Sunday, January 22, 2017
Arguments in Ziglar v. Abbassi
Some thoughts on last week's oral arguments in Ziglar v. Abassi, the follow-up to Iqbal raising three issues: 1) Whether a Bivens action can be brought against policymakers on national-security matters; 2) whether the complaints were sufficient under Twiqbal; and 3) whether any of this was clearly established in 2001.
1) This case might give the Court an opportunity to re-emphasize and re-ignite "obvious alternative explanation" as part of the pleading analysis. Although mentioned in Iqbal, lower courts had de-emphasized it as part of the analysis, other than a bit rhetorically. Which is good, since such an inquiry contradicts the purpose of 12(b)(6). That motion asks whether, accepting everything the plaintiff says is true, he could win. For the court to explain the defendant's conduct as a result of something other than what the defendant alleges is for the court to act as factfinder based on the plaintiff's preliminary allegations. But the SG mentioned this standard several times during his argument on behalf of Ashcroft, Mueller, and James Ziglar (the policy-maker defendants); the core argument was that the decisions were based on their best judgment about national security given their lack of information, rather than invidious discrimination.
2) Justice Breyer (whose questions I usually cannot understand) asked a question that captured the connection between ex post damages and immediate court orders (namely habeas) as constitutional remedies and why the former maintains a special place in any judicial regime. Using Japanese internment as his hypo, Breyer pointed out that a judge was unlikely to find a constitutional violation in 1942, given the immediacy of the crisis, the recentness of the executive-branch determination, and the uncertainty of events. But later damages actions and remedies allow judges to act after the crisis has been averted and with an opportunity to cast a cooler eye on the constitutional question. It thus is not enough to argue, as the government did, that these detainees could have sought habeas relief (as some did) or relief under the Administrative Procedures Act or injunctive relief on a constitutional claim--that later judicial inquiry in a damages suit plays its own unique role. The sharp dichotomy the SG drew--constitutional challenges to government policy come only through injunctive actions, never through actions for damages--is not supportable (certainly not if we use § 1983 as an analogue) or the best scheme for judicial enforcement of constitutional rights.
3) The arguments and questions over the Bivens extension reveal an unfortunate conflation of what should be distinct issues--constitutional merits, availability of a cause of action, and qualified immunity. Government attorneys and questions from the bench (especially from the Chief) worried that the possibility of a suit for damages against policymaking officials would over-deter officials concerned about their conduct ultimately being determined. But that concern is already addressed by qualified immunity, a point respondent's counsel* nailed in her argument. And Justice Kennedy called for a targeted qualified immunity analysis for claims against national policymakers, seemingly recognizing that the immunity analysis was the locus for that consideration. Plus, the two-step immunity analysis allows damages actions to serve as a vehicle for developing constitutional law, at least when the Court chooses to undertake that inquiry--but only if Bivens allows the Court to examine and analyze the constitutional merits.
[*] Respondent's counsel was Rachel Meeropol of the Center for Constitutional Rights--and, I just learned, the granddaughter of Julius and Ethel Rosenberg.
This is not a new problem. In Wilkie v. Robbins, the Court pushed concerns about the scope of substantive due process as a reason to reject a Bivens cause of action.
4) Justice Kennedy, who has voted to reject the Bivens action in every recent case, seemed surprisingly sympathetic to the petitioner. Some questions to the government suggested concern that the respondents had no meaningful remedies and his questions to the respondent seemed to tee-up her arguments. Maybe that is how the Court avoids a tie.
Saturday, January 21, 2017
"This is what democracy looks like": Jovial Gridlock at the Women's March on Washington
I am not much of a fan of gigantic Parisian-style marches in protest of this or that. I prefer American-style democracy of the town hall/zoning board variety, in which neighbors squabble passionately over boring matters like zoning and snow plows: The ratio of decision-making to time expended seems more favorable to the honing of real political skills. When my wife asked me whether I would attend the Women's March on Washington, therefore, I only reluctantly agreed, with the understanding that I was present strictly to register disapproval of President Trump. (As a lifelong Republican, I did not want to be dragooned into some peripheral cause aside from my "Never Trump" position). During the march, I found myself most in agreement with one sign: "Not usually a sign guy... but jeez."
With all of these caveats, I can report that the Women's March (four hours of which was just a "Women's Stand Around and Wait in Washington Gridlock") was a triumph of democracy, if by "democracy" one means spontaneous, patient, and completely good-natured collective action. In this sense, this March was the perfect complement to the basically spontaneous, patient, and completely good-natured attendance of Trump supporters at the inauguration of their standard-bearer the day before. Both those Trumpistas on the mall and their successors were, for me, a palate-cleansing chaser: The Republic, I feel, is safe.
The Red Line from Tenley Town to Judiciary Square was jam-packed (and I say this as a veteran of the 2 Line in Shanghai, the Shinjuku subway station in Tokyo, and the Bergen Street stop on the F line's morning commute from Brooklyn to Manhattan). Yet the squashed humanity, signs and all, were all stoic smiles as they squeezed themselves together to let yet more marchers on the subway car. We found a plausible intersection to wait for the marching to begin, at Third and Jefferson -- and thousands of us proceeded to wait for four hours for someone to tell us where to march. Marching, however, was out of the question in that jam-packed street until someone took down fences to allow us swarm across the mall and make our way to Pennsylvania by an unplanned route. Still complete good nature prevailed. Rousing chants of "the people united will never be divided" and other protest balderdash would swell and fade, alternating with equally enthusiastic chants of "march down Jefferson!" Both were equally unavailing and for the same reason: we were all far too disorganized to be so united. The most popular chant captured the metaphor perfectly: The crowd would regularly shout out, "this is what democracy looks like!" and I thought ruefully, "true -- all too true."
Despite the hours of milling about, the bright side of disorganized protest shone through in everyone's basic decency. There were zero arrests. There were no hateful shouts of any sort at Trumpistas (or I heard none). There were no broken windows. A guy protesting same-sex marriage with a sign that denounced the floodgate of lawsuits against bakeries was unmolested. People booed the Trump Hotel in the good-natured way that one boos the Red Sox at a Yankees game. I checked from the top of the bleachers in near the Willard Hotel and saw a crowd flowing as slowly as lava, stretching from the Capitol down Pennsylvania all the way to Lafayette Park, an immense stream of humanity with a gaudy array of signs and virtually no bile. (BTW about those posters: Aside from the guy whose sign announced his dislike of signs, my favorite was a picture of Trump's head on a pipe bowl with the Magritte-style slogan "Ceci n'est pas in president").
I came away from the March footsore and heartened by our allegedly polarized polity. Admittedly, the Coasts and the Interior do not really like each other. But, since the days of John Quincy Adams and Old Hickory, they never have. But the old habits of democratic decency die hard, and they were amply on display this weekend.
Friday, January 20, 2017
I do solemnly swear
Maybe this time the Chief, not wanting Trump to wield executive power, will intentionally screw-up the Oath.
Empathizing With Students
I spent some time last week in a twenty hour January mini-term experiment combining students and faculty from UMKC's School of Nursing, School of Pharmacy, School of Dentistry, School of Medicine and School of Law. Our focus was on considering how to use personal narrative interviewing techniques to try to understand healthy, happy aging. Inter-professional training and education can also be something of an education in how other professional students understand their own roles and responsibilities and on how they propose to interact with other licensed professions. It can be incredibly revealing just to observe how students in the various licensed health professions think about wellness, aging, older people, people of modest means, and lawyers as problem solvers.
So many interesting observations on professional training and identity were offered by the students that I thought I might share a few of them here. Here's to the advanced medical student who, when asked to develop a few questions that might help him place an older individual in the context of a lifetime of health decisions, concerns and health successes, candidly observed "so, you're asking me to unlearn some of what I know." I won't forget the advanced pharmacy student who described her professional responsibility to "remember that everything can be poison" and that much depends on precision and caution in dosing. I was struck by the observation of one advanced dental student that people often come to the school's dental clinic deeply discouraged "to have lost their smile." Striking observations all.
My own thinking on what motivates people to enter licensed professions has been enriched by my time with these students and with all the generous with their time older individuals we interviewed this past week.
Empathy is a funny word, a slippery fish. I do not have an opinion on whether it can be taught but I do know it was revealed to me in unexpected moments last week.
Thursday, January 19, 2017
More on Zervos v. Trump
Or, as it will be called on my Civ Pro exam, Pervos v. Drumpf (really, you cannot make this stuff up):
Michael Dorf has a typically excellent analysis of the decision to sue in state rather than federal court He concludes that it was a strategic blunder, given the risk of a presidential immunity in state court.
There also have been interesting discussions on the Civ Pro listserv about a number of built-in issues, including:
• Trump's domicile and what happens to that on Friday, as well as how that might have affected the plaintiff's decision to file when she did, rather than waiting until next week.
• Removability, both under current removal statutes (which turns on the domicile question) and as a matter of Article III, were Trump to raise some sort of presidential immunity in state court.
• Whether Trump might go to SCOTUS and ask it to use its All Writs Act authority to rule that the President enjoys immunity from suit in state court and that any lawsuit against him only can proceed in federal court.
More civ pro in SCOTUS
SCOTUS today granted cert in Bristol-Meyers Squibb v. Superior Court, another personal-jurisdiction case. This one should provide an opportunity to define when contacts give rise or relate to a claim (and whether those two things mean the same thing) for general or specific personal jurisdiction.
Sunstein on political polarization and "The Divided States of America"
The renowned Cass Sunstein is delivering the Rosenthal Lectures at NorthwesternLaw this fall. His topic is political polarization, its causes and effects. In his first lecture yesterday, entitled "Whose Facts?," Sunstein presented the fascinating fruits of some extensive experimental work on public opinion and its dynamics.
The central question is whether and to what extent individuals with views on a factual matter -- and Cass is here interested in important issues which bear on public policy, e.g., climate change, gun control, immigration, etc. -- will update their opinions in light of reported new facts, facts which reveal either good news or bad news. So, take some who has a strong view on the matter of human agency and climate change. When presented in an experimental setting with "evidence" that scientific consensus is that the climate is warming at less than previously reported, would these "strong view" folks adjust their priors in a weaker or stronger direction? Ditto those with a "weak" view (let's call them climate change deniers) or a "moderate" view.
A plausible hypothesis tested by these experiments, and one very much in line with the classic story of Bayesian updating, is that supportive info will help confirm their biases and info inconsistent with their prior beliefs will help folks update their views. In short, facts matter. And out of the marketplace of ideas should come a dynamic process in which folks refine and reshape their views as new information is generated and disseminated. But Cass and his colleagues find a very different story at work. Alas, the incorporation of new facts into their worldview is asymmetrical. That is, folks will disregard to a great extent "bad news" for their prior views. So, info that the climate is warming faster will not shape the convictions of climate change deniers; it may well in fact strengthen them in their beliefs. (Cass quotes George Lucas commenting on a Star Wars dispute: "I don't like this fact, and I don't believe it"). In short, non-confirming facts will push them further in their direction of their prior beliefs, and this will be true for folks on both sides of the ideological ledger.
This is a startling and rather dispiriting result. It tells us that committed folks are not only inured to facts, but that the facts which reflect bad news for their beliefs (even if good news for the world) will augment their convictions. And this will reinforce patterns which generate more polarization and all the bad impacts that such polarization represents.
In his second lecture, Sunstein promises to reflect on the topic "Whose Values?" and assures us that there is optimism to be found in the third and final lecture.
Wednesday, January 18, 2017
Now that some law schools are really closing, what will make other universities pull the trigger?
After years of speculation, law schools are actually closing and that is big news. Most saliently, Indiana Tech announced that its law school will close at the end of this academic year at a loss of $20 million (here), a story the National Law Journal named as one of its top five stories of the year on legal education (here). Charlotte School of Law's continued existence is in significant doubt because it can no longer participate in federal student aid programs. (here and here). Hamline University closed its law school with more stealth, but no less certainty, by giving or selling it to William Mitchell College of Law, a cross-town competitor (here and here).
It is tempting to extrapolate from these schools and predict that universities will be most likely to close law schools that (a) are start-ups, (b) have low admissions criteria coupled with poor bar passage, (c) are not the most prestigious school in a crowded regional market, or (d) are losing considerable amounts of money. But the experience of dentistry, where 12% of schools closed -- equivalent to 24 law schools -- suggests that these factors will not be the crucial ones in predicting which law schools are at risk of closing.
In both dentistry and law, a tectonic shift and contraction in the profession led to a collapse in the admissions market and a crisis in the professional schools. That crisis caused several universities to close their dental schools.But only one of the seven dental schools to close was a start-up. Oral Roberts University's dental school had been in operation for only five years when the board made the decision to close the school. None of the schools had admissions policies that were significantly more lax than schools that remained in operation. None of the schools had a significantly worse track record in regard to students' performance on the national dental licensing exams than other schools, although the performance of dental graduates overall fell considerably during the crisis in dental education.
Rather than being at generic institutions, most of the closed dental schools were located within prestigious universities. Northwestern, Georgetown, Emory, and Washington University all closed their dental schools, as did Fairleigh Dickinson and Loyola University in Chicago. Perhaps paradoxically, one of the reasons cited for closing Washington University's dental school was that it was the high-end dental school in its region.
Most of the seven shuttered schools were losing money, but not all of them. More critically in terms of predicting closure, the great majority of dental schools nationally lost money, yet only seven were closed. In fact, two of those, Oral Roberts and Fairleigh Dickinson, were closed in large part because of financial trouble within the university, not the dental school.
I discuss the crisis in dental education and the closing of dental schools in more detail on pages 21-40 here.
What Vets Know That Physicians Don't?
Barbara Natterson-Horowitz, M.D., is a cardiologist who has made a name for herself as a thoughtful observer of both veterinarians and the veterinary patients whose heart cases she occasionally consults on. It is not entirely surprising that an M.D. cardiologist (or, as another example, a dental surgeon) might be asked to consult on a complex veterinary case, particularly one involving a mammal. Those who ask her to consult believe that she has something to add to the treatment team.
What makes her a bit more unusual is her observation that the veterinary treatment team may have something to offer the M.D.: insights often drawn from the close study of veterinary patients who demonstrate their physical or psychic pain or disease in ways that require keen observation across a breed and, even sometimes, between breeds. Wondering if certain symptoms or behaviors in humans, closely observed, might allow M.D.'s to tap into veterinary knowledge, Dr. Natterson-Horowitz has joined with a group of veterinarians and M.D.'s to pursue these interests.
Whether or not the "One Health" approach to clinical and veterinary medicine will lead us anywhere beyond the insight that vets and physicians might have somethings to talk about remains to be seen. But the entry of the Oncept canine oral melanoma vaccine into the animal health care market is thought provoking. Oncept is not a true vaccine in that it is not a canine oral melanoma preventive. Rather it is administered post-diagnosis in serial doses that appear to have some substantial success in prolonging canine lifespan post-diagnosis. Interestingly, Oncept is reported to have been, at one point, in joint clinical trials for possible human use. This joint canine-human drug development track is not a common story, though a number of drugs are tested on canines as a precursor to clinical drug trials involving humans.
Oncept is not inexpensive. The Los Angeles Times estimated in June of this past year that a full series of four treatments cost approximately $2,800. Clearly, many pet owners are likely priced out of this market. Pet health insurance is uncommon and, even when present, often excludes pre-existing conditions and the coverage of older dogs. It should be noted that these same pet owning individuals and households are likely also priced out of many of the other new cancer treatments now offered for pets (sometimes offered using medical equipment down-scaled from human cancer treatment clinics).
Just as you might imagine, households with higher incomes and greater wealth will often spend substantially more money than low and moderate income households on a pet nearing the end of life. A new paper by Liran Einav, Amy Finkelstein and Atul Gupta considers the expenditure differential in these situations.
Vets who deal with life-ending or gravely life-threatening illnesses like canine oral melanoma seem to have considerable experience with helping pet owners sort through the complicated issues of cost and benefit, both to pet and to household, in treatment decisions at or near the end of life. Maybe this is what vets really know.
Donald Trump and civil procedure
Donald Trump undoubtedly hates procedure, because it may interfere with his focus on substantive ends (unless procedure furthers his substantive ends--see College, Electoral). But all the litigation surrounding Trump and his businesses can be a boon for teaching and illustrating procedure. My fall Evidence exam was all Trump University. Now we have the defamation lawsuit by former Apprentice contestant Summer Zervos, alleging that Trump defamed her when he called her a liar in denying allegations that he sexually assaulted her. Merits aside, the case could be used to set-up and demonstrate a number of procedural issues.
For now, I want to focus on what the plaintiff's strategic choices tell us about diversity jurisdiction, at least from a plaintiff's standpoint. Diversity supposedly exists so the out-of-stater, forced to come into the state to litigate (I doubt Zervos could have gotten Trump into court in any other state), can find a neutral forum that will not favor the local over the foreigner. But here, a Californian filed a state-law action in New York against a New Yorker in state court. It is worth thinking about that choice. One possibility is that Trump is unpopular in New York, so the federal forum is unnecessary. Another is that federal procedure has become so plaintiff-unfriendly that plaintiffs would rather take their chances with state procedure, even against a local. Or maybe that original assumption--federal courts are better because more free of local bias--was never true. Or if it was, it is not anymore. As I said, good discussion and/or exam fodder.
Tuesday, January 17, 2017
AALS annual meeting: a quick postscript
After reviewing the various posts about the annual meeting generated by Paul H., et al, I stumbled across these related posts, here, here, here, and here, from an anonymous law prof at ATL. There is a lot of interesting stuff there and I encourage you to have a look.
AALS: A Learned Society still Learning!
I am happy to align myself 100% with Paul Horwitz in his magnificent post (a Jerry Maguirean Manifesto, perhaps?). Yes, yes, and again yes, to everything he says.
Having insisted, with Mark Tushnet, that the AALS is a trade ass'n advocating vigorously on behalf of its member schools, Paul (and Orin, too) rightly insist that the organization can and should function as a learned society, this for the benefit of the hard-working law profs whose skills, energies, and commitments are essential to our collective mission. To be sure, "can function" doesn't mean "does function" and the extensive constructive suggestions about to improve both the performance of the AALS and, in particular, the annual meeting, should be welcome by anyone -- especially by the volunteers who after all configure nearly every one of the panels and also the meeting's theme -- who cares about our learned profession. Let's all get to work on making the meeting great . . . nope, I won't go there.
Where I would like to pivot next, in some other posts, is how the association's role as advocate for its member law schools can be reconciled with two important considerations: (1) the welfare of the community of law profs who work within these schools; and (2) the problems that exist and persist within AALS member schools. Paul raises shrewdly just this point when he raises the question -- more of a challenge really -- of how the AALS can advocate energetically for law schools qua law schools while also advocating on behalf of legal education and the values for which our educational endeavors stand. These two complex considerations can reveal tensions in AALS mission, and also its performance. We would do well to unpack, and not elide, these tensions.
Antitrust or corporate speech?
Is this supposed plan among San Diego-area (and possibly Los Angeles-based) moving companies not to take any jobs related to the Chargers move to L.A. an antitrust violation? I know consumer boycotts are protected free-speech. But isn't an agreement among members of an industry not to engage in certain business behavior the anti-competitive collusion the antitrust laws prohibit? Is it different if the collusion is for expressive purposes? And if so, wouldn't that swallow the antitrust laws, because companies always would argue that their business decisions were driven by political concerns?
Besides what better captures the sadness of a franchise relocation?
Monday, January 16, 2017
AALS as Trade Association vs. Learned Society, and Whether or How it Matters
This is my last post, God willing, on the AALS annual meeting. In my first post, I argued, in a nutshell, that the AALS is the American legal academy's learned society; that this is a reason to welcome and defend it against its harsher critics; that the AALS or individual executives, treating the organization more as a kind of trade association than a learned society, "have sometimes been too willing to cast themselves in the role of defenders of and advocates for law schools and legal education, rather than academicizing these questions and treating them as subjects for dispassionate and disinterested study"; and that this reflected itself this year in the annual meeting theme, "Why Law Matters," which a) assumed the answer to a genuine question and b) focused in substantial part not on why law matters, but on why American legal education and law schools matter. I did my best to display some sympathy and understanding and to recognize some of the organizational dynamics that push it in this direction, but I was still critical.
In response, a couple of posters here and elsewhere, and one commenter on my post, pushed back on the assumption that the AALS is a learned society rather than a trade association. Mark Tushnet wrote at Balkinization that unlike most academic learned societies, the AALS is organized by law schools rather than by law professors, and said that "[t]he AALS's structure means that it almost necessarily must be something like a trade association for law schools--perhaps with something like a learned society attached to it once a year." "There is in fact," he said strikingly, "no 'learned society' for legal academics." Given that, Tushnet argued, "it's actually something of an achievement that the AALS's annual program has become as intellectually substantial as it is now." Here at Prawfsblawg, Dan Rodriguez offers a short post worth reading in its entirety. Here's a substantial chunk of the post:
[The AALS] is an association of law schools, not an association of law professors. Always has been. Perhaps there is an important place in the academy for an organization of law professors (other academic professions have such associations), but that is not the mandate, the purpose, or the function of the AALS....Prof. Mark Tushnet got us nicely riled up many years ago when he set out as the theme of his presidency, the idea of the AALS as a learned society. Whatever power this had as a normative prescription, and as an exhortation to improve the academic programming of the annual meeting and other AALS conferences, it created a trap to which Paul and other distinguished law profs have fallen into, which is seeing the AALS as an entity whose primary purpose is providing professional development opportunities and good intellectual content for a hungry professoriat. Worthy endeavors indeed (hence the great suggestions for improving the meeting), but AALS functions principally, and by design, to reflect and represent the interests of member law schools....While the AALS surely ought to focus a good part of its attention and resources on providing meaningful opportunities for law professors to engage, to exchange scholarly and pedagogical ideas,...we do our member law schools a disservice to evade and avoid squarely acknowledging its function as a trade association and an interest group.
Dan and Mark, for those of you who may not know, are both past presidents of the AALS, as well as individuals I know and admire. I have not researched the range of disciplinary associations of whatever kind, and am happy to defer to their description. I did note in my original post that "ours is a learned society related to a regulated profession, and thus faces some distinct issues, as opposed to the questions that face, say, a learned society of historians or literature professors"; if that's not a recognition that the AALS is formally a "trade association" rather than a learned society, it's at least an acknowledgment that there are reasons why it might lean in that direction. (In that sense, it's relevant that Mark points out that when he looked into it during his presidency, "the only other profession that had only an association of schools and not an association of professors was dentistry"--another regulated profession. Without my having canvassed the issue fully, note similarly the existence and function of the Association of American Medical Colleges.) So, okay, let's concede, at least arguendo, that the AALS is a trade association, albeit one that also holds an annual meeting that looks a lot like those of other academic disciplines--with more content on legal education itself, perhaps, but also with substantive programs on particular legal subjects. What then? Does it affect my criticisms, and if so how?
As usual, my friend Orin Kerr asks the questions I would ask, and more economically, in his comments on Dan's post. One might put it simply and sympathetically by noting that, even if (as Dan argues in the comments to his post) there is no "tension" between its functions, they may make for odd bedfellows. One wouldn't expect a trade association based on the membership of individual existing law schools to argue in its official capacity, say, that some 20 or more of them ought to shut down. (I'm not averse to this argument, but neither is it an article of faith for me.) But one might expect an individual legal academic--and most key AALS officers are legal academics--to argue just that upon academic reflection. One wouldn't expect the AALS to argue that law doesn't matter, or matter much; or that whether it matters or not has little to do with whether law schools matter; or that law schools' academic function ought to be such as to exclude various measures--proliferating LL.M. programs, various one-year "certificates" that coincidentally and happily provide much-needed income, and so on--that might be crucial to some schools' survival or well-being. But an individual legal academic might conclude just that. "Tension?" Maybe not, as long as individual speakers are free to press that point at the annual meeting and in the Journal of Legal Education, as they are. (A nice test case might be a proposed "Hot Topic" program like "First, Let's Kill All the Law Schools" or "Law School Monopolies, Public Choice, and the Economic Incentives for Law School 'Innovation.'") "Odd bedfellows?" I don't think that's an especially harsh or implausible description.
Then there is the question of the fact of the annual meeting. Again, I'm a defender of the annual meeting, and, like Dan and Mark, I think it's better than its most convinced critics argue, although obviously it's imperfect (what isn't?) and I suggested some reforms. But we might well ask why, if the AALS is a trade association first and foremost, and one organized around law schools rather than individual law professors, it exists at all. We might treat it as lagniappe. There's a flavor of this in Dan and Mark's posts. They write, respectively, that "what is more surprising to me is that the AALS has maintained such strong attendance and loyalty, warts and all," and that "it's actually something of an achievement that the AALS's annual program has become as intellectually substantial as it is now." Both of them have pushed to make the annual meeting better, however, and I don't think either of them think the reaction of law professors to the notion that an annual meeting is kind of a bonus should be gratitude and silence.
But another way to read the fact of the annual meeting is that the AALS is, functionally if not formally, at least in part a learned society, and that it wants to be and/or holds itself out to be one. The by-laws and membership structure may cut against that, or against viewing it only as a learned society. But law professors have, for lo these past hundred years (or several hundred), often argued that form can be less important than function, that organizations evolve within or despite their formal structures, that we should not elevate process over substance, and so on. So maybe the "trade association" answer is not complete. And that point is enhanced when we reflect that even if the annual meeting itself includes many programs on legal education, the AALS also holds subject-specific midyear meetings, and that many of its annual distinguished speakers end up speaking about law, or legal academic work, not just about law schools and their welfare.
Again, I'm happy to concede that the AALS is at least a trade association, although possibly not only one, or that is a trade association "with a difference." Both Mark and Dan, as I understand them, don't rest absolutely on this point. That is, they still think the annual meeting is important and don't think it should be immune from criticism and reform, including suggestions about how to make the annual meeting itself more academically useful, just because it could dispense with an annual meeting (or midyear meetings) altogether, or limit it to a meeting of law school administrators, or what have you. And it is at least possible that we might think of the AALS in the end as being neither fish nor fowl. The question then would be whether we think of it as being free to be imperfect at both functions, or demand that be excellent at both, or suggest that it divest itself of its "learned society"-type functions, or something else.
I come out somewhere like the following. 1) Okay, it's a trade association. 2) For many intents and purposes, the presence of things like the annual and midyear meetings suggest that it is also, in function and in the understanding of most law professors if not in form, a learned society. As Dan notes, if there has been confusion on the part of law professors about this, it's a more-than-natural confusion. But I think it's more than just confusion; it is now part of the identity of the AALS, membership structure notwithstanding. 3) Insofar as it is a trade association, I have much less (or no) cause to complain when the AALS or its executives speak up in the interest of legal education and law schools themselves. 4) Insofar as it also conducts meetings that conform more closely to the learned society model, it should at least give thought to making sure that its annual themes and programs are fairly academic in nature, broadly understood (I see nothing wrong with programs on teaching better, for instance). The AALS might need to lobby others, but it doesn't need to lobby or convince individual law professors attending the annual meeting. I don't want to attach more importance to it than is warranted, but I still take the general view that "Why Law Matters" is an imperfect theme from that perspective, especially when married to arguments that law mattering is the same as something like current legal education or law schools mattering. In dealing with others, it may take a more emphatic position (which, as it comes from a trade association, individual law professors may critique or take with a grain of salt; the conclusions of individual law professors need not conform to the interests of individual law schools, or existing legal education as a whole). At the annual meeting, it should be very catholic and open-minded about such questions. 5) Law professors are free to push for at least some aspects of the AALS to conform more closely to the model of a learned society. Doing so may create, or enhance, tensions between those different functions that might not otherwise exist. So be it.
Even at this length, this post is just a starting point on this issue, which clearly requires more introspection and discussion from law professors themselves, myself included. Mark and Dan have given us a lot to think about.
Sponsore Post: West Study Aids
The following post is by Anna Lawless-Collins, Associate Director for Systems and Collection Services at Boston University Law School, and is sponsored by West Academic.
The Fineman and Pappas Law Libraries at Boston University added the West Academic Study Aids Subscription in April 2016, just in time to help with end-of-year exams, and it was an immediate hit with our students. We went on a marketing blitz (aided by materials sent by West Academic) and set out table tents, posted flyers, added slides to the law school's slide show, blogged about it, and handed out materials at the circulation desk. We even wore buttons encouraging students to ask us about using the materials. Students told our library director, Ron Wheeler, that they find the online versions infinitely better than the print reserve materials - not least because they can use them anytime and anywhere. They don't have to worry about other students returning the materials late or the print versions going missing.
From the implementation end, we worked with the West Academic team to set up school branding on the page. Now, when students visit the page, it's clear that the library is providing access to the study aids. It also includes a "Most Popular at Your School" module that pulls real-time usage reports from our school. That, plus the "Recent Releases" module, shows students new and important content their peers are accessing. We are also using the free MARC record collection from OCLC to ensure discoverability in our catalog. We have had to do some tweaking to the records to make sure they are complete and to get the records to FRBRize with our print holdings, but that work is minimal when compared to the number of records we are adding with the monthly updates.
The platform initially was only accessible from the Westlaw home page, but recently moved to an independent platform with IP access. This allows students to browse the titles as a guest, but they still have the option to create their own account and sign in to their own account within the platform. If they do that, they can take notes, highlight passages, and keep track of important information in their own accounts. Students have told our Head of Access Services that this platform is the easiest to use of all our eBook platforms. The usability, good content, and new features being added (like audio lectures) has led to high usage. For Fall 2016, we saw our usage rise steadily over the semester, reaching a high of well over two thousand document views for the exam period in December.
The statistics themselves are very useful. We can see breakdowns by month, guest users by IP authentication, and unique visitors by month. We also get breakdowns showing which series are being used and how frequently, number of global searches, the top search terms, searches within books, and the top ten books searched. This gives us a good idea of what our students are looking for help with and we can use that to help guide our collections decisions in other areas.
The Study Aids Subscription from West Academic has been a great investment for us. It's helped our students access materials more easily during stressful times, it's eased the burden on our print reserves collection, and it's created an enormous amount of goodwill for the library.
Friday, January 13, 2017
Procedure returns to SCOTUS docket
SCOTUS granted cert in sixteen new cases today. Several involve procedure/fed courts issues, including:
• The scope of general personal jurisdiction over a U.S.-based company in a state.
• In what court a fired federal employee can challenge rejection of the Merit Systems Protection Board decision, when the Board concludes that it lacks jurisdiction over a "mixed case" involving both a firing and a violation of federal employment-discrimination law.
• Whether intervenors in federal court must establish Article III standing or whether it is enough that the original parties have standing. (This issue has been around for awhile and came up back during the marriage-equality litigation).
Looks like I will have some stuff to write about late in the Term.
The revolution in law practice was much like this profession's revolution
Ann Marie Marciarille had a very good recent post (here) about Brad Smith's talk at the AALS annual meeting. Smith noted that dentistry lacks diversity nearly as much as law does and off handedly said, "Why, I have no idea." Professor Marciarille used that remark to reflect on a common tendency we have to be, as she said, "uncurious" about things that may be just outside our own world. She then elaborated on some of the causes of dentistry's lack of diversity.
In that same vein, I have been struck by the similarities between the revolutions in the practice of dentistry and the practice of law. The parallels are vivid.
You know the now-standard understanding of the revolution in the practice of law. The financial crisis of 2008 and the resulting Great Recession put an end to decades of expansion in the size and scope of Big Law firms, not to mention the increase in the demand for entry-level associates, at least those from elite law schools. The contracting financial sector meant less work for Big Law firms and other large business became increasingly cost-conscious, which also put pressure on Big Law revenues.
Big Law responded in part by cutting back on entry-level hiring, which had a cascade effect within the profession and also precipitated the crisis in legal education. Although the economy has rebounded, changes in the practice of Big Law seem permanent and those changes have been reflected and refracted throughout the practice of law in nearly every practice setting.
In dentistry, the demand for dentists expanded for decades and led to a corresponding expansion in the number of dental schools and dental students. The federal government also fueled the increase in dental education by targeted funding to dental schools and loans to dental students. As in law, this expansion came to an abrupt end because of a major, permanent shift in the demand for traditional services.
Ironically, it was a public health success -- fluoridated water -- that triggered the revolution in dentistry. Fewer patients needed fillings so dentists faced increased competition with one another. At the same time, the federal government largely ceased subsidizing the dental schools and making loans to dental students. Eventually, of course, the dental profession and dental education adjusted to the new normal, just as the legal profession and legal education are doing.
I discuss the parallels between the dental revolution and the legal revolution on pages 4-20 (here).
The Blue Inhaler
I carry an albuterol inhaler as my quick relief medication for asthma. I use it infrequently, which is good news for me and good news for my asthma. Known in many other countries as the blue inhaler or the blue puffer, albuterol/salbutemol is a tremendously popular and effective relief inhaler. First brought to market in the 1980's, sales of the blue inhaler have grown as have rates of asthma diagnosis.
Traveling recently in the E.U., my albuterol inhaler stopped working short of its full number of available measured doses. And so I was off to my neighborhood pharmacy in Ponta Delgada, hoping that a licensed pharmacist might be able to prescribe inhaled albuterol over the counter and spare me the quest for the Centro de Saude on New Year's Day. Frequent travelers are no doubt aware that certain prescription only medications in the United States may be sold over the counter in other countries or dispensed at the discretion of a licensed pharmacist, even in the absence of a prescription, in still other countries.
One glance at the Pharmacia Moderna receipt found above will tell you I was successful. I was seen quickly by a licensed pharmacist who discussed my symptoms, examined my current inhaler (stunned, it seemed, that the United States would allow a relief inhaler to be packaged in bright red or anything other than the blue that is the color coded signal to asthmatics the world over that a rescue inhaler is at hand), and sold me a full size blue salbutemol inhaler for just under 3.75 Euros. I paid for it with pocket coins.
Today, I will not discuss drug pricing in the Açores beyond mentioning that Portugal (the Açores are an Autonomous Region of Portugal) uses a reference drug pricing system to set prescription drug prices. The reference involved is to drug pricing in several other countries (varying yearly, but often including Spain). Portugal, in short, is not interested in being an outlier in prescription drug acquisition cost nor an outlier in prescription drug cost to consumers. For some years, in fact, Portugal's citizens paid less than other reference countries for certain pharmaceuticals, something that has been increasingly altered by a Memorandum of Understanding relating to drug costs, promoted by the E.U. after the latest financial crisis.
The price to me was a remarkable ten percent of my U.S. commercially health insured co-pay cost for the differently-named albuterol inhaler. The contents, however, were the same, though the color of the casing on my damaged inhaler disturbed my Açorean pharmacist and the lack of a dose meter mechanism on the blue inhaler sold to me in Ponta Delgada disturbed me. I have written elsewhere about the problems of relief or rescue inhalers without dose meters.
What was equally stunning, however, was the ease of the entire encounter. I had a new relief inhaler in hand inside of ten minutes. No visit to the the clinic, no transferral of the prescription from the clinic to the pharmacia, no complicated health insurance negotiations over whether a new inhaler would be covered (it was broken) or not covered (my request for a new inhaler was untimely by calendar standards).
This made me want to know if the blue inhaler is an over the counter drug in other countries. Sure enough, the blue puffer can be bought in a U.K. supermarket, in a drug store without prescription in Australia and Spain, and elsewhere all for about the price I paid at Pharmacia Moderna. Tracking backward to check if a push had ever been made to allow Albuterol inhalers to be sold over the counter in the U.S., I learned of a relatively recent effort by the FDA to generate discussion about the possible creation of a third class of medicines: over the counter, over the counter with conditions of safe use, and prescription.
Last widely discussed in 2012, the FDA held hearings on the OTC/SCU category's appropriateness for formerly prescription only items like steroidal asthma inhalers. Multiple days of hearing on the idea produced varied positions, including AMA opposition to the encroachment on physician scope of practice. One AMA spokesperson supported pharmacist supervision of OTC/SCU prescribing, as soon as the relevant pharmacist had gone to medical school. The FDA proposal went nowhere.
I know of no place in the U.S. where OTC/SCU prescribing involving steroid inhalers has gained any traction after the 2012 blowup at
the FDA, though pharmacist prescribing is developing a bit of a track record in Canada and in the U.K. Our own state-based experiments with pharmacist prescribing authority are a mixed bag of programs based on dependent authority (collaborative practice with licensed physicians) and independent authority (think Oregon, Washington, and California's hormonal contraceptives statutes) but they have proven extremely limited in scope.
And the blue inhaler? Google it, if you like, and read all the apparently U.S. based articles and chat board discussions on how to survive an asthma attack without a relief inhaler.
Last of its kind?
DOJ has entered into a consent decree with the Baltimore Police Department in a § 14141 action. As with many of the consent decrees we have seen from the Obama DOJ, it requires extensive changes to department policies and practices with respect to use of force, community engagement, and respect for the rights of people to speak and protest in public and to observe and record police activity. It also requires development of new practices with respect to transporting persons in custody and dealing with people with behavioral disabilities.
The question is whether this is the last such consent decree we see for awhile. Jeff Sessions does not appear to see systemic unconstitutionality in state and local police departments, nor does he appear to believe that the federal government and federal courts should oversee the operations of local agencies. It is unlikely that whoever Bush Trump appoints to head the Civil Rights Division will take a much different view of the matter. Extensive use of consent decrees through § 14141 is not in the Republican playbook--the Bush DOJ brought few civil actions and entered few consent decrees, preferring to engage in informal negotiations and letters of agreement, a less-adversarial/more-cooperative approach that does not necessarily produce as comprehensive reforms.
Thursday, January 12, 2017
Can President Trump fire the DOJ inspector general without waiting thirty days after giving Congress a reason?
According to the Washington Post, Michael Horowitz, DOJ inspector general, has just announced that he will be conducting a "wide-ranging" investigation inyo "broad allegations of misconduct involving the FBI’s investigation of Hillary Clinton’s email practices and the bureau’s controversial decision shortly before the election to announce the probe had resumed."
Time, of course, is running out for such an inspection to be completed before Trump becomes President. But federal law seems to give Horowitz a little extra time to investigate even after Trump assumes office. Under the Inspector General Act of 1978, President Trump must "communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer." In theory, therefore, Horowitz has thirty days to investigate, using the substantial powers of his office, after Trump gives his reasons for removing Horowitz. (If President Obama's reason-giving under the IG Act is any precedent, those reasons need not be very detailed: When Obama fired Gerald Walpin, the IG for the Corporation for National and Community Service, Obama simply stated to Congress that he "lacked the fullest confidence" in Walpin). Although those reason-giving requirements seem pretty toothless, the 30-day warning seems to be a hard and fast statutory requirement, meaning that Horowitz gets his month to raise hell.
But is this 30-day advance warning consistent with the President's Article II powers to execute the laws? The OLC offered an opinion back in 1977 that the 30-day limit on the President's removal power was unconstitutional, and I am not sure that OLC was mistaken. In 2008, the House tried to protect the IGs' independence with even greater insulation from presidential control with H.R. 928, a bill that would have required good cause for IGs' removal, but the Senate deleted such insulation from the bill after the OMB argued that the for-cause provision would unconstitutionally intrude on presidential authority.
Given mushy precedents like Morrison v. Olson, the 30-day requirement might be constitutional even if a full-blown for-cause limit would violate Article II. But, looking at the big picture and putting petty doctrinal considerations aside, we can say one thing for sure:
The 30-day limit makes for great constitutional law final exam question.
Third Annual Civil Procedure Workshop
The following is posted on behalf of Brooke Coleman (Seattle), David Marcus (Arizona), and Elizabeth Porter (Washington).
We are excited to announce the third annual Civil Procedure Workshop, to be co-hosted by the University of Arizona Rogers College of Law, the University of Washington School of Law, and Seattle University School of Law. The CPW will be held at the University of Arizona in Tucson on November 3-4, 2017.
The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.
Confirmed participants for 2017 include the Hon. David Campbell, Allen Erbsen, Margaret Lemos, Troy McKenzie, Mark Moller, the Hon. Lee Rosenthal, Elizabeth Schneider, Norman Spaulding, and Beth Thornburg. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 1, 2017. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by April 15, 2017. Please send all submissions or related questions to Dave Marcus.
The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.
Wednesday, January 11, 2017
Jokes About Dentists
Having just returned from AALS, I have been thinking about all I saw and heard at the conference. I attended some outstanding panels and talks but it is Brad Smith's Plenary Program talk on Preparing a Diverse Profession to Serve a Diverse World that I can't get out of my head. Actually, Brad Smith, President and Chief Legal Officer of Microsoft Corporation, did not really speak on his assigned topic. His talk, though interesting, was really about how disruptive technologies have changed the world and will continue to change the world. (If his remarks in the panel discussion following his formal remarks were more focused on the announced topic, I cannot say as I regret I had to leave the Plenary Program just after the conclusion of his formal remarks.)
Brad Smith did briefly discuss the lack of diversity in the legal profession -- noting that law is the least diverse profession, followed only by dentistry. This last observation about the lack of diversity in the dental profession, earned Mr. Smith his biggest laugh of the speech when he added "why, I have no idea."
Of course, it was funny in an offhand way. But it was also a marker of how uncurious we can all be about things, how uncurious we can all choose to be, and how even those of us who pride ourselves on promoting innovation can think in remarkably static ways.
That roughly three and a half percent of all American dentists are African American can tell us some things about the legacy of exclusion on the basis of race from dental education and the dental profession in the United States. That African American dentists overwhelmingly serve the African American community (with a reported 62 percent same race patient panel) can also tell us some things about patterns of dental practice.
A story could also be told about how dentistry's move from an apprenticed trade to a profession arguably made the dental profession less diverse. The rise of the university-affiliated licensed dental school in the late nineteen century (first at the University of Maryland) made the roughly 120 apprentice-trained African American dentists anachronisms. Only slowly did African American enrollment in these new style dental schools grow.
Dentistry, for some time, has been a contracting profession. For a considerable period of time, few new dental schools opened and a number of dental schools closed. The profession contracted but not uniformly as African Americans disproportionately disappeared from dental schools and from the ranks of practicing dentists.
Of course, many factors are at play. Dentistry has grayed during this period. Dental education is now overwhelmingly debt financed making the path more challenging for those who will not move into a family-owned or associated practice. Dental services are often uninsured in the United States and more often paid out of pocket. Even Americans with the best known "dental insurance" plans often have a form of coverage that might more accurately be described as pre-paid dental for prophylactic care or limited "dental coverage" for actual low risk, high cost dental events. In short, it is not an easy time to launch a dental practice.
The Bureau of Labor Statistics predicts the demand for dental services will continue to substantially outstrip supply. As most dental students form the intention to enter dental school through exposure to family members and friends in the field, we should all give a thought to how technology and innovation might play a role in opening the world of possibility for a more diverse dental profession.
AALS Addendum I: More On "Taking Attendance"
I'm grateful to those who read and commented on my series of posts on the AALS annual meeting, especially but not limited to Mark Tushnet and Dan Rodriguez, who are both past presidents of the AALS. I hope the posts afforded some food for thought, and a little amusement, for those attending the meeting. Let me say again that the three of us have something important in common: We are all inclined to be supporters, not detractors, of the AALS and its annual meeting. As I wrote in my first post, my series of suggestions was intended neither to praise nor to bury the AALS. On the whole, I find the annual meeting useful, and better than its more fervent critics are wont to suggest. No institution or annual gathering is perfect or exempt from criticism. But I am and hope to remain involved in the AALS, both at the section level and in the central organization itself, and I would rather be a part of it, while sometimes waxing critical or pushing reforms, than deride it altogether, boycott it, or give up on the idea of a central organization and gathering for legal academics. On the other hand, I'm always much more interested in criticizing the things I like or am sympathetic to than the things or people I completely disagree with or disdain. Let me also repeat what I said often during the series: my proposals were in the nature of "modest proposals," with at least something of a Swiftian touch. I understood at the outset that it's highly unlikely that the AALS will take attendance at meetings and send that information to deans, or honor overexposed speakers with a gold watch and a five-year ban on speaking. The extreme nature of the proposals served to place the issues they were raising in high relief and provoke discussion. As it turned out, and I suspect this is often the case with semi-Swiftian satirists, and with all authors who make proposals, by the end I was more attached to the proposals themselves than might have been my original intention, and I am now inclined to think it's actually not a bad idea at all to take attendance or come up with draconian rules to deal with extreme "usual suspects" at the AALS annual meeting. Still, I expected readers to take the particulars of those proposals with a large grain of salt and focus on the issues themselves, even if I am now inclined to take the proposals more seriously than I initially intended.
I was grateful to those readers who pushed back on the "take attendance" proposal, which was meant to deal with "lobby-sitters" and "dinner-with-friends" attendees of the meeting, who rarely darken the door of actual program meetings. The upshot of the pushback was that meeting people outside the meeting rooms is a valuable form of professional networking and should not be knocked too readily or loosely. On the whole, I am happy to agree. One might view differently those social gatherings that have more to do with catching up and hanging out with friends per se, and less or little to do with catching up on each other's work. Setting that aside, I'm quite willing to agree that there is value in professional networking--and in some or many cases, it's not just value to oneself or one's personal advancement, crudely defined, but value to the legal academy, insofar as it involves learning about others' work, exposing others to one's own work, learning about what's taking place at other schools, and so on. But I would like to emphasize in response that my question was not whether this kind of networking is worthwhile--it is--but whether and to what extent it's worth subsidizing. (Remember that some of that subsidy comes from, inter alia, student tuitions and the state fisc.) More particularly, the question was whether it's worth subsidizing all that a trip to the AALS entails, including the registration fee for the meeting itself, the extra fee for the annual luncheon (the one program that those who don't attend many programs are most likely to attend), the travel and accommodation costs, and so on, in cases where the person seeking the subsidy doesn't show up for many or any of the actual meeting events. At the best of times, financially speaking, I would find that a dubious proposition--and these are not the best of times. Defending professional networking is easy. Defending asking your law school to pay a registration fee in order to obtain a conference rate at the hotel and a conference nametag (to facilitate identification for networking purposes), but without actually attending the conference proceedings, seems to me much harder. To me, at least, that holds true even if the programs ought to be better.
Whether the AALS takes attendance at individual programs and sends those data to law school deans or not, I think we can usefully ask what those professors who value professional networking but don't intend to attend many or any actual conference proceedings might do instead of seeking reimbursement for the whole conference package when they are only going to take advantage of part of that package--namely, the "lobby" or hallway and the chance to chat with old and new colleagues. Three possibilities spring to mind. One is that the professor simply pay his or her own way. As long as a law school reasonably expects that this person is actually going to attend conference proceedings and is offering to subsidize him or her on that understanding, this seems like the right thing to do. The second is that the professor "go to the conference" but not register for it, and thus limit him- or herself to networking in the lobby or elsewhere, without access to the nametag, the programs (which he or she didn't plan to attend much if at all anyway) and luncheon, the booths downstairs, or the conference rate at the hotel. (Of course, that person could always stay at cheaper accommodations in the city and then commute to the conference hotel.) If his or her law school were willing to subsidize that, on the view that there is sufficient value in networking itself (or because it believes the professor's use of his or her PDF is discretionary as long as it is related to academic purposes), at least it would save the school the cost of the registration fee itself. Finally, if the professor really wanted the conference rate and the nametag but had no intention of attending any conference programs, he or she could tell the dean clearly and in advance that he or she planned to seek reimbursement for the conference fee, hotel costs, and the rest of it, but without attending any programs. I would be curious to find out what would happen in such cases! But surely there is nothing wrong with being transparent about one's intentions with respect to using institutional funds--and conversely, there is arguably something wrong with not doing so precisely because one wants to "attend" the conference without attending any of the programs and fears that such a request would not be approved if it were made transparently.
Again, none of this is meant to disparage professional networking. (Although some dinners with friends are just dinners with friends.) The question is what law schools ought to pay for, and whether it's fairer, and would conduce to better decision-making and resource allocation by law schools, to know what they are paying for. (And, as I said in the first place, professors could always Skype with each other, or email, or do other things. No, it's not as good. But it's a hell of a lot cheaper. And, of course, there are conferences within one's specific field as well.)
In back of this proposal, to be sure, is a general premise: I value the annual meeting as such, including the program meetings. Professional advancement is nice, and need not be viewed in purely mercenary terms. But the AALS is an annual meeting for professional education, including exposure to ideas and speakers outside of one's usual area of focus, not just for professional advancement. I think such a conference is or ought to be a valuable thing for committed members of an academic field. My views above would hold even if that weren't my background premise. But since it is, my "attendance" proposal is not only about encouraging candor, transparency to funders and stakeholders like law students and state legislators, and better resource allocation by law schools; it's also about making the AALS annual meeting itself better, by encouraging registrants to actually attend the programs--and, where subsidy is dependent on their doing so, incentivizing them to get involved in the sections or communicate with the AALS in order to make the program meetings better.
Whether this second point holds might seem to have something to do with whether the AALS is actually a learned society or not, or whether it's something else. That's the point on which Mark and Dan offer some interesting and useful points, and I'll take it up in my next post.
Goodyear v. Haeger oral argument
Here, I want to highlight (as I do in the SCOTUSBlog piece) the analogy offered by Haeger's counsel between litigation and a train. He explains that most sanctionable conduct merely delays the train or causes a detour, although the train still arrives at the intended station. Here, the “train jumped track and it went in an entirely wrong direction.”
But does a train continue moving in any direction, right or wrong, once it jumps the tracks? Isn't it more like the beginning of The Fugitive?
Tuesday, January 10, 2017
Endrew F. v. Douglas County School District: How vague statutory terms can lead to class bias in special education
Tomorrow SCOTUS will hear arguments in Endrew F v Douglas County on whether disabled students’ entitlement to a “free appropriate public education” (“FAPE”) under the Individuals with Disabilities in Education Act (“IDEA”) entitles them to more than a non-trivial educational benefit. Both the statutory language (“appropriate public education”) and Board of Education v. Rowley (the governing precedent, calling for a plan “reasonably calculated to provide educational benefit”) are opaque. The indeterminacy of precedent and text leave an opening for the federalism canon of Pennhurst to resolve the case in favor of the school district.
Federalism, however, serves a purpose here deeper than acting as a tie-breaking canon. Pennhurst gives to elected school district leaders some power to temper the middle-class bias inherent in special education. By contrast, the mushy statutory standard of “substantial” educational benefits sought by the petitioners opens up a quagmire of litigation that only the middle class will be able to traverse. By defining "FAPE" to mean "substantially equal educational opportunity," the petitioner invite litigation over an unworkably vague standard. Inviting litigation, however, can only exacerbate the class bias of a statutory scheme already notorious for favoring wealthier and litigation-savvy parents through its litigation-oriented focus.
1. How do litigation costs and vague standards convert special education into a middle-class entitlement?
At least since Mark Kelman and Gillian Lester published Jumping the Queue in 1997, “special education” under the IDEA as an ambivalent benefit for the disadvantaged. On one hand, there is a powerful moral sense that kids with disabilities need and should be legally entitled to a “FAPE” on the same terms as non-disabled kids. On the other hand, the individualized supplementary educational services provided to kids with “specific learning disabilities tend to be expensive, especially when they involve private school placements. Although the data are uncertain (Kelman and Lester, at pages 75-85, could only speculate back in 1997 about class disparities in supplemental services), there is suggestive evidence that expensive supplemental services for kids with specific learning disabilities tend to take resources away from the most economically disadvantaged kids so that middle-class families can pursue sometimes expensive private educational options at public expense. (One should, however, beware the anecdotes about the costs of private school placements: Private school placements, especially parental placements, are actually pretty rare).
This class bias is baked into the statute. There is no easy way even to diagnose, let alone design an individualized education program (“IEP”) for, disabilities like dyslexia, dysgraphia, dyscalculia, let alone simple inability to sit still and listen. The statute itself and the DOE’s rules are both muddled on exactly how a “disability” should be defined. IDEA itself, however, provides one piece of guidance suggesting the class bias underlying the statute: the term “disability” excludes a “learning problem that is primarily the result of … intellectual disabilities, emotional disturbance, or of environmental, cultural, or economic disadvantage.” Both this expressly class-based definition and the costs of the procedures used to resolve individualized disputes over IEPs insures that the IDEA will tend to drain the general public school population of resources for the benefit of parents with the knowledge, time, and money to be “squeaky wheels.” As the landmark study of special education by Chester Finn et al. noted in 2001, “in many school districts there is not one special education program but two, separate and unequal” a difference that is “keyed to parents’ differing levels of savvy and persistence” that provides the most sophisticated parents “with a premium private education at public expense” (page xix).
2. How might petitioner's proposed definition of FAPE undermine educational equality?
The interpretation of “FAPE” urged by the petitioners in Endrew F. would exacerbate this problem of process-driven class bias by creating a substantive standard so hopelessly vague that it invites litigation by law-savvy parents who can afford a lawyer. According to the petitioners’ merits brief (submitted by Pam Karlan’s and Jeff Fisher’s Supreme Court Litigation Clinic at Stanford), students suffering from learning disabilities are entitled to “substantially equal opportunities to achieve academic success, attain self-sufficiency, and contribute to society” (pages 40-43). Although the petitioner’s brief assures the reader that this standard is “eminently workable,” the brief never explained how to distinguish between equal opportunity and equal outcomes, and it never defines the baseline non-disabled student against which to compare the disabled student’s progress. If a dyslexic student is reading below grade level at a school where most non-disabled kids also read below grade level, then is this proof that the school’s IEP is working? Or may the student’s parents, armed with expert studies, argue that their child, given his or her other advantages (say, a high IQ and stable domestic environment) would achieve grade level – even above grade level -- with a different program, surpassing his non-disabled classmates who were not similarly situated to the disabled student in those other respects? Is it enough that the school set high goals if the disabled student does not meet those goals? If not, then how should a court decide whether the parent’s alternative educational program would meet these goals better?
The unmanageable character of petitioner’s standard is nicely highlighted by the Douglas County School District’s brief’s noting that the petitioner never explained precisely why Endrew F.’s proposed Fifth Grade reading IEP would satisfactorily provide Endrew with an “opportunity” that is “substantially equal” to that of non-disabled students to learn how to count and read (pages 55-57). The petitioner’s Reply Brief responded to this challenge by noting that the School District’s “instructional practices obviously were not working" (page 21) without either explaining how a court would determine whether another IEP would work better or even defining what it means for an IEP plan to “work” in the first place.
The petitioners' technically correct observation that the cert question in this case did not charge them with showing that Endrew F’s particular proposed IEP was necessary to achieve equal educational opportunity misses the point. If the Court cannot apply the standard to the specific facts of a particular case, then how will any other court use this standard to resolve litigation in an efficient, predictable way? Standards so open-ended invite open-ended litigation by dissatisfied parents who can afford lawyers and educational consultants. Aside from wastefully draining away resources from public schools, such litigation likely would exacerbate the socio-economic inequalities built into the statutory scheme. In this sense, the statutory standard offered by the petitioners, although calling for equal educational opportunity, may actually make educational opportunity more unequal.
The AALS is a Trade Association. There, I said it.
Paul Horwitz has a series of very thoughtful posts, each raising some important issues about the AALS and constructive suggestions for reforming the annual meeting. There are some great ideas in here and as someone who has been (1) very involved in the work of the ass'n over many years, and (2) styles himself as a reformer of sorts (if only a "moderate" one), I find these criticisms and recommendations highly valuable, and some spot on. Let's make the annual meeting great (again? once and for all?)
But let me tackle here an issue that undergirds at least a couple of these posts, as well as other AALS conversations in the past, and that is what exactly the association is.
It is an association of law schools, not an association of law professors. Always has been. Perhaps there is an important place in the academy for an organization of law professors (other academic professions have such associations), but that is not the mandate, the purpose, or the function of the AALS. (No need to take my word for it; you can get the skinny from the charter up on the AALS website). Prof. Mark Tushnet got us nicely riled up many years ago when he set out as the theme of his presidency, the idea of the AALS as a learned society. Whatever power this had as a normative prescription, and as an exhortation to improve the academic programming of the annual meeting and other AALS conferences, it created a trap to which Paul and other distinguished law profs have fallen into, which is seeing the AALS as an entity whose primary purpose is providing professional development opportunities and good intellectual content for a hungry professoriat. Worthy endeavors indeed (hence the great suggestions for improving the meeting), but AALS functions principally, and by design, to reflect and represent the interests of member law schools. To be sure, it needs to be ever careful about ensuring that it effectively represents the interests of a very diverse group and, moreover, that its governance structures and institutions provide for adequate input so as to make it more likely that this trade association is advocating for causes and issues that are in the collective interest (as democratically determined) of its member law schools. That all said, it ought not to shy away from its fundamental mission of advancing the interests of its member law schools. (Where, of course, there are collective interests to be advanced and where the AALS has a comparative advantage in responsibly advancing them).
While the AALS surely ought to focus a good part of its attention and resources on providing meaningful opportunities for law professors to engage, to exchange scholarly and pedagogical ideas, and to develop mechanisms for improving the welfare of faculty members -- and in that sense Tushnet, Horwitz, et al, are quite right to push it hard to improve the meetings and meeting content -- we do our member law schools a disservice to evade and avoid squarely acknowledging its function as a trade association and an interest group. The real question to me is how to develop a strategy so that, in its functioning on behalf of law schools, it is rigorously professional, data-driven, articulate, and not manifestly self-serving. Therein lies the challenge; and a challenge built into the very purpose of the association.
Silence in the classroom
As we all start spring classes, I want to share an observation about the value of silence in the classroom. I am interactive with my students, even in my large class (Business Entities). One of the most fruitful questions I ask myself as I do my class prep is, "What questions would make a bright student who has done the reading think a bit before replying?" Those questions add particular value to the class experience because they're not something the students will get just by a careful reading of the assignment. They actually have to go to class to get that value. In turn, I feel an obligation to make the class time valuable to the students by asking questions that do more than reinforce a basic understanding of the reading.
But a necessary consequence of asking questions of that kind is that students pause before replying. Frequently they start a sentence then stop. All of that involves what can seem like considerable silence in the classroom. While the students are wrestling with a question, they are also dealing with the dynamic of silence.I am explicit with the students about this, telling them on the first day, and usually giving them a reminder later in the semester, that silence is a good thing in this context. That, in fact, it's a way to know whether I'm doing the job I'm supposed to be doing (i.e., doing more than just assigning pages and explaining what they've already read). Still, the silence itself has a tendency to unsettle some students.
If you're looking for a new technique for class or for class prep, I recommend finding questions that are just one step past what the students would think of on their own. The silence really is golden, but be aware that you may want to be open with your students about the value of silence.
Monday, January 09, 2017
AALS Annual Meeting Reform Proposals, Part IV: Visit the (Remainder of the) United States of America
This is the last of my posts on the AALS annual meeting, post-dating the meeting itself. Mercifully, it's also the shortest. My last, and probably most logistically difficult reform suggestion, is to rethink locations.
I know there is a history here, and also that the AALS needs to lock in its commitments years in advance. But I suspect I'm not the only one who is tired of shuttling between New York (great city, expensive, tiny overpriced rooms), DC (good city, lots of friends in town, expensive, unattractive hotel, exhaustion occasioned by too many trips to the Lebanese Taverna), and San Francisco (wicked expensive). It's a big country and, even keeping in mind all the needs that have to be balanced, surely there are other possibilities. I think it's time for other cities: Dallas, Atlanta, Chicago, Philly, Tampa, Birmingham, Charlotte, Salt Lake City, Memphis, Nashville, Pittsburgh....Some are expensive but many on this list are both accessible and much cheaper than the Big Three that the AALS has relied on for several years. (The last non-big three locale I remember was New Orleans; I'm not sure when that was, but a few years at least.) The AALS annual meeting is already something of a bubble, but there's something to be said for moving that bubble outside the usual bubbles of NY, SF, and DC. It is possible that some attendees might prefer to visit, say New York, than Pittsburgh, or San Francisco to Salt Lake City. But since the programs (or lobby, if you prefer) would be the same, I can't imagine why.
I'll round things out with a further comment about the "take attendance" post, and a post about AALS as learned society vs. trade association, although both will have to wait a bit.
Shorter White v. Pauly
Unless an officer walks up to an unarmed man and shoots him in the head while shouting that he knows the victim was not a threat, stop denying police officers summary judgment in excessive force cases.
Dialysis Care's Tangled Web
Thank you to PrawfsBlawg for the opportunity to guest blog this month.
Christmas Day was the perfect day for the New York Times to publish its article on interesting goings on at The American Kidney Fund, one of the largest charities in the United States. Why? Well, Christmas Day is usually a slow news day and even trying to understand how dialysis care is funded for Americans is a slow read. It may be that all health insurance topics that span government-funded insurance as well as commercial insurance in the U.S. are a slow read. This is because our health insurance systems are complex but also because our health insurance systems are under-discussed.
Renal failure patients have been a special disease group under Medicare since 1972, when Congress extended Medicare coverage to people of any age with kidney failure. The "kidney entitlement" (as it is sometimes known) is distinctive in this regard. The story of the movement of dialysis from experimental to medical treatment, the rise of the dialysis industry, and the sympathetic face of end stage renal failure patients all played a role in the dance of this legislation. Indeed, a dialysis machine was reportedly brought to a Congressional hearing, though the account that a patient was actually dialyzed before members of Congress may be the stuff of urban legend. The early 1970's was also a time of hope for comprehensive national health care reform, with the kidney entitlement seen by some as a stop-gap measure, not as an exercise in exceptionalism. For all these reasons -- and more -- we saw the development of the extension of Medicare coverage for dialysis to a disease group that included many who would formerly have been outside of the Medicare tent.
Dialysis evolved as did the dialysis industry. The nonprofit American Kidney Fund, from modest beginnings as a fundraising drive for a bankrupt dialysis patient, grew into a reportedly majority dialysis industry funded charity whose premium support program allowed the American Kidney Fund, federal health care fraud and abuse law notwithstanding, to expand the relationship between the dialysis industry and the charity through collection and distribution of funds in the form of health insurance premium payment, including Medicare and commercial insurance premium payment for end renal failure patients.
In health care delivery, payer mix is all. A health care delivery entity's business model necessarily revolves around a favorable payer mix. Fresnius and DaVita, for example, were reported to receive $300,000 per patient per year from the Oregon state insurance pool for a year of dialysis treatment in 2011 as compared with the $82,000 they were reportedly able to bill Medicare in the same year. Now, allegations have been made that the American Kidney Fund excludes applicants from health care entities that do not contribute to the Fund, though this would be an apparent violation of the terms under which the premium support program was found not to violate health care fraud and abuse law.
In addition, litigation by United Health tips us off to the fact that the dialysis industry may -- in light of the extraordinary reimbursement differentials -- have decided that the best use of premium support funds was to enroll renal failure patients in commercial insurance. In addition, it has historically been the policy of the American Kidney Fund to terminate all premium support if a patient pursues transplant and dialysis terminates.
In this tangled story of dialysis treatment we have the larger American health care system's incentives written on a grain of sand: each insurer determined to push risk and cost on its competitors; each provider entity determined to retain its market share and maximize reimbursement rates; and a charity program perhaps operating as a demand-enhancement reimbursement maintenance control center.
Less Hollow Hope on the defensive side
Judicial appointments always seem to be less of a high agenda item for Democrats than for Republicans. At the voting level, polls show that voters who identified the composition of SCOTUS and the federal courts as the most or a very important issue broke strongly for Trump.*
[*] On an AALS panel about the presidential transition, Steven Calabresi argued that this means Trump's promises about judicial appointments, especially to SCOTUS, are the equivalent of Bush I's "read my lips," to which Republican voters will hold him. If Calabresi is right, this will affect the result of any systematic Democratic efforts to oppose any Trump nominee.
At the presidential level, Reagan appointed 50 more judges in his eight years than Obama did in his, and Obama leaves office with about twice as many judicial vacancies (more than 100) than Bush II left in 2009. (So however Obama transformed the federal judiciary likely will be undone by Trump, who has a significant number of lower-court vacancies to fill immediately, along with the Scalia seat). Although Obama nominated and praised Merrick Garland and did speak about the waiting nomination, he did not do it so loudly or so often to keep the issue from largely disappearing from the news. I do not know if more political heat would have changed anything--if Republican voters genuinely care more about the courts than Democratic voters, there was no constituency to force Republican hands on this.*
[*] Which may offer another reason that Democratic attempts to hold the Scalia seat open indefinitely will fail--the Republican voters outraged at the obstruction will be louder and more numerous than were the Democratic voters outraged over Garland.
Some of Obama's less-than-complete success is due to Republican obstruction and that the Republican-controlled Senate has confirmed virtually no nominees during the past two years. But Obama had six years of a Democratic Senate, the last two of those without a filibuster on lower-court nominees (although still blue slips), which might have allowed him to push through a bigger flood of lower-court judges into those vacancies, had he been so inclined. (And this is without getting into judicial ideology, where Obama's (and Bill Clinton's) nominees never appear to be as liberal as Bush's (and likely Trump's) have been conservative).
But Obama never seemed so inclined, at least not outwardly or forcefully. One possible explanation is that Obama adheres to the arguments of University of Chicago political scientist Gerald Rosenberg in The Hollow Hope that the courts are not effective agents of social and political change and that progressive activists must focus more on the political branches. (The greatest social-change success came during the 1960s, the one time in history when the courts and Congress were on the same page). Obama is, at heart, a believer in political activism on the ground, back to his days as a community organizer, rather than in the courts. And that seems to have affected his approach to filling judgeships.
But there is a defensive component to our hopes for the courts. Courts are essential to protect what activists achieve in the democratic process. Or, stated, differently, they offer the other side a great way to stop or reverse social change that comes from the political branches. Packing the courts with Democratic nominees is essential to secure those political-branch successes, even if the courts should not be the primary target for establishing rights in the first place.
And it is not only about protecting statutes and regulations from declarations of unconstitutionality.*
[*] See Voting Rights Act or the Medicaid expansion or DAPA. Or, historically, everything between 1933 and 1937. Or imagine if a Republican-controlled Court had come out the other way on the constitutionality of public-accommodations provisions.
It is, perhaps more importantly, about protecting against judicial interpretation and construction that sharply narrow the scope of those statutes and regs, thereby undermining their impact and social-change purposes.*
[*] See, e.g., restrictive interpretations of Title VII and other employment discrimination laws.
And we can add to that sub-constitutional procedural decisions closing the courthouse doors to those who would seek to avail themselves of statutory and constitutional rights.
[*] See Twiqbal or recent restrictions on class actions.
That is what Republicans achieve by dominating the courts and by making that dominance a central goal of every presidential administration. And what Democrats lose by not. The power to reverse that trend is what was lost by the failed Garland nomination, the failed Clinton candidacy,the failure of Obama to push more on judges, especially in his first six years, and the substantial number of vacancies he leaves to be filled by President Trump. (I recognize this reflects the "Disease of More": Obama achieved a lot with respect to the federal judiciary--it just never feels like enough).
And to put on a candidly partisan hat for a moment (remember, the banner says "almost always"): This, more than the probable loss of Roe as a constitutional doctrine or the loss of an opportunity to finally define and implement a vigorous liberal constitutionalism, is what saddened me most about the results of this election.
Sunday, January 08, 2017
One more round with Heather Gerken: Why federalism can still promote pluralism in our polarized times
Heather Gerken has written a typically smart and pithy response to my response to her response to my argument that federalism makes a great insurance policy against political defeat at the national level. I argued that, by limiting national power with formal rules, the Constitution can reassure Red and Blue voters that the other side will not impose their policies nationally. This allows Blue and Red states to go their separate ways on issues where disagreement is intractable.
Heather responds that federalism cannot promote pluralism in hyper-polarized times, because hyper-polarized politicians and/or voters just cannot stomach the idea of their opponents' imposing their views even subnationally. According to Heather,"[i]f you really think that what the other side is doing is monstrous, you aren’t going to allow for an exception to the national norm – which is precisely what is necessary for federalism to get up and running -- no matter what tradition or institutional practice holds." With her usual gift for a phrase, she declares that you cannot play cards in a hurricane.
In principle, I do not disagree: It might be that federalism could never contain fundamental moral disagreements like the fight in the 1850s over slavery. That was indeed a hurricane force wind that blew away any constitutional accommodation. After the jump, however, I will suggest that the sort of polarization afflicting us Americans today is more a tropical storm than a hurricane. It is nothing like the fight over slavery. Following Morris Fiorina's lead, I will suggest that the views of Red and Blue voters actually have not change that much over the last thirty years. We the People actually are not really that intensely polarized over issues. We are just intensely distrustful of each other. I suggest that firm, formal constitutional rules of federalism are actually ideal for containing this sort of polarization.
1. How polarized are we, really?
If one looks at politicians' speeches or roll call votes, we Americans are intensely polarized. Neither the speeches nor the votes overlap as much as they did in the past, making our times look hyper-polarized.
There are, however, good reasons not to measure polarization by politicians' observed behavior. After all, they represent us the people: If we are not so intensely polarized, then the polarization of elites might be more of a tempest in a teapot than a hurricane of mutual hate.
Morris Fiorina has famously argued that citizens' views really have not diverged very much over the last few decades. Instead, citizens have simply sorted themselves more cleanly into intensely polarized political parties. (The Fiorina Thesis parallels a similar argument by Matthew Levendusky). Voters have not moved further apart on issues like abortion, gun control, taxes, and so forth: They just identify more intensely with parties that now take cleanly distinct positions on these issues.
2. Why federalism can contain our disagreements if they are not policy disagreements
The significance of the Fiorina Thesis is hotly contested, but I want to bracket that fight for now and instead focus on a different question: If Fiorina is correct, and Trump voters actually do not differ in their policy views more from Clinton voters than the views of voters in the past have differed from each other, then what does such a fact suggest about the efficacy of federalism as an antidote for polarization?
Here's a hypothesis: Unlike citizens who regard the other side's policy positions as loathsome, citizens today are actually quite prepared to allow the other side to impose their views subnationally. Alabama voters actually are not intensely horrified that New Yorkers force insurers to pay for employees' contraception, recognize same-sex marriage, or prohibit open carry. They just do not want those New York values enforced in Alabama. Give them assurance that liberalism will be not be nationalized, and they will be willing to give similar assurance about conservativism. Unlike disagreements over slavery in the 1850s, disagreements over Obamacare and the like are not hyper-intense moral disagreements. (If they were, the congressional Republicans would not be facing so many difficulties in repealing the ACA). Instead, we simply have hyper-intense distrust of our opponents' motives: Each side thinks that the other is a culturally alien force that seeks omnipotence rather than cooperation.
If policy disagreement is not the crux of our polarization, then federalism should work pretty well to contain our animosity. Just give each side credible assurance that laws contradicting their strongest policy positions will not be nationalized. Create lots of local opt-outs in inevitably national statutes. (It is not obvious to me why we need a uniform national rule on contraception coverage in the ACA, given that contraception coverage does not affect business costs and, therefore, will not ;likely lead to a race to the bottom).
If one looks outside Washington to subnational political cooperation between cities and suburbs, one sees confirmation of the idea that, once fear of being dominated is taken off the table, Red and Blue voters are perfectly happy to cut a deal. Take, for example, Bruce Katz's and Jennifer Bradley's account of the Denver Metropolitan area's voting to create a massive new light rail system, build a new airport, and fund cultural centers in Denver. In these votes, intensely conservative Coloradans in the Denver suburbs agreed to tax themselves for the greater good that included intensely liberal Denverites. Why could they cooperate so well subnationally but not in Congress? One might hypothesize that, at the state level, neither side feared domination by the alien Other. The Poundstone Amendment (a state constitutional amendment barring unilateral annexation by Denver) gave assurance to the suburbs that Denver would never impose liberal policies on them without their consent. Home rule assured Denverites that conservatives could not strip them of internal autonomy. The result? A non-ideological vote marshaled by non-ideological leaders like then-Denver Mayor, now-Colorado Governor John Hickenklooper.
So do not count federalism out because partisan polarization is intense. If issue polarization is not intense, then federalism might be the perfect windbreak to stop polarization's storm.
Saturday, January 07, 2017
Elevating judges during recess
Based on comments to my earlier post and some emails, the key question on elevation and resignation is more specific: Is a judge elevated on a recess appointment differently situated than a judge elevated through the ordinary appointment process.
It seems to me that a recess appointment is substantively the same as a regular appointment, but the process is flipped--the nominee assumes the office first and then the Senate confirms (or does not confirm). But during the recess-appointment period (the period between the appointment and Senate confirmation), the officer is in all senses identical to someone appointed through the regular process, fully occupying that office and exercising its powers to the same extent. That being the case, if acceptance of a regular appointment accompanies a resignation from the lower-court (however that happens and pursuant to whatever legal source), so should acceptance of a recess appointment.
The counter argument must be that the trigger for resignation of a lower-court judgeship (again, whatever the source of that requirement) remains Senate confirmation and acceptance of the commission to the higher court. On this view, a recess appointment is not substantively the same as appointment following Senate confirmation--it merely ensures that the work of the office gets done until the Senate returns and confirms, but does not alone alone fill the vacancy, impose the resignation obligation, or create the new vacancy on the lower court.
But that means Obama erred in not making a recess appointment. I had argued that it was not worth eleven months of Justice Garland (the longest he would have been able to serve, until December 2017) if the end result would be Garland on neither SCOTUS nor the DC Circuit. But my reasoning was that Obama would not want to create the lower-court vacancy and Garland is too young to want to no longer be a judge. But my conclusion rested on the premise that Garland would have been unable to return to the DC Circuit when the recess appointment ended. But if Garland's DC Circuit seat would have been waiting for him next December, then Obama had nothing to lose and everything to gain from this move.
Does the Holman Rule authorize unconstitutional bills of attainder?
House Republicans have reinstated "the Holman Rule,"a 19th century procedural rule allowing individual congresspersons to propose appropriations cuts targeting very narrow categories -- for instance, the pay of a single civil servant. House Democrats, led by Steny Hoyer, have complained that such surgical strikes on individual federal employee's pay could undermine civil service protection.
Is it an adequate response to Hoyer that any retaliatory appropriations rider directed at a specific civil servant would be barred by the prohibition on bills of attainder contained Article I, section 9? United States v. Lovett (1946) is the most relevant precedent, holding that Congress cannot amend a 1943 spending bill to bar federal funds from being spent on the salaries of three named civil servants. The Lovett majority acknowledged that the spending limit was not literally a criminal penalty but nevertheless found that "[t]he effect was to inflict punishment without the safeguards of a judicial trial and 'determined by no previous law or fixed rule.'"
Of course, the victim of a targeted cut would always have to prove that Congress's motive was retaliatory -- but they would have to do so in an ordinary proceeding before the Merit Systems Protection Board. The civil service laws, after all, do not protect against a mere reduction in force brought on by budget cuts.
So is Representative Hoyer's claim just an alarmist parade of horribles that will never get a marching permit under the Constitution? Or have I over-read Lovett -- an entirely likely possibility, since it has been awhile since I have taught this stuff? (Now that the Holman Rule is back, however, I see a potentially tricky exam question, a silver lining -- at least for law profs --around the cloud of partisan polarization in which we now live).
Friday, January 06, 2017
Elevating judges and creating vacancies
On my prior post about the expired Garland nomination and the Scalia vacancy, my former professor Steve Lubet questioned why a Garland recess appointment would have created a vacancy on the D.C. Circuit. After much research, I am unable to find a provision expressly barring judges from simultaneously holding seats on two courts or declaring that accepting a seat on a higher court constitutes a resignation from the lower court. It simply is and seems to always have been.
A Congressional Research Service report from earlier this year declares, without citation, "[a] judicial vacancy is created by an incumbent judge['s] . . . elevation to a higher court." When nominating lower-court judges for a higher court, presidents since Washington have contemporaneously nominated someone to the lower court, although the nomination is contingent on the elevated judge being confirmed; if she is not, the contingent nomination is withdrawn because there no longer is a vacancy. And there is extensive political science and historical literature about Presidents elevating from the lower courts precisely because it allows them to fill two vacancies--the existing one on the higher court and the one they create on the lower court by moving a judge from the lower to the higher court.
But I cannot find a statutory basis for this. The relevant provisions regarding appointments or tenure make no mention of and none of the literature cites to anything. The assumption underlying the appointment process, seemingly for everyone, is (and always has been) that elevation means resignation and creates that new vacancy.
If anyone knows a basis for this that I am missing, please share in the comments.
Hello Again: Guest Blogger Seema Mohapatra
Thanks to Howard Wasserman for inviting me to guest blog this month on Prawfs. I am currently at my first AALS Annual conference, and I have been impressed by the sessions I have attended, especially the robust Health Law programming in the last few days.
I have also been working on my syllabi for the spring while I have been here. This semester I am teaching Torts II and Health Care Law, both classes I have taught many times before. After the enactment of the Affordable Care Act (ACA) in 2010, health law professors had to restructure their classes because the law affected so many areas of the field. Now, we are facing an even more difficult prospect--how to teach a class in the shadow of a major administration change and promised repeal and replace of the ACA. After struggling for a bit with how to restructure my survey Health Care Law class, I have decided to devote four classes towards the end of the spring semester on "Health Care Reform" with readings TBA. Some colleagues have facetiously suggested that I add "The History of" to each section of my syllabus, but that is not necessary as many of the promised changes, even if actually enacted, will not take effect immediately.
This month on Prawfs, I plan to follow and write about what is happening in DC with the budget reconciliation process (AKA the promised "repeal" of Obamacare). I will also blog about some recent health law cases and current writing projects on gene editing and Zika.
Why Exit Needs Voice: Foot-Voting in America and China as an Inadequate Substitute for Local Democracy
Suppose that you had no power to elect a new set of local officials. Could you choose better ones simply by moving to a new jurisdiction and thereby improve your life? Ilya Somin has written an elegant defense of foot-voting as a substitute for ballot-voting. As Ilya notes (and as the last election highlights), ballot-voting is marred by rational voter ignorance. Why invest a lot of time and effort in researching local politics when your ballot has a minuscule chance of deciding the election? Households who vote with their feet, by contrast, always cast the decisive vote to be governed by a new set of officials. Such households, therefore, have greater incentives to make a well-informed migratory decision. (For Ilya’s outstanding short-form discussions of the problem of political ignorance and how foot-voting can help, see this link)
Qiao Shitong and I offer a slightly skeptical rejoinder to this happy story about foot-voting. Unless there is a feedback mechanism inducing local officials to care about attracting migrants, we argue that interjurisdictional migration will be nothing more than a trip from the frying pan to fire. Foot-voters would either over-crowd the “good” jurisdictions or not bother moving at all, because they would have no guarantee that well-governed destinations would stay well-governed. This does not mean that foot-voting is pointless: It just means that migration should be regarded as a complement to ballot-voting, not a substitute. Ilya’s argument for foot-voting, in other words, becomes much more powerful if one recognizes that foot-voting actually improves local ballot-voters’ incentives to cast an intelligent vote. One such incentive is the prospect of foot-voters’ buying their houses. Our criticism is offered, therefore, more as a friendly amendment than a refutation to Ilya’s outstanding book.
After the jump, I use the example of Chinese cities in the decidedly undemocratic regime of the PRC to explain why foot-voting unaccompanied by ballot-voting or its equivalent cannot insure a real choice to Chinese citizens. The argument, drawn from that article by Shitong and me, also explains how the Communist system, with a few “communistically correct” reforms to China’s bureaucratic promotion system, could mimic the benefits of ballot-voting in America. [UPDATE: Ilya has a response to my post here].
1. Why is foot-voting by itself a poor way of improving one’s government?
A thought experiment suggests why the power to migrate between local governments unresponsive to their own constituents is not a big boon to foot-voters.
Imagine a nation divided into subnational jurisdictions each of which is governed by officials chosen by lot. Some of these officials are wise and honest; some are incompetent crooks. Citizens can choose to stay put or move to a new jurisdiction. Will this opportunity for exit benefit them?
Consider two scenarios. First, imagine that local officials are periodically replaced by others who are also randomly selected. Migration is costly: no one would migrate to a new jurisdiction to secure better government by more honest and smarter officials unless they had some assurance that such officials would stick around long enough to justify the costs of the move. If officials are chosen randomly, however, then there is no reason to believe that good officials will have longer tenure than bad ones. One might as well stick around one’s own badly governed jurisdiction, waiting for the roll of the dice to select a better set of officials and save oneself the cost of the U-Haul.
Suppose instead one relaxes the assumption that the identities of officials change periodically. Instead assume that officials, once selected by lot, they permanently hold office (at least until they die or become senescent).. Again, there is random variation among local governments: some jurisdictions’ officials are stupid or crooked or both; some are neither. Presumably those well-informed foot-voters would choose to move to jurisdictions governed by the latter, this time anticipating some long-term benefit that would justify the cost of the move. The supply of land within each jurisdiction, however, is price-inelastic: As more bidders seek houses in the well-governed jurisdictions, the price of housing in those well-governed jurisdictions increases above the prices in badly governed jurisdictions, the difference reflecting the benefits of good government. But then what would be the point of moving? Between the paying of higher housing prices and the receiving of poorer services, the rational citizen would be indifferent.
Ilya confronts the problem of capitalization in his book, noting that capitalization of good governmental performance would not likely be instantaneous. True enough, but, to the extent that prices remained low because of imperfections in homebuyers’ information, then, assuming that congestion costs eventually exceed scale economies, one would expect the well-governed city to become overcrowded. In effect, too many well-informed people would pile into a city with limited land, eroding the benefits of good government by their very presence. (Think of a stampede at a Black Friday sale). As George Tolley has argued, the well-governed city might try to ameliorate the problem of over-crowding with some sort of exclusionary zoning to insure that the city does not exceed its optimal size. Such a solution, however, then re-creates both the problem of capitalization and the problem of rational ignorance. There is no reason to believe that local officials, indifferent to their rationally ignorant constituents, would choose the right size. Even if they did, however, outsiders suffering under corrupt governments would by blocked by exclusionary zoning from gaining access to those the havens that interjurisdictional mobility is supposed to guarantee.
In sum, mere migration between cities without some model of politics within does not guarantee personal liberty. Arnold and Stiglitz were correct thirty-eight years when they showed that, “[w]ith some reasonable sets of assumptions concerning residents' knowledge and perception of the operation of the economy, competition [for residents] neither leads to, nor sustains, cities of optimal size.” We migrate to better-governed jurisdictions because we believe that they have electoral incentives to stay better-governed. We expect the jurisdictions that we abandon to improve themselves in the face of such the competition, because they also have electoral incentives to do so. Exit without politics is, at best, an uncertain boon.
2. How can foot-voting be supplemented by voice to improve citizens’ real choices?
The inadequacy of inter-jurisdictional mobility all by itself to protect our liberties does not mean that Ilya is wrong to praise foot-voting. In fact, Ilya has written a compelling narrative of how Americans’ ability to move to opportunity is a powerful engine of individual liberty and welfare. The only weakness of his account – and I regard it as a minor omission – is that he asks mobility to do too much. Mobility alone cannot cure the ills of rationally ignorant voters: we also need voters to have some reason to be less ignorant at the local level than they are at the national level.
Voice and exit can work in tandem to cure rational ignorance. Consider Bill Fischel’s alternative account of local politics that preserves a critical role for foot-voting by combining it with ballot-voting. Fischel notes that local residents pay close attention to the value of their homes, because their down payment is their single largest investment, one that they cannot otherwise easily insure against the risk of bad government. The value of housing, however, is critically dependent on (“capitalizes”) the decisions of local government, because foot-voters shop for housing based on the quality of local services and level of local taxes. Local officials know that their ballot-voters (whom Fischel calls “homevoters”) will closely monitor governmental decisions to insure that they attract foot-voters (i.e., homebuyers), because homevoters want housing prices to appreciate. Ballot-voters and foot-voters, in short, work together to insure an accountable government. The ballot-voters give local officials an incentive to cater to foot-voters. The foot-voters give the ballot-voters a price signal to homevoters that simplifies their task of assessing local officials’ performance. Neither is complete without the other, but both together do precisely what Ilya argues foot-voting can do by itself – they safeguard our welfare from our rational political ignorance.
3. Can foot-voting make Chinese officials accountable to Chinese households?
China provides the acid test of whether migration can somehow be a substitute for democracy. Shitong and I argue that foot-voting can make Chinese local officials more accountable to voters but only if it is combined with some mechanism similar to local elections. The most likely mechanism in China is the Chinese Communist Party’s (CCP’s) system of bureaucratic promotion. Borrowing a page from Anup Malani's article on Laws as Local Amenities, Shitong and I conclude that, if the CCP were to promote local officials based on their relative improvement of land values relative to their rivals in the same metropolitan area, then those officials would have an incentive to compete for mobile households in much the same way that American officials compete in elections for homevoters’ votes.
The critical factor, however, is the reform of the bureaucratic promotion system to focus on land values. Foot-voting by itself does not have magical powers to make local officials care about foot-voters’ welfare. To the contrary, if those officials are evaluated (as they are now) based on how much they increase their jurisdictions’ GDP, then they will compete perversely for polluting industries that actually reduce the welfare of Chinese citizens. Sure, those citizens can move around to different cities – but they will always find the same miserably polluted destination waiting for them. It is the conscious oversight of the CCP in Beijing that insures that the competition between local governments actually improves human welfare rather than undermines it. A race without a desirable finish line is a race to the bottom.
In sum, Ilya has made an outstanding contribution to the literature on local spatial economies and local politics. He is not only absolutely right but also deeply insightful to praise foot-voting as an aid to overcoming voters’ rational ignorance. We just urge that he not shortchange local democracy: Foot-voting makes local voters more informed, and, without those voters’ pressure, voting with one’s feet is a vote for candidates who do not care if they win the “election.”
Thursday, January 05, 2017
JOTWELL: Steinman on Delaney on avoidance
The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective (Duke L.J.), which explores ways that judges on different courts avoid difficult decisions.
What next on the Scalia vacancy?
Merrick Garland's nomination to fill Justice Scalia's seat on SCOTUS lapsed at noon Tuesday and President Obama did not (as some hoped, but I doubted) push through a recess appointment that would have been short-lived and symbolic. And would have given Donald Trump another D.C. Circuit appointment. In the overall scheme, this seems the smart move politically.
The question is what next. Incoming Senate Minority Leader Chuck Schumer said that Democrats will filibuster any nominee unless the President presents a compromise nominee that both sides can support. Of course, I cannot for the life of me imagine who that would be or what that nominee looks like ex ante. It was not obvious that David Souter would be David Souter when he was nominated in 1990.The big question is whether Democrats really could hold the line for between two and four (depending on what happens in 2018), including the eight Senators who are up for reelection that year. What will the political pushback look like? The Republicans got away with it for a year, both as a party and as individual Senators running for reelection. But so much else was going on this cycle that Democrats were never able to keep the public focus on what was happening with the nomination. Would the Republicans be better at keeping public attention on, and nailing Democrats with, obstruction, with less going on and more focus on individual races? Would they be able to hurt sitting Senators (especially in red and purple states) for their unwillingness to give a vote to this wonderfully qualified nominee who is being unfairly left in limbo? My guess is yes, because Republicans are better at this (and Fox News helps).
Also, do the optics of refusing to allow a vote following a hearing play worse than the optics of refusing to hold a hearing at all? Logically, there is no difference between two forms of refusing to act on a nomination--one involves the tools of a minority, the other the tools of the majority. But it is a distinction that Trump and Mitch McConnell could use and people might buy. And the qualifications of the Trump nominee following a hearing will be more vivid than the discussion of Garland's qualification. In addition, if the public at least tacitly accepted (or at least did not reject) McConnell's framing that the next President should fill a vacancy that arises in an election year, will Schumer be able to make his reframing--that Republucan obstruction stole an Obama nomination, so this is warranted reaction--stick?
Of course, the Republicans have several aces in the hole (we no longer can refer to trump cards). They can eliminate the filibuster on SCOTUS nominations, as the Dems did for lower-court and executive nominations (a move Schumer now says he regrets). Also, if the Democrats filibuster and it seems to be holding into OT 2017, we will see if Chief Justice Roberts miraculously discovers his inner Taft and starts lobbying against playing political games with the membership of his Court (something he was not inclined to do in the face of this year's Republican obstruction).
Finally, when the system breaks down is when strange compromises--that leave no one satisfied--can find a footing. Could another year of obstruction set the table for groups from both parties to latch on to Eric Segall's permanent eight-person Court or some other plan to break the impasse over SCOTUS appointments (such as the Carrington/biennial appointments plan)? The opportunity for this goes away once Scalia's seat is filled, because we are unlikely too see an evenly partisan-divided Court (unless Kennedy is next to leave the Court, not Ginsburg or Breyer). The plan works for the Democrats now. Republicans might prefer this plan to never filling the vacancy (if Democrats are serious about a filibuster and Republicans are not inclined to take the last step of eliminating the filibuster), if Trump will get other spots to fill, as he likely will.
AALS Annual Meeting Reform Proposals, Part III: Cut Back on the "Frequent Flyers"
The AALS annual meeting continues, and so does my series of posts offering some modest proposals for reform. I should add as a side note that readers may be interested in this post by Mark Tushnet at Balkinization discussing whether the AALS is a learned society or something else--specifically, something more like the trade organization for law schools that I pushed against in my first post. (I'm thankful to Brian Tamanaha for making a similar point in the comments to the last post.) It's an interesting point, and I'll write a separate post responding to it after I'm through with this series.
My next suggestion for reform concerns the overuse of a few, generally well-known or "celebrity," generally elite law professors as speakers at the AALS. This, too, is something that I think is widely perceived as a problem. At the same time, there are reasons both to defend the practice, or at least to acknowledge sympathetically how and why it occurs and how difficult it is to remedy. Let me be clear that there is clearly a touch of "modest proposal," in the Swiftian sense, to the modest proposals I make below.
I know from past experience as a section head and as a program planner that the AALS encourages planners of section programs to take into account the need to include junior as well as established law professors as speakers, to seek at least some forms of diversity in panel composition, and so on. I also acknowledge that in planning section programs, I too have turned to some of those well-known profs (always for a reason, but it's never hard to come up with reasons, or excuses, to do so) as invited speakers. One reason they're invited is that they often actually have something valuable to say. Another is that they're demonstrably willing to come and speak. Finally, it's worth noting in fairness that the list of people who actually end up speaking doesn't show all the invitees who declined or canceled. Sometimes section meeting programmers try harder to avoid the list of overused speakers than the results suggest.
But although the AALS urges its program planners not just to turn to the same celebrity talking-heads time and again, it's also clear that not every planner takes that advice. Among other things, program planners have a strong incentive to invite famous names, in order to get better attendance and thus secure better time slots in future years. (It's also possible, as a commenter on the last post suggested, that they may do so for reasons of personal advancement.) Between those incentives, the sheer number of sections, the willingness or eagerness of some celebrity speakers to talk frequently (perhaps too frequently) on a wide (perhaps too wide) range of topics, and the general collective action problems involved, the result is that a small number of speakers, many of them from elite schools or with individual "celebrity" status regardless of where they teach, serve repeatedly, year after year, as speakers on multiple programs. Many attendees are at least a little tired of this phenomenon. Even those who see good reasons for it think it runs to excess. And most of us could come up with the names of the same half-dozen to dozen-and-a-half "frequent flyers" or "repeat offenders," if I may lightly and respectfully call them that.
Again, I acknowledge that these celebrity speakers may have plenty to say. (But not necessarily. I have seen some phoned-in appearances, as have we all. And who knows what interesting things a newbie or less-famous law professor might have said in their place, given both his or her actual expertise in the subject and the extra effort that might result from gratitude at being invited to speak?) I also know there is real interest in hearing them speak. Nevertheless, precisely because of all the collective action problems and the difficulty of keeping things to a reasonable level of repetition, I would suggest that the AALS, and all of us, would be better off with a fairly rigid rule-based approach here. That might consist of a limit on the number of speaking appearances any individual person can make per year at AALS, a limit on the number of times they can speak in a three-year period, or some combination or variant of the two.
To those reasonably plausible proposals, I would add a brace of less likely suggestions, acknowledging their somewhat Swiftian character, although I also admit to finding them intriguing. First: Once someone has made a certain total number of AALS appearances--25, say--they should be singled out for public recognition and applause at the annual meeting or in the program, given the equivalent of a gold watch or membership in an AALS Hall of Fame, and banned entirely from speaking at AALS for a period of, say, five years. Second, as a way to counter the incentive of individual section meeting planners to invite overexposed celebrity profs to speak, in order to secure attendance and improve the section's scheduled slot in the following year, while balancing that against the possibility that a section planner might think it's really vital to have that overused speaker, we could go with something like this: The AALS will compile a list of overexposed speakers. (Plenty of people would be willing to help with that effort.) Section planners will not be forbidden to invite one of them to serve as a speaker. But if they do, that section is automatically assigned an unattractive slot on the last day of the conference the following year. That way, a section planner who thinks it is absolutely necessary to invite Overexposed Speaker X to participate can do so--but he or she had better decide it's really worth it, because the section will suffer for it the year after.
These measures are obviously draconian. Like most rules, they are over-and under-inclusive, but may be necessary where standards won't suffice to solve the problem and it's better to have a firm rule. It may be worth it here; a "drive sensibly"-type standard is clearly not working. Such an approach would do a world of good, I think, especially for younger and less famous law professors from the more plebeian schools. Although it's not a principle reason for my suggestion, I would note that a policy along these lines would also be good for minority professors, both senior and junior, and in some cases would remedy the slight, perhaps only seeming, absurdity of some majority-group, elite celebrity professor being invited repeatedly to take the spotlight, and accept the plaudits, to pronounce on the virtues of diversity or the equal importance of all law schools, while junior professors, denizens of lower-ranked schools, and minorities are effectively frozen out of that speaking slot.
A few counterpoints and concluding observations after the jump.
Three concluding notes about this proposal. First, I repeat that it is in the nature of a "modest proposal," is unlikely to occur, and definitely has its share of arbitrariness. Think of it, in part, as a way to bring the issue of overexposed celebrity speakers at AALS to the surface and provoke discussion about it. Still, I'm not sure how much we should worry about its being somewhat arbitrary. It is arbitrary, but not terribly unjust, unless you think that being prevented from making Panel Appearance Number 26 is terribly unjust. And we might ask: Even if such a rule is arbitrary, what's the worst that would happen? On the one hand, we would lose some valuable remarks from some valuable speakers. On the other, as I think everyone agrees, not every celebrity speaker makes valuable remarks on every occasion, and some of them make the same points, albeit potentially valuable ones, repeatedly, so we wouldn't really lose that many insights on net. If they couldn't speak so often, they might only accept invitations to speak on the occasions where they believed could make the best contribution. We would hear from a wider and newer range of speakers, some of whom would turn out to have unexpected and terrific things to say. We might get more, and more varied, forms of diversity in the universe of conference speakers. Those possibilities seem worth the cost of a firm and somewhat arbitrary rule.
Second, one possible objection is that for some (or many) law professors, this is the only chance they may get to meet and hear from some of these celebrity speakers--some of whom, after all, are celebrities for good reason. Although I'm sympathetic to this point, I don't think it outweighs the need to address what I see as a problem for the annual meeting. But I find the point interesting, unexpected and, as I said, sympathetic, and I'm happy to air it for discussion.
Finally, let me note that in writing this post, I went over this year's list of speakers to scan for repeat performers. Two things struck me about them. First, to be demographically blunt, they are not all white men, or white women. (But most of them are.) Second, they are not all elite and/or "celebrity" professors. A large number of them are. But running close behind are individuals who are present or former AALS officers, not necessarily from elite schools, and many of whom are speaking on topics concerning legal education, often in programs put together by the AALS itself rather than individual sections. (If that is correct, we might worry about that.) My sense is that the list is somewhat broader than the stock image one might have in mind of repeat performers all coming from the same three or four schools. But I don't know whether that is always the case, or whether this year is different from the usual pattern. And I wouldn't want to overstate the breadth of the list. There is a celebrity culture in law schools, often involving faculty from the same few schools, and it does result in a number of generally elite repeat performers at AALS. I think it's worth acknowledging this fact more openly and discussing it, and what (if anything) ought to be done about it. The rules proposed here are intended to help encourage that, in part because of their epater-le-bourgeois quality--although I also kind of like the proposed rules, and perhaps especially the more far-fetched ones.
Enjoy your annual meeting!
Wednesday, January 04, 2017
Thank You Very Much
I want to thank Howard Wasserman and the other PrawfsBlawg editors for having me back this month. While we are past Christmas, the following song from Scrooge: The Musical reflects my sentiments. Happy New Year to everyone!
Bryan Garner on Book Reviews, Plus Irony Alert
I am no particular fan of the ABA Journal, whose quality seems to have declined over the years. That said, I'm happy, or happy-sad, to note that this month's issue includes a column by Bryan Garner on a favorite hobby-horse topic of mine: the lamentable disappearance of book reviews from many law reviews, bar journals, and other general legal-reading sources.
Note that the ABA Journal used to run book reviews, but for quite a few years now has stopped doing so--although it does seem to find the time and space to let us know about "lawyers in film" and "the top legal movies" at least once a year, and about "Legal Rebels" more or less ceaselessly.
Final Reminder: Tonight: MarkelFest! at 9 pm
A final reminder that MarkelFest! Happy Hour for AALS 2017 is at 9 p.m. tonight at Romper Room, 25 Maidein Lane. Grab a drink at the bar and head tothe private room upstairs, called the Leopard Lounge. The bar is about a 10-minute walk from the Hilton (walk up O'Farrell, left on Grant, right on Maiden Lane).
Please spread the word. And come join us for drinks and conversation. See you all there.
Book Recommendations: Alafair Burke's The Ex & Elizabeth Strout's My Name is Lucy Barton
Happy New Year! I spent the winter break reading lots and lots of fiction, among other things, and thought I'd mention two good ones.
Alafair Burke, the most prolific contemporary prawf-novelist I am aware of (another full time law prof, and now dean, who is a super talented fiction writer is my former army commander Yuval Elbashan, but his books are all in Hebrew), has published over a dozen crime novels, including two best-selling series. She also co-authors with Mary Higgins Clark. I just finished her newest novel The Ex. Its in the suspense genre of Gone Girl and The Girl on a Train, told by first person narrator Olivia Randall, a criminal defense attorney (As Gillian Flynn writes, “Burke’s female characters are always very involving, with big, strong voices.”). The Ex is a great fast read -- the attorney's perspective, knowing and not knowing her client and wondering whether or not he is guilty, is sharp. I liked the realistic feel of the court proceedings, the dynamics between the opposing attorneys, and the intensity of the trial preparation. If any of you ever wondered about a murder case and considered whether and how is it possible for seemingly normal, normative, people to plan monstrous crimes, there is a part in Burke's novel that I found particularly interesting. Olivia the protagonist visits a psychiatrist who has specialized in criminology. The psychiatrist tell her: "Because I've testified in numerous homicide trials, (I've been asked about) my insight about how a quote-unquote normal person can come to commit cold-blooded, premeditated murder." "And?," Olivia asks her. The psychiatrist continues:"I've spent a good number of hours of my career talking to people who admit to being murderers. These seemingly normal people tell me how it starts small. They get fired from their job, or dumped by their husband, and they begin to wish some kind of bad upon the person responsible - typically, that the world will come to see the person for what they really are. And when karma or fate or whatever doesn't come through, the seemingly normal person starts to think, 'what if they died?' And that turns into 'What if I killed them?' And eventually, 'How would I do it?' and 'Would I get away with it?'" The thoughts become a training ground until the person is conditioned to the idea of killing and it's no longer shocking to them, she explains.
Pulitzer winning Elizabeth Strout does it again with My Name is Lucy Barton. Strout is a minimalist, understated, heartbreakingly honest writer and this book is unforgettable. It happens mostly in a hospital and mostly through a conversation, and extended moments of silence, between a daughter and her mother. It is a book of our times, telling the stories of Midwestern poverty, fear and contempt toward those who go away and aspire to other (better?) lives, childhood abuse, forgiveness and love. Lucy's dad walked her brother down the street yelling at him a "f*cking fagg*t" in front of everyone when he was caught trying on Mom's high heels; Lucy's parents locked multiple times in the truck including during the winter. She survived her terrifying physically and mentally cold conditions by staying late at school where it was warm and she could read. Her parents basically disowned her when she got into college with a full scholarship. And yet she loves them, understands them even. And maybe they too can understand her as time goes by. We need more books like this as we move into 2017.
Happy New Year, may it be full of good fiction and non-fiction. Hope to see many of you here at AALS! Don't forget the MarkelFest happening tonight.
AALS Annual Meeting Reform Suggestions, Part II: Take Attendance
Following up on yesterday's post on the AALS annual meeting, there are three more specific suggestions I would like to make in the remaining posts. The first has to do with attendance at the AALS annual meeting, and specifically the question whether a number of attendees are "lobby sitters" who do not actually attend much if any of the meeting programs; whether law schools, especially in a time of budget shortages, really ought to be paying for that activity; and what might be done about it.
It is impossible for any person attending to figure out how many law professors at AALS attend many of the programs, some of them, very few of them (or the annual AALS luncheon only), or none at all. It is true, and I think anyone who has ever been to AALS will agree, that it seems as if many people attending AALS just hang out in the main hotel lobby, stirring only to sign up for random prize drawings at the publishers' booths and go out to dinner with friends, without attending many or any actual programs. It's impossible to say: the faces in the lobby change, and of course they may leave to attend many programs and then return to the lobby. But it is at least a possibility that some professors attend the annual meeting largely, if not entirely, to get a (law-school-subsidized) trip to sit in a hotel lobby in SF, NY, or DC, a (subsidized) chance to see far-flung friends, and a nice (subsidized) dinner with them. That's not what the annual meeting is for. Nor is it what law school budgets, including discretionary faculty "research" or "professional development" funds, are for.
I would recommend the following modest proposal: Require people to sign in at every program meeting, and carefully compile and record the attendance data. Requiring everyone to sign in before entering a program meeting, and compiling the data, will require some greater expenditure of resources, but it's not immense or impossible. It may not stop people from leaving the room shortly after signing in, but so be it.
Follow up on this by sending to the deans, and only to the deans, data about their own professors' attendance, noting the name of each faculty member from that school and the number of programs for which he or she actually signed in. Leave it to individual deans, in consultation with their faculty or not depending on individual school policies, to decide how to respond. Maybe it will turn out that all the seeming lobby-sitters actually do attend various programs, and maybe not. Maybe the dean and/or faculty at a given law school will decide that it is a waste of that school's budget to subsidize a trip that consists largely or exclusively of dinner with friends in some distant metropolis. Maybe they will decide that the law school can and should refuse to subsidize any AALS trip where the attendee fails to attend fewer than three, five, or more programs. Maybe they will decide to leave the use of such funds purely within the discretion of individual faculty, even if the funds are used unwisely. The students at those schools, or the central administrations of those universities, or state legislators where public universities are involved, may be also curious about those data and ask to see them, and react accordingly depending on the answers (or the refusal to give any answers).
The results might be unpleasant, but they don't strike me as unreasonable. In particular, it doesn't seem unreasonable to me for deans to question whether their budget is best spent subsidizing dinner-with-friends junkets. Nor does it seem unreasonable for students and other law school funders to ask the same questions. At the least, such a policy would certainly help us to learn more about actual attendance practices by individual law professors at the annual meeting.
A couple of anticipatory responses to questions or objections after the jump.
A note or two about some possible comments or questions. (I field-tested these posts on Facebook before posting them here and got some interesting responses, incidentally. I'm grateful to those "friends" who responded.) It may be argued--it has been argued--that what happens at those friendly dinners is more intellectually interesting than anything that takes place at the actual meeting program. It may be also be argued that those informal meetings and dinners are good for professional advancement and so on, perhaps as distinct from and perhaps inextricably linked to intellectual development. I have a few answers to these points. The first is that I'm happy to elicit discussion of these issues and hardly expect my proposal to meet with complete agreement. Indeed, I look forward to agreement, disagreement, and anything in between.
More directly, even if these points are true, I'm not sure they merit full subsidy of lobby-sitters' attendance at the annual meeting by law schools, especially when they are accompanied by the extra expense of actually registering for the conference. (Many professors have complained, fairly or not, that the registration fee for AALS is pretty substantial.) Interesting intellectual discussions with far-flung friends may be more enjoyable and fruitful at a nice restaurant in New York, but can be held more inexpensively at conferences elsewhere, by email, or via Skype. In particular, one would expect more intellectually fruitful discussions to be held at subject-specific conferences, and "mere" dinner-with-friends gossip and discussion to be the nature of meet-ups at a general conference. Professional individual advancement of certain kinds (planning conferences or joint book projects, for instance) can be valuable for law schools. But, again, I'm not sure that justifies paying a substantial registration and travel fee, absent any attendance at the actual meeting. Other kinds of professional advancement--trying to make a lateral move, say--can also ultimately be good for law schools, but there's still less reason to accept without meaningful discussion the proposition that law schools should subsidize it, especially by paying for someone's registration fee at a conference that he or she doesn't attend. If that's all you're there for, you can always pay on your own dime to travel to the same city and stay at a cheaper hotel nearby, without registering for the meeting or asking the law school to pay for anything. (Or you can ask the law school to subsidize that kind of trip, and see what happens.)
In any event, it would be interesting to find out what people are doing at the annual meeting, and discuss openly how to shape our funding policies accordingly. Taking and reporting on attendance will facilitate that. And if the data suggest that the dinner-with-friends discussions are more interesting or valuable than the program meetings themselves, then: 1) law schools (and their constituents, such as tuition-paying law students) can have a useful discussion about how to respond to that; and 2) the attendant embarrassment will certainly be a strong incentive for the AALS to plan better programs.
It may also be noted that there are other conferences held in concert with the AALS annual meeting, which the AALS has gradually treated with a more welcoming spirit in recent years. The most prominent is the Federalist Society meeting, which is very good, but I have also attended at least one fine session of the Lumen Christi meeting. Registration fees for those meetings are low or non-existent, and I am informed that conference rates are available at the AALS hotels at least for those who register for the FedSoc meeting. I have no problem with law schools subsidizing a trip to attend one of those conferences, even--or, rather, especially--if the person seeking the subsidy doesn't register for the AALS annual meeting. They're serious conferences in themselves, and signing up for one and not the other would save the law school paying for the trip considerable expense. The interesting question arises whether, if law schools stopped subsidizing AALS trips absent a showing of actual attendance at some number of program meetings, the lobby-sitters and dinner-with-friends types, if they exist, would simply sign up for and not attend one of those conferences. I think we can burn that bridge when we come to it. But I'm really not sure how that possibility would play out. Some professors might be shameless about accepting a subsidized trip to not attend the AALS meeting, but refuse to register to not attend the Federalist Society meeting, for strange political reasons. If people stopped attending AALS but continued taking advantage of subsidies for FedSoc or some other simultaneous meeting, AALS might respond in various ways, including more vigorous competition and a more attractive (and perhaps more politically diverse) annual meeting. And it is possible that the changes in law school funding policies that might result from all this, or the change in relationship between the AALS meeting and the satellite conferences, would lead the satellite conferences to start charging a registration fee, taking attendance, or something else.
It's worth observing that at least one or two sections have come up with creative ways to combine the networking and friend-meeting aspect of the AALS annual meeting with actual programming content. The environmental law section, for example, plans annual field trips that seem quite popular. I haven't attended one of those field trips, so I can't speak to their merits. But they do indicate that there are productive ways to enable people, at least within a particular field, to network and see friends while encouraging participation in section events rather than mere lobby-sitting.
Of course, it's possible that there is little or no "lobby-sitting" behavior at AALS. And if there is, some might argue that it's nobody's business but their own how they choose to spend their time and their professional development funds. Requiring people to sign in for program meetings and collecting and analyzing the data would help us to answer the first question. And I welcome the more open and transparent discussion that would result from the latter argument, if anyone cares to make it. Whether it's anyone's business or not depends in part on the specifics of individual law schools' policies regarding professional development funding. But I think it's hard to argue that how individual law professors spend law school money that is earmarked for professional development purposes is no one else's business. It's not just a salary bump, or at least it sure ain't supposed to be.
Two final points on this subject. First, given my view, which I offered in the first post, that learned societies do or should mean something, and that there is or ought to be some value in having annual gatherings of a learned profession, I do think there is something important about discussing all this in the context of the AALS annual meeting specifically, and I do hope that the result of such a discussion is a policy or social norm that encourages actual participation in the meeting by attendees, rather than mere lobby-sitting. If a change in policies also encourages better and more attractive programming at the annual meeting, so much the better. And if it results in a few people having to spend their own money on what is essentially a personal trip, or staying home instead, I will not weep overmuch at that prospect.
Second, it is fair to note that individual school policies concerning paying for attendance at the AALS annual meeting have already changed at many schools. For instance, many schools that used to automatically and separately subsidize attendance at the AALS annual meeting now require professors to seek reimbursement for this trip out of their general professional development funds, forcing them to decide whether to spend those funds on AALS or on something else. (If there are law professors out there who only "attend" AALS, or SEALS, but without actually attending any program meetings, and who face no difficult allocation decisions because they never attend conferences in their own fields and have no other professional activities or needs on which to spend their professional development funds, well, that raises another set of questions about those individuals, if they exist.) Surely that is mostly the result of general budgetary concerns, but I suspect it also has to do with implicit judgments about the value of the annual meeting. Having more and better data about attendance might shape these policy changes further. Refusing to subsidize AALS trips by lobby-sitters might encourage the AALS to improve its programming further. (In fairness, I argued in my first post that complaints about the content of the meeting are overstated.) That would surely be a good thing, and it might lead law schools to return to their earlier policies, which allow and encourage attendance at what is, after all, the annual meeting of the legal academic profession's learned society.
Again, I welcome comments--hopefully temperate, but critical comments and questions are certainly welcome. Enjoy your day at the conference!
Mentors’ fulsome menting of mentees: When should we try to preserve words’ original understanding?
At the urging of my daughters who try to keep my jowl-quivering pedantry within reasonable bounds, I have resisted blogging about usage and grammar. My repeated encounters with the “mentee” and “fulsome,” however, have aggravated me into asking a simple yet general question about English usage: When should we try to preserve the original understanding of words?
Consider the evolution of the word “mentee” from the Greek name “Mentor.” “Mentee,” of course, is barely a word at all. (My 1987 edition of the OED haughtily does not recognize its existence). First used in 1965 according to Merriman-Webster, it is an extension of the metaphor “Mentor,” the name of Telemachus’ elderly friend and guide in the Odyssey. Like other proper nouns in Homeric epics (for instance, Stentor, Myrmidons, Meander, etc.), “Mentor” is frequently used as a metaphor by people eager to show off their Classical learning. It means any older person who uses their greater experience to guide a younger protégé in a profession, politics, or life more generally. As anyone knows who can walk the walk and talk the talk, nouns easily switch to verbs in English, so it is a small and legitimate step to speak of “mentoring” someone.
“Mentee” arises from a misunderstanding about the second syllable of “Mentor.” The metaphorical origins of old man Mentor being long forgotten, it is easy to infer that the second syllable is a suffix converting a verb into a noun that signifies the performer of the verb, much as “er” in “employer” signifies “one who employs.”. This invites the coining of the term “mentee” to signify someone who is assisted by a mentor. Of course, the next logical step is to invent a new verb, “to ment,” which would presumably signify the act of serving as a mentor for a mentee. But no one (to my knowledge) has taken this step: Ordinary usage treats “to mentor” as the complete verb while simultaneously and illogically also referring to “mentees” rather than “mentorees.”
Should we try to arrest the evolution of “mentor” away from its roots by campaigning for the English-speaking world to think anew about Mentor’s kindliness towards Telemachus? Or should we encourage a happy trend and lobby for the new verb “to ment”? After the jump, I lobby for the latter position, using the word “fulsome” to illustrate the following anti-originalist principle of English usage: Preserving the original meaning of a word is important only insofar as doing so increases the granularity of the language.
My anti-originality preference follows from the practical idea that the point of words is to distinguish one state of the world from another. Words, in this sense, are like screwdrivers in a toolkit: One needs a lot of different shapes and sizes of screwdrivers to deal with various screws that one encounters, and, so too, one needs a lot of subtly different words to capture subtle differences in meaning. If the original meaning of a word, therefore, refers to a special state of the world that other words do not already address, then one should campaign to reinstate that meaning, so one will have a complete set of tools in one’s toolbox. Otherwise, move on! Let the original meaning lapse into desuetude (that last word, by the way, being a great example of a non-duplicable word, “obsolescence” being not quite the same).
Consider, for instance, “fulsome.” Although the OED (again, my 1987 edition) tells us that it has been used to signify “abundant, plentiful, or full,” its primary meaning, I believe, is “tending to cloy from surfeit,” “tending to cause nausea,” or “wearisome from excess or repetition.” “Fulsome praise,” for instance, is praise so excessive that it nauseates the listener. I increasingly hear and read, however, “fulsome” used to mean “complete” or “full,” especially in contexts where the speaker wants to convey a sort of pretentious solemnity that would be lost using the simpler word “full.” (For instance, “I am being fulsome in my testimony”). Using “fulsome” to mean “complete” or “full” erodes the resolving granularity of English language, at least if such usage crowds out the distinctive meaning of the term as "nauseating by excess." We already have enough words to signify “complete” or “full” – for instance, “complete” and “full.”
By contrast, we do not already have another handy two-syllable term to refer to “nauseating by excess.” Pretentiously throwing in that extra syllable by using “fulsome” when one simply means “full,” therefore, can cause the English language to use one of its screwdrivers, because such usage will tend to drive out the word's more specialized meaning. (Indeed, no one would ever use "fulsome" to mean "full" if they were aware of the specialized meaning). Over-using “fulsome” to mean "full" is like using a screwdriver as a crowbar at risk of snapping the more slender tool. It is not just sloppy: It is vandalism.
By contrast, converting “mentoring” to “menting” sacrifices no granularity. True, we lose the link between Mentor of the Odyssey and mentors in our day-to-day life. But this link was lost long ago in any case: Not enough people are raised reading the Odyssey to appreciate the metaphor. (Hence, the otherwise absurd term "mentee"). By contrast, if “to mentor” becomes “to ment,” then we preserve logical consistency, making the English language easier to learn and more attractive to use.
There are admittedly counter-arguments that my “preserve granularity” principle overlooks. There is, after all, no such thing as a perfect synonym: Will not my granularity principle logically lead to the loving preservation of every old usage on the theory that no word is ever truly redundant?
This post, however, is already fulsome in its length, so I will end by urging you to ment your mentees to write complete but not fulsome prose.
Tuesday, January 03, 2017
A response to Heather Gerken: Why the politics of tolerant pluralism need the legal institutions of federalism
Heather Gerken has a characteristically thoughtful response to my post on the “federalism insurance premium.” Heather agrees with me that willingness of the party in power decentralize controversial issues is weakened by each side’s intolerance toward ideological disagreement. She also agrees that more tolerance would be a good thing: When Democrats hold the Presidency, they should allow Red states more latitude to adopt conservative policies, and vice versa.
Heather disagrees with me, however, about whether constitutional conventions and institutions of federalism are relevant solutions to this problem. In her words,
“… the give-and-take has more to do with politics than institutions. Put differently, it’s not federalism that matters here, but pluralism. And a pluralist system only flourishes when both sides are willing to live and let live…”
The core of our disagreement is, in short, about whether and how legal institutions promote pluralist politics. After the jump, I will explain why I think that Heather is mistaken to contrast institutions and politics as if they are distinct mechanisms for promoting pluralism. As I have argued in yet another post, politics depends on – indeed, are defined by – legal institutions. Saying that achieving pluralism is rooted in politics, not institutions is like saying that scoring touchdowns is rooted in athletic ability, not the rules of football. Of course, the sort of athletic ability needed to score a touchdown depends on the rules of football. Likewise, the particular sort of politics needed to entrench a convention of decentralization depends on legal institutions. Even tolerant voters and politicians need some assurance that their tolerance will be reciprocated by their rivals before surrendering their cherished policy priorities for the sake of allowing the rivals to impose dissenting subnational policies. Without some credible commitment of reciprocity, such tolerance brands the politician who practices it as a chump, not a pluralist.
Legal institutions allow such politicians to make such credible commitments such that they can be assured that their forbearing to centralize power when they control the presidency will later be rewarded by their rival's similar forbearance. To see this relationship between legal institutions and political pluralism, however, it helps to focus on a specific example.
1. Why is "tolerance" without institutions insufficient to protect pluralism?
Consider, for example, the question of whether a university should be permitted to use a "clear and convincing evidence" standard to determine whether or not a constituent of the university (student, staff, faculty, etc.) committed sexual assault against another constituent. As I have argued elsewhere, whether or not Title IX requires a mere "preponderance of the evidence" ("POTE") standard to insure adequate protection from gender-based inequality is a tricky question. The Party in Power (call them "PIP") could "be tolerant" by acknowledging the uncertainty and let different public and private institutions make the call. This "tolerant" stance will bitterly disappoint the supporters of the PIP who ardently believe that POTE test is the statutorily required standard. Such supporters, however, might be mollified if they were assured that, by honoring a norm of decentralization, PIP would protect the supporters from having the POTE standard prohibited when the rival party comes to power. After all, the rival party might believe that POTE denies the accused of due process -- that only "clear and convincing evidence" ("CACE") would insure adequate protection against false positives. In order to prevent the very worst-case scenario, the PIP's supporters might grudgingly accept limits on their power to impose what they regard as the ideal rules.
The problem, of course, is that there is no obvious mechanism by which the PIP can make an enforceable deal with the Party out of Power ("POOP") to insure that present forbearance will be reciprocated. Because the POOP cannot give assurance that they will reciprocate, the PIP's supporters rationally insist that the PIP go ahead and impose the PIP's ideal policy. PIP would be rational to do so even if POOP's and PIP's supporters both were "tolerant and pluralist" -- that is, even if each side would prefer to forgo their own best-case scenarios in order to insure against the triumph of their opponent's best-case scenarios. Without legal institutions to enforce a deal, the two sides are trapped in a prisoner's dilemma from which their political good faith, their tolerance, their pluralistic character -- all the stuff that, I am guessing, Heather would classify as "politics" -- cannot save them.
Heather argues that we suffer from too much polarization rather than bad institutions. "[T]he real problem," she notes, "is the underlying assumption that one’s opponent is closer to Frankenstein rather than to Brandeis." I suggest, however, that polarization should increase rather than decrease the willingness to cut deals with one's opponents in the name of tolerance. After all, if one's opponents' views are closer to one's own, then the prospect of being governed by their norms is not so terrible. It is precisely when we fear our opponents' values most intensely that we need to take out an insurance policy against being subject to those values. The Thirty Years' War was not settled by good character or pluralist politics: It was settled by good rules in the Treaty of Osnabruck that gave each side credible assurances that they would be protected from their rivals. Likewise, during intensely polarized periods of U.S. history, legalistic norms like the Missouri Compromise flourished precisely because high levels of distrust created incentives for each side to seek institutional protection from their rivals. (Barry Weingast argues that such institutional protections fell apart not because of polarization but because the parties tinkered with the rules, admitting California as a free state and thereby eliminating the enforcement mechanism that forced each side to stick with the deal).
2. How might legal institutions help us achieve the pluralism that we want?
I heartily agree with Heather that, without a minimum amount of good will as lubricant, the gears of even the most sophisticated constitutional mechanism will lock up. I think, however, that we have not exhausted the benefits of good institutions that can help distrustful parties achieve the repose that both sides might really want.
Consider, for instance, the possibility of taking issues off the national agenda more aggressively. Heather's "national federalism" depends on the idea that, by giving Congress plenary power to decide everything, the two political parties will have better incentives to "dissent by deciding," enlivening our political debate with subnational policies that they hope eventually to nationalize. (By scoring a hit Off-Broadway, as it were, the POOP can move their show to a Broadway Theater as a PIP). In Heather's world, every subnational government is a farm team for the Big League, so voters in every local election rationally think about the effects of their ballot on national issues.
The problem with such a world is that, by raising the stakes of subnational politics, it destroys those politics for subnational government. David Schleicher has nicely explained how our subnational elections have been transformed into "second-order elections" in which voters vote on city council members, state legislators, and (to a lesser extent) mayors and governors solely based on their assessment of the national parties. As David notes, the cost is the destruction of subnational politics for subnational government.
One solution to go back to your father's federalism -- i.e., that old-fashioned idea that certain issues should be presumptively walled off from national decision-making, if not with barbed wire fences and trenches, then at least with speed bumps that slow down national legislation and regulation. Require more rules to go through notice-and-comment rule-making. (Such a requirement would likely have stalled OCR's "Dear Colleague" letter on sexual assault). Invoke Pennhurst and anti-coercion norms to limit the degree to which new interpretations can be given to cross-cutting grant conditions like Title IX. Beef up anti-commandeering norms to protect sanctuary cities.
Such doctrines provide political cover to PIPs against their own followers, allowing them to be tolerant and pluralistic to the other side by explaining to their impatient followers that certain centralizing policies will take too long to enact and are a waste of political capital. Such rules also provide reassurance to POOPs governing subnational jurisdictions who can thereupon relax the perpetual campaign at the subnational level to nationalize every local experiment and instead focus on subnational government. (As an example, consider Governor Hickenlooper's focusing on purely subnational politics of regional transit without any agenda of nationalizing the result, building up trust through initiatives like Colorado's FasTracks regional light rail program).
My point is not to attack Heather's "national federalism" but only to suggest that her brand of federalism, lacking formal legal institutions to constrain national power, might have consequences for the politics of pluralism. To the extent that our rules reward defection from decentralizing norms and dangle the brass ring of total national power before our subnational politicians, it should not be astonishing that they follow the incentives we give them. Even well-meaning pluralists will abandon self-restraint, after all, if their own restraint is never reciprocated. Rather than give up on the rules and hope for less polarization, it might be a good idea to think about ways in which our rules makes polarization a little more rewarding and self-restraint, a bit less attractive.
MarkelFest! at AALS on Wednesday (Moved to Top)
We will continue a PrawfsBlawg tradition with another MarkelFest! Happy Hour at the AALS Annual Meeting in San Francisco. It will be at 9 p.m. on Wednesday, January 4, at Romper Room, 25 Maiden Lane in Union Square; go to the private room upstairs, called the Leopard Lounge (buy drinks at the bar downstairs). The bar is about a 10-minute walk from the Hilton (walk up O'Farrell, left on Grant, right on Maiden Lane).
Please spread the word. And come join us for drinks and conversation. See you all there.
How Gilbert & Sullivan’s Mikado can survive and thrive in our era of ethnic grievances
Is Gilbert & Sullivan’s Mikado a racist “yellow face” caricature of Japanese culture? A spate of recent criticisms of Mikado productions have denounced the operetta in these terms, resulting the cancellation of a NYC production in 2015.
There is, however, a delicious irony to these attacks on Mikado: In criticizing the comedy as an illicit British appropriation of Japanese culture, the criticism overlooks the fact that William Gilbert was actually making fun of Victorian England’s appropriation of Japanese culture. After the jump, my defense of Gilbert’s masterpiece (and, in particular, an especially outstanding current NYC production thereof). More generally, I offer a few thoughts on how Gilbert’s jibe at Victorian England’s “Japonism” illustrates a certain similarity between conservative criticisms of “political correctness” and Left attacks on “cultural appropriation.”
1. Why did Gilbert choose to set his comedy in a fantasyland modeled on popular perceptions of medieval Japan?
In setting his comedy in a fantasy version of japan, Gilbert was taking advantage of a cultural obsession of Victorian England with all things Japanese that began roughly with the 1862 London Exhibition. Japan had just recently been “opened” for trade with Europe by Commodore Perry’s warships, and European collectors and artists were eagerly and indiscriminately shipping back Japanese artifacts ranging from silk kimonos and swords to grass hats and parasols. Japan was a cultural novelty, a way for Europeans to display their openness to the exotic and their freedom from narrow-minded prejudice. Sir Rutherford Alcock, the British envoy to Japan, an enthusiast for all things Japanese, had supplied the 1862 exhibition with an unofficial pavilion filled with various Japanese artifacts that he had indiscriminately collected during his three years’ stay in Japan. Likewise, James Whistler promoted Japanese prints as as a art form superior in their simplicity and lack of moralizing to traditional British Academy painting, while social critics and artists in the Aesthetic Movement led by Dante Rossetti and his circle associated Japanese art with pre-industrial purity missing from crass capitalist England. http://katsclass.com/10760/designwk04.htm
The point of this “”japonaiserie” was less to understand Japanese culture and more to declare one’s artistic independence from English artistic tradition. But how did the Japanese themselves feel about being enlisted in the European’s battles over art and society? One data point is supplied by the reaction of the Tokugawa Shogunate’s envoys to Alcock’s 1862 pavilion. At least one of the embassy’s members was appalled by a display that lumped peasant’s grass hats and jackets promiscuously with high-art prints and ceramics. The British effort to accommodate Japanese culture, in other words, could seem more like cultural appropriation to make the British look sophisticated than to show appreciation.
When Gilbert wrote Mikado in the mid-1880s, this vision of Japan as a pre-industrial land where pure beauty was honored over grubby commerce had its most visible expression in Tannaker Buhicrosan’s “Japanese village.” The improbably named Buhicrosan, an entrepreneur of Japanese-Dutch descent, set up the village in Knightsbridge, West London from 1885 to 1887 as a tourist attraction, staffed b who portrayed Japan as a quaint medieval society with lots of traditional dancing, tea ceremonies, and wood-carving. Like Alcock’s 1862 pavilion, Buhicrosan’s village did not please the Japanese government: The Meiji Dynasty wanted to convey an entirely more “modern” and industrial image, as it was in the process of “Europeanizing” Japan, with German law and British warships.
Gilbert visited the Knightsbridge Village while Mikado was in rehearsal and even recruited some of Buhicrosan’s performers to help train his cast. His immediate motivation for the Japanese setting seems to be that the British public had a hunger for all things Japanese: Japan provided, in Gilbert’s words, “picturesque treatment, scenery and costume.”
2. Was Mikado making fun of Japanese culture? Or of pretentious British appropriation of Japanese culture?
As many have noted, Gilbert’s Mikado is mostly a send-up of British bureaucracy and Victorian sexual repression. To the extent, however, that his comedy has any concern at all with Japan, it seems to be aimed exclusively at the British obsession with japonaiserie -- the “figures in lively paint/with attitudes queer and quaint” (to quote the opening chorus) that featured so prominently at Knightsbridge and in the “art-for-art’s-sake” posturing of Aesthetic Movement personalities like Swinburne and Oscar Wilde. Gilbert had already parodied (with Wilde’s active cooperation) Wilde’s Aesthetic mannerisms in his operetta Patience. Mikado had a faint echo of the same gruff Tory impatience with ostentatious cosmopolitan dabbling by (in the words of Ko-Ko, Mikado’s Lord High Executioner) “the idiot who praises with enthusiastic tone/all centuries but this one and every country but his own.” That “idiots” here are certainly not Japanese but British, and their idiocy is the appropriation of another culture to flaunt their own cosmopolitan sophistication.
Gilbert’s target, in other words, is precisely the same as Mikado’s critics: The pretentious and self-serving use of someone else’s culture to make oneself look avaunt garde and open-minded. Ko-Ko’s line could just as easily be applied (choosing a random example) to non-Hindu white Brooklynites celebrating Holi by blowing colored powder on each other.
There is, in short, a certain irony to Mikado’s critics lambasting the operetta as iniquitous “yellow face” because it involves white people dancing around in kimonos and obis, when the point of the comedy’s focus on Japan (if there was one) was to make fun of white people dancing around in kimonos and obis.
3. So how can a modern audience get past ethnic grievance to appreciate Gilbert’s satire?
Our age is both hyper-polarized and historically amnesiac. No one but die-hard Savoyards and students of English Victorian cultural history remembers Mikado’s historical context. It is second nature, however, for us to find an ethnic grievance in non-“white” history or culture being displayed by “white” actors. Producing a Mikado that induces applause rather than cringes in such an environment seems impossible.
Kudos, then, to the NYC Gilbert & Sullivan Society’s clever 2016 Mikado production, which cleverly side-stepped these minefields by emphasizing the Victorian character of Gilbert’s “Japanese” fantasy. The entire operetta was staged as Gilbert’s dream induced by a concussion from a falling samurai sword. That sword was brought into Gilbert’s office by Richard D’Oyle Carte, Gilbert’s real-life impresario, as part of a prologue written by David Auxier, the production’s director, during which D’Oyle Carte pleaded with Gilbert to collaborate once more with Sullivan in creating a new operetta. D’Oyle Carte accompanied his pleas with some borrowed items from the Knightsbridge Japanese Village as a bribe, thereby explaining to the audience Mikado’s cultural context. Gilbert’s subsequent unconscious hallucinations were colored by this partial impression of a Japanese-inspired fantasy. Because D’Oyle Carte’s trove of Knightsbridge artifacts included no Japanese clothing, however, the cast of Gilbert’s dream was dressed not in traditional Japanese clothing but rather in a psychedelically colorful and flowery re-imagination of Victorian dress. (The bustles composed of fluttery streamers, in particular, were an inspiration). For the rest of Mikado, Gilbert gradually accommodates himself to this weird Victorian-japonaiserie dream world, acting as a discrete on-stage director while simultaneously playing the role of “Pish-Tush,” the original Mikado’s supporting baritone role.
It is a reasonable question whether such extraordinary creativity should be required to avoid accusations of “cultural appropriation.” After all, this is America: It should not be surprising or offensive that participants of one culture mix and match bits and pieces of other cultures to create something new. It would be ridiculous to complain that Lin-Manuel Miranda’s portraying mostly white and Anglophone American revolutionaries with an African-American and Hispanic cast is somehow an offensive “cultural appropriation” of Anglo-American culture. Why is it any less absurd to gripe that non-Asian actors portray the “noble lords” of “Titipu” in Mikado?
This is not a question, however, that I intend to ask in this over-long post. Sometimes absurd politics produces great theater, and David Auxier’s efforts to placate Mikado’s critics have resulted in great theater true to the spirit of the original. It is still playing for five more days, so get tickets while you can.
Goodyear v. Haeger argument preview
At SCOTUBlog, I have a preview of next week's argument in Goodyear Tire & Rubber Co. v. Haeger, considering the causation requirements for a court to impose bad-conduct discovery sanctions (in the form of attorney's fees) under its inherent powers.