Tuesday, January 31, 2017
Two things law schools should focus on that will help them stay open and thrive
Law schools are in many ways self-contained. Unlike some other disciplines (e.g., Business) we don't educate undergraduates in addition to graduate or professional students. Our dean is not the dean of a school with many, and disparate, departments. We have our own building with our own library. We have our own admissions and professional development offices. And we usually have relatively autonomous registrar and financial aid services dedicated solely to the law school and housed in our building. We are not unique in these attributes; medicine, dentistry, veterinary medicine and perhaps other units are similarly self-contained. But our insularity may be one reason why law schools may be indifferent to the outside world in ways that work against our long-term viability.
As dental education can attest, and as last Wednesday's Inside Higher Ed/Gallup report on provost attitudes (here) supports, insularity can be deadly. But the experience of dental schools suggests at least two things law schools, and especially their leadership, can do to increase support, which may help some schools to remain open and may help other schools to thrive.
One thing is to ensure that the law school's programs and its focus, especially high-profile initiatives, are consistent with the university's mission. I am not suggesting that a school radically change the nature of its enterprise to align blindly with the university most current fascination. Nor should a school cease to decide for itself in the first instance what its programs and focus should be. But I am suggesting that, when a school considers new initiatives, it explicitly consider how they fit with the university's overall mission.
More critically, I am suggesting that an important task for the dean is to demonstrate, repeatedly, to the university the ways in which what the law school does is consonant with what the university values. At least one dental school, at Northwestern, was closed in part because the university concluded that the school was not aligned with the university's mission.
Last Wednesday's report on provost attitudes reinforces the importance of aligning the law school with the university and, as important, ensuring that the university realizes that fact. Ninety percent of all provosts surveyed (and 98% of provosts at public doctoral universities) said they plan to increase their emphasis on funding programs based on alignment with mission. A law school that finds itself in need of university support, either to expand or, more likely, to avoid even more cutbacks than the law school has already made, is obviously in a much better position to request that help if the university has confidence that the law school truly furthers the university's mission and its values. That confidence is most effective if it is built up over time.
A second thing law schools should focus on is engaging with constituencies outside the law school. Alumni/ae and the local and state bar and judiciary are obvious constituencies, but there are other important groups, frequently overlooked by law schools. Non-lawyer state and local political figures can be important to law schools, private as well as public. If the law school has an active clinic, greater school outreach to the communities the clinic serves can help the law school. This kind of non-lawyer support typically would take the form of vouching for the law school's value to the community, which is usually (though not always) part of the university's mission. Dental schools were often connected with the communities their clinics served, and those communities brought pressure on the university to keep the dental school open, though that pressure was not always successful. In the case of Georgetown's dental school, the dental clinic's community of patients was quite vocal in its support of the school and quite critical of the university's decision to close the school. In the end, the school was closed, but the community's protests made that process more public and more contentious than it otherwise would have been. Dental schools, in general, did not maintain close relations with their alumni/ae or with their local dental community and thus did not have those constituencies to call upon for help when the question of closing the school was on the table.
Perhaps the most important and under-recognized constituency is university administrators beyond the president and provost. The CFO, the head of university advancement, and the deans of the university's other schools and colleges are all key figures and the law school dean should make sure those administrators know what is happening in the law school and how the law school fits in the overall plan of the university.
I discuss these issues on pages 60-70 here.
Monday, January 30, 2017
Holocaust, Shoah, and unique group experiences
Lost amidst President Trump's offending Muslims the world over was his offending many Jews with his Holocaust Remembrance Day Statement. The statement spoke of the "depravity and horror inflicted on innocent people," without mentioning that more than half of those, the primary targets, and the raison d'être of the Nazi efforts, were Jews. Spokesperson Hope Hicks defended the statement by pointing to the 5 million victims of other groups, including "priests, gypsies, people with mental or physical disabilities, communists, trade unionists, Jehovah's Witnesses, anarchists, Poles and other Slavic peoples, and resistance fighters." Chief of Staff Reince Priebus tried to do the same on Meet the Press on Sunday, producing a fascinating three minutes of video (after the jump) in which he stares blankly ahead while concocting a word soup of adjectives to describe the Holocaust, including "horrible event," "miserable time in history," and "extraordinarily sad." All without ever saying, explicitly (as opposed to blandly agreeing with Chuck Todd's premises) that Jews were the central victims.
Jewish groups were outraged. Stripping away its uniquely Jewish nature is an element of denial--"many people died, not only Jews, and it entailed nothing programmatic or unique to history. And it divorces the event from 2000 years of unique anti-Semitism that made it possible. Fortunately, Preibus reminded us that Trump has Jewish family members, which will be his get-out-of-jail-free card for the next few years.
The question of universalizing affects what we even call this thing. I prefer the Hebrew word "Shoah" (literally, "destruction" or "total destruction"), although that word could isolate the event, and its victims, from the rest of the world and of world experience (not unaided by that historic anti-Semitism). On the other hand, a generic English word such as "Holocaust" allows for the Jewish element to be ignored, perhaps for those same reasons, just as Trump did here.
Updates: First is Deborah Lipstadt in the Atlantic, labeling this "de-Judaization of the Holocaust" as "softcore denialism."
Second is WH Press Secretary Sean Spicer, who was beyond annoyed by people nitpicking of the statement, insisting it had been "praised" (without mentioning by whom) and arguing that President Obama's "anti-Israel" policies of the last eight years are a bigger deal than a statement remembering the Holocaust. Three remarks. First, Spicer makes me long for Ari Fleischer. Second, every statement from the White House trying to defuse this keeps coming back, without acknowledging (or maybe even recognizing), the problem--that the statement is troubling because its memory of the Holocaust is historically wrong in significant ways that play on anti-Semitism. And third, the downshift of how much Trump loves Israel, because: 1) Israel is not the Holocaust and 2) what Trump loves is Benjamin Netanyahu and his government--which is not "Israel" in the same way that Donald Trump is not "America."
Sunday, January 29, 2017
More on the immigration order
Events move quickly:
• Secretary of Homeland Security John Kelly issued a statement deeming "the entry of lawful permanent residents to be in the national interest," meaning "lawful permanent resident status will be a dispositive factor in our case-by-case determinations." The question was raised whether this moots the actions involving LPRs. Administrative/executive interpretation, not reduced to formal policy, typically is treated as "voluntary cessation" of unlawful activity that is not sufficient to moot a case. The government must show it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Given the public confusion over the meaning and scope of the order--with contradictory statements coming from officials within the White House over threee days--and that the policy could be changed tomorrow by a new announcement from the Secretary, this announcement should not meet the standard.• The rapid-fire litigation reminds me of the early days of the nationwide marriage-equality litigation, with district courts all over the country issuing orders, often ex parte, almost always against the government, and building a momentum in a given direction. It also reminds us of the power of district judges, at least in the short-term--ex parte T/R/Os and stays are not immediately appealable, unless a court of appeals wants to mandamus the district judge, which is unlikely. When we talk about the power of the judiciary, it is not only (or even primarily) about SCOTUS on the ground.
• More protests Sunday, with thousands of people turning out on the streets of several major cities and at airports, seemingly organized on short notice and growing organically, and despite some traffic blockages. Once again, few or no reports of arrests. But the constant protests and criticisms seem the thing that might drive the President over the edge. How long might it take for himto have had enough and to try to get protesters off the street, either working behind the scenes telling local police enough is enough, or by explicitly urging force to stop them?
Trump supporters bragged about what his first 100 days would achieve. We are 10% there and it has been a ride, although not in the way many expected.
Random thoughts on a Sunday
1) Judge Donnelly's temporary stay of removal of those at U.S. ports of entry who are legally authorized to enter the United States raises, from the other political side, the issue of nationwide injunctions against enforcement of U.S.policy. Darweesh purported to be suing on behalf of others similarly situated, although Judge Donnelly did not perform any part of the FRCP 23 analysis. But at the stage of a temporary emergency stay or temporary restraining order, this is less problematic than on a preliminary or permanent injunction entered after full briefing by the parties.
But here I want to distinguish between "nationwide" and "universal" injunctions (thanks to Tobias Wolfe of Penn for the distinction); the latter term better captures the remedial problems. An injunction is, and should be, "nationwide" with respect to the named plaintiffs--the United States should be enforced against them anywhere in the country. And the "parties" in a class action properly covers everyone in the class. A universal injunction, by contrast, bars action by the defendant with respect to anyone, including non-parties. This is remedially problematic. The DACA injunction was universal--although only Texas and about 25 other states were parties, the injunction barred the United States from enforcing DACA in, and with respect to, non-party states, even those who would not oppose the benefits granted to undocumented persons within its borders.
Now it remains to be seen whether this case is properly brought as a class action (reports are there are about 100-200 people with the status of the plaintiffs in Darweesh. I expect the class question will await fuller litigation, assuming the relevant agencies do not release the people affected. The point is that the "nationwide" label thrown around in the press is too imprecise.
And, for what its worth, TRO's are issuing in other courts (including the District of the District of Columbia, Western District of Washington, and District of Massachusetts), suggesting that Judge Donnelly's temporary stay is not doing as much nationwide work as it might.
2) Josh Blackman has his usual thorough analysis of the procedural aspects. I do not think I agree that Judge Donnelly's order is ultra vires for not having performed the FRCP 23 analysis. In that short time, I am not sure the court could do more than acknowledge the class allegations in the motion and save them for fuller briefing. But to not allow the fullest TRO* would love potential class members subject to removal.
[*] Although not styled a TRO, this seem to me the functional equivalent--staying enforcement of the law for a finite number of days pending fuller briefing.
3) There are some interesting enforcement issues, as reports come that officials at airports are refusing to abide by the orders. Judge Donnelly included a paragraph order the Marshals to take all steps necessary to notify agents on the ground about the order. But that takes time.
4) As I wrote last weekend, I have no idea when public protest will be permitted and when law enforcement will crack down. The New York Times described the genesis and evolution of Saturday's protests at Kennedy Airport (which, famously, is a nonpublic forum), including crowds making sidewalks outside the terminal unpassable. And all without permits, pre-event negotiations, and explicit or implicit understandings. And yet there were no arrests and no efforts to disperse or remove the protesters. Same in the parking garages. At one point, Port Authority police blocked protesters from boarding the train linking the subway to the terminals, until Gov. Cuomo ordered them to stand down, which they did only after a 15-minute delay.
5) There is a teaching moment here, apart from the substantive and procedural details of the controversy and the "this is why we need lawyers" narrative (since most of our students are never going to be on either side of such controversies). Reports are that this order was not vetted by the lawyers and policy experts at various agencies, including in the Office of Legal Counsel, but was thrown together by non-lawyer policy makers and some lawyers guiding them within the White House. So the teaching point is that lawyering matters and lawyering means care and precision and avoiding ambiguity and the chaos that ambiguity brings. And that is true not only as to major government orders that affect the entire world, but wills that affect an elderly widow.
Saturday, January 28, 2017
Do President Trump (and Executive Power in General) a Favor: Subject Trump's Incompetent EOs to Vigorous Judicial Review
Suppose you are a President inexperienced in policy-making and, therefore, prone to issuing sloppy decrees that result in politically embarrassing applications that you did not anticipate. Imagine that the law gives you unlimited power to issue such decrees -- giving you, in effect, enough rope to hang your own political career. Such an executive might be well-advised to embed in those decrees some quality control allowing some other entity -- say, courts -- to sand off the decrees' rough edges, "construing" these executive edicts to avoid egregiously absurd applications that might inflame the nation against the edict's author. The very inexperience of the President (or the incompetence of his advisers) makes it unlikely, however, that such a chief magistrate will have the foresight to install such safeguards into his decrees.
Today's controversy over Hameed Khalid Darweesh illustrates how executive power is threatened by ham-handed executive orders like Trump's immigration EO. Hameed Khalid Darweesh was initially confined at JFK Airport pursuant to Trump's EO and, after a lawsuit and the intervention of two congresspersons, subsequently released. The event was more or less a PR disaster for Trump -- and more such disasters surely lurk at airports and consulates across the globe.
After the jump, I will take a page from Jean Bodin's Six Livres de la République and argue that the courts' enforcing some version of the non-delegation doctrine to limit President Trump's executive orders might not only save President Trump from himself but also actually enhance executive power in general.
Mr. Darweesh is an Iraqi who served as an interpreter for the 101st Airborne Division and had received, in return for his service, a "special immigrant visa" (SIV) under the Kennedy-Lugar Refugee Crisis in Iraq Act, a 2008 law setting aside a few thousand visas for the thousands of Iraqis and Afghanis who put their lives on the line to help our troops. Despite his SIV, however, was detained at JFK Airport, because, as an Iraqi, he was covered by Trump's recent executive order excluding Iraqis, Yemenis, Syrians, Sudanese, Somalis, Libyans, and Iranians from being admitted to the United States, even if they have a visas or green cards.
As a matter of legal authority, Trump's EO stood on the apparently firm ground of 8 U.S.C. section 1182(f), a provision of a 1952 statute giving the President unlimited discretion to "suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate" if "the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States." As a matter of basic morality and political optics, however, Trump's EO is turning out to be shaky, because it lacks the basic safeguards and exceptions necessary to prevent manifest injustice.
Consider, for instance, the EO's bizarre absence of any exception for SIV holders. In Dante's Inferno, there is a special place in Hell for those who betray their friends -- Circle 9, to be precise, where Satan's three faces simultaneously eternally chew Brutus, Cassius, and Judas Iscariot as punishment for their betrayal of those who befriended them. A latter-day Dante might fashion a fourth satanic face to masticate Donald Trump after his excluding from this nation Iraqis who risked their lives to aid our soldiers as interpreters. The process by which SIVs are obtained is lengthy and grueling. Mr. Darweesh, like other SIV holders, had to submit piles of information and be personally interviewed by State Department employees, a process, given its length, that might be regarded as an instance of what Trump has called "extreme vetting." In 2013, only 20% of the allotted SIVs had been distributed, a decade after the war in Iraq began. Mr. Darweesh received his SIV only on January 20th of this year (ironically, the day that Trump was inaugurated), only to be trapped at JFK airport by this week's batch of EOs.
Putting aside simple decency, political self-interest makes it unlikely that Trump would want to suspend entry of such a person. The ridiculous injustice of Darweesh's predicament invited Trump's opponents to pounce. Representatives Jerry Nadler and Nydia Velasquez appeared at JFK to demand Mr. Darweesh's release. The detention of a dozen people in Mr. Darweesh's situation inspired a demonstration of immigrant advocates outside of JFK's terminal 4. Customs has released Mr. Darweesh and may yet release the others trapped in the terminal -- but what about SIV holders who have not yet made it to a port of entry? Or others who have equally strong grounds for entry? Trump's EO traps green card and other visa holders who happen to be abroad, separating them from their families, their homes, their universities where they are lawfully enrolled, or their jobs where they are lawfully employed. From the point of view of sheer political self-interest, these consequences of Trump's EO are not just crimes but PR blunders.
Is there any way that our courts can help out our hapless President by confining his discretion through the magic of judicial interpretation and thereby saving him from himself? Consider a revival of the non-delegation doctrine, at least as a strong canon of interpretation. Section 1182(f), a McCarthy Era measure, provides a good illustration of the sort of unlimited delegation that is destroying Trump's presidency only a week into his term. President Truman compared the 1952 bill to "the infamous Alien Act of 1798, passed in a time of national fear and distrust of foreigners," because, like the 1798 law, the 1952 law gave the executive branch excessive discretion to deport aliens without hearings or standards, discretion that Truman decried as "inconsistent with our democratic ideals."
Such presidential discretion is, in the hands of an incompetent like Trump, a recipe for political calamity. Why not, then, read section 1182(f) narrowly, using some combination of Kent v. Dulles and the Benzene Case? Using such authorities, a court might reason that, to the extent that section 1182(f) deprives current visa holders of a right of entry without any standards or due process, the 1952 delegation constitutes an unconstitutional delegation of legislative power. Under such a reading, the visa holders would be entitled to some sort of hearing before they were barred from entering the country that might very well be their home.
Taking a page from Jean Bodin, one might argue that such judicial limits, from from hampering the President, actually protects executive power from the blowback that comes with the ham-handed centralized imposition of penalties. As Jean Bodin noted in Book IV of his Six livres de la République, a smart despot will delegate the task of imposing burdens to subordinate magistrates:
[T]he prince who wishes to command the affection of his subjects should reserve to himself the distribution of rewards...[b]ut for condemnations, fines, confiscations, and all like penalties, let him delegate their infliction to his officers, for them to administer good and expeditious justice. If he manages his affairs in this way, those who have received benefits at his hands are constrained to love, respect, and honour their benefactor; those who have been punished will have no occasion to hate him, but will vent their anger on their judges. The prince, showering benefits on all, but injuries on none will be welcome to all and hated of none.
If one really wants to preserve executive power, in other words, one will design delegations to insure that the chief executive is insulated from responsibility for imposing punitive burdens. Construing executive orders to preserve some sort of case-by-case discretion by subordinate bureaucrats is one such type of insulation. If Trump is not smart enough to figure this sort of thing on his own, perhaps the judiciary should help him out. Fans of executive power such as Jean Bodin (or Adrian Vermeule and Eric Posner) ought to cheer them on, because nothing is calculated to bring the Executive Unbound into faster disrepute than President Trump's unhampered exercise of legislative power.
Friday, January 27, 2017
Mark Roche on "Realizing the Distinctive University" . . . or law school?
My Notre Dame colleague, Prof. Mark Roche, has a new book out, Realizing the Distinctive University: Visions and Values, Strategy and Culture. It is noted, here, in the Chronicle of Higher Education. Here's a bit:
But distinctive institutions don’t have to be religious, single sex, or historically black, he says; and they don’t have to have wed "intellectual vigor and nonconformity" like, say, Reed College, or have a signature honors program like the one at Swarthmore College. Rather, they can emulate some of the many strengths of American higher education, and they can reap benefits from its shortcomings, such as its indifferent record in serving underrepresented racial, ethnic, and socioeconomic groups: "You can say, OK, where is there an objective gap, something important that needs to be addressed?"
I'm reminded of the theme that then-Dean John Garvey proposed, a few years ago, during his tenure as President of the AALS: "Institutional Pluralism" (and that I blogged about a few times -- here, here, and here -- at the time). I think Garvey was right then, and Roche is right now, that we need more of this in higher education. I worry, though, that we are moving towards less. Check out Roche's book.
Thursday, January 26, 2017
I Brought You Into This World and I Can Take You Out
One of the more frequent criticisms of state antitrust enforcement is that it can be too political. No doubt that antitrust enforcement decisions can be quite political, whatever level of political unit is doing the investigating. Whether apolitical antitrust enforcement at the level of any political unit is a realistic goal is a question I cannot answer. Political concerns will be raised, after all, even if raised in an ill-advised manner by parties or opponents to a proposed merger. I think the better question is what place larger political decisions should take in antitrust enforcement decision making.
The statements and representations from Aetna Insurance's upper level management cited in Tuesday's Aetna-Humana Memorandum Opinion enjoining the merger illustrate Aetna's desire for a larger conversation about the trade offs between possible merger challenge and the loss of Aetna exchange participation. These documents give lie to the assertion that the review process is absolutely apolitical in all eyes and sharpen the question about how pointedly political goals ought be invoked when discussing merger enforcement.
As you may have read this summer, when a July 5, 2017 letter from Aetna CEO's Mark Bertolini discussing Aetna's desire for DOJ to back off in its merger investigation if the administration wanted Aetna's continued participation in certain state exchange markets came to light, eyebrows were raised by such a blunt quid pro quo demand.
It is hard to know, however, whether the apparent shock is over whether such demands were made or whether they were made so explicitly. For some time, Aetna appears to have self-identified as an, albeit somewhat cautious, booster of the ACA exchanges. One of the two largest health insurer trade associations (one of which did not lose Aetna's membership until this month) does not appear to dispute the vision of its collective role as a force in the shaping of the ACA .
Perhaps the real takeaway is that the government ought keep political concerns at bay, when and if raised by the parties or anyone else. Of course, memorialized statements seeking the quid pro quo of merger allowance in exchange for ACA exchange support can and will be used against you in court.
Some of the things law schools do that probably won't help them stay open (but some might be good things to do anyway)
As law schools struggle with fewer resources they are increasingly focused on activities either designed to increase revenue directly or designed to attract students who might otherwise go elsewhere. My sense is that at some schools, especially those that see themselves as vulnerable to being closed or merged with another law school, these initiatives are also taken with one eye on the central administration, the idea being that such actions will at least show that the law school is doing everything it can to alleviate the decline in JD tuition revenues.
But these efforts are unlikely to help a school stay open. In some instances, though, schools should be devoting time, effort, and resources to these initiatives because they will redound to the benefit of their students and the institution.
One such area is the curriculum. There are very good reasons for schools to have a continual, or at least frequent, review of the curriculum, but attracting significantly more students or improving the reputation of the school in the university's eyes are not among them. Especially in the professional school setting, I believe most prospective students are unlikely to be attracted to a curriculum they perceive as innovative or out of the mainstream unless that school can credibly provide evidence that is approach has measurable benefits for employment or for practice.
University administrators, I suspect, would look askance at a professional school that did not periodically review its curriculum, but I doubt that a school that touts its curricular revisions gains status with administrators for that reason alone. Certainly, in the dental school turmoil, curricular reform played no part in predicting which schools would close and which would survive.
Another area that some schools focus on as a way out of their problems is fundraising. That focus is almost always misguided. Except for truly transformational gifts, fundraising is unlikely to keep a school financially afloat. Moreover, donors, especially those capable of making major gifts, tend to shy away from giving when the purpose is to help a struggling institution. Rather, they prefer to give to schools they perceive as already successful; a school that uses gifts to springboard to even greater success. Dental school deans increased their fundraising as a way out of their problems, but even after years of efforts, gifts remained less than 5% of the schools' total revenue. Development work is something schools should devote time and effort to, but they should understand that it is unlikely to be a source of unrestricted funds that can replace lost tuition revenues.
Perhaps the two most common initiatives that schools consider as ways to replace traditional JD tuition dollars are distance education and non-JD programs, which include certificate programs and degree programs that lead to the LLM (or another Masters degree). Both of these approaches resonate with provosts, but neither is likely to help the law school significantly. Here, there is not a good analogy to the dental education crisis. That crisis happened before online learning existed and, while there is post-DDS education, most dental schools did not explore starting or expanding those programs, probably because it would have entailed hiring new faculty members and developing new courses.
For both distance education and non-JD programs, the siren song for institutions is increased revenue with very little additional cost. In executing those programs, though, experience suggests that costs are larger than schools anticipate. And, in the law school setting, the potential revenues are probably less than schools optimistically imagine, in part because the market is more limited than one might hope, and in part because competition is stronger than one might anticipate.
I discuss these issues in more detail on pages 49-60 here.
Wednesday, January 25, 2017
Email, The Gift That Keeps on Giving
U.S. District Judge John D. Bates spilled a considerable amount of ink in yesterday's Memorandum Opinion enjoining the Aetna-Humana health insurance merger. Even though antitrust opinions are not known for their brevity, the roughly thirteen pages devoted to discussing whether Aetna's announced withdrawal from the complaint counties about three weeks after the date of the filing of the government complaint was motivated by a desire to improve its litigation position or as part of ordinary business decision making is pretty detailed. Because the announcement of withdrawal implicated actions that might be interpreted as consistent with business interest (leaving the exchange market in Missouri, for example, where Aetna was distressed over years of non-profitability) or might be interpreted as inconsistent with business interest (leaving the exchange market in Florida, for example, where Aetna was apparently profitable).
Yes, it was the internal documents of Aetna management discussing motivation for withdrawal from the profitable Florida exchange market or, even, in refusing to discuss the Florida decision while laying out the business case analysis behind withdrawal from the exchange markets in other locales that animated Judge Bates' opinion. It is interesting to find internal Aetna management correspondence (from Steven Kelmar, Aetna's Executive VP and Chief of Government Affairs) memorializing "Most of this is a business decision except where DOJ has been explicit about the exchange markets. There we have no choice."
Still, my favorite part involved hints at what was sometimes unsaid in emails. When Aetna's Florida Market President, Christopher Ciano, received word of the decision to exit the Florida exchange market (he was not part of the decision making group), his serial emails lamenting the decision, pointing out that Florida's exchange market was profitable for Aetna, and stating that he just couldn't make sense of the decision are powerful because of his apparent ignorance or because of what wasn't said. Christopher Ciano was, eventually, directed to stop discussing this matter in emails and to take the conversation to the telephone.
That's the thing about email correspondents -- they often know, on some level, that the messages may be brought to light in some way but they can't always seem to stop. I wonder if, because email can be so conversational in tone, they forget that they are creating a written record.
Judge Gorsuch and the Federal Judicial Oath
President Trump is preparing to nominate someone to the US Supreme Court, presumably creating an opportunity for confirmation hearings to ventilate competing views of the judicial role. I have a draft paper that discusses one aspect of a judge's duty: the federal judicial oath to do "equal right to the poor and to the rich." It turns out that several of the reported front-runners have commented on this oath. Here, I'll explore some interesting albeit brief published comments by the most recent figure to float to the top: Judge Neil Gorsuch of the Tenth Circuit.
Last year, Gorsuch published some remarks entitled "Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia" (66 Case W. Res. L. Rev. 905 (2016)). The gist of the remarks was that the late Justice Scalia's legacy includes a permanent shift in legal culture away from policy reasoning and toward textual analysis, consistent with Justice Kagan's recent remark that "we're all textualists now."
Though Gorsuch was not focused on oaths, he alluded to them at prominent points in his speech. Near the start of his discussion, Gorsuch asserted the basic importance of the oath:
First, consider the Constitution. Judges, after all, must do more than merely consider it. They take an oath to uphold it. So any theory of judging (in this country at least) must be measured against that foundational duty.
Throughout my decade on the bench, I have watched my colleagues strive day in and day out to do just as Socrates said we should--to hear courteously, answer wisely, consider soberly, and decide impartially. Men and women who do not thrust themselves into the limelight but who tend patiently and usually quite obscurely to the great promise of our legal system--the promise that all litigants, rich or poor, mighty or meek, will receive equal protection under the law and due process for their grievances.
Monday, January 23, 2017
JOTWELL: Mullenix on Stancil on rulemaking and economic theory
The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Paul Stancil, Substantive Equality and Procedural Justice (Iowa L. Rev., forthcoming), which applies economic analysis to the rulemaking process (contra, Linda argues, the many of us procedural scholars who are doctrinalists).
Peaceably to assemble
A question asked out of genuine curiosity and with no intent to disparage: How is it that more than 3 million people in multiple cities, including 1/2-million in D.C. and 1/4-million in NYC, marched without incident, without conflicts or confrontations with police, and without arrests? Meanwhile, so many other protest/march/rally/gathering everywhere for the past several years--all involving far fewer people--has seemed to devolve into violence, property destruction, and multiple arrests.
Without more, it seems too simplistic to say "these were peaceful, whereas those others were violent and met with appropriate force." There is a chicken-and-egg problem: Has conflict resulted from those protesters being angry, violent, and destructive and police responding with appropriate force and authority to lawlessness? Or have protesters become angry when met with massive resistance by police in riot gear limiting where in the public spaces they are allowed to move, trying to move them off the streets or pen them off into far-off "protest zones." Have other protests descended into lawlessless when police declared otherwise-peaceful gatherings unlawful assemblies to be broken up with force and detention? Not to excuse violence or say that no arrests have been warranted; only to say the spark of conflict is not clear. The consent decrees with Ferguson and Baltimore, with specific provisions requiring cities and policies departments to reassess how they respond to public protests, suggests a recognition that departments have not responded well.
So why was Saturday different, both in the sunny protesters and in the mild, cooperative police response? Was it that the world was watching? Was it that the terms of the gatherings had been negotiated in detail in advance and adhered to (which Tim Zick would argue is good for keeping the peace, but not what public expression should require)? Was it that the crowd was predominantly women, who are less likely to become violent or confrontational with police? Were police more restrained because the protesters were women? Was it that the crowd seemed largely (just based on photographs and TV coverage) white, which created a less heightened atmosphere among police? Was it some combination of all of these?
Finally, regardless of why Saturday was so peaceful, will cities learn anything from it? Will it demonstrate that public speech is possible, consistent with other municipal activity, and need not be restrained or pushed into confined areas or met with massive force? Will it demonstrates that public speech should be welcomed?
Narrowing Federal Jurisdictional Rules in Lightfoot
Last Wednesday, the Court issued an opinion in Lightfoot v. Cendant Mortgage Corp.—a case about federal jurisdiction that serves as a useful illustration of a distinctive way of using and modifying precedent: narrowing. Lightfoot is also interesting in raising the possibility that narrowing jurisdictional precedents might be a special undertaking that ought to be governed by distinctive principles.
By way of background, the main issue in Lightfoot was how to interpret an earlier case, American National Red Cross v. S. G. At the start of its analysis, Red Cross framed its inquiry in this way:
[W]e have had several occasions to consider whether the "sue and be sued" provision of a particular federal corporate charter conferred original federal jurisdiction over cases to which that corporation was a party, and our readings of those provisions not only represented our best efforts at divining congressional intent retrospectively, but have also placed Congress on prospective notice of the language necessary and sufficient to confer jurisdiction. (italics added).
The key words here are “and sufficient.” The Court appears to be saying that its cases have determined what statutory words suffice to create federal jurisdiction. Indeed, the Court seems proud that its cases have achieved this task so well as to have “placed Congress on prospective notice.”
After its fairly lengthy discussion of the relevant cases, the Court distilled the following “rule”:
These cases support the rule that a congressional charter's "sue and be sued" provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts.
There is some ambiguity here. The Court’s “if, but only if” language makes it sound like the Court is delivering a paradigmatic necessary and sufficient condition. But the “rule” actually says that the condition identified—“specifically mention[ing] the federal courts”—means only that the provision “may be read to confer federal jurisdiction.” Does this use of “may” suggest that, where the “rule” applies, there is only the possibility of jurisdiction? It’s hard to say, particularly because one natural reading of “may”—as conferring case-by-case judicial discretion to find jurisdiction—would be doctrinally anomalous.
So, viewed in isolation, the rule is ambiguous. But when paired with the Court’s opening statement about “necessary and sufficient” conditions, it seems like the Court meant to establish not just a jurisdictional ceiling, but also a floor. A number of lower courts so read the Court’s opinion, effectively relying on what seems like the “best” reading of the Court’s precedent.
Yesterday, however, the Court unanimously arrived at a different conclusion in Lightfoot. There, the Court faced a statutory provision that referenced the federal courts and so triggered the Red Cross “rule.” But the provision at issue also had new language referencing courts “of competent jurisdiction.” Did the new statutory language make a difference?
The Court said yes, largely based on the normal meaning of “of competent jurisdiction.” But, what about the Red Cross “rule”? The Court interpreted Red Cross as identifying only a necessary condition on jurisdiction, without grappling with the “and sufficient” language from Red Cross. Instead, the Court seemed eager to set the old “rule” aside, asserting that “this sue-and-be-sued clause is not ‘in all relevant respects identical’” to the one in Red Cross.
It’s worth noting that some members of the Court might have had deeper reasons for wanting to narrow Red Cross, even apart from their understanding of the phrase “of competent jurisdiction.” In Red Cross itself, Justice Scalia filed a fairly powerful dissent arguing that the Court had adopted a "‘magic words’ approach” that defied both precedent and normal language. Moreover, a broad approach to “sue and be sue” clauses might push against the limits of Article III jurisdiction, implicating debates about “protective jurisdiction” that go back at least to Chief Justice Marshall’s controversial opinion in Osborn v. Bank of United States (1824), which is among the precedents bandied about in both Red Cross and Lightfoot. Justices who were sensitive these concerns might have wanted a way to bring Red Cross closer in line with first principles. And narrowing can do that trick.
I think that the outcome in Lightfoot is entirely defensible. But it would have been better for the Court to be more candid about the interpretive choices it was making when construing its own case law. The many lower courts and litigants hanging on the Court’s every word would appreciate it if there were some guidance as to when the Court will or won’t narrow its jurisprudence.
For example, Lightfoot raises the question of whether there ought to be special principles at play when narrowing jurisdictional precedents. On the one hand, subject matter jurisdiction goes to the judiciary’s power, so perhaps precedents establishing that power should generally be narrowly construed. On the other hand, there are unusually large reliance costs when the Court declines to follow the best reading of its jurisdictional cases, since courts and litigants might rely on the best reading when investing time and resources in litigation. So perhaps the Court should strive to stand by the best readings of any precepts that it self-consciously announces as jurisdictional “rules.”
One last note: the Court blamed the lower courts’ broad reading of the Red Cross rule on the Red Cross dissent, written by Justice Scalia. That argument resembles Judge Friendly’s famous warning about the dangers of following broad readings of precedent advanced in Cassandra-like dissents. But it also calls to mind other important examples of dissents, including by Scalia, putting grand glosses on Supreme Court majorities. More on that in a later post.
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. [Update: I should clarify--that is avoid a tie on the Bivens question. I expect a majority to find that all the defendants have qualified immunity]
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.
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.
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.