting local governments from interfering with federal law enforcement (allowed). The diabolically difficult baseline problem arises when the feds prohibit a local government from interfering wth that local governments' own officers' efforts to aid the feds. Does such a prohibition count as commandeering? As a "generally applicable law"? Or as mere federal preemption, a permissible order for local governments to stand aside?
After the jump, I will offer some thoughts about navigating this particular infernal neighborhood in baseline hell.
As I noted in a post eight years ago, there is a bit of judicial support for the idea that, despite Printz's anti-commandeering rule, the feds can require cities to allow their employees to help the feds out by passing on information about detainees' immigration status to the feds. Two federal laws (with arguably the most infelicitous acronyms in the U.S. Code) impose such a restriction on local power -- §642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and §434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("IIRIRA" and "PRWORA"). Section 642, a bit broader than its cousin, provides that state or local law may not "in any way restrict" a "local government entity" from "[s]ending," "[m]aintaining," or "[e]xchanging" information about an individual's immigration status to any federal agency.
In NYC v. United States, the Second Circuit, in an opinion by Ralph Winter, upheld this provision against a Printz-type challenge by NYC in 1999 (a challenge launched by then-Mayor Rudy Giuliani: My, how times have changed). Judge Winter reasoned that section 642 did not require NYC to do anything: It merely prohibited NYC from interfering with police officers or other people who wanted to help out the feds. In Judge Winters' words, NYC could not "turn the Tenth Amendment's shield ... into a sword allowing states and localities to engage in passive resistance that frustrates federal programs." City of New York v. United States, 179 F.3d 29, 35 (2nd Cir 1999).
The difficulty with this reasoning, of course, is that officials who acquire information while working for a subnational bosses necessarily consume subnational resources, both material and legal, that the feds have no right directly to conscript. Such officials are paid with subnational governments' tax revenue, and they use subnational governments' computers, patrol cars, guns and badges, all authorized by subnational law. If they acquire information in the course of their duties, that information itself is the property of the subnational government. If the feds can confer on such agents of a subnational government the power to turn over information to the feds acquired using subnational governments' legal powers and money, then how have the feds not practically commandeered the subnational governments themselves?
Consider, however, two rejoinders to this plea for a broad anti-commandeering rule, both of which take us right into baseline hell:
1. Are federal bans on "sanctuary" prohibitions on information-sharing merely "generally applicable laws"? The feds impose a lot of information-sharing mandates on private organizations. Private employers, for instance,have to maintain I-9 forms on their employees and turn these over to the feds on the feds' request. Why cannot the feds defend mandates on sanctuary cities as analogous to such informational burdens on private parties? If section 642 is (part of) such a "generally applicable law" covering private and governmental entities alike, then it arguably gets a pass under the Garcia exception to Printz.
Under stately labels like "general applicability, baseline confusion grows like black mold in a wet attic. The problem, of course, is that one must define what it means for a burden on governmental officials to be truly analogous to a private burden. Rob Mikos (in his superb discussion of the problem of states' keeping secrets from the feds), confidently asserts that private mandates like I-9 forms are simply not "comparable" to the sorts of informational mandates imposed on states: "Nearly every statutory reporting requirement [imposed on subnational governments] is aimed exclusively at the states," because "Congress does not require comparable reporting by private citizens" (page 169). But what exactly defines "comparability"? Cost? Topic? The "proprietary" or "sovereign" character of the burden? The term "general applicability" does nothing to answer these questions, all of which turn on defining a baseline of "neutral" treatment to which private persons are "normally" subjected in order to figure out whether subnational government was treated unequally." (A problem with similar indeterminacy arises in defining whether a law burdening religious organizations but containing exemptions defined by a non-religious criterion is "generally applicable").
2. Are "sanctuary" policies forbidden "discrimination" against federal policies? There is a venerable principle that subnational officials may not "discriminate" against federal officials by (for instance) exempting only state but not federal employees from state income tax. If the city imposes a special limit on their local law enforcement not to assist with the enforcement of a uniquely federal responsibility, then have they engaged in forbidden discrimination against federal law? Of course not, one might respond: Cities do not enforce the laws of lots of different jurisdictions, from Afghanistan to Zaire. Not enforcing federal immigration law, therefore, is affording the feds equal, not discriminatory treatment.
Of course, the obvious rejoinder is that the feds are not "similarly situated" to all of those other jurisdictions: Putting aside the (as of yet unexplained) special duty of state courts to enforce federal law "similar to" state laws within those court's jurisdiction, state laws cannot normally shrug off the duty to give federal interests the same consideration that they give to "analogous" state interests just because those state laws also refuse to give similar advantage to non-federal interests. If state employees get a tax exemption, then federal employees must get one, too -- even if purely private employees do not.
Do sanctuary cities impose a "special" burden on federal interests by not sharing information with ICE about detainees' immigration status? Those cities share a lot of other information with a lot of other entities, public and private: One might argue that acting as a sanctuary is indeed forbidden anti-federal "discrimination." But cities surely are no obliged to enforce every federal law, or Printz is a dead letter. The question of whether cities' acting as a sanctuary singles out federal interests for illegally discriminatory treatment, therefore, must turn on whether one regards the sharing of detainees' immigration status as "analogous" to the other sorts of data that cities routinely share with public and private entities. That inquiry, once more, is just another hellishly tricky baseline problem.
In short, the doctrine, I think, leaves up for grabs the constitutionality of federal efforts to deputize non-federal employees against the will of the subnational government that employs them. I think that the right answer, as a matter of sensible federalism policy, is to force the feds to bargain with cities for their assistance. My opinion, however, is rooted in normative considerations about pluralism and political competition more than legal precedent. If one sticks with the latter, then one is essentially opting for the usual futile debates about "neutrality," "general applicability," "action versus inaction," and so forth -- in short, a sojourn in baseline hell.
Monday, December 19, 2016
Donald Trump plans to maintain a private security detail as President on top of his secret service team. If recent history is any guide, this group will overstep and violate someone's right. So: Do members of the detail act under color of federal law for constitutional purposes and, relatedly, are they subject to Bivens liability? And, if so, are they entitled to qualified immunity?
As to the first: One possible test is traditional public function, as protecting the President has, since 1901, been the exclusive domain of the Secret Service. A second is close nexus, which may depend on how much connection and collaboration there is between the private detail and the Secret Service or other White House and executive-branch personnel. A third possibility may depend on who is paying this detail--Trump himself or the government. Trump paid for the force during the campaign, much of it from campaign contributions; no word on whether that arrangement will continue. The trickier part may be Minneci v. Pollard, which could be read to reject "extending" Bivens to private actors, especially where state tort remedies (here, e.g., for assault) are available. At some level, this raises a situation of under-color-by-necessity: It would be intolerable for the President to be able to surround himself with a private security/intelligence detail operating above constitutional limitations.
As to the second: Filarsky v. Delia held that a private person hired by the government to perform public functions can claim qualified immunity. From this, it might follow that these private security officers enjoy the same immunity as federal agents (although it again may depend on who is paying and supervising them).
Update: Keith Schiller, a retired NYC cop and Navy veteran who heads Trump's security detail, will be named a personal White House aide. So that should clarify things: Schiller, as a federal employee, acts under color. And his close direction of private security personnel should be sufficient to place them under color.
My USD colleague Mila Sohoni has a new article - Crackdowns - out in the Virginia Law Review. Crackdowns are administrative actions designed to increase enforcement in a particular area - such as taking a few weeks in which OSHA inspectors focus on janitorial services with surprise inspections. As someone who has studied the areas of enforcement and compliance - both top down command and control style, like crackdowns, and more collaborative new governance style private-public partnerships (The Renew Deal; New Governance as Regulatory Governance - and also - specifically on regulatory partnerships in the context of workplace regulation - Interlocking Regulatory and Industrial Relations; Beyond Experimentation), I find Mila's article very insightful in understanding the benefits as well as the risks of executive decisions to intensify traditional enforcement - including the risks of subverting democratic values and violating constitutional principles. The article is the winner of the AALS Section on Criminal Justice's Junior Scholar Award as well as Honorable Mention in the 2017 AALS Scholarly Papers Competition. Here is the abstract, download it while its hot:
The crackdown is the executive decision to intensify the severity of enforcement of existing laws or regulations as to a selected class of offenders or offenses. Each year, federal, state, and local prosecutors and agencies carry out thousands of crackdowns on everything from trespassing to insider trading to minimum-wage violations at nail salons. Despite crackdowns’ ubiquity, legal scholarship has devoted little attention to the crackdown and to the distinctive legal and policy challenges that crackdowns can pose.
This Article offers an examination and a critique of the crackdown as a tool of public law. The crackdown can be a benign and valuable law enforcement technique. But crackdowns can also stretch statutory authority to the breaking point, threaten to infringe on constitutional values, generate unjust or absurd results, and serve the venal interests of the law enforcer at the expense of the interests of the public. Surveying a spectrum of crackdowns from the criminal and administrative contexts, and from local, state, and federal law, this Article explores the many ways that crackdowns may quietly subvert democratic values.
The obvious challenge, then, is to discourage the implementation of pathological crackdowns, while also preserving the needed flexibility to enforce the law, within the context of a legal and political system that imposes sparse restraints on the crackdown choice. This Article locates a foundation for tackling this challenge in the requirement of “faithful” execution in Article II’s Take Care Clause and its cognate clauses in the state constitutions. The crackdown decision should be faithful — to statutory text and context, to the interests of the public, and to constitutional and rule-of-law values. By elaborating the content of this obligation, this Article supplies a novel normative framework for evaluating the crackdown — and a much-needed legal platform for governing it. Cutting sharply against the grain of modern law, this Article calls for a broad rethinking of the principles and constraints that should frame the Executive’s power to selectively and programmatically augment enforcement.
JOTWELL: Tidmarsh on Fitzpatrick and Norris on discovery costs
The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Brian T. Fitzpatrick and Cameron T. Norris, One-Way Fee Shifting after Summary Judgment, discussing new and creative ways to reduce discovery costs and delays.
ABF Doctoral Fellowship and Visiting Scholars Program in Legal and Higher Education
Social science Ph.D. students and current faculty members who study legal or higher education may be interested in a new fellowship opportunity offered by the American Bar Foundation (ABF). In partnership with the Access Group Inc., the ABF will be supporting doctoral fellows and visiting scholars studying this important topic. The ABF is accepting applications for one-year doctoral fellowships and short-term visiting scholars who may be on a sabbatical or research leave. The goal of this program is to expand scholarship that contributes to an understanding of issues of access, affordability, or value in the field of legal or higher education by encouraging law and social science scholars to engage with this bourgeoning research field. While in residence at the ABF, visiting scholars will have the opportunity to conduct their research in an empirical and interdisciplinary research environment, and benefit from the academic and administrative resources of the ABF. (Click the hyperlinked text above for information on how to apply.)
Popular Constitutionalism and the Electoral College: How Popular Convention Trumps Text, Precedent, and Original Understanding in Real Constitutional Law
Today's deliberations of presidential electors provides a good excuse to muse about the role of post-enactment popular convention in determining the meaning of constitutional law. The laws of many states purport to pledge presidential electors to vote for the winner of their state's popular vote. So-called "Hamilton electors," purporting to vindicate Federalist #68's description of the electors' role, argue that these state laws are unconstitutional. Although a federal district judge rejected the Hamilton electors' petition for a preliminary injunction, the Tenth Circuit has given them a little hat tip, strongly suggesting that state laws purporting to replace disobedient electors with more compliant ones would be unconstitutional.
This arcane conflict suggests the degree to which the meaning of our real constitution is based not on conventional legal materials like text and original understanding but instead popular convention. Based on text, precedent, and original understanding, the Hamiltonians' argument seems strong. Article II, section 1, after all, gives state legislatures only the power to determine only the "manner" by which electors are selected, not how those electors should cast their own votes. U.S. Term Limits v. Thornton held that state legislatures' power to determine the "time, place, and manner" of congressional elections does not give those legislatures the power to dictate whether voters can vote for long-term incumbents. How can the same power over the "manner" of electors' selection enable state legislatures to dictate how such electors vote? This is not to say that state law does not try practically to bind the votes of electors. The so-called "Oregon system" of selecting Senators used in numerous states between 1908 and the ratification of the Seventeenth Amendment, for instance, attempted to use state legislators' pledge to pressure them into voting for the Senator who received the most votes in a popular primary. Even the proponents of the system, however, generally recognized that state law could not formally bind legislators. Instead, the Oregon System's proponents relied on the wrath of voters to punish at the polls faithless legislators who violated their pledge.
And yet, despite their good arguments based on text, precedent, and original understanding, I am inclined to think that the Hamilton electors ought to lose. The reason is that popular convention has changed the meaning of the electoral college. It is not merely that these state laws have been on the books for many decades. It is also that the mechanisms used by states to select electors have deprived these anomalous state officials of any popular mandate to deliberate about who should succeed to the presidency. Presidential electors are anonymous ciphers. Their names appear nowhere on any ballot: they are Party functionaries with no popular mandate beyond the support that their Party won at the polls. I suspect that, in the eyes of the electorate, electors' presuming to choose the President would be morally tantamount to a coup d'etat. Such an exercise of power would seem illegitimate, despite the tidy constitutional arguments that can be marshaled on behalf of independent deliberations by the "college."
What is one to make of good "legal" arguments sounding in text and legal precedent being trumped by popular convention? After the jump, I will suggest an analogy between the Hamilton electors' bid for independent deliberation and FDR's court-packing plan. In both cases, the formal law seemed to justify power exercised by one institution (Congress, the electoral college) over another (the composition of the Court, the selection of the President). In both cases, however, the formally legal power had been rendered obsolete by a new popular understanding of the institution's role.
Consider, first, the powerful legal case to be made on behalf of FDR's court-packing plan. Article III nowhere specifies the number of justices to serve on SCOTUS, and, prior to 1937, Congress has repeatedly used legislation to change the number of justices. In particular, the Reconstruction Congress had first decreased and then increased the number of justices on the Chase Court, in the first case, to cabin President Johnson's power to appoint justices, and, in the second, to enable President Grant to pack the Court. Precedent seemed, therefore, to support FDR's effort. Yet, as Jeffrey Shesol has documented, the public viewed FDR's effort to control the Court by altering the Court's composition as a lawless effort to subvert judicial independence. The court-packing scheme almost destroyed FDR's presidency.
Why could FDR and the New Deal Congress not exercise powers that the Constitution's text seemed to permit and that precedent had specifically endorsed? The reason is that the institution of the Court and the concept of judicial independence had been transformed between the 1870s and the 1930s. In the 1860s and early 1870s, the notion that the Court should act as a check on Congress and the Presidency was suspect in the popular mind: SCOTUS had not really ever played such a role beyond its ill-fated Dred Scott venture. By the 1930s, the SCOTUS had a long track record of checking national legislation, a record that the Republican Party had embraced and the Democrats had grudgingly accepted (the Norris-Laguardia Act being the most salient limit on such Democratic acceptance). FDR's attack on the SCOTUS's new position as arbiter of federal legislation's constitutionality, therefore, had the feel of a coup.
In the same way, I predict that the Hamiltonian electors' effort to exercise independent judgment about the selection of the Presidency will seem like a lawless coup to most Americans, regardless of what Federalist #68 might say to the contrary. As a matter of common sense, the electors must know this, so it is a safe bet that they will decline the invitation.
Does such common sense count as "constitutional law"? I think so, but I realize that others might regard the very process of post-ratification constitutional custom as itself too "lawless" a process to overturn the conventional legal materials.
Confidential Academic Informants
While prepping my new CrimPro class next semester, I was reviewing the materials on the use of informants to satisfy probable cause. It got me thinking about the academic use of informants. We all talk to folks who work directly and indirectly with the industries or agencies or whatever it is we write about, who we sometimes quote as sources of information. Some (few?) legal academics obtain IRB permission to interview and study human subjects. What I have in mind here is something a little different. I write about criminal justice, and have family members who are retired or current police officers. We occasionally talk at family gatherings about policing, and the things they say give me important information and insights relevant to the things I teach and write about (they know I write about law enforcement databases and interrogation and DNA collection, often in a manner that is critical of current practices, and they do not share my ultimate conclusions). None of those conversations, however, is "on the record", I can't drop a footnote that says "backyard conversation with my family member on Thanksgiving," and while we've never discussed this, I wouldn't betray the relationship and their trust by directly using anything they say in a blog post or a publication.
Are there ethical guidelines or rules that guide or govern these sorts of conversations with our family, friends, former classmates and colleagues?
Sunday, December 18, 2016
Message to Trump-anxious decentralizers: Is your federalism insurance premium paid up?
In a politico-legal ritual as timeless as the Gridiron Dinner, supporters of the Party that lost the Presidency are now discovering the virtues of federalism. Noah Feldman assures that "sanctuary cities" are safe from having their federal money yanked, because the Medicaid portion of NFIB v. Sebelius prohibits "coercive" conditions on federal grants. Jeff Rosen reminds us to take heart in Heather Gerken's "Progressive Federalism," in which national minorities can press ahead with state and local initiatives that would perish in a pigeonhole if suggested in the halls of Congress. The basic idea is that our constitution, with a small "c," contains norms about preserving decentralized political power that can serve as a firewall against Trump's excesses and foibles.
Far be it for me, a certified fan of federalism and decentralization, to look a gift horse in the mouth. If Trump's victory spurs my colleagues to endorse an institutional arrangement the benefits of which are timeless, that is a silver lining to a calamity, even if one suspects that the endorsing of federalism is a little bit opportunistic.
For the rhetoric of federalism to sound convincing, however, one needs to have paid up one's "federalism insurance premium." Otherwise, one's op-ed in favor of those labs o' democracy, those deciding dissenters, will sound (to quote Kurt Vonnegut) about as inspiring as the 1812 Overture played on a kazoo. What do I mean by "federalism insurance premium"? Think of a federal regime as an insurance policy, protecting the risk averse against loss of national power. When one's Party loses the commanding heights of the federal government, federalism insurance allows that Party to retreat into the provinces as a semi-loyal opposition, a shadow government waiting in the wings, advertising its virtues with Massachusetts Miracles and the Texas Way with Deregulated Housing and so forth.Like all insurance, however, the protection comes at a price: One must pay the "premium" of protecting subnational power when one controls the national government, tolerating subnational experiments that one regards as more Frankenstein than Brandeis.
So here is my question to all those new friends of federalism: Is your federalism insurance premium paid up? For instance, when the Obama Administration was forcing colleges and universities to adhere to federal procedural standards for sexual assault hearings contained in its "Dear Colleague" letter, did you stand up for those subnational institutions' right to resist coercive Title IX conditions on federal money? No? Then do not be surprised if your pro-federalism rhetoric about the immunity of sanctuary cities to "coercive" conditions falls a little flat.
We pay for constitutional insurance through self-control when we have power, not through rhetoric when we lose it. Through the exercise of self-control across different political regimes, each Party can slowly confer on institutional arrangements a permanence (sentimentalists would even say "sanctity") that survives change of regimes, sending a signal to their opponents that their self-control will be reciprocated when the tables are turned. The filibuster in the Senate is such a semi-permanent convention; Honored by both parties when the other was a minority who could use it to the incumbent Party's disadvantage, it has become entrenched by convention. Federalism, however, has never been favored by the Party in power long enough to make their pro-federalism protests convincing to their opponents (or even bystanders like myself) when they lose power. No one has paid their premium, so the insurance fund -- the emotional force of pro-federalism rhetoric -- is empty.
Saturday, December 17, 2016
What is Obama supposed to do?
Many on the left are angry with Obama for not doing more, or at least shouting more, about the dangers of the looming Donald Trump presidency. The prevailing view is that this is not the time for Obama's "everyone chill the fuck out--I got this" style.
But what, exactly, should he be doing? One of the limitations of the office is that the current office-holder must ensure the peaceful transfer of executive power--screaming about the threat Trump poses to the nation and the world (or at least some parts of it) is not an option for someone in that office.* Nothing Obama does now can stop a Trump presidency or limit the power that Trump will wield as President (a la North Carolina). Perhaps if he had a Democratic Senate, he could at least put Merrick Garland on the Supreme Court (of course, he had a Democratic Senate, Garland already would be on the Supreme Court).
[*] There are some holding out hope that Obama will do that when the current Senate unavoidably ends on January 3. Putting aside that it is never been Obama's style. Because such an appointment would expire in December 2017, it would require Garland to give up being a judge for one year on SCOTUS. At 64, I do not believe he would make that deal.
Obama's power runs out on January 20 and there is nothing he can do to change that fact. Perhaps he believes that reminding everyone (including Trump) that actual power tends to sober people up is his best move. And if he is wrong about that, there is nothing he can do about it on December 16. The interesting question is whether Obama takes on an active opposition role as an ex-President; that is generally not done, even across party lines, but perhaps this will be the extraordinary exception. As for what he is doing about Russian interference, I assume that is happening behind the scenes.
Many believe that the transition from election to inauguration of roughly ten weeks is too long. Usually the complaint is raised because it delays the new President coming in during times of crisis, leaving a lame duck who cannot (or should not be the one to try) to handle the crisis. These complaints prompted passage of the 20th Amendment, which took effect in early 1933 during one of the two most obvious illustrations of the problem. Similar concerns were raised in 2008-09, with the economy cratering in fall 2008. Perhaps we now are seeing the flipside of the problem of the long transition--when there is nothing we can do to stop what looks like it is going to be a problematic presidency, the long delay in starting that presidency only exacerbates the fear and speculation. Let's get on with seeing what is going to happen and what we actually can do to stop the worst of it.
Think of it as the political version of ripping the band-aid off.
How 'Bout 'Dem Cowboys!!! Legal Edition
Because of the incidents of domestic violence involving players, the NFL imposed stricter penalties on player misconduct. Last year I wrote about the NFL's legal authority for imposing such penalties. The NFL's investigation into allegations of domestic violence made by an ex-girlfriend against Dallas Cowboys running back Ezekiel Elliott in the midst of a playoff run once again highlights this issue of the order and formality of the Commissioner's authority under Article 46.
Therefore, I argued that the NFL should invert its process. The hearing by an impartial arbitrator should be the first step. The NFL Commissioner may then hear appeals from those decisions. This would strengthen the authority of the Commissioner. As opposed to being overturned and drawing criticism. It also provides the Commissioner with a written record of findings made by an arbitrator in which to base his own decision. The imposition of sanctions under the revised policy tracts these procedures.The revised personal conduct policy rightly so prohibits all forms of violence and abuse by players against others. It prohibits "[a]ctual or threatened physical violence against another person, including dating violence, domestic violence, child abuse, and other forms of family violence[.]" It also enumerates several other types of misconduct detrimental to the League. The full text of the revised personal conduct policy can be found here.
The policy allows NFL security to work with law enforcement. It may still continue to seek to impose penalties even in the event no outside legal action is taken. Specifically, the policy provides that "even if your conduct does not result in a criminal conviction, if the league finds that you have engaged in any of the following conduct, you will be subject to discipline." In other words, the personal conduct policy is independent of any criminal legal proceedings. This is a positive development. The policy itself emphasizes that "[i]t is a privilege to be part of the National Football League."
Hence, this leads us back to the ongoing investigation of Dallas Cowboys running back Ezekiel Elliott by the League. Elliott was not charged by the Columbus City Attorney in this case. The League continues its investigation into the allegations particularly as new ones emerge. Details can be found here and here.
The problem the League faces is a no win scenario. On the one hand, bringing internal charges under the Collective Bargaining Agreement against Elliott mid-season may lend itself to allegations of interfering with a championship run by Dallas. Conversely, the NFL may be seen as protecting a star player and the team receiving the highest television ratings this season (Four of the top five games). The solution is to not only provide for the hearing first with its established evidentiary burden to weigh the evidence. (I do want to note that players may be represented by counsel during the investigation.)
Actions taken under the CBA constitute an employment action, not a criminal proceeding (as the policy itself states, the Fifth Amendment does not apply here). However, given the appearance issues stated above, having the more formal proceeding first will allow the public, the stakeholders, and the media to judge the fairness of the outcome.
With respect to the evidentiary burden, the revised personal conduct policy provides:
You have violated this policy if you have a disposition of a criminal proceeding (as defined), or if the evidence gathered by the league’s investigation demonstrates that you engaged in conduct prohibited by the Personal Conduct Policy. In cases where you are not charged with a crime, or are charged but not convicted, you may still be found to have violated the Policy if the credible evidence establishes that you engaged in conduct prohibited by this Personal Conduct Policy.
Article 46 of the Collective Bargaining Agreement also does not itself provide for a standard of review of the evidence. (CBA at page 204). However, a "preponderance of the evidence" standard is used in Article 46 proceedings. Tom Brady Article 46 appeal full text.
In the Greg Hardy case, Arbitrator Harold Henderson reviewed the Commissioner's decision from an abuse of discretion perspective, which is appropriate on appeal. The Commissioner should use this standard on an appeal from an initial decision. The NFL may also grant the Commissioner some latitude on appeal in adjusting penalties based on the facts and circumstances of the case.
The NFL's emphasis on player conduct in light of all of the off field incidents the past few years is applauded. Changing the procedures to insure an established record and strengthen the authority of the Commissioner should be considered.
Friday, December 16, 2016
And now Princeton swimming (Updates)
It is becoming increasingly easy for someone to win the Ivy League title in various men's non-revenue sports, because there are not going to be any more teams to compete against. Harvard men's soccer had its season canceled and its cross-country team placed on probation, and Columbia's wrestling team had a game canceled. And now Princeton's men's swimming and diving had its season suspended, pending an investigation into emails and other materials on the team listserv that were "vulgar and offensive, as well as misogynistic and racist in nature."
Princeton's AD explained (and justified) the action on the ground that "[w]e make clear to all of our student-athletes that they represent Princeton University at all times, on and off the playing surface and in and out of season, and we expect appropriate, respectful conduct from them at all times." The suspicion in these student-athlete cases, including among those who might be inclined to challenge such actions, is that student-athletes are like employees speaking as employees, with virtually non-existent free-speech rights under Garcetti. The Princeton statement reflects that idea. But no actual employee works under similar constraints, in which he is an employee 24/7/365 and in all contexts. So we again have student-athletes stuck in the worst of all possible worlds--limited in the same ways as employees, but enjoying none of the benefits and protections that true employees receive.
Further Update:Michael Masinter's comments reveal the problem for the students, which I had forgotten: Employees (assuming student-athletes should be treated as such) enjoy no protection for their private speech. Which may say more about the trouble with the employee-speech doctrine than anything. Or maybe future scouting reports will include a "Go Trump" at the end.
Sharing Economy Symposium
To wrap up this week's posts on sharing economy topics, I wanted to highlight an upcoming sharing economy symposium taking place in February 2017 and hosted by the University of Hawaii Law Review. I’m excited to be participating on a panel dealing with ridesharing services, where I'll focus on tort liability. Other participants include Erez Aloni of Whittier Law School, Nancy Leong of University of Denver Sturm College of Law, Timothy Burr, Jr., Senior Public Policy Manager of Lyft, and Christina Sandefur, Executive Vice President of the Goldwater Institute. Additional participants will be announced here.
Thursday, December 15, 2016
AirBnB as Online Intermediary?
Tuesday I posted about tort law and the sharing economy, and today I want to continue with the sharing economy theme by discussing an AirBnB lawsuit against San Francisco.
A city ordinance was passed requiring short-term rental hosts to register with the city. One of the provisions allows the city to fine AirBnB and similar platforms if unregistered hosts rent places through the site. AirBnB is challenging the law on numerous grounds, including under the First Amendment, Stored Communication Act, and the Communication Decency Act (CDA). It's the CDA issue that some cyberlaw scholars are watching closely.
Section 230 of the CDA creates immunity for online intermediaries against liability for the content others post. This immunity has allowed the internet as we know it to flourish as a marketplace of ideas and haven for free speech. Without it, websites would police content and censor heavily to mitigate their liability risk. But the CDA is over 20 years old and its use has clearly expanded beyond its original purpose, which really contemplated defamatory comments on news sites or similar circumstances.
Now, AirBnB is using CDA immunity to argue that the San Francisco ordinance violates federal law by holding AirBnB accountable for the actions of hosts. Essentially, AirBnB says it's just an online intermediary and it can't be on the hook for its users' illegal activity. While the CDA is meant to immunize online intermediaries for liability for the actions of its users, its provisions are not absolute. Some websites have lost arguments about CDA immunity because they helped create or develop content, rather than merely serve as a passive platform for it.Last month a federal court in San Francisco did not agree with AirBnB and denied its motion for a preliminary injunction, noting that the ordinance is not limiting AirBnB's ability to publish user content. Instead, the ordinance's penalties kick in when AirBnB collects fees for an illegal rental. For AirBnB, losing its preliminary injunction motion is probably quite concerning. CDA immunity is not clear cut because AirBnB imposes requirements on hosts, profits from each individual transaction, and processes the payments. Like other sharing economy companies, its role expands beyond that of a neutral listing platform, perhaps even into the realm of booking agent or joint venture.
It's important to note that CDA immunity is crucial for protecting our freedom online, and attempts to chisel away at it should be approached with great skepticism. But as we continue to blur the lines between real-world transactions and online activity, perhaps a more nuanced definition for "online intermediary" is needed in order to save Section 230 from dilution. In the meantime, a lot is at stake for AirBnB, as other cities contemplate similar ways to deal with a loosely regulated ad-hoc rental market.
Wide Area Surveillance - "Google Earth with TiVo Capability"
Reports emerged this fall that the Baltimore Police Department had accepted private funding to secretly retain the services of Persistent Surveillance Systems and its wide area surveillance system to help it investigate crime. Persistent Surveillance Systems owns an airplane. On the belly of the plane is an array of cameras. At first light, a pilot flies the plane up to 10,000 feet and circles the city for hours. While it is circling the city, every second, the cameras take a still image of a 30 square mile area. The photos are instantly processed and downlinked to a command center on the ground. Operators on the ground can pull up the images, and from any specific moment, go backwards or forwards in time, second by second, and watch everything that the plane saw. Operators can follows cars and people fleeing a crime scene, and look backwards to see how they got there. The system's developer, Ross McNutt, has called it "Google Earth with TiVo capability."
The system was developed to determine who was killing American soldiers in Iraq with roadside bombs. Baltimore's use followed shorter, but equally secret, law enforcement stints in Compton (Los Angeles) in 2012 and Ciudad Juarez, Mexico in 2009. There are some pretty amazing success stories: the system was used to track a murderer to a previously unknown cartel headquarters building; it followed a moving van used by a burglar to a parking lot across town, and enabled a show-up to confirm the ID of the burglar in less than an hour; it's tracked purse snatchers and all sorts of other offenders that would otherwise have been much more difficult, if not impossible, for law enforcement to track down.
This is a system that makes law enforcement drool. It also raises a number of legal questions, none more important than whether evidence gathered by law enforcement through a wide are surveillance system operating without a warrant would be considered to violate the 4th amendment's ban against unreasonable searches and seizures and would be subject to exclusion were it offered into evidence in a criminal proceeding.
As with all new technologies used by law enforcement, there is precedent addressing the constitutionality under the 4th amendment of some similar-ish technologies. According to California v. Ciraolo (1986), when police fly over someone's property at an altitude of 1000 feet and observe that there is marijuana growing in the fenced backyard, that is not a search for 4th amendment purposes. Similarly, according to Florida v. Riley (1989), the police can use helicopters to peer into a man's poorly-maintained greenhouse from an altitude of 400 feet (two roof panels were missing) and see that he is growing marijuana in the greenhouse, and likewise not effect a search for 4th amendment purposes.
However, in a case called Kyllo (2001), the Supreme Court held that law enforcement's use of technology that is not in general public use (infrared cameras, in that case) to explore the details of a private home that would previously have been unknowable without a physical intrusion was a search and was presumptively unreasonable without a warrant. And most recently, in a case called Jones (2012), the Supreme Court held that attaching a GPS tracking device to a vehicle for 4 weeks to monitor its travels 24/7 along the public roadways constituted a search protected by the fourth amendment's reasonableness clause (the court didn't answer whether the GPS tracking was reasonable).
Wide area surveillance doesn't (yet) use infrared cameras, but it can peer into backyards (like the surveillance in Ciraolo and Riley, though from much higher altitudes using expensive cameras instead of the naked eye) and it can follow vehicles along the roads (like the persistent surveillance in Jones, though the trail from the sky ends when the plane lands to refuel or the skies go dark).
These cases all involved targeted surveillance of a single vehicle or single piece of property, in sharp contrast to the wide-area surveillance systems that see 30 square miles at once (but then are revisisted to follow a single person or vehicle). And Jones (maybe?) hinged on the attachment of the GPS device to the vehicle. Wide area surveillance involves no such trespass on an individual's property. So maybe under the case law it's not even a search, and the 4th amendment isn't triggered. But the facts are different in many ways from the major precedents. No court, as far as I can gather, has yet ruled on an objection to evidence obtained via wide area surveillance systems, and no scholars have yet explored the issue.
My own scholarly take is for another day. More immediately, I am planning on using the topic of wide area surveillance on Day 1 of my CrimPro class next semester, to introduce the topics of privacy, and what constitutes a search, and the possible contours of reasonableness, through the students' intuitions about whether law enforcement should be able to persistently surveil us from above and use what they record against us. If anyone has thoughts or suggestions for making it a useful introductory exercise for CrimPro, I'm all ears.
Wednesday, December 14, 2016
UN Summit on the Movement of Refugees and Migrants
Guest Post by Jill Goldenziel
(cross posted on IntlawGrrrls)
This semester, I had the extraordinary opportunity to consult on the makings of a new international agreement to protect refugees and migrants. Following President Obama’s lead, the UN General Assembly (UNGA) decided to hold a special Summit at its September 2016 session to address “Large Movement of Refugees and Migrants” that have been occurring throughout the globe. The outcome goal of the Summit was to have all UNGA member-states affirm a Political Declaration to express their commitments to refugees and migrants. The Political Declaration would kick off a process that will result in member-states signing a new “Global Compact” on Refugees and Migrants by 2018.
The Academic Council on the UN System (ACUNS) and the American Society of International Law (ASIL) invited me to apply to attend the civil society consultations for the Summit as their representative. I was honored that the UN accepted my application from a highly competitive pool. On July 18, I attended the first “Multi-Stakeholder Hearings for the UN Summit on Refugees and Migrants” at UN Headquarters in NYC. Very few civil society representatives were allowed to speak spontaneously at the hearings. After I expressed my frustration to the Non-Governmental Liaison Office, I was invited back a week later for a Meeting with the Co-Facilitators of the Summit itself, the UN Ambassadors from Jordan and Ireland. By this time, the Co-Facilitators had been meeting with state parties around the clock and were frantically trying to solicit feedback to finalize the Political Declaration to present before UNGA. I was able to share my ideas about what the Political Declaration should contain, based on my own extensive work on refugees and migration. The Ambassador from Jordan also invited me to submit my written comments on the Political Declaration directly to her office. While I will never know for sure if my ideas made an impact, the final document reflected a number of my suggestions.
I was then honored to attend the Summit itself and related invitation-only High-Level Meetings from September 19-21. It was incredible to see the fruits of our labor and also to watch the UN devote attention to a topic that has consumed my research efforts for nearly a decade. Among other meetings, I attended a panel on International Action and Cooperation on Refugees, Migrants, and Displacement, hosted by Canadian Prime Minister Justin Trudeau and Queen Rania of Jordan; a dialogue between the UN High Commissioner for Refugees and the head of the World Bank; a High-Level Meeting on Regional Solutions hosted by Italy; and a High-Level Meeting on Preventing Conflicts through the Mainstreaming of Human Rights hosted by Germany and Switzerland. I had a long meeting with the UNHCR-Europe (Office of the UN High Commissioner for Refugees) legal advisor about my own research at the UNHCR-NY Office, and I made many other connections that will be relevant for my continuing research and book about how to solve the refugee and migration crisis.
I was then invited back to the UN on November 22 for a "Multi-Stakeholder Meeting on Modalities for the Global Compact for Migration." Translating from UN-Speak, it was a meeting that will help determine what role civil society representatives will play in shaping the Global Compact for Migration that is slated for completion in 2018. The Global Compact is slated to be a document, short of a formal treaty, that will commit states to managing migration in a safe and orderly way that will respect human rights.
If that sounds bureaucratic, it is, and with good reason. Speakers were informed that it was a rare occurrence for member-states to decide to hold such hearings at all. The UN has faced some controversy, internally and publicly, regarding 1) transparency in general, and 2) the participation of civil society in the Global Compact process. Many actors within the UN strongly believe that the voices of migrants and civil society representatives should be heard in the process. Others do not.
Fifty member-states attended—which is an unprecedented number for civil society hearings. Ordinarily, when this sort of thing occurs, only a handful show up. So states were listening. The meeting was chaired by the UN Representatives from Switzerland and Mexico. I was the sole representative of academia in attendance. In my speech, I advocated for the critical role of academics' participation in creating the global compact, ability to explain it to the public and our students, and in collecting data and ensuring the best possible research and program designs to make sure the Compact benefits migrants and states. I talked a bit about my own work as an example of what academics might do.
The atmosphere highlighted the importance of the meeting. The event was held in the UN Trusteeship Council Chamber -- one of the three chambers on the 3rd floor of the UN, along with the Economic and Social Council (EcoSoc) and Security Council chambers. The Trusteeship Council was formed in 1945 to oversee decolonization of territories placed under UN Trusteeship. It disbanded in 1994 when Palau became independent. The incredibly beautiful room remains, as a gift from Denmark. As the renovation architect from the Danish Ministry for Culture said when the room reopened, “When you think about how many decisions of great magnitude are made in that chamber, it is good to know, that they are made in a room with such a pleasant atmosphere.” The decision to include the voices of migrants, and civil society actors in the Global Compact process is a decision of great magnitude that could affect the lives of many vulnerable individuals as well as international security. I can only hope that the UN member states choose to do so.
"Professors or Pundits"
I received an announcement about this new volume, edited by my Political Science colleague at Notre Dame, Prof. Michael Desch, called "Public Intellectuals in the Global Arena: Professors or Pundits." The book grew out of a conference, held at Notre Dame in 2013 and sponsored by our Institute for Advanced Study. Our own Paul Horwitz was one of the presenters, and I had the pleasure of providing a short response to his paper, "The Blogger as Public Intellectual."
I wonder, Paul, if your thoughts on the subject are what they were in the Spring of 2013?
Motivations For Law Schools To Use Adjuncts to Fill Gaps in the Curriculum or to Reduce Expenses
Before i move out of Prawfsblawg for the holidays i want to thank Howard for the chance to post and also to close with a bit of musing about use of adjuncts in the law schools in 2017 and beyond.
First, though, in response to a comment, here are the results of a survey about nine years ago.
A significant percentage of the courses offered by law schools are taught by adjuncts. The median of the forty-four schools that provided this information is 24%; the range was 5% to 40% with the great bulk of schools between 20% and 30%.
Next, here is a partial list of the advantages adjuncts bring to legal education
- They bring extra brains, vocal cords, eyes, ears, and feet to the curriculum.
- Adjuncts are usually easy on the school's budget (although some schools have cut them or cut down on new adjunct taught courses to save a few dollars and/or since full time faculty may have excess capacity).
- Adjuncts, particularly in metropolitan areas, provide a pool of lawyers with special expertise and interest as well as a comprehensive knowledge of the subject matter and its application.
- Adjuncts give students supplemental perspectives and insights into legal reasoning, critical thinking, and crafting legal arguments, as well as into the subject matter of the particular course.
- Practicing lawyers and judges are often uniquely situated to teach practical skills courses, such as trial and appellate advocacy.
- It is perception, and perhaps reality, that adjuncts provide networking opportunities for employment during law school and after graduation.
- Finally, if a school works to create a working and communicative faculty community, which includes both full-time faculty members and adjuncts, and successfully encourages meaningful interaction among them, both the full-time faculty and the adjuncts will benefit as will the law students. This interaction can also dilute any resentment or disrespect that may exist from full-time faculty members to adjuncts or from adjuncts to full-time faculty members.
Now for a partial list of the risks that adjuncts bring to legal education.
- Although many law schools require that adjuncts have “office hours” and be accessible by email and by phone, adjuncts generally are less available than full-time faculty members to students to address their questions about the course and other concerns the students may have.
- Although some adjuncts do write articles, nearly all of the true legal scholarship is done by full-time faculty and very little is done by adjuncts.
- Adjuncts regularly have “emergencies,” which interfere with class and with preparation for class. As the pace of practice picks up, adjuncts will likely sacrifice their preparation or even their class time. If the drowning adjunct fails to develop effective additional or alternative resources and the law school is unaware of this situation, it is likely the course will be a dismal failure.
- Just as adjuncts may be better teachers than full-time faculty, they may also be worse teachers. More often than not, adjuncts are ignorant of the benefits of various alternative teaching methods and either lecture or fall back on a harassing use of the Socratic method.In addition, they often underestimate the importance of grading and violate school grading and median scoring policies.
- Finally, a greater percentage of adjunct means there is less “there” there in the core of the law school.
The current pressure on law schools to be more practical would likely push law schools to find additional ways to make use of adjuncts in the curriculum. The recent reduction in revenue to many law school seems, anecdotally, to be pushing law schools in opposite directions. On the one hand, since adjuncts are much less expensive than full time faculty this should push law schools to use more adjuncts. On the other hand, deans looking for short term ways to reduce costs and constrained by salaries of tenured faculty might reduce or freeze adjunct-taught courses and push full time faculty who are less busy with fewer students to teach the courses formerly taught by adjuncts. Fascinating to watch all of this.
Tuesday, December 13, 2016
Pennsylvania recount rejected
On Monday, District Judge Diamond of the Eastern District of Pennsylvania dismissed the action filed by Jill Stein seeking a recount in Pennsylvania. (H/T: Arthur Hellman of Pitt, who recommends it as a possible Fed Courts final). The court found Stein and a voter co-plaintiff lacked standing and also dismissed on both Younger and Rooker-Feldman grounds. Some thoughts after the jump, but with one umbrella conclusion: This is a nice illustration of courts using jurisdiction and justiciability, mostly incorrectly, to avoid the merits of a dicey case.1) Stein lacked standing because she would not win even if a recount were ordered, meaning she cannot show an injury-in-fact or redressability. The voter lacked standing because he could not show that his vote was hacked or improperly tabulated. The possibility of hacking because voting machines were "hackable" was too speculative to support an injury.
The surprising piece of this was the court's unwillingness, without much explanation, to accord Stein third-party standing to sue on behalf of voters, as a district court in Florida did during the campaign. Campaigns and candidates often are accorded third-party standing to challenge state laws impinging on the right of members of the public to vote. But the court dismissed such standing as a plaintiff asserting someone else's generalized grievance. It seems the court could not get past the fact that Stein could not win Pennsylvania, no matter what, and thus was not a "proper" plaintiff. So, absent a change in result to favor the named plaintiff, any violations of the rights of individual voters did not matter. But I wonder if future candidates will now have to show some chance of success in establishing standing.
2) The Rooker-Feldman analysis was problematic. Stein and the voters initially filed an action in state court seeking a recount; they voluntarily withdrew that action when the court, pursuant to state law, required them to post a $ 1 million bond. In federal court, plaintiffs acknowledged that the state-court decision was effectively a decision not to allow the recount. But the federal action did not challenge or seek review of the state-court decision to require the bond; it challenged the state law requiring such a bond in any court, along with a number of other provisions of state election law. The plaintiffs complained of the statutory bond requirement, not the state-court decision imposing that bond. And the remedy they sought--a declaration of unconstitutionality of various state laws and a recount--was not a result of the state-court judgment. That distinction--between a challenge to the state decision enforcing a law and a challenge to the validity of the law itself--existed in Feldman itself--the Court held that jurisdiction was lacking over the challenge to the bar-admission decision, but not to the underlying bar-admission regulation.
3) The Younger analysis was flat-out wrong. The court dutifully recited the three-prong test from Middlesex County, but it ignored Sprint, which held that Younger required abstention in deference to only three types of cases: 1) pending criminal proceedings; 2) pending quasi-criminal proceedings initiated by the state (e.g., state public nuisance lawsuits); and 3) "certain orders . . . uniquely in furtherance of the state courts' ability to perform their judicial functions" (e.g., contempt orders). The pending proceedings were actions before several state trial courts and county election boards. None of these was initiated by the state, none was criminal or quasi-criminal, and none involved state efforts to enforce its own laws. And the third category does not fit, because a federal injunction against the enforcement of the challenged state laws would not interfere with the ability of state courts to function.
4) The court ignored the two better arguments for getting rid of the case. As to the bond order, this seems to be simply a matter of preclusion--plaintiffs bringing in federal court the same claims they brought (and had rejected) in state court. I do not know if preclusion was warranted, but that should have been the focus of the analysis. But that does not reflect a jurisdictional defect. And recent SCOTUS decisions have explicitly urged courts not to conflate the jurisdictional defects involved with Rooker-Feldman with common law preclusion limitations on relitigation.
As to the still-pending state actions, Colorado River abstention exists for this very situation--concurrent and parallel proceedings. True, Colorado makes clear that abstention on these grounds is the exception rather than the rule and the typical approach to parallel state and federal proceedings is to let both actions go and give preclusive effect to whichever finishes first. Still, Judge Diamond seemed pretty determined to abstain--it would have been better to abstain on grounds that made sense.
Tort Law and the Sharing Economy
Six weeks ago, a UK employment tribunal declared that Uber drivers are employees. A few months before that, Uber settled two class action lawsuits in the US in order to avoid a ruling on whether drivers can remain independent contractors. And Uber regularly takes the position that it is not subject to the regulations that apply to taxi services. Sharing economy companies go to great lengths to shun traditional business models (and the legal and regulatory structures that come along with them). While regulation of the sharing economy remains a major issue, tort law is an important complementary concept – and the subject of my new article, Sharing Tort Liability in the New Sharing Economy.Because sharing economy companies often avoid traditional employment relationships, they complicate the analysis under some long-standing tort law doctrine, particularly when a tort victim is negligently harmed by a worker in the gig economy. But traditional tort law concepts are already well-equipped to adapt to this new world of ad-hoc transactions. For ridesharing in particular, liability challenges may be solved with vicarious liability doctrines – especially joint enterprise liability. An Uber driver, for example, may be unable to bear the brunt of liability when a passenger, pedestrian, or other driver is negligently harmed. In the traditional economy, vicarious liability would solve the under-compensation problem. But sharing economy companies purport to merely “connect” providers with customers, thereby skirting the traditional relationships that would give rise to liability.
Nonetheless, vicarious liability may still attach. First, respondeat superior applies if Uber drivers are deemed employees. Even if drivers are independent contractors, vicarious liability may still attach, such as when they are engaged in a non-delegable duty (like safety). But, at the very least, courts should consider joint enterprise liability: sharing economy companies embark on a joint venture with service providers for a shared profit motive, which could amount to a joint enterprise for the purposes of vicarious liability.
Regulatory challenges are certainly at the forefront of legal issues surrounding the sharing economy, but retrospective tort remedies can help minimize harm and prevent over-regulation. Further, tort law may prove even more important under an administration that vows to cut regulations across the board. Thus, a sound approach to dealing with the sharing economy involves a look at both tort law and regulation and, in my article, I suggest that vicarious liability principles be used liberally to ensure fairness and adequate compensation. By clarifying liability issues under tort law, we can enable policymakers to proceed with a holistic understanding of how retrospective tort remedies already address some of the unique issues in the sharing economy.
The downside of Bartnicki
In a short post, Slate's Ben Mathis-Lilly considers that journalists (including himself) abetted (likely) Russian interference with the presidential election by publishing leaked information. All adhered to the legal and ethical proposition that journalists can, should, and arguably must publish truthful, lawfully obtained information on a matter of public concern. And those principles do not distinguish among information leaked by an idealist whistle-blower, a bureaucrat with an axe to grind, or a hostile foreign government--indeed, Mathis-Lilly questions whether it is possible to draw such lines.
Time-constrained, In-Class Final Exam Essays
Having spent the last week reading a bunch of final exam essay answers, I'm questioning the assessment value of having my Evidence students answer an essay-type question during their three-and-a-half hour final exam. The essay portion (35% of the final score) involved a single fact pattern and directed them to analyze the admissibility of 5 specific pieces of evidence/testimony. I do essay and multiple choice because Evidence is tested on the bar exam in both the multiple choice and essay format, and because I believe in using multiple forms of assessment.
Yet I'm doubting the value of the essay portion because, once again this year, the students' performance on the essay portion of the exam, as a general rule, does not significantly vary from their performance on the multiple choice portion of the exam. Rarely does a student exhibit a difference of greater than 8% between the two (that is, if a student gets 85% of the multiple choice questions right, that student's score on the essay portion is likely to be somewhere between 77 and 93%). I don't have the numbers in front of me now, but I'm pretty sure that not a single student who scored in the 70s on one portion scored in the 90s on the other.
This suggests to me that the 2 different sections are not assessing different skills or knowledge, but are instead asking students to demonstrate the same skills/knowledge in different formats. Since my students write a graded motion in limine halfway through the semester, which allows me to see and assess their written legal analysis, I've minimized the weight of the essay portion of the final (and reduced its length) over time. And some reading about psychometrics, best practices for writing multiple choice questions, and trial and error, has allowed me to compile a library of multiple choice questions that appear to produce reliable results that successfully distinguish amongst the students. All of which leads me to doubt the value of the essay portion of my time-constrained final exam.
I'm curious what others think about assessing students with a time-constrained essay (assume that you must, as I must, give a final exam in the class that cannot be a take home exam).
This is not, for what it's worth, about me and the time needed to grade the 100+ essays. I don't find the task of grading them to be burdensome. In fact, my inclination is not to simply eliminate the essay portion of the final, but to replace it with an additional in-semester motion in limine or similar writing assignment.
I'm sympathetic to the claim that a final exam should not be a race that rewards the swift, and that time-constrained essay final exams often do just that (the way TV shows like Project Runway or those chef shows require folks to perform under intense time pressure for seemingly no reason that legitimately relates to their talent as designers or chefs, but does separate the fast-good designer and chef from the others). But the solution to that would be, it seems, to design a better essay question that doesn't reward the swift than to eliminate the essay portion entirely.
I also understand that attorneys don't have to write motions in 90 minutes, and they aren't (generally) presented with a set of facts for the first time one morning that they must immediately argue before a judge (though, as a defense attorney, I often was arguing things like probable cause at a hearing that quickly followed me meeting my client, speaking with him or her briefly, reviewing quickly an arrest report, and hearing testimony from a single witness). But neither do attorneys take 2 hour multiple choice exams after they pass the bar. And a summative assessment of knowledge and understanding for a law school class does not have to mimic the tasks of a practicing attorney.
There are lots of other considerations at play, no doubt, such as the kind of class, the forms of assessment used throughout the semester, etc. That said, any thoughts?
Monday, December 12, 2016
Advice for the Academic Resume
Picking up on an earlier discussion on PrawfsBlawg found here, I thought I would start a thread to solicit advice from Prawfs on how to put together an academic resume. For the general legal job search (i.e. law firm, government), I think it is better to be inclusive and detailed as opposed to merely sticking with a single page at the expense of your experience and accomplishments. But, what about tailoring your resume in pursuit of a position with the Academy. Does it make a difference if you are applying for a tenure track or adjunct? While publications should naturally be in there, what about citations from other works? How do you handle presentations?
Defining terms and talkng past one another
A great frustration in the conversation (especially in the press) over torture during the George W. Bush years was the failure to agree on terms or to discuss the disagreement over terms. Bush declared that the United States does not torture and was telling the truth--the U.S. did not torture, as he defined torture. But what no one mentioned was that Bush defined torture to not include, for example, waterboarding. So the conversation never advanced.
It appears we are about to repeat the pattern in the Trump years. Various Republicans (Mitch McConnell, John Bolton, the like # 2 at State, and even Trump himself) present the reasonable (and necessary) position that Russian interference with the election will not be tolerated and will be dealt with swiftly and harshly. Great. Except no Republican--certainly not Trump--is ever going to be convinced there is sufficient evidence that the Russians interfere, always insisting that we just don't know (they seem more likely to insist it was the Obama administration). And so the conversation, and any investigation, will never advance.
What's good for Exxon
Reports that Donald Trump wants to make ExxonMobil Chairman/CEO Rex Tillerson Secretary of State have many concerned that Tillerson is going to put the company's business interests ahead of those of the United States, particularly with respect to Russian incursions in Crimea, Ukraine, and perhaps ultimately, the Balkans.
In 1953, President Eisenhower nominated General Motors President Charles Wilson as Secretary of Defense. During his confirmation hearing, Wilson insisted that while he would put the interests of the United States above those of GM, he rejected the premise "because for years I thought what was good for our country was good for General Motors, and vice versa." In that less-globalized era, Wilson may have been correct--a thriving GM meant good jobs for its workers and cheap cars for Americans. The question is whether that remains remotely true in a globalized economy (as Daniel Gross notes in the Slate piece linked above, Exxon's presence in the U.S. is minimal and functions more as a corporate citizen of the world). Exxon's need/desire to do business in and with Russia likely conflicts with U.S. needs to stand up to Russian expansionism. And Exxon certainly would prefer that Russia not remain under U.S. sanctions.
The Privacy of Criminal Records
Criminal records in the United States are more widely accessible than anywhere else in the world. Congress allows various industries, organizations and businesses access to the criminal histories of job applicants, employees, and volunteers. Inmate locators allow members of the public to find the location, crime of conviction, custody status and sentencing terms of detainees. Anyone can also look up in online registries the name, address, photograph and offense history of sex offenders and, in some states, those convicted of violent crimes. The public and media have daily access to arrest blotters, docket sheets and court case indexes. A few states even make publicly available documents within court records, like pre-sentence reports, that can contain mental and physical health information, and intimate personal and family history.
All this accessibility enables entrepreneurial secondary aggregation and distribution of criminal history information. Private information vendors market and sell lucrative criminal background check services, populating their databases with information downloaded from publicly-accessible sources and purchased from state and local governments. Particularly troubling are those companies that collect publicly available information about arrestees and offenders, including names and photographs, post them to their website, and then offer to remove the embarrassing information for a fee (it's not all that far from blackmail).
Are criminal records public information infused with public interest to which others should (or even must) have access, or are they personal information entitled to privacy protection?
In the U.S., the unequivocal answer is that they are public information. There are several different and contestable reasons why we've come to that answer, and inextricable links to other areas of law (such as tort law) that seem to drive access and disclosure, which I will cover in future posts. For now, I want to acknowledge that the answer need not be that criminal records must be exceptionally public.
Indeed, in Europe (as a general rule), it's nearly the complete opposite. Individual criminal history records created and held by police are not available to non-police agencies, much less the media and general public. Nor may European employers and landlords obtain criminal history information from the courts or national conviction registers. Indeed, the Spanish Supreme Court held that the country’s National Conviction Register violated an individual’s right to privacy by disclosing his criminal record to the Election Commission.In protecting criminal record information from disclosure to the Election Commission, the Spanish Supreme Court reasoned that a criminal conviction is “personal information” and the constitutional right to privacy “guarantees anonymity, a right not to be known, so that the community is not aware of who we are or what we do.” Another case prevented the posting on a website of the names of civil servants who had previously been found guilty of torture.
For Americans steeped in sex offender registries and background checks, concealing criminal records from anyone, much less torture convictions of government employees from election officials seems unfathomable. And conceiving of criminal records as personal information, to which the community cannot become aware, seems like a world truly an ocean away. In the days ahead, I hope to explore when and where the U.S. could, and arguably, should reconceive the public nature of criminal records.
Sunday, December 11, 2016
For Those About to "Take Exams," I Salute You
As we are now in the heart of final exams, I thought I would post this song to honor hard working students everywhere. Tim Blais is a scientist and musician who runs the A Capella Science youtube channel. Below is his hilarious (and somewhat accurate) satire of the Taylor Swift song "Shake It Off" entitled "Take Exams."
He is also an accomplished musician in his own right as seen in his concert at the Yellow Door Coffeehouse.
Finally, just a plain great song. "Defining Gravity" features the singing of youtubers Dianna Cowern & Malinda Kathleen Reese. It is my favorite and difficult to get out of my head. Enjoy!
Saturday, December 10, 2016
I want to thank Howard and the other Prawfs for having me back this month. I'm really excited to be blawging again. This is a wonderful community, and, as a longtime PrawfsBlawg reader, the highlight of my year (no jokes in the comments, please).
It seems like no time at all has passed since I was here last year. There's even a new Star Wars movie to write about. Perhaps, I'll get to return next December for the release of Star Wars Episode VIII: The Force Gets Out of Bed.
I will be writing about topics like sports law, career advice, and other legal topics. Looking forward to it.
Friday, December 09, 2016
Comparison of law school adjuncts to adjuncts in other parts of the university
Surveys have confirmed the perception that adjuncts play a major and important role in US legal education. The most recent surveys which were conducted in 2007 and 2010 have demonstrated the extensive use of adjuncts at most U.S law schools. They have also pointed out the courses most often taught by full time faculty members and the courses that are taught by adjuncts, most of whom are judges and lawyers with other full time jobs. The sparse literature about law school adjuncts and their role in the pedagogy ASSUMES that they have little in common with adjuncts in other parts of the university. This assumption is based on the notion that most law school adjuncts have other lucrative jobs and are more in the nature of volunteers rather than folks trying to earn a living with their teaching.
Adjuncts in other parts of the university have been organizing and unionizing to provide better conditions and protections. Compare the lot of the English PhD in Boston, who is qualified for a full time job but has to make do with several adjunct positions in order to pay the bills with that of the lawyer or judge who has a full time gig but is teaching a trial practice or copyrights or sports law course. It is eye opening to consider the following: "Although teaching remains the province of tenured and tenure-track professors in some elite colleges and universities in the United States, this arrangement is increasingly anomalous in many other institutions of higher learning. “Contingent professors” (here used interchangeably with the term “adjuncts”) refers to anyone teaching at the tertiary level who is not in the tenure stream. This entry refers principally to those with higher degrees who are paid by the course. The shift away from the tenure system may not have been as rapid as is often thought (it dates back at least some decades), but it is a sweeping change. Contingents now constitute a significant majority of academics. In 1969, over 78 percent of faculty were tenured or tenure-track; by 2009, that figure had declined to about 33 percent. Research faculty, graduate students, and postdoctoral fellows are not included in those figures; if they were, the overall representation of adjunct or contingent faculty in higher education would be considerably higher. Adjuncts in Higher Education in the United States Tobias Hecht, Isabel Balseiro, Daniel Maxey http://www.oxfordbibliographies.com/view/document/obo-9780199756810/obo-9780199756810-0136.xml
As 90% of the law schools have been reacting to a significant reduction in revenues and customers perhaps it is time to look deeper and see what we can learn from similarities between use of adjuncts in other parts of the academy. For example, tenure and tenure track. "Thoughtful Clinicians point out that increased and expanded use of adjuncts is just another way for the schools to increase the percentage of “faculty” off the tenure track where they have far fewer protections." See: Daniel Thies, Rethinking Legal Education in Hard Times: The Recession, Practical Legal Education, and the New Job Market. 59 J. Legal Educ. 598 (2010). Also interesting to note that the most recent article on this topic was written by a law student. He is now in practice and a member of the ABA Section of Legal Education Accreditation Committee.
Among the topics that require further study in this area:
- H0w does use of adjuncts in law schools compare with their use in business schools and med schools?
- How carefully do law schools watch and "supervise" the teaching by adjuncts?
- Has the extent of teaching by adjuncts changed in view of the reduction in revenue and number of students during the past few years; and if so what does the signify?
Professor Michael L. Rich
Michael L. Rich of Elon law passed away Wednesday, after a several-years illness. Michael was a guest prawf in April of this year and wrote movingly about his experiences and challenges balancing his prawf life with a terminal illness.
Our thoughts and prayers go to his family, friends (in and out of the legal academy), and Elon colleagues.
(Thanks to Eric Chaffee (Toledo) for sharing the news).
Thursday, December 08, 2016
JOTWELL: Effron on Gardner on Forum Non Conveniens
The Ethics of Talking Politics Online
Several years ago I did a short ABA piece with ten tips for maintaining professionalism online. Tip eight used to be a simple one: Steer clear of politics. Based on how we use social media these days, however, tip eight seems antiquated. "Politics" now casts a wide net and has staked its claim, front and center, on social media.
But political statements on social media are not just a matter of professionalism. They may give rise to ethics issues. For practitioners, taking a stance online on specific issues could create a conflict of interest, at least according to a November legal ethics opinion by the Washington, D.C. Bar. Model Rule 1.7 states that a lawyer has a positional conflict when the lawyer's professional judgment may be adversely affected by the lawyer's personal interest. According to the D.C. Bar, when using social media, "[c]aution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict." This opinion suggests that online political statements could be used to show a lawyer's conflicting personal interest, an issue that becomes particularly relevant as political posts dominate social media.
Potential pitfalls also exist for judges and professors.For judges, political statements may show a lack of impartiality. A South Carolina judge was suspended last month in part because his public Facebook profile contained "extensive political posts, including ones in which he appears to endorse the presidential candidacy of one candidate." But for law professors who don't practice law, the legal ethics concerns are not as great. Nonetheless, professors must also maintain professional integrity, and extreme online conduct may contribute to dismissal (as was the case for an Oberlin College professor last month). Institutions are trying to define the boundaries of acceptable social media activity by professors, keeping in mind academic freedom.
It's important to remember that a lawyer is not endorsing the client's political stance just by representing them, and lawyers certainly are entitled to have personal beliefs that differ from their client's. Civic involvement in general is a good thing; too many restrictions stifle engagement. But balance and civility often get lost in the bottomless pit of Timeline back-and-forths and tweetstorms. Toning down (or abstaining altogether) may be necessary.
I still use my ten tips when I present on social media ethics to practitioners and students. But going forward, my tip on politics may need to be updated from "steer clear" to "tread lightly," with a major caveat about positional conflicts. And it looks like I have yet another social media example to discuss in next semester's Legal Ethics course.
A Bargaining Zone for Miranda Waivers
There has been a lot of action recently in the world of juvenile confessions. Some of it has garnered nation-wide attention, like Brendan Dassey, the 16 year-old from the Netflix documentary series Making a Murderer, who is currently trying to convince a judge to release him after a federal appeals court (finally) found his confession to murder to have been coerced and involuntary. Less newsworthy, but just as important, the U.S. Supreme Court refused to review a decision upholding as knowing, intelligent and voluntary a Miranda waiver by an abused and developmentally-delayed 10 year-old. In California, Governor Brown vetoed legislation that would have required counsel for those under 18 before custodial interrogation could begin.
Each of these developments occurred days or weeks after I submitted a paper that explores the state of the law regarding Miranda waivers by juveniles. Where others have convincingly argued that juveniles need (and perhaps the constitution demands) counsel before they can validly waive the 5th Amendment privilege against self-incrimination, my paper considers whether interrogation law should incorporate a rule akin to contract law’s infancy doctrine and permit individuals to retract uncounseled Miranda waivers.
This exploration of contract law's relevance to criminal procedure has me considering whether there is a bargaining zone for Miranda waivers.
The centuries-old infancy doctrine in contract law is based on the presumption that unequal bargaining power always exists between juveniles and adults, with the power, and therefore, the potential for overreaching, inuring to the adult. The infancy doctrine allows minors to void a contract at any time before reaching majority or within a reasonable time afterwards. This enables young people to escape agreements that they may not have fully understood or that were ill-advised. The doctrine exists, as one court put it, to protect minors from “foolishly squandering their wealth through improvident contracts with crafty adults who would take advantage of them."
My paper argues that interrogation law should similarly permit individuals to retract uncounseled Miranda waivers elicited by law enforcement while they were juveniles, and thus make the custodial confession inadmissible at trial. When I presented the paper recently at the UCLA School of Law, Professor Russell Korobkin posed a contract-law-themed challenge to me: he asked if there is a bargaining zone for Miranda waivers where both law enforcement and the juvenile suspect benefit from the waiver AND where the juvenile suspect would not later choose to retract that waiver. If there is not (that is, if every juvenile suspect would take advantage of my proposed rule and retract a Miranda waiver), he suggested that the better rule would be to forbid Miranda waivers by youth entirely.
My first reaction was that the autonomy interests preserved by a retractable waiver rule (compared to a ban on waivers by youth) provided a justification for the rule even if all juvenile would retract their waivers. But it seems to me that there is a bargaining zone for Miranda waivers, whereby juvenile suspects gain something for their waiver. In less serious cases, a waiver and subsequent statement can result in the juvenile getting to leave the station house and go home. Even when a prosecution follows, that (often illusory, but sometimes real) benefit provides a reason to allow juveniles to waive their constitutional rights. Moreover, some of these juveniles might not later retract their waiver. For example, a suspect who makes incriminating statements but also explains that his participation was the result of duress, or who explains his minimal involvement, might very well wish to use that statement at trial. Therefore, there are situations where law enforcement and the juvenile suspect benefit from a waiver, and where the juvenile suspect would not retract that waiver and prevent the statement's admission at trial.
That said, I am not a contract law scholar. Nor do I often think about a law, and its value, by identifying bargaining zones or imagining its impact on rational actors who base their decisions on costs and benefits. As such, I am not sure that I have adequately responded to Professor Korobkin's challenge. If anyone has further thoughts, I'm all ears.