Tuesday, February 28, 2017
Rugby and the Infield Fly Rule?
I do not understand rugby well enough (really, at all) to fully analyze or deconstruct this play that has many people up in arms. But it raises the question of a limiting rule for that sport, a la the Infield Fly Rule in baseball.
As I understand it: When a player is tackled, the tackler must let go and move away from the tackled player, while the tackled player gives up possession by trying to play the ball back to his teammate. The players nearby will then try to stand over the ball to gain possession. When that happens, a "ruck" is formed; groups of players from both teams stand and push each other, trying to heel the ball back out of the ruck or allow a teammate to reach in and pull it out. When the ruck forms, teams must get onside, so everyone not in the ruck must be back and between the ruck and the goal they are defending.
In a game between England and Italy (video in link), Italy, for strategic reasons, never formed a ruck after tackling an English player. The Italian players backed away and let England keep possession. But this also meant that Italy's players did not have to get onside on the other side because there was no ruck--they could wait behind the ball, in the area to which an English ball carrier wanted to pass the ball (the ball only can be passed laterally or backwards in rugby). It took England a while to adjust to the strategy and allowed underdog Italy to stay in the game for awhile. At one point in the Deadspin video, an English player asks the referee what they should do and the ref responds that he is not the coach and they should figure it out. This is all lawful (there is not obligation to form a ruck), but the English coach complained that it is "not rugby."
But does it demand a limiting rule a la the Infield Fly? Based on my limited understanding of how rugby works, I think the answer is no.First, Italy does appear to be acting contrary to ordinary athletic expectations within the game. Teams ordinarily want to form a ruck because that is the way to get the ball back and the only way to score points, which is the goal of the game.
But the second and third prongs suggest no special rule is necessary. This is not a one-sided, extraordinarily disparate cost-benefit exchange. Rather, both teams are gain something and surrender something on the play: England retains possession, although facing a confusing defensive situation; Italy surrenders possession, but keeps itself in a better defensive posture. Relatedly, England is not powerless to counter the strategy, as shown in the second half. Teams can find a way to get someone open to pass backward. Teams also can kick the ball forward, which they might be better able to do, since so many defenders are now behind the ball. Given the absence of these two prongs, this is not a situation, like the infield-fly, in which the equities of the game demand a rule change.
Instead, this seems to be another example (along with responses to hacking in the NBA) of an aesthetic concern--that deploying this strategy is not playing the game the "right way." Or not playing the game at all, if you believe England's coach that this is not rugby. Sports will enact rules to limit strategy for aesthetic reasons, even if not necessary to maintain cost-benefit balance and equity.
Monday, February 27, 2017
Qualified Immunity meets advisory opinions
One of my students flagged the Fifth Circuit decision in Turner v. Driver from two weeks ago. A divided panel held that the right to video-record police and police stations from the public sidewalk was not clearly established in September 2015. The court then went on to say:
Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.
That section of the opinion was even titled "Whether the Right Is Clearly Established Henceforth."
There has always been something advisory-opinionish about the qualified immunity analysis. The court addresses the merits and finds a violation, but does not impose liability in this casebecause the right was not clearly established. Instead, that merits analysis serves (perhaps) to clearly establish the right for the next case, at least the next case involving largely similar facts.
But the majority here seems to have crossed over into a pure advisory statement of abstract legal principles. It was not even purporting to do a merits-first analysis (and not just because this part came after the clearly established prong). The court did not find that the officers violated Turner's rights in this case. Rather, it simply announced a First Amendment right to record in public (subject to reasonable time, place, manner restrictions), devoid of any facts or details to the case at hand. And the court did so expressly because the issue would continue to arise in the qualified immunity context, where courts otherwise would continually have to deny liability because the right would forever remain not clearly established. Of course, the need to establish constitutional law is one reason that courts may and often should abide by the merits-first approach, even if not mandatory. This goes beyond that--law divorced from any facts or any violation in the case at hand.
Moreover, it is not clear the majority did or could achieve what it wanted to do. As the dissent argued, future cases must look to factually similar cases for the clearly established analysis, not general principles of law. But the facts were not part of the analysis here. Thus, the dissent argues, "[b]ecause the majority does not hold that the officers actually violated the First Amendment, 'an officer acting under similar circumstances”' in the future will not have violated any clearly established law."
It is good to have another circuit weighing in on the First Amendment right to record. But the way the court got there was procedurally odd.
Commercial Marijuana Advertising and the First Amendment
Many states that have legalized the commercial sale of marijuana have also sought to restrict commercial marijuana advertising. For example, Colorado prohibits licensed retail marijuana stores from advertising on television programs unless the stores have “reliable evidence that no more than 30 percent of the audience for the program on which the Advertising is to air is reasonably expected to be under the age of 21.” Colorado imposes similar restrictions on print and internet advertising. (Colorado’s advertising restrictions can be found here, in Rules 1102-1115). Until recently, at least one medical marijuana state (Montana) had banned all commercial marijuana advertising.
State advertising restrictions are motivated primarily by concerns that the commercial marijuana industry might seek to promote marijuana consumption by minors, similar to the way that the alcohol industry once (still?) promoted underage consumption of beer. Indeed, some of Colorado’s advertising restrictions are directly modeled on advertising guidelines that various alcohol industry trade groups have voluntarily imposed on their members. See, e.g., the Beer Institute’s Advertising and Marketing Code.
But do government restrictions on commercial marijuana advertising violate the First Amendment?
The place to start is Central Hudson v. Public Services Commission, which establishes the test for government regulation of commercial speech. In relevant part, Central Hudson instructs that “[f]or commercial speech to come within [the protection of the First Amendment], it at least must concern lawful activity and not be misleading.” Any government regulation of protected speech must “directly” advance a “substantial . . . government interest”, and not be more “extensive that is necessary to serve that interest.”
Let me pose two questions to the blogosphere regarding the application of this test to commercial marijuana advertising:
- As a threshold matter, does commercial marijuana advertising concern “lawful” activity? The question is complicated by the fact that the production and sale of marijuana are “lawful activities” as a matter of state but not federal law. Indeed, the Montana state supreme court upheld that state’s (since repealed) outright ban on commercial marijuana advertising by finding that commercial marijuana speech was not entitled to any protection under the First Amendment because the federal government banned the drug (even if Montana did not). Alex Kreit has written a thoughtful piece espousing a similar position – i.e., suggesting that states have more leeway to restrict commercial marijuana advertising so long as the federal government bans production and sale of the drug. But should courts consider the federal ban when judging the constitutionality of state restrictions on commercial marijuana advertising? In other words, should a state have more leeway to restrict advertising of some activity it considers lawful just because the federal government bans the same?
- Assuming that commercial marijuana advertising is protected speech, do state restrictions like those outlined above pass the second part of the Central Hudson test? In other words, do state governments have a substantial interest in restricting such advertising, and is there any other way for states to address that interest?
I have my intuitions about how to answer these questions, but I'm not a First Amendment scholar and I'm curious how others would approach these issues.
ABA Ratings of Federal Judicial Nominees
The Wall Street Journal ran an interesting article* this weekend about the American Bar Association’s process for reviewing and rating federal judicial nominees. (You can download a PDF version here if you do not have subscription access.) The upshot of the article is that the ABA’s Standing Committee on the Federal Judiciary, a rotating group of fifteen lawyers, reviews and rates every Article III nominee before confirmation hearings begin. The Standing Committee conducts confidential interviews of those who have interacted professionally with each nominee, ranging from co-counsel and opposing counsel, to judges before whom the nominee has appeared, to judicial colleagues if the nominee is already in the bench. For Supreme Court nominees, the number of interviews can reach into the hundreds. Each nominee is then rated well qualified, qualified, or not qualified, based on a committee vote.
The ABA’s role dates back to the Eisenhower Administration. Its involvement has been controversial at times, but its general criteria for evaluating nominees—professional competence, integrity, and temperament—are wholly appropriate. For district court nominees, whose daily interaction with litigants and attorneys requires a calm demeanor and unquestioned impartiality and skill, the ABA’s review is a welcome assessment of the nominee's temperament and ability. For appellate nominees, the same focus on demeanor and skill is beneficial in a different way. There is no question that policy considerations guide a President’s selection of a Supreme Court nominee, nor is there any question that the Senate is inclined to turn every Supreme Court confirmation hearing into excruciating political theater. But however it ends, the process should begin with a strong vote of confidence that the nominee is professionally up to the job.
* Full disclosure: I was interviewed for, and quoted in, the article. But that’s not why it’s interesting!
Rules for a Flat World: the UK experience
Hadfield argues that many of the changes she suggests we make have already been made in the UK and Australia. Such changes are amongst the ‘low-hanging fruit’ that are ripe to be picked by the US Bar. Making such changes will, she argues, promote necessary innovation.
Licensing entities to be legal providers, licensing multiple legal professions and right regulation are the three elements in the modernization of legal markets in the UK triggered by the Legal Services Act 2007.
Hadfield argues that these changes put the UK in a good position for building the better legal infrastructure increasingly complex world.
Let’s examine the impact in England and Wales of the first of these changes. Entities licensed to be legal providers are known as alternative business structures (ABS). An ABS is a firm where a non-lawyer is a manager of the firm, or has an ownership-type interest in the firm. A firm may also be an ABS where another body is a manager of the firm, or has an ownership-type interest in the firm and at least 10 per cent of that body is controlled by non-lawyers. A non-lawyer is a person who is not authorised under the Legal Services Act 2007 to carry out reserved legal activities.
Reserved legal activities in England and Wales under the Legal Services Act are exercising the right of audience in front of a court; the conduct of litigation; reserved instrument activities (instruments for transfers or charges on land); probate or notarial activities and the administration of oaths.
In March 2012 the Law Society congratulated the first three practices licensed as ABS’ by the Solicitors Regulation Authority (SRA). They were Co-operative Legal Services, Lawbridge Solicitors and John Welch and Stammers. At the time, Co-op Legal Services which was set up in 2006, employed 400 staff and had plans to add a further 150. ABS status was intended to allow it to diversify into family law and to support services in personal injury claims, conveyancing, wills, probate, and employment law. John Welch & Stammers based in Witney, Oxfordshire since 1932 had seven fee earners and 11 support staff and ABS status allowed them to appoint their practice manager as a non-lawyer managing partner to join two existing solicitor partners. Finally, Lawbridge Solicitors, based in Sidcup, Kent, had one solicitor who could be joined in the shareholding by the firm’s practice manager who was also his wife.
In our recent Future of Legal Services Report (2016) the Law Society noted that ‘initial take-up of ABS has been reasonably slow’. We have also pointed out that whilst there is some evidence that ABS may be more innovative in the way they deliver services and handle complaints ‘innovation can describe new-to-the-firm services rather than new-to-the-market services’. We are also not aware of any strong evidence that ABS provide cheaper legal services and thereby improve access to justice.
Perhaps one of the most interesting characteristics of ABS – in line with the nature of the first entities to licensed – is that most ABS are small, traditional law firms wishing to take advantage of the opportunity to include non lawyers as owners or investors. We have also pointed out that uptake of ABS status by new entrants offering more innovative business models has been relatively slow and there have been some high profile failures, for example when the Parabis group went into administration owing almost £50m to more than 2,500 unsecured creditors in November 2015.
So what has not yet happened is the leveraging of additional capital to invest in technology to support new processes and, perhaps, new types of legal service that many advocating for ABS originally anticipated. However, as the Chairman of the Legal Services Board pointed out in 2016 ‘it is still early days in the licensing of ABS, and not enough time has passed to come to a definitive view on the long-term impact of ABS on the market.’
Whilst Hadfield may be correct in her identification of low-hanging fruit, it is not clear that they are yet ripe.
Sunday, February 26, 2017
One more from Hernandez v. Mesa
The following exchange occurred toward the end of Petitioner's argument:
Justice Alito asked whether a plaintiff would have a § 1983 action if the shooter had been a state or local police officer; petitioner's attorney responded "You would not have a claim over the State officer, but if you don't --but a Bivens claim--a constitutional Bivens claim could apply to the State officer."
Did counsel misspeak? Or is he arguing that a plaintiff can enforce the Fourteenth Amendment (including the incorporated Fourteenth Amendment) through a Bivens action in situations in which § 1983 runs out (as everyone seems to accept here, where § 1983 protects citizens and "other person[s] within the jurisdiction thereof")? And can that be right, certainly descriptively, under the Court's recent Bivens jurisprudence, where § 1983 would be an alternative remedy?
Towards the Law of Legal Services: Reflections on Gillian Hadfield's "Rules for a Flat World"
The public now has access to an increasingly wide array of legal service providers other than lawyers and law firms. I referenced some of those options in an earlier post. These developments require a new way of thinking about the regulation of legal services, and Gillian Hadfield’s excellent book, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy, adds an important new conceptual framework for what this approach might look like.
The Inadequacy of the Law of Lawyering
I come to this subject having written a bit about it. In an article, “Towards the Law of Legal Services,” I argued that it is time for us to broaden our thinking about the regulation of legal services. Rather than focusing on the “law of lawyering” – the body of rules and law regulating lawyers – I suggested that we need to develop a broader “law of legal services” that authorizes, but appropriately regulates, the delivery of more legal and law-related assistance by people who do not have a J.D. degree and who do not work alongside lawyers. Here is one way to visualize the point (click on the diagram if you have trouble reading the fine print):
The “law of lawyering” branch of the tree includes the traditional subjects that have occupied legal profession scholars for decades, such as rules of professional conduct, the law of malpractice, and administrative regulations directed at lawyers. Of course, some of these subjects overlap with other doctrinal areas (e.g., civil procedure, SEC regulations, and IRS regulations), but the point is that there is now a fairly robust body of law governing lawyers’ work.
In my article, I argued that we need to spend a lot more time thinking about (and growing) the right side of the tree – the law of other legal service providers. This means devoting more attention to the increasing array of legal services professionals who are authorized and regulated by courts, such as Limited License Legal Technicians, Legal Practice Officers, courthouse navigators, and document preparers. (You can read more about these types of providers here.) Other kinds of service providers are emerging in the marketplace and are either public-facing (e.g., LegalZoom) or delivering services to law firms and corporate legal departments (e.g., legal process outsourcers and e-discovery companies).
For the public-facing providers who are not authorized and regulated by courts (the bottom right corner of the diagram), the regulatory framework has not been particularly robust. It has consisted primarily of restrictions on the unauthorized practice of law and consumer protection laws. Put another way, new players are either accused of engaging in the unauthorized practice of law or they are subject to the minimal regulatory constraints of ordinary consumer protection provisions.
I believe that this binary approach is inadequate. Unauthorized practice of law provisions are notoriously vague, have been used in anti-competitive ways, and are stifling competition without any clear public benefit. At the same time, a laissez faire approach is also problematic, because it provides the public with only modest protections when purchasing these services, as if the they are no different from (say) purchasing a pair of shoes. A third way is possible and desirable – the development of new kinds of regulations that expressly authorize these emerging providers and subject those providers to more rigorous regulations than currently exist. I sketch out a few such possibilities in my article.
Towards “Right Regulation”
Gillian’s book tackles these and many other broader issues, such as how we might develop more effective legal infrastructure for a modern world. I can’t do justice to the many threads of the book, but Gillian develops two ideas that nicely supplement what I have sketched out above.
First, Gillian describes a concept that she refers to as “right regulation.” For all intents and purposes, it is the "third way" that I think needs to exist when regulating new kinds of legal service providers. She explains:
Challenges to the existing regulation of legal markets by bar associations are sometimes cast as proposals to deregulate legal markets. But the name of the game is not deregulation; it’s what I call right regulation: putting in place intelligent regulations that ensure the markets for legal goods and services are functional and competitive. (p. 244)
Gillian cites the UK’s Legal Services Act of 2007 as an example of such an approach; that is, it liberalizes, but appropriately regulates, the legal services market in the U.K.
"Right regulation" also has some applications to the left side of the tree. For example, Gillian argues that lawyers should be permitted to partner and share fees with people who are not lawyers (currently prohibited in nearly all U.S. jurisdictions under rule 5.4 of the rules of professional conduct), but with appropriate regulatory arrangements, as is the case in the U.K.
Who Does the Regulating?
One of the greatest strengths of Gillian’s book is that she provides a conceptual framework for addressing a particularly challenging question: who should be responsible for drafting the relevant “right regulations"? This is not an easy question to answer, and it is one that I have expressly bracketed in my own writing.
One possible answer is that we should leave these issues to the courts, which historically have regulated legal services. Another possible answer is to have legislatures more actively involved, with appropriate delegation to administrative agencies. Both of these answers have benefits and costs, but neither offers an ideal solution.
Gillian’s innovative answer, drawing on the U.K. for inspiration, is to have private market-based approaches to regulation and to use government as a so-called “super-regulator” (regulating the regulators). She describes it this way:
Instead of civil servants or the managers of a regulated company designating the details of how to achieve politically set goals…, private for-profit and nonprofit companies could offer this as a service in the market, for a fee. In order to participate in this market, these companies would have to be approved as private regulators by the government. Approval would be based on meeting the policy objectives established by the government for regulation—developing a system that ensures that regulated businesses meet targets [of various kinds related to the industry]. (p. 266)
I came away from the book with a much greater appreciation for the ways in which we might go about creating a more flexible legal infrastructure in the future. Although the approach won't work in every setting (as Gillian concedes), I think there are some interesting implications not just for the law of legal services, but for many other regulatory structures in a rapidly changing world.
This is my last post of the month. I've really enjoyed the opportunity to share a few thoughts here, and I want to thank Dan Rodriguez again for inviting me to join the conversation.
The Ringer looks at the many, many lawyers who have gone on the Bachelor/Bachelorette, including the upcoming bachelorette.
Saturday, February 25, 2017
Some reflections on technology, law and legal systems following "The Future of the Professions" and "Rules for a Flat World"
I should clarify at the outset that this comment deals mainly with the book by Richard and David Susskind, even if some links will be made to the book by Gillian K. Hadfield. I should also clarify that I am broadly in agreement with the key theses that underlie these two excellent books, and for that reason my reflections my reflections will seek to build upon them rather than to take issue on their core arguments.
Richard and David´s book starts off in a provoking way, by taking for granted that technology shall replace, in an amount of time yet to be determined, most professionals by less expert people and high-performing systems. For the authors, this claim will have profound implications on the “grand bargain” that is still at the bottom of modern, capitalist, and democratic societies, according to which we essentially have decided to trust professionals´ expertise through the mediation of a system of institutions, norms, rules and procedures that ensures that they perform their professional duties not just for their benefit but for the benefit of society (p.22). In essence, the grand bargain means that big privileges derive big responsibilities towards society.
The authors suggest that the grand bargain is in crisis, because the balance between privileges and responsibilities has been altered dangerously towards the former. There however claim that rapid advances in technology may hold the key to a new rebalancing, in that it will open up many hitherto inaccessible knowledge and expertise to vast amounts of population, that will no longer need to confer so many privileges—if at all—to the expertise controlled now by the professions.
One obvious question is: will technology enable the appearance of a new grand bargain that is even more unbalanced than the previous one? This could happen if the exponentially growth in knowledge and expertise generated by technology would remain in the hands of a very small elite, which could extract enormous power and rent from it. How to avoid this predicament? The authors are refreshingly clear about their own preferences by suggesting that existing gatekeepers should be removed and as many people as possible should be given as much access as possible to the generated collective knowledge and experience generated in that transformation. In this way, many more people than currently would be able to live happier and healthier lives.
The analysis is fascinating, the arguments well made, the narrative engaging, and the recommendations clear and thought provoking. This enables the reader to formulate new questions, for which the book offers no clear answers while calling for much more debate on them. In what follows I try to suggest three issues that seem to me to merit some debate.
First, given the wide number of professions that are analysed by the authors (health, education, divinity, law, journalism, management consulting, tax and audit, and architecture), it quickly becomes clear that the challenges they are pointing at go well beyond the professions and actually impact on entire societies and the institutions and rules that govern them. So, alongside the impact on professions, there will be enormous impacts on the systems within which they are nested. And one obvious question is how will the avalanche caused by technology, as they call it, affect constitutional democracies and other forms of government. If one applies the same logic the authors apply to the professions, it´s easy to see that the grand bargain linking citizens and the state is in a state of deep crisis and it is not yet clear how it will transition to a different one. This is an observation that links this book with Hadfield´s book, but more on that later.
Second, and more conceptually, what political philosophy underlies the normative argument put forward by the authors? In other words, how do they move from the “is” of technological progress towards the “ought” of humans response to it, and what implications follow from that?
As mentioned above, the authors suggest that the “grand bargain” as currently framed not only will change as a matter of fact, but society must actually actively reconsider it so that it works better for everyone. To reach this new grand bargain, the authors suggest that we adopt a very specific methodology, the so-called the Rawlsian “veil of ignorance”. In particular, the authors suggest that tool to ask themselves, given that technology shall replace much of the work carried out by human professionals, whether they would want those systems and machines to be held in common for many or controlled by a few, whether they would prefer practical expertise to be made available at little cost or at greater expense, and whether it should be liberated or enclosed. The authors moreover venture that, from behind a veil of ignorance, most people would choose an open system rather than a closed one with new, ever more powerful, gatekeepers. In that future, most medical help, spiritual guidance, legal advice, latest news, business assistance, accounting insight, and architectural know-how would be widely available, at low or no cost. They become excited imagining, in the near future, human beings across the world, whether rich or poor, having access to all those resources so that they can live healthier and happier lives.
At least three comments arise from this analysis:
To start with, the invitation to adopt the Rawlsian´s veil of ignorance appears to raise more questions than it answers. Rawl´s veil of ignorance focuses on reasonable citizens acting as free individuals, rather than on communities (families, intermediate groups of society) as the main decision-making actors. In so doing, it promotes a highly specific approach, that of political liberalism, to respond to future challenges; the assumption is that, if we know nothing about ourselves, and yet we need to choose about the preferred future, we will want a future in which we have full freedom to choose the best instruments to succeed, as well as a safety belt in case the road turns out to be bumpy. One difficulty with this method is that it would seem that the Rawlsian reasonable citizen has been parachuted into this world from some external planet, and is thus alone, detached, afraid and distrustful of others. Even better, it´s a paradigm of the modern man within liberal democracies, as Chantal Delsol suggests in Icarus Fallen. But can such a human being really be able to join others to devise commonly accepted solutions to the enormous challenges imposed by technology on society as a whole? For communitarians, one difficulty with Rawl´s political philosophy is that it does not focus enough on the common good, or rather that it promotes a certain view of the common good, that of “politics of neutrality”, which considers that preferences from all citizens should be counted equally to determine the public good. On the contrary, communitarians would tend to argue that societies need a substantive conception of the good life, and this can be used as a benchmark to evaluate citizens´ preferences. And of course there are different political philosophies that would suggest different approaches to determining the common good. The authors are proposing their own view about what would constitute a good future, and ask the readers to reach that conclusion by adopting Rawl´s veil of ignorance. But this begs the question of whether applying that methodology would really reach the result preferred by the authors, or whether other political philosophies would be more fit. So it seems to me that this is an interesting area for further research and debate. And the authors indeed seem to agree, since they issue an urgent call for public debate on all moral issues arising from technology.
Another comment has to do with the suggestion that technological development itself can be considered a fact rather than an intensely moral choice; this brings to mind the ongoing debate around techno-determinism, of which the authors are perfectly aware (p.304). The authors in fact address one common criticism of techno-determinism by making clear that they differentiate between facts and norms, between the “is” and the “ought”. In other words, the fact that technology develops fast does not mean should be used without limitations; rather, we must as a society decide whether there are uses that should not be allowed (one example the authors use is allowing to a machine to decide whether to turn-off a life-supporting system). Another area in need of moral guidance is that of deciding who should own and control practical expertise in a technology-based internet society.
But this argument would to seem to imply that technology itself is neutral, and that the key normative issues are whether and how to use it in concrete instances (as in the life-support system example) and who should control it. Such views would seem to ignore other criticisms that have been levelled against techno-determinism, which claim that technology itself is never value neutral, because it is always developed with certain aims and goals in mind, on the basis of certain ideologies or worldviews, and put to use on the basis of certain normative considerations (e.g. Langdon Winner, “Do Artifacts have Politics”). These criticisms are part of the postmodernism reaction to modernism faith on technology. Postmodernism arises in good measure from a widespread disenchantment with technology that, while bringing together undeniable goods, has also enabled massive destruction through the use of nuclear weapons, widespread damage to the natural environment, and relentless experimentation with human beings, criticized by many as involving their reification as a necessary step towards their full incorporation into liberal markets as objects that can be bought and sold (e.g. IVF techniques, surrogated maternity, etc). Some authors go as far as suggesting that postmodern man is intensely disenchanted with technology and afraid of its own powers, while at the same time unable to think deeply about humanity´s common future. In this light we should ask what´s the book authors´ own political philosophy? The book considers that technology may have, on the whole, a positive effect on the grand bargain, as long as we avoid the consolidation of new, even more powerful, gatekeepers. But there´ little consideration of postmodern criticisms of technology, which in this context may include the effect that negative impacts on employment brought about by technology may have on professional´s own sense of worth and dignity. To be sure, the authors make an important effort to appraise the impacts of the technological revolution on employment, but do not consider the impacts on human beings qua human beings. This can be contrasted with the more anthropological bent of the recent, and heated, discussion about the pros and cons of Universal Basic Income (UIB) as a possible solution to the massive unemployment issue that technology may generate.
Last but not least, and connected to the previous issue, it may be interesting to point to the somewhat utopian connotations underlying the core argument. In short, and at the risk of building a straw man, the book suggests that technology will enable most of us to have more access to information, to receive more help, more guidance, more learning, more easily and moreover at no or lower cost. (p. 307). But to conclude from this that we will be healthier and happier seems to me a non-sequitur. The debate on whether current generations are happier than those living one hundred years ago, or two hundred years ago, or two millennia ago is not one that can be ever be settled. Technological progress has always accompanied and shaped humanity, and is pretty much unrelated to happiness except in a very limited way: it enhances, materially, freedom of choice. And clearly, a human being is not reducible to matter. Questions such as the purpose of one´s life and job, and what should one do and how should one live, cannot be answered any better through the use of technology. Thus, the fundamental questions about how to live better together and within the environment cannot be answered by technology, even if technology enables having the ability to process much more information much faster. And yet those things are essential to the notion of happiness. It is an enormous merit of the book that it allows readers to raise such questions, and only for that it is worth reading even by those not narrowly interested with the impact of technology in the professions.
To conclude, I would like to connect these three considerations takes us to Hadfield´s book “Rules for a flat world”. In this important book, the author contends that legal infrastructure as developed over the centuries is not fit for the modern world, rapidly transformed by technology and subject to enormous challenges often at a global scale. Moreover, the traditional makers of law are not able or willing to provide the right solutions at the required pace. One possible solution is to open up a market for legal rules, so that demand for new laws and regulations can be met by a number of suppliers in competition among themselves. Technology is already facilitating the generation of competitive pressure and that is something we should be celebrating. The core argument is more straightforward in a way that the argument in the “Future of the Professions”, but no less important, and largely compatible with the latter´s analysis of the legal profession but complementing it in important ways. Indeed the need for new rules for a flat world forces us to rethink the foundations of our democracies, the distribution of power therein and our tasks as legal academics or lawyers to ensure that law is fit for purpose in a very complex economy and society. The book calls for universities to promote this debate and to contribute to opening up spaces for innovation around legal systems. Together, both books provide a very strong corrective to our work as lawyers, law professors, and regulators. Let´s hope we all take good note of their recommendations.
On a concluding note, I would like to wholeheartedly thank Dean Dan Rodriguez for inviting me to engage in this fascinating symposium!
Friday, February 24, 2017
Who Speaks for the Courts? Who Should?
The President’s recent (and not-so-recent) tweets about the federal judiciary have spurred discussions among legal academics about whether the courts can really defend themselves in the public sphere—and if not, whether one or more (presumably self-appointed) groups should do it for them.
I admit to being of two minds about these types of efforts. On the one hand, the third branch certainly needs good public advocates. Judges must maintain an air of impartiality to preserve their legitimacy, and that typically precludes them from responding to attacks, even if a response would ordinarily be justified. On the other hand, standing up for the courts must be done carefully or it can become counterproductive. In an age where almost anything can be politicized, the wrong choice of words, or the advocate’s own political views, can cause more harm to the court than good. As is often the case with public advocacy, the direction and tenor of the conversation is not entirely within the advocate’s control.
To sort through this issue more carefully, I like to remind myself of some facts about court and judicial “speech” generally.
First, courts often do speak on their own behalf, albeit primarily on issues related to their performance and resource requirements. The Chief Justice’s Year-End Report—really a glorified statistical report invariably wrapped in an odd piece of historical trivia and wierdly embargoed until the evening of December 31—provides an opportunity to highlight some issue of importance to the federal court system each year. Other federal judges, usually under the mantle of the Judicial Conference of the United States, testify before Congress from time to time on issues related to funding, staffing, and grants of authority. At the state level, Chief Justices commonly present a formal State of the Judiciary speech to the legislature, which addresses similar topics. Those speeches sometimes wade into political waters, as Texas Chief Justice Nathan Hecht did earlier this month when he briefly advocated for an end to that state’s partisan elections. Moreover, both state and federal court systems have public information officers and, increasingly, a presence on social media.
Individual judges also occasionally advocate for their professional interests in court. In recent years, federal judges have sued the government for having received inadequate compensation, and state judges (and judicial candidates) have sued to clarify their First Amendment rights of speech and association.
For the most part, however, American judges at every level are exceedingly cautious about speaking out on their own behalf. The ABA’s Model Code of Judicial Conduct broadly and affirmatively discourages political speech or activity. Canon 2 provides that “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” And Canon 5 states that “A judge or judicial candidate shall refrain from inappropriate political activity.” Because “impropriety” and “inappropriate political activity” are such open-ended terms, and because even nearing the line of impropriety might be damning, most judges stay far away.
This has created some difficult moments for judges, particularly at the state level. Over the past decade, several judges facing retention elections have been targeted for removal by special interest groups with widespread television advertising. In other instances, statewide initiatives designed to politicize or punish the judiciary (including, most notoriously, South Dakota’s "JAIL 4 Judges" initiative) have appeared on the ballot. But a formal response to these efforts from the judiciary is impractical and dangerous: even a cautious and thoughtful reply would be spun by its detractors. Judges have never wanted a war of words; Heaven forbid they find themselves in a war of tweets.
In these circumstances, bar associations, law professors, and various special interest or good government groups often do step in to defend the courts. Their messaging can be effective if the message is simple and clearly bipartisan or nonpartisan. For example, in 2006 an initiative in Colorado would have imposed retroactive term limits on state supreme court justices, effectively retiring five of the seven members of the bench. If passed, the initiative would have destroyed institutional knowledge, broken up a collegial court, and undermined legal predictability. A coalition of groups, led by the state bar association, drafted respected public figures from both parties to publicly oppose the effort and distilled its opposition into a simple message: "Bad Idea, Serious Consequences." The straightforward message and coalition-building worked, and the initiative failed.
Courts assuredly wish that no one would have to speak for them, but that is not the reality. Better civic education can help cool popular passions, and educational efforts are being made at the federal level, the state level, and even by Sandra Day O'Connor. In the meantime, those who support fair and impartial courts should think strategically about the timing and tenor of their advocacy, lest their protective sentiment—however sincere—simply create a new round of mudslinging.
Losing the Scholarly Pose
Law professors are likely to be thrown off their game by Rules for a Flat World by Gillian Hadfield and The Future of the Professions by Richard and Daniel Susskind. The reason is that these books have tremendous scholarly rigor, yet the authors are not writing to advance an academic literature. Instead, they are speaking to us as political and social actors. They are telling us that the legal institutions that we operate within – and take for granted like the air we breath – are either withering away due to seismic shifts in technology (the Susskinds) or are on a collision course with complexity wrought by globalization and a rapidly flattening world (Hadfield).
A standard scholarly critique is therefore beside the point. The threshold issue is whether the authors are mostly right or mostly wrong. The answer to that question determines whether we need to engage as political and social actors with more existential questions regarding (a) which institutions we build, (b) which institutions we work very hard to preserve, and (c) which institutions we withdraw from or tear down.
Personally, I think the Susskinds and Hadfield are mostly right. The issues raised by the Susskinds and Hadfield remind me of an earlier time nearly 25 years ago when the intelligentsia on both the left and right ducked similarly hard questions – ones that I believe are now very much connected to the rise of Trumpland. To make my point, I need to tell a personal story.My path to the legal academy was less conventional than most. In the early 1990s, after dropping out of college, I worked as a firefighter-paramedic for a municipal fire department in suburban Cleveland. During my first four years of employment, I never took a sick day — until November of 1993 when I stayed home to watch the congressional vote on the North American Free Trade Agreement on C-Span. NAFTA passed the house on a 234-200 House vote. I truly felt sick.
I was against NAFTA because none the arguments advanced by pro-NAFTA pundits and economists convincingly explained how US production workers would be made better off by being placed into head-to-head competition with low-wage workers with weak workplace protections and no right to organize. Further, even if NAFTA — and later, China’s Most Favored Nation (MFN) status — would result in much cheaper consumer goods, what about the social and political instability produced by declining working-class wages? This question was not meaningfully raised in the public debate largely because academic economists, consistent with economic theory, had concluded that expanded trade would produce significantly more social wealth. (Note that firefighters have a lot of downtime to do things like read and watch C-span; I was a voracious reader on these topics.)
But who cared what I thought. I was a college dropout. So a year later, I returned to college, and by 1998, I was enrolled in law school. Why? Because I wanted to get into the game, and without these credentials, I doubted that anyone would take me seriously.
I had nearly forgotten about my NAFTA sick day until I heard a recent Freakanomics podcast in which Steve Dubner turned to David Autor, a labor economist at MIT, to answer the question “Did China Eat America’s Jobs?” Remarkably, Autor acknowledged that the labor economists of the early 1990s lacked the empirical tools and modeling to adequately anticipate the full impact of the trade deals that the US was cutting. Instead, economists at the time were relying on classical economic theory that trade among nation-states would enhance overall net wealth.
On balance, Autor believes that NAFTA did deliver modest economic benefits to the US. But the distributional consequences have been very uneven. As manufacturing has moved from the US to places like China and Mexico, local economies with heavy reliance on factory jobs – often in rural and semi-rural locations – experienced tremendous downward pressure on wages, as the next best-employment options paid significantly less. Quoting Autor from the podcast:
[T]he net effect [of these trade agreements] you can show analytically is going to be positive. But the redistributional consequences ... many of us would view [ ] as adverse because we would rather redistribute from rich to poor than poor to rich. And trade is kind of working in the redistributing from poor to rich direction in the United States. The scale of benefits and harms are rather incommensurate. So for individuals, you know, I have less expensive consumer items because of imports from China. But it hasn’t affected my employment or my wages. For many others – on the order of at least a million U.S. manufacturing workers – it meant the end of their jobs and in many cases the end of their industries.
Autor goes on to note that most workers in impacted local economies don't retrain themselves and migrate to higher wage portions of the country where their retooled skills are in higher demand. Instead, they become unemployed, underemployed, or get classified as disabled and enter the Medicaid roles for the rest of their working adulthood. When the factory jobs left, the second and third order effects of lost and lower wages fundamentally changed many local economies for the worst, making them fertile electoral grounds for Donald Trump's "Make America Great Again" message.
Gillian Hadfield has a powerful line in her book that speaks to this new reality: "[P]eople who feel as though the rules don't care about them don't care about the rules." For a while, we knowledge worker elites have been able to ignore this fundamental truism. The disruptive impact of technology on the professions – specifically our expectation of a lifetime of comfortable employment – is our own personal version of NAFTA. This is a very humbling way to become more empathetic toward others seemingly very different from us. The silver lining here for lawyers and law professors is that our problems are just a subspecie of a more general problem affecting everyone living in the 21st century. If we focus on solving it for others, we simultaneously solve it for ourselves.
Hernandez v. Mesa argument
Just finished the argument in Hernandez v. Mesa (shooting across the Mexican border). A couple quick notes:
The argument was dominated by Justices Breyer and Kagan, with fewer questions from the Chief or Kennedy and even fewer from Justice Alito, who I would have expected to challenge the petitioner more than he did. On that note: At one point, the transcript shows Kagan beginning to ask a question when the Chief jumped in to call on Justice Kennedy (who, according to the transcript, had not begun to say anything). I want to hear it on audio. The Chief often plays traffic cop during arguments,* although this was the first time I have seen him do it without an apparent verbal signal that someone was trying to speak.
[*] An interesting research question: Is he more likely to "call on" a male Justice, especially over a female Justice? It feels that way from the individual examples I notice. I wonder if a regularized study would bear that out.
Qualified immunity was not discussed much, only a couple of questions from the Chief and Kennedy. One of them asked whether qualified immunity accounts for different plaintiffs--that is, if case law establishes that X violates the Constitution, can courts distinguish that precedent (to find the right not clearly established) when the identity of the plaintiff subjected to X is different.
Finally, Kagan and Breyer both pushed back against the idea that Bivens must be "extended," at least for Fourth Amendment excessive-force claims to recognize a cause of action. Kagan suggested that Bivens should be understood as allowing Fourth Amendment claims unless it arises in the military context. And Kagan pushed hard on the absence of an alternative remedy here, seeming to suggest that we should not even look at special factors if the plaintiff is left entirely without a remedy. These ideas, if followed, would pull the Court back from where it has gone with Bivens in the past two decades, similar to the vision Justice Ginsburg espoused in her dissent in Wilkie v. Robbins.
Thursday, February 23, 2017
Third Annual Civil Procedure Workshop (Reposted)
The following is re-posted on behalf of Brooke Coleman (Seattle), David Marcus (Arizona), and Elizabeth Porter (Washington).
We are excited to announce the third annual Civil Procedure Workshop, to be co-hosted by the University of Arizona Rogers College of Law, the University of Washington School of Law, and Seattle University School of Law. The CPW will be held at the University of Arizona in Tucson on November 3-4, 2017.
The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.
Confirmed participants for 2017 include the Hon. David Campbell, Allen Erbsen, Margaret Lemos, Troy McKenzie, Mark Moller, the Hon. Lee Rosenthal, Elizabeth Schneider, Norman Spaulding, and Beth Thornburg. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 1, 2017. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by April 15, 2017. Please send all submissions or related questions to Dave Marcus.
The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.
The Federal Circuit and "Patent Exceptionalism": Part II
As discussed in Part I of this series, the Federal Circuit is often criticized for treating patent cases exceptionally, particularly with respect to procedural issues. The Federal Circuit’s approach to personal jurisdiction in patent declaratory judgment (DJ) actions is a good example. Most patent suits are initiated by a patent owner suing an accused infringer for allegedly infringing one or more of its patents. However, a small percentage of patent suits are initiated instead by the accused infringer. In those cases, the accused infringer sues under the Declaratory Judgment Act seeking from the court a declaration that its products do not infringe the defendant’s patent and/or that the patent in suit is invalid. Oftentimes, an accused infringer files a DJ action upon receiving a demand letter from the patent owner alleging infringement and threatening a lawsuit if a license agreement is not entered. The demand letter is generally received by the accused infringer in the state where its principal place of business (PPOB) is located. Under a traditional minimum contacts analysis, an accused infringer that receives a demand letter at its PPOB should be able to sue in its home state because (1) defendant has purposeful contacts with the state (it sent the demand letter there), and (2) those contacts (the letter) gave rise to the plaintiff’s DJ action. So, unless there’s a “compelling case” that the exercise of jurisdiction is unfair, the defendant is subject to personal jurisdiction.
In Red Wing Shoe Co. v. Hockerson Halberstadt, Inc., 148 F.3d 1355 (Fed. Cir. 1998), however, the Federal Circuit created a special rule for such situations holding that the exercise of jurisdiction in these cases is never fair because otherwise patent owners would be discouraged from sending demand letters, which, in turn, would discourage settlement. For the past twenty years, the Federal Circuit has followed and even expanded on Red Wing Shoe holding that other types of contacts (e.g., in-person settlement negotiations) also don’t “count” for personal jurisdiction purposes. See Autogenomics, Inc. v. Oxford Gene Technology Ltd., 566 F.3d 1012 (Fed. Cir. 2009). In a recent decision, Xilinx Inc. v. Papst Licensing GmbH & Co. KG, the Federal Circuit has changed course, but hasn’t righted the ship quite yet.
In Xilinx, patent owner Papst, a German company, sent demand letters to Xilinx in California. Moreover, two Papst representatives met with Xilinx representatives in California to negotiate a license. When negotiations failed, Xilinx filed a DJ action, Papst moved to dismiss, and the district court—not surprisingly—granted the motion under Red Wing Shoe and Autogenomics. Amicus briefs were filed in support of Xilinx’s appeal, including by a group of 34 patent and civil procedure professors. In an opinion by Judge Dyk (joined by Chief Judge Prost and Judge Newman), the Federal Circuit reversed and held that Papst was subject to specific jurisdiction in California. The good news is that the Federal Circuit took a traditional approach to the personal jurisdiction analysis, as we urged the court to do in our amicus brief, and as I have advocated for in my work. The bad news is that the court distinguished Red Wing Shoe and so its principle survives (of course, the panel wasn’t in a position to overrule Red Wing Shoe). Another problem is that there now appears to be a conflict in Federal Circuit case law on this issue because the facts of Xilinx and Autogenomics are very similar, yet the results are different. As other commentators have noted, unless the Federal Circuit hears the case en banc or the Supreme Court intervenes, there is going to be confusion among litigants and district courts going forward.
Wednesday, February 22, 2017
Burning your own cross on your own lawn?
A couple in Stamford, CT had a racial slur spray-painted on their garage door. Convinced that the police are not doing enough to investigate the incident, they have refused to paint-over or cover the word. In response, the town is moving to cite them for having blighted property, which would result in a fine of $100/day. The NAACP has gotten involved, although the stories do not (yet) mention the First Amendment.
That citation and fine should raise First Amendment problems. Although the blight ordinance is content-neutral, leaving the word on the garage is expressive in several respects: 1) the word has obvious political content; 2) the homeowners can be seen as reappropriating someone else's hate speech;and 3) the purpose behind their actions is itself expressive, as an act of protest against what they see as police wrongdoing. Plus, the blight ordinance is not being applied content-neutrally here--the conclusion that the garage is blighted is justified only with reference to the content or message expressed by that word.
Intentional walks and limiting rules
Major League Baseball announced agreement on a rule change under which intentional walks will now require only a signal from the dugout, rather than the pitcher intentionally throwing four pitches wide of the plate and the catcher's box. The goal is to shorten games, although given how infrequent intentional walks are (one every 2.6 games last season), the effect will be minimal.
Intentional walks are one of the plays cited by critics of the Infield Fly Rule as an analogous play, with one team intentionally acting contrary to the game's ordinary expectations. My response has been twofold: 1) The cost-benefit imbalance is not one-sided and not disparate, as both teams incur costs and receive benefits (the batting team gets the benefit of a baserunner, at the cost of not having a good hitter bat, while the fielding team incurs the cost of a baserunner with the benefit of a more favorable batter and base-out situation), and 2) the batting team could counter the strategy by declining the intentional walk and trying to get a hit by swinging at pitches out of the strike zone (or if the pitcher mistakenly leaves a pitch too close to the plate).
The rule change eliminates the second piece--the batting team can do nothing to prevent the intentional walk. Nevertheless, because the play involves an equitable cost-benefit exchange, it is not analogous to the infield-fly situation and thus does not warrant a limiting rule (or undermine the existence of the Infield Fly Rule).
Update: This, on everything wrong with the rule change.
Tuesday, February 21, 2017
Barnett & Bernick: Good-Faith Constitutional Construction
I spent last weekend at the University of San Diego’s annual originalism works-in-progress conference, which was, as always, excellent and thought provoking. In particular, Michael McConnell presented a draft of his very, very impressive paper The Logical Structure of Article II, and Mitch Berman successfully parried all comers in defending his insightful paper Our Principled Constitution. I am moved to comment briefly, however, on another paper—Randy Barnett and Evan Bernick’s The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction—and particularly on some aspects of the discussion that ensued.
The paper attempts to flesh out the undertheorized “construction zone” in New Originalist interpretive theory. As a quick refresher, central to that theory is the “interpretation-construction distinction,” which posits two distinct phases of constitutional explication. In the first, “interpretation,” phase, the judge endeavors to discover, as an empirical matter, the text’s “communicative content” at the time of ratification. In the second, “construction,” phase those empirical semantics should constrain the text’s “legal content” as applied to a discrete controversy.
Barnett & Bernick point out that this “construction” phase has drawn a good deal of criticism from other originalists for the latitude it seems to afford judges, particularly in cases where no determinate communicative content exists to provide constraint. They thus hope to use the concept of fiduciary good-faith to cabin potential judicial freewheelers in the “construction zone.” The idea is that judges should construct legal meanings that, to the extent possible, harmonize and promote the Constitution’s “letter” and its “spirit.” To put it (perhaps) in Scott Shapiro’s terminology, the judge should make a genuine effort to carry out the framers’ and ratifiers’ “plan.”
I should first say that I think this makes a good deal of sense, and I’m all for a good-faith duty in constitutional interpretation. But I have to say the paper and discussion left me wondering a little bit about what makes this an “originalist’—or more specifically a “New Originalist”—approach.
On the general question, it might be a broadly “originalist” methodology in a number of ways. At the most basic level, it could be that government actors as “fiduciaries” and a corresponding “duty of good-faith” were well understood conceptions at the founding, and thus form part of a contingent justification for judicial review. Thus, good-faith might be something like an “original method” of constitutional construction. At perhaps a more specific level, good-faith might require that judges orient themselves towards constitutional semantics in a particular way—a way that requires substantial deference to predominant historical meanings. In this way, the theory is originalist in that it redescribes the duty of historical constraint using terms with more robust substantive meanings from other areas of legal practice. This might be more consistent with a New Originalist or “original public meanings” approach.
This second possibility only seems to work, however, when the “interpretation” phase yields some determinate measure of communicative content, to which the judge owes fidelity. And, again, the truly problematic areas of construction seem to be those where that communicative content has run out. In response to some commentary along these lines, Barnett seemed to suggest that the “spirit” can supplement the “letter” of the text during the “interpretation” process, and that this might thicken up the communicative content enough to provide meaningful constructive constraint. This is where I get a little bit confused.
I had thought that the interpretation-construction distinction was meant to separate the “empirical” from the “constructive” aspects of constitutional explication—that the former process revealed historical “facts,” which could constrain the latter. While I have long had doubts that even the “letter” could produce these sorts of facts, I am quite sure that establishing the “spirit” of the text is a constructive, and not an empirical, enterprise. While there may be a fact of the matter about historical language conventions, I cannot suspend disbelief enough to imagine discovering—as an empirical matter—some unspoken semantic “truth” that the words failed to capture. If the “spirit” is part of the text’s communicative content, then I think the interpretation-construction distinction collapses—or, as some critics have said for years, “it’s all construction.”
It could be that Barnett & Bernick were just wrong to concede in discussion that the search for "spirit" could fall on the interpretation side of the divide. It might be that they are better off sticking to their written position, which stipulates that the good-faith method applies only when “original meaning interpretation alone is not enough to resolve a controversy.” It would thus be only in these cases of pure "construction" that fidelity to the constitutional "spirit" should arise as a constraint. In that case, however, the question remains, in what way is "spirit" an originalist constraint? Is it only the "original spirit" that counts? If so, is there some principled way that "spirit" is more than just a new word for "original intentions"? It could be that I'm just missing something--I often seem to be--but I find myself wondering whether the search for constitutional spirit might not rightly include arguments made in other interpretive modalities, including contemporary textualism, structure, doctrine, or even ethos.
Jack Getman on "The Continuing Mischief of the Linn Case"
[The following is a guest post from my UT colleague Julius Getman, who, among many other things, is the author of the recent book, The Supreme Court on Unions.]
In September of last year, a Texas jury, on the basis of erroneous instructions from the judge, ordered an SEIU local union of janitorial workers to pay $5.3 million in damages to a cleaning company called Professional Janitorial Services (“PJS”). This union-destroying order was based on statements made years ago as part of the Houston Justice for Janitors campaign, a campaign that succeeded, against enormous odds, in winning contracts for building cleaners in a notably hostile jurisdiction.
The implications of the verdict are devastating. Local unions of low-wage employees cannot pay multi-million dollar jury verdicts and continue to function (as evidenced by the recent bankruptcy filing of the union defendant in the PJS case), If permitted to stand the Houston verdict will inevitably have a chilling effect on labor speech during organizing campaigns. And unions must be able to organize effectively’ during these trying times, if the labor movement is to survive.
Defamation verdicts in state courts like that against the Houston janitors call for a long-overdue reexamination of the Supreme Court’s unfortunate decision in Linn v. Plant Guard Workers, 383 US 53 (1966). The Court in Linn upheld by a five to four vote the exercise of state jurisdiction in a libel suit arising from a union organizing drive. Justice Clark, who wrote the majority opinion, insisted that such jurisdiction would not pose a threat to a union’s right of speech so long as state jurisdiction was “limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false.” Although he recognized the importance of a broad right of speech generally in labor disputes, Justice Clark concluded that where malice was found ‘the exercise of state jurisdiction … would be a ‘merely peripheral concern of the Labor Management Relations Act.’”
Four justices dissented. They pointed out that the Courts standard was vague and could easily be interpreted to cover actions intended to be protected by the National Labor Relations Act by simply pleading that the offending statements were made with malice. And they predicted accurately that the majority opinion ‘both underestimates the damage libel suits may inflict on the equilibrium, and overestimates the effectiveness of the restraint which will result from superimposed requirements of malice and special damages.’
The recent PJS verdict illustrates the wisdom of the dissenting justices and the danger to unions implicit in state court defamation suits arising from union organizing efforts. The statements (circulated in fliers and other campaign materials were directed at the legal rights of workers . They described allegations of actual PJS employees in a then-pending Fair Labor Standards Act case and in unfair labor practice proceedings before the National Labor Relations Board. The ultimate goal of the union’s statements and actions was not to inflict economic harm on PJS but to establish a collective bargaining relationship with it – a goal promoted by Section 2 of the NLRA. Far from being evidence of malice were the very sort of speech protected by the US Constitution and Section 7 of the NLRA. The trial judge failed to analyze the contested speech in terms of the language or policy of either the NLRA or the US Constitution and instead encouraged the jury to find defamation on the basis of irrelevant material. For example:
- The trial court allowed the company’s lawyers (over union objection) to rest the bulk of their case on two completely irrelevant and prejudicial pieces of evidence that should never have been admitted—an outdated SEIU “campaign manual” that was not in effect during the Houston campaign and that no one involved in the Houston campaign had ever seen, and an unrelated lawsuit by a different employer in a different jurisdiction alleging different claims against SEIU arising out of a different campaign that had not even begun as of 2006.
- The trial court presented the jury not the actual union flyers and statements at issue in the case but, instead, abbreviated and inaccurate summaries of those materials written by the court itself. Thus, an accurate union statements that “A new lawsuit filed on behalf of current and former employees of [PJS] charges that the company engaged in unlawful business practices and violated federal law” was reformulated in the judge’s question to the jury “Did the SEIU Local 5 disparage the business of PJS by publishing that PJS systematically failed to pay its employees for all hours worked?”
Similar errors abound. It is difficult to imagine a verdict that more blatantly overrides basic employee rights and traditional Constitutional policies. The wisdom of the dissenting Linn Justices was once more illustrated. It is time to either overrule the Linn decision or to provide for more careful regulation of state court defamation in cases arising from union organizing campaigns.
Fortunately, the union has indicated it will appeal and raise many of the issues identified above. One hopes that an appellate court will stand up for free speech and the long recognized and well-established rights of workers.
JOTWELL: Lahav on Coffee on entrepreneurial litigation
The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing John C. Coffee, Entrepreneurial Litigation: Its Rise, Fall, and Future (Harvard University Press). Very timely book and review, with aggregate litigation again in the crosshairs.
Deus et Machina - A Response to the Susskinds (Mostly) and Hadfield
My friend and dean Andy Perlman beat me to the punch with the Yogi Berra-ism about the difficulty of prediction, particularly when it’s about the future. I had the chance to dig into the two books under discussion here – The Future of the Professions, by Richard and Daniel Susskind, and Rules for a Flat World, by Gillian Hadfield. But the stars also aligned to have Richard speaking a few days ago in the Harvard Law School Center on the Legal Profession’s Speaker Series, down the street from my house. And it happens that I’m speaking on my book, Beyond Legal Reasoning: A Critique of Pure Lawyering, in the same series on April 4.
There is a connection to all of this, and it has to do with a certain kind of prediction, particularly one that involves any conversation about artificial intelligence, thinking, and consciousness. It is more sophisticated, I think, than arguing about God, but just as unresolvable. Here’s what I mean. My next-door neighbor in Cambridge, David Haig, is a leading evolutionary biology theorist. From time to time, we engage, usually accompanied by an adult beverage, in conversations about the so-called “hard question of consciousness” – i.e. whether there is a reductive scientific explanation of one’s unique sense of inner experience. It is a subject still out there at the edge of science and philosophy. Not only has it not been resolved, but it has engendered some gossip-column-worthy instances of philosophers behaving badly.
My friend David tends toward the side of the argument that there will be an explanation; I, on the other hand, have a hard time seeing how science gets around the built-in paradox. Both of our views hang on an unprovable belief about the future, and to a significant extent, it’s a trivial problem. When and if somebody comes up with the knock-down scientific (i.e. falsifiable) theory of inner experience, I will gladly tip my hat and acknowledge my prediction was wrong. Until then, it simply stays unresolved.
A few minutes before noon at Harvard, Richard was by himself waiting for the audience to show, so I introduced myself. I told him (with a fair amount of chutzpah, given that he’s Richard Susskind and I am, well, just me) I still couldn’t decide if what he was saying was profound, on one hand, or obvious and trivial, on the other. He took that with good humor. I think it is beyond question, as Richard would agree, that technology will indeed replace everything that it is capable of replacing. As a case in point, while Richard was speaking (I confess), I was multi-tasking, using my iPhone to review a residential real purchase agreement for my son and daughter-in-law’s move to Cincinnati, prepared by the broker situated there, posted on an app called Dotloops, reviewed by me off of a mobile device in Cambridge, and then signed digitally (via Dotloops) by my kids in New Haven and Bridgeport, respectively, after a series of text messages that confirmed I was okay with it.
I’m still inclined to the obvious end of the continuum, mainly because I think Richard and Daniel, while writing a fabulously interesting book, and delivering a well-deserved kick in the pants to all the troglodytes, have begged two hard questions.
The first one has to do with their focus on the production, distribution and sharing of expertise. No doubt technology will continue to affect that. What is less clear is how people will continue to judge expertise. There is the paradox, the conundrum. If you yourself are expert enough to judge the expert, then the distinction between expert and non-expert has disappeared. That can’t possibly happen. But we still have to make choices based on our assessment of what experts are telling us, even though we aren’t experts. If the expert says that taking the new chemotherapy can extend my life by six months, but at a horrific level of ancillary misery, technology can’t make that choice for me. And then there are competing experts. My job as a general counsel used to involve having to decide what to do when two experts in different fields (say, real estate and tax) predicted different outcomes, one positive and one negative, from the same action. I mean, in either case, technology could make the choice on the basis of some algorithm that somebody else wrote for purposes of that decision, but I have to decide if I want to abide by the algorithm. At least as long as I am a human being and not a robot.
I don’t see that the book confronts, much less resolves, that issue.
The second begged question has to do with the identification of what a client wants. Richard had a nice narrative about this in his talk (it also appears in Section 1.8 of the book). He showed a picture of a Black & Decker drill, and said that new executives are shown this and asked “what do we sell?” The answer isn’t a drill. Richard clicks to the next slide, which is a picture of a precisely-created small hole in a wall. The point is that B&D sells the means to a completed hole, not the specific tool to get there. Again, I don’t see in the book that the Susskinds have fully confronted, much less resolved, what the analog to the “hole” is when we are talking about lawyers. If the hole is document review, yes. That is “lawyer as tool” that will be replaced by technology. But if the “hole” is something else – assurance? sympathy? the courage to face an uncertain future? – then I’m not sure that mere knowledge is going to do the trick.
The entire subject is fascinating, but it is Deus et Machina, God and the Machine, in the broadest sense. Trust me when I say that I am a God-skeptic, but I am a Machine-skeptic as well. The Susskinds and Professor Hadfield do us a service by invoking the historical, sociological, and philosophical contexts in which we are making these predictions about the relationship of humans and their thinking machines. I flipped to the index in both books to see if any of the authors had cited the German sociologist Ferdinand Tönnies, who described the broad social movement in modernity from Gemeinschaft (community) to Gesellschaft (organization or society). Or the historian Thomas Haskell, who reflected similar themes in his history of the development of the modern professions in the late 1800s and early 1900s.
The point is that both books (and their authors) are working in the modern or Gesellschaft paradigm. Rules, in the sense of either algorithms (Susskinds) or regulation (Hadfield), are relatively modern, rational, cold, arms’-length, specialized, technological, professional devices. If there is a post-modern, it lies the counter-reaction to the technological, and that returns us to the question of choice or decision. Yes, an algorithm can decide, but it is because some independent agent has created it. Deus? Free will? Machina? Determinism? I really don’t think that we are going to resolve those questions now any more than we did five, fifty, or five hundred years ago.
The “hole” is deciding. The “hole” is choice. There may well be fewer “lawyer” jobs for those who help others decide or choose. But my prediction is that wisdom, as long as there is a choice to be made somewhere along the regress, won’t be replaced by an algorithm.
And thanks to Dan Rodriguez for letting me elbow my way into this discussion!
Legal Education in the 21st Century
I argued in an earlier post that Richard and Daniel Susskind’s predictions in The Future of the Professions: How Technology Will Transform the Work of Human Experts are likely to be pretty close to the mark. In that post, I left open the question of how law schools should respond to this emerging new reality. I argue below that we should adapt by updating the law school curriculum to ensure that our graduates are better prepared for professional success in the coming decades.
How many lawyers?
The Susskinds’ forecast raises one obvious preliminary question for legal educators that is unrelated to the curriculum: if automation is poised to displace a portion of the work currently performed by lawyers, how many students should law schools be admitting?
There is a robust debate elsewhere about the appropriate size of the lawyer pipeline, and I am not going to resolve it here. I will simply note that, if the Susskinds are right, we may need fewer lawyers per capita in the future than we needed (say) ten years ago. Of course, U.S. law schools are already on pace to graduate far fewer students than in the recent past – nearly 30% fewer students – because of both planned and forced enrollment reductions over the last few years. Whether further reductions will be necessary to ensure that law students have professional and financial outcomes equivalent to the past is still an open question.
Of course, the same could be said about nearly every other form of professional education. As the Susskinds’ book makes clear, many professions are seeing (and will continue to see) marked transformations in the coming decades. The point is that it is very difficult to predict with any precision what the size of the legal market will be in 10 or 20 years or determine whether the recent 30% decline in the new-lawyer pipeline is too much, too little, or just right.
What should law students learn?
What is clear is that tomorrow’s lawyers will need additional skills that law schools traditionally have not taught. This means that, in addition to asking how big the future market for new lawyers will be, we also need to ask a different question: for those who do enroll in law school, are they getting the education that they need?
My answer is yes and no. There are many features of the traditional law school curriculum that serve law students quite well in a rapidly changing world. Legal analysis, a close reading of texts, clear writing and thinking, and an ability to discern good arguments from bad are all valuable skills and will continue to be so. Law schools (particularly through experiential education) also help students to develop essential law practice skills in the areas of fact investigation, negotiation, oral and written advocacy, document drafting, and client counseling.
These skills are important and necessary, but they are no longer sufficient. If you think the Susskinds’ predictions are accurate, students should also be able to identify how technology and other innovative methods can be used to deliver legal services better, faster, and cheaper. Put simply, students will still need to “think like a lawyer,” but they will need to “think like 21st century lawyers.”
What does this mean specifically? The answer varies depending on the school, but at my own school (Suffolk), it means exposing students to concepts like legal project management and process improvement, legal design (accompanying story here), automated legal document assembly, expert system tools, electronic discovery, and other areas as well. We’re also teaching students how to innovate the operations of a law practice to make legal services more affordable for currently underserved clients, and we are giving students paid opportunities to learn about new delivery options.
We’re certainly not the only ones pushing the envelope. A growing number of law schools (and universities) have developed an expertise in this area and have emphasized a range of related skills, such as legal analytics. Here’s a partial list of such schools. (Please feel free to email me I have overlooked a relevant program.)
BYU LawX -- Legal Design Lab
Columbia Law School – Lawyering in the Digital Age Clinic
Duke University School of Law – Law Tech Lab
Georgetown University Law School – The Program in Legal Technologies
Hofstra University School of Law – Law, Logic, and Technology Research Laboratory
University of Miami School of Law – Law Without Walls
Michigan State University College of Law – Legal RnD
Northeastern University School of Law – NuLawLab
Northern Kentucky University Chase College of Law – Lunsford Academy for Law, Business, and Technology
Northwestern Pritzker School of Law – Technology, Innovation, and Entrepreneurship Concentration
University of Pittsburgh School of Law – Innovation Practice Institute
Vanderbilt University Law School – Program on Law & Innovation
Vermont Law School – Center for Legal Innovation
These innovations are paying off. Students are getting jobs that did not even exist a few years ago, such as in legal project management, knowledge engineering, and legal solutions architecting. For example, when my law school graduated its first group of students with some coursework in these new areas, employers specifically reached out to recruit them. (See, e.g., here.) Granted, this is hardly an empirical study (the sample size is still small), but the available evidence suggests that legal employers are increasingly looking for students who have learned the skills taught at the schools referenced above.
One objection to updating the curriculum in the way that I have outlined here is that law schools should not try to teach all of the knowledge and skills that students need for professional success. Legal education is premised on the idea that considerable learning takes place on the job, so one could argue that the new areas of study, even though important, should be learned later.
I agree that considerable learning needs to take place on the job, but we should want our students to have learned enough in law school so that, when they see a particular problem or issue in practice, they have a reference point for how to deal with it. They need to be able to “issue spot.” The new skills and knowledge described above are simply giving students the ability to engage in a new kind of issue spotting. That is, students should know these new concepts sufficiently well to identify when they can be deployed to deliver services more effectively and efficiently.
A more important reason to offer this kind of education in law school is that students will not necessarily develop the skills in practice. Although the industry is rapidly evolving, many law school graduates will join practices where few people have these new skills. Put another way, the knowledge that I have described is less likely to be learned on the job than traditional practice skills and doctrinal subjects, because the knowledge is so new and most lawyers are not expert in these areas. In this sense, junior lawyers will not be learning these new concepts on the job; rather, they may be educating their superiors.
The flipping of the traditional information flow has another benefit: it increases the relevance of junior lawyers. At a time when the value of a young associate is increasingly questioned, law schools have an opportunity to give their graduates a knowledge base and skillset that clients increasingly demand and that most legal employers lack. In short, teaching these new skills will position law schools and their graduates as leaders of a profession at the cusp of significant change.
A second possible objection to this new curriculum is that the skills will be quickly outdated. This argument, however, proves too much. In law school, we regularly teach students about doctrines that have changed or are likely to change. When we teach an area of law (say an older, but now discarded, doctrine), we do so to convey both a conceptual point and a way to think about an issue. In much the same way, teaching law practice technology and innovation is designed to help students think in new ways about legal services. The technology will change, but the mindset will serve graduates well throughout their careers by giving them the conceptual tools they need to improve how legal services are delivered and accessed. This will make them more competitive and better able to serve their clients and the public. It is hard to think of a better reason to update the law school curriculum than that.
[Updated the list of law schools on June 20, 2017.]
Monday, February 20, 2017
The Future of Law, Innovation and Disruptive Technologies
I want to thank Prawfs and Dan Rodriguez for organizing this symposium. I teach at the University of Florida. This includes both law school students and students in our College of Health and Human Performance (I always teach an overload for no additional compensation). Further, I teach a short course every year at Northwestern’s Master of Science in Law program – an innovative program which provides instruction in law, business and technology to non-lawyer professionals who desire some amount of legal astuteness in their careers. One day a week, I also serve as Senior Of Counsel at Wilson Sonsini Goodrich & Rosati, which helps to keep me up to date on legal practice innovations.
The current symposium is a way for us to think about the future of legal education – both for lawyers and non-lawyers. In many ways, both books (Richard Susskind & Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts and Gillian Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy) suggest that the legal professional is in need of change. While most schools make changes at the margins, perhaps we should push for more significant change given these thought provoking books.
Susskind and Susskind suggest that we may be at the end of professional services firms because of various changes to the economy, including increased automation due to technological progress. This is only partially correct. Law has become a highly differentiated product. The low margin work that is a commodity product can be taken over by non-lawyers due to technology or competition from non-lawyers. Indeed, data shows that the area in which jobs have not recovered has been among solo practitioners. Many of the solos and small firm practitioners essentially were the equivalent of the live tax preparer at H&R Block – they provided the type of services that people could figure out on their own. Increasingly, many people use online tax services (including online H&R Block) instead of live services. Replace online tax services with online legal services and you have an understanding of how commodity legal work is a fundamental problem for those law schools that produce commodity lawyers (typically Tier 3 and Tier 4 schools). For such students who go into solo or small firm practice, the future may not look particularly good as technological innovation threatens such jobs.
In contrast, there will remain a place in law for higher margin complex work that cannot be automated via the internet and for which there are significant barriers to entry for non-lawyers such as accounting firms. It is the higher margin work such as complex litigation and regulatory work as well as sophisticated transaction where the legal profession will continue to have comparative advantage. Think, for example, of highly leveraged teams of lawyers that work on front page Wall Street Journal type deals. Because of the complexity of such deals, there will be significant number of M&A, corporate governance, antitrust, and tax lawyers in multiple jurisdictions who are necessary for the future of the practice of law. This work cannot be replaced by Big 4 accounting firms nor other people trained in fields other than law but who do the day to day marketing and supply chain contracts or legal and regulatory compliance on a daily basis.
In some areas, there is growth in law (and legal services) and this goes against the idea that the profession of law is at risk. In fact, as laws themselves in the regulatory state get longer and more complex, this is creating new opportunities for both lawyers and non lawyers (such as accounting and consulting firms and non-legal regulatory specialists) to generate new types of work based on new regulatory requirements that did not exist a decade ago. Susskind and Susskind also do not address that sometimes it is technology itself that creates new demand for law such as regulatory and litigation work surrounding issues around big data or IP litigation and mass tort law regarding issues like driverless car technologies. Of course, the problem with law schools is that schools underserve the growing demand for compliance and technology related courses. Many law schools also lack requirements for basic financial literacy for their students, which would allow students to better apply such learning to how best to solve legal problems based on economic problems.
Susskind and Susskind predict that professions in general are in trouble. For many of the same reasons, I think that their story is incomplete. Let’s take the example of a different profession – live music. Recorded music had a much smaller share of total music revenue in 1900 than today. There were no radio broadcast and no TV shows or movies that had live music. Professional musicians within the arts had prestigious jobs. However, even today there is still demand for live music because the experience is different than that of recorded music. Indeed, major performing artists that in a pre-Napster era may have made most of their revenue from their music catalogues now make their money off of their live shows.
Hadfield’s book is more nuanced and analytical than the Susskind & Susskind book. It is worth reading cover to cover as Hadfield offers a sophisticated analysis of how the world is changing law and its organization. One significant contribution that she makes is to note that the legal infrastructure has been too centrally managed and does not respond to market forces. At one point, she asks, “Where are the garage guys in law?” Part of the reason for the lack of innovation is because of the rigidity and high entry barriers that our legal professional organizations have set up. Hadfield suggests therefore that the legal profession has opened itself up it attack from disruptive technology along the model of what Clay Christensen has written about in his books.
Hadfield’s solutions are sensible – open up and properly regulate legal markets to promote innovation. Solutions include shifting risk to organizations better able to take on risk than traditional lawyer owned law firms and allowing for a network arrangement akin to the Big 4. Many prohibitions such as practice restrictions, fee splitting, advertising, etc., she explains, create a narrower possible business model for law firms than other service firms. Ultimately, Hadfield identifies three areas in which legal organization should be transformed” licensing entities to be legal providers, licensing multiple legal professions, and right regulation. Hadfield’s work is thought provoking. What is more, she may be right.
Saturday, February 18, 2017
My response to Richard Primus: Public Opinion about courts might be pretty much what it has always been -- unstable and result-oriented.
Richard Primus' thoughtful guest post below worries about a recent survey showing that 25% of the respondents believe that "Donald Trump should be able to overturn decisions by judges that he disagrees with." According to Richard, this sort of survey result suggests that the American people's loyalty to liberal democratic institutions is fraying.
I worry a lot less about such poll results. Absent some longitudinal data showing a particular trajectory, one set of poll numbers does not tell me anything about whether the public is more or less attached to rule of law and separation of powers today than they were in the past. Since Samuel Stouffer's surveys on public attitudes towards non-conformity and civil liberties, public opinion surveys have shown that large percentages of Americans would not protect basic civil liberties essential for a liberal democracy. As Oxley's and Clawson's overview of the survey data shows, those numbers of the intolerant have steadily shrunk since 1954. Maybe 25% support for presidential resistance to courts is likewise an improvement from the past. Even if 25% is just a stable par for the course, stable attitudes do not seem to be a reason for new alarm. So far as I know (which is not very far: I am no expert and have not spent much time asking those who would know), NORC's General Social Survey and similar surveys do not contain questions about relatively complex institutional ideas like presidential resistance to judicial decrees. Maybe such surveys exist, and maybe they show a scary trend. If they do not, however, then Richard's survey might just tell us that a substantial minority of Americans continue to believe, as they might have always believed, that the political branches should be able to resist judicial decrees. (Back in 2012, a YouGov poll showed that "the average level of support for judicial review was a less-than-stellar 60.8," but I have not discovered -- in my twenty minutes of googling! -- survey data from further back in time on judicial review). If it is any comfort, Americans trust courts more than presidents and Congress and have increasingly done so between 1973 and 2006.
Absent data about public opinion tracked consistently over time, it is, in short, impossible to tell whether a survey represents some stable public opinion or just partisan annoyance that Trump's agenda is being foiled by courts. I suppose it might be upsetting to learn that Americans' loyalty to judicial institutions is shallow and partisan. Before we express disgust or alarm about lay opinion, however, we might ask ourselves whether our own academic attitudes towards courts change with the political tides. Back in the days of the Rehnquist Court, stock in "popular constitutionalism" among academics like Robert Post, Mark Tushnet, and Larry Kramer was riding high. I imagine, without knowing for sure, that this stock is trading at a new low in the wake of Trump's election. If so, the academics' change of heart is not a cause for rejoicing in the birth of a new love of the rule of law among the professoriate.
Richard Primus Guest Posts on Public Opinion and Presidential Disregard of Judicial Decrees
[The following is a guest post from Richard Primus, my friend and former colleague]
Last week, when Public Policy Polling released a survey showing that 51% of Trump voters think he should be able to overturn judicial decisions with which he disagrees, I expressed concern on Twitter. I’m not usually given to alarmism, but Trump’s repeated attacks on judges, combined with his general bullying style and his relative lack of regard for constitutional limits, make it necessary to think about scenarios in which he might try to rule as a presidential strongman, unchecked by judicial enforcement of the Constitution. To be sure, even in the present circumstances I think that the extraconstitutional-strongman scenario probably won’t materialize. But—and I never imagined saying this about the United States until sometime last year—I do now think the likelihood of that scenario is no lower than fifteen percent. A fifteen percent probability of something that disastrous seems high enough to be taken very seriously. Here’s a story, playing on a theme suggested by Jack Goldsmith, about how that scenario might come about: after the Administration negligently degrades American intelligence, a foreign terrorist group launches a major and successful attack within the United States, whereupon Trump blames the judges, insists that he will no longer let them stand in the way, and directs the armed forces and the Executive Branch generally to ignore judicial authority. Any such attempt would be significantly facilitated if large numbers of Americans were ready to cheer the President on. So the finding that half of Trump supporters already endorse the view seemed troubling.
My friend Rick Hills tweeted a response to my concern, saying that there was nothing to see here. There had been similar survey findings back in the 1950s, he said, and probably also since. But on closer scrutiny, this seems not quite to be the case (as Rick and I both concluded after joint investigation). There have been many polls showing that large numbers of Americans have little regard in practice for civil liberties—polls showing, for example, little tolerance for the free speech rights of Communists, or athiests, or anti-American Muslim clergy. But neither Rick nor I could locate a pre-2017 poll in which half of the people who voted for the sitting President (or anything remotely approaching such a large percentage of the population) addressed the structural check-and-balance question itself and said, as a general matter, that the President should be able to roll over the courts. So I persist in thinking that this phenomenon is new. And dangerous.
Given the expert audience for this post, I should address a couple of objections to my view that might occur to elite lawyers. Here’s one: some will contend that it’s not alarming for people to say that the President should be able to overturn judicial decisions, because in fact our legal system already authorizes the President to do that, or to do the practical equivalent of that, in certain circumstances. Think of the Chevron context. If a court reads a statute whose mandate is to be implemented by an executive agency one way, and the President thinks it should be read another way, and the agency (under the President’s influence) announces an interpretation of the statute that conforms to the President’s desired reading, the courts will probably defer to the agency’s reading, at which point the President will have successfully overcome the court’s initial reading of the statute. But this and similar examples of presidential countermoves to adverse judicial rulings are not really helpful in thinking about the meaning of last week’s poll. For one thing, the Chevron dance is a process well within our system’s ordinary legal rules. It has been sanctioned, and is policed, by the courts themselves. No less importantly, I’ll eat my syllabus if one out of a hundred poll respondents was thinking about Chevron or anything like it. What the survey means is that half of Trump voters think the President should be able to disregard full-on constitutional rulings like the one Judge Robart issued days before the poll was conducted.
Another possible attempt to deflect the significance of the poll runs like this: maybe the poll simply means that many Trump supporters agree with some form of departmentalism in constitutional interpretation, and departmentalism has much to be said for it. It’s certainly true that departmentalist ideas kick around constitutional discourse, especially among professors. In my own introductory con law course, I expose my students to departmentalism and ask them to think about its virtues and vices. But whatever appeal departmentalism has in the academy, modern American law has nothing like a practice of Presidents actually saying “A court said this was unconstitutional, but I disagree, so I’m going to do it anyway.”
There’s a stock set of examples that people give of prominent presidents—FDR, Lincoln, and Jackson—saying departmentalist things. But it adds up to relatively little, both as a historical matter and even more clearly as measured by its significance for constitutional law today. FDR is reported to have said in private that he wouldn’t hand over German saboteurs even if Ex parte Quirin went against him. But he didn’t say it publicly, and he never actually disregarded a judicial order. Jackson’s famous (if perhaps apocryphal) remark about what John Marshall could enforce after Worcester v. Georgia is also not on point. Yes, Jackson declined to enforce a judicial order running against a state government, and yes, his statement indicated a certain contempt for judicial authority. But Jackson did not actually flout a judicial order: the Worcester Court did not ask Jackson to enforce anything, so his not enforcing the decision was not a refusal to abide by a judicial mandate. Moreover, even if Jackson had somehow acted in contravention of judicial authority by not enforcing Marshall’s ruling, there would still be an important distinction between declining to enforce an order against a third party and the Executive Branch itself persisting in a course of conduct that the courts deemed unconstitutional. And the other standard example of Jacksonian departmentalism—the Bank veto—is even further off the mark. Yes, Jackson deemed the Bank unconstitutional even though the Court in McCulloch had declared it constitutionally permissible. But a governmental decisionmaker is always free to decline to do something that the courts say would be all right to do. In vetoing the Bank, Jackson was not refusing to cease doing something that the Court had declared constitutionally prohibited. He was doing something more like what Congress has done, every day in the last three decades, by not imposing a military draft. The action at issue is constitutionally permitted, and a political branch decides not to do it. Nothing to see here.
That leaves Lincoln, and in particular it leaves the 1861 cases of Ex parte Merryman and United States v. Porter. In Merryman, Chief Justice Taney (by himself, riding circuit) ordered the commandant of the fort where John Merryman was being detained on treason charges to comply with a writ of habeas corpus directing that Merryman be brought to court for a hearing on the validity of his detention. (In the department of things one cannot make up: the court clerk who issued the habeas writ was a Mr. Spicer.) The relevant military officials, who were answerable to Lincoln (and who may or may not have been acting on Lincoln’s instructions), did refuse to obey a judicial command. Porter similarly involved a refusal to comply with a habeas writ, and it seems more clear in that case that Lincoln himself ordered his officers to refuse to acknowledge the writ’s authority. So I suppose it did happen once or twice, more than a hundred and fifty years ago. But we should be cautious about overestimating the degree to which a President flouted judicial authority even in these cases. For example, and to the extent it matters, both orders were from lower courts. Perhaps more significantly, Taney’s substantive beef with Lincoln in Merryman was over whether the President had the power to suspend habeas corpus unilaterally or whether that power lay with Congress—and when Congress came into session six weeks after Merryman was decided, Lincoln asked Congress to suspend the writ, and it did. And then there’s also the small matter that we’re talking about whether Abraham Lincoln, in the first weeks of active fighting during the Civil War, was going to be punctilious about an order from the man who wrote Dred Scott. So if these cases are the best historical precedents for strong Presidential departmentalism, the case for such a practice remains pretty thin.
But now pull the lens out a bit. There’s a larger point to be made about the recitation of the canonical list of historical hints at the strong form of Presidential departmentalism—the one where the President asserts the authority to do something the judiciary has ruled invalid. It’s this: the actual institutional arrangements of American government in the late 20th and early 21st centuries are rather different from the arrangements of the 1830s, or the 1860s, or even the 1940s. After World War II, the federal courts assumed a more important role in checking the Executive than the one they played early in American history, partly in response to the Executive Branch’s becoming vastly more powerful than it had even been before. So even if legendary Presidents engaged in a certain practice long ago under substantially different circumstances—and to repeat, they pretty much didn’t—it would not follow that President Trump could do so today without threatening the going system of constitutional checks and balances.
In the end, I am comforted neither by the possibility that the voters who said Trump should be able to override judicial decisions might have been thinking of Chevron nor by the idea that Stephen Miller is really just a twenty-first century retread of Abraham Lincoln. Trump is not like prior Presidents, and the current moment is different from earlier times. Trump in office is dangerous; Trump in office backed by large numbers of Americans who think Trump should be able to override the system of checks and balances is more dangerous still. If we imagine that the situation actually presents no greater danger than we’ve seen many times before, we do so at our peril.
What is missing from Hadfield’s Rules for a Flat World and the Susskinds’ The Future of the Professions?
I’m grateful to appear here for the first time, thanks to the kind invitation of Dan Rodriguez to join the Law’s New Frontiers Symposium covering recent books from Richard and Daniel Susskind (The Future of the Professions: How Technology Will Transform the Work of Human Experts) and Gillian Hadfield (Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy).
You’ve already heard from Phil Weiser and Andy Perlman about how these books help us better understand the future for legal services and legal education. Initially, I intended a similar contribution, in part because my own work explores how the legal profession and legal education should respond to the influences of technology, economic constraints, and an increasingly connected world. I’ve written about democratizing the delivery of legal services and democratizing legal education with the goal of expanding access to justice. I’ve taught courses on entrepreneurial lawyering and 21st century law practice. I’ve served as the Reporter for the American Bar Association Presidential Commission on the Future of Legal Services. And lately, I’ve been thinking about the commercialization of legal ethics and a legal ethics agenda for big data.
I want to focus on a different topic, though, one largely ignored by the authors—the question of who will comprise the legal profession in the future. Neither book confronts the enduring lack of women and minorities among positions of leadership and power in the profession, even with improved numbers entering law schools over the past few decades. This surprised me given that both books aim to aid society in navigating law’s new frontiers. I will say more about this below, but first I want to offer a quick summary of both books for readers who have not yet had an opportunity to delve into them.
A Brief Overview of the Books
Followers of Richard Susskind will find his latest book familiar where, along with his son, he applies thinking behind earlier work such as The End of Lawyers? to other professions, including health, education, divinity, journalism, management consulting, tax/audit, and architecture. The bottom line? We lawyers are not alone in facing implications of technology advancement. In a chapter titled “After the Professions,” they predict eventually “high-performing, non-thinking machines will outperform the best human experts, and do so in quite unhuman ways.” The Susskinds then ask: “Given this, for which task that the professions currently perform, if any, will human beings be needed in the very long term?” Will “future systems be able to undertake all tasks to a standard higher than the best human experts?” Are there “any tasks that we feel should always be undertaken by human beings, even if they could be carried out to a higher standard by autonomous machines?” Should machine-driven professional expertise “be held in common for many or controlled by a few, … made available at little cost or at greater expense, … liberated or enclosed?” They conclude by turning to John Rawls’ A Theory of Justice: “We ask our readers, especially professionals, to place themselves behind a veil of ignorance and ponder how we should share practical expertise in a technology-based Internet society.”
Those who know Hadfield’s work like Equipping the Garage Guys in Law or The Price of Law similarly will be familiar with the premise of Rules for a Flat World and its conclusion. The book offers a blueprint for a more efficient, inclusive, and accessible legal system, mixing personal anecdotes with historical accounts to illustrate the role of rules in life.At one moment, the reader is in the Hadfield family log cabin playing cards: “Can you count a four-card straight in Cribbage? What cards do you play when there are five people in a game of Hearts?” At another moment, the reader is running down the streets of San Francisco with Samuel Brannan in 1848, “waving a bottle of gold dust in the air and yelling, ‘Gold! Gold! Gold from the American River!’” Later, she invites the reader to the United Arab Emirates, venturing into the Dubai International Financial Centre, home to a small-claims court “with much greater ability to deliver accessible resolution of mundane disputes than any other American court.” She critiques the existing legal infrastructure system as “abysmal,” especially for “small businesses, ordinary people,” and “the four billion people living outside of workable legal frameworks around the globe and trying to make sure their land is not stolen, their business allowed to operate, and their savings safe.” For Hadfield, a solution lies in free markets. She advocates for external investment in law practices to fuel “game-changing innovation to develop the new models no one has even thought of yet.” She proposes “right regulation”—the idea is to create “intelligent regulations that ensure the markets for legal goods and services are functional and competitive.” And she calls for putting innovation of legal infrastructure “front and center” on the global agenda. Perhaps the likely soon-to-be Justice Gorsuch will at least do so on the national level. (He argues for new forms of legal services providers, outside investment and ownership for law practices, and other innovations to expand access to justice in a recent Judicature essay here.)
What’s Missing? Who is Missing?
Both books are visionary in nature, setting the stage for a new era of legal services, yet neither considers in any comprehensive way an important aspect about who will lead the new frontiers they envision. The legal profession remains disproportionately white and male, especially in positions of leadership and power. This is true despite relative parity among genders and increased representation of minorities entering law school. (For more about this in the context of nominees to the U.S. Supreme Court, see my articles with Professor Hannah Brenner here and here.)
Why do these authors avoid the ‘who’ question in examining the future of the professions and the role of law in the 21st century? Who will be a professional in the future (or who will build and program the professional machines, if the Susskinds are right in their predictions)? Who will devise and implement the rules for a flat world? To be fair, Hadfield does touch upon the role of women and minorities in legal systems over time, offering examples of historic constraints (such as the “desire to protect the profession from what many of the [American Bar Association] founders perceived to be the ‘stain’ of immigrants, Jews, blacks, and women”) and of future possibilities (such as the work of Senegalese entrepreneur Magatte Wade who “relied on her local connections and standing [as a woman] to build a system that was able to enforce the terms of the deal she needed” with the local women suppliers ). But Hadfield’s call for increased diversity focuses primarily on other professions and businesses rather than increased representation of women and minorities to build her legal infrastructure for the flat world.
Hadfield and the Susskinds are right to identify technology, complexity, and lack of innovation as threats to the professions and legal services as we know them. An equally significant threat is whether the public views professionals, especially the legal profession, as credible and legitimate. As we contemplate law’s new frontiers, part of how we instill credibility and legitimacy is by ensuring that the legal profession reflects the public it serves. This requires increased pipelines for women and minorities not only to enter the profession, but also to attain and thrive in positions of leadership and power.
Friday, February 17, 2017
Why Is It So Hard For the (Federal) Courts To Innovate?
Earlier this week, the House Judiciary Committee held a hearing which touched on a wide range of court transparency issues. Of particular interest to me was the testimony of Mickey Osterriecher, the general counsel of the National Press Photographers Association, who renewed the push for broadcast access to federal court proceedings. He noted that the recent live audio stream of the Ninth Circuit’s telephonic hearing on President Trump’s travel ban garnered more than a 137,000 connections on YouTube, with millions more tuning on cable TV news.
Given that the other branches of the federal government have long broadcast many of their proceedings (CSPAN has been on the air for nearly 40 years), and that courtrooms are traditionally open to the public anyway, there is no obvious reason reason why the federal court system would not provide video and audio access to their proceedings on a much more regular basis. Yet the Judicial Conference of the United States and the Supreme Court have repeatedly blocked efforts to do just that. Indeed, two years ago the Judicial Conference let lapse a nationwide pilot program that allowed volunteer district courts to record selected civil proceedings and make those recordings available to the public. (Only three district courts in the Ninth Circuit have been permitted to continue the project.) That pilot, whose success I documented here, and carried significant benefits for the legal profession and the public.
So why did the Judicial Conference end it?
The U.S. Courts website offers little guidance, only noting dryly that the "Committee on Court Administration and Case Management ... agreed not to recommend any changes" to the general policy of prohibiting cameras. The real reason for ending the cameras program--left unstated by the Judicial Conference--is that the introduction of cameras on a regular basis is seen as too risky. To understand why, it is helpful once again to think about the federal court system as a large organization.
Courtroom broadcasts would be an innovation, and organizations do not naturally innovate. Innovation is disruptive and places the organization's resources at risk. Therefore, innovation is typically justified only if: (1) the change will distinguish the organization from its competitors in the field (thereby allowing it to attract more resources), or (2) the change will conform the organization’s practices to those in the field (thereby allowing it to look more legitimate). The distinction incentive is more prominent in the private sector, where introducing a new product or new marketing campaign could garner new customers or new investors. The conformity (or isomorphism) incentive is more prominent in the nonprofit and public sector, where legitimacy is often tied to looking and acting like other respected organizations in the field.
The distinctiveness incentive is not very strong here. Broadcasting courtroom proceedings does not distinguish the federal courts from other court systems (where cameras are already allowed), and likely does not distinguish them positively from arbitrators or other private ADR providers.
The incentive to conform might seem more promising because it is so closely tied to an organization's legitimacy. As I noted in a previous post, legitimacy is perhaps the single most important resource to the federal courts. If the courts are not perceived as legitimate, they risk losing other key resources: funding, jurisdiction, a steady flow of disputes needing resolution, and goodwill. We might expect, therefore, that isomorphic pressures might push the federal courts toward conformity with other branches of the federal government, and many state courts, by allowing cameras to broadcast hearings in a regular basis. If isomorphic pressures are powerful enough, the courts would gain legitimacy from permitting cameras in the courtroom, and would lose legitimacy by resisting them.
Isomorphic pressures come in three forms. Coercive pressures come from the state, usually in the form of legislation or regulation. (A federal law requiring broadcasts of court proceedings would be an example.) Mimetic pressures are pressures to copy peer organizations, on the theory that a behavior signals legitimacy just because everyone else is doing it. Normative pressures derive from the culture and expectations of the professions associated with the organization. (For example, in making policy the federal courts often consult with the ABA, the American College of Trial Lawyers, and similar prominent bar groups.)
Here, however, the isomorphic pressures are not sufficiently powerful to induce change--at least, not yet. The coercive pressures on the courts are moderate at best: Congress has introduced a Sunshine in the Courts Act in almost every recent session, but they have never picked up serious steam. The mimetic pressures are also weak: state courts may use (and benefit from) cameras, but at least in this field the federal courts do not seem to view the state courts as peers worthy of imitation. And the normative pressures are too scattered: the arguments touting the benefits of broadcast proceedings come not from the organized bar, but rather from the media, politicians, and academics. It’s not accurate to say that courts find these views meaningless, but it is certainly safe to say that they do not find them powerful enough to move from a stable level of public legitimacy.
Conditions and external pressures can change. I hope that the federal courts will eventually come to recognize that the benefits of the cameras program outweigh the risks, and will adopt a full program on their own. In the meantime, friends of the court might want to rally the normative forces that counsel for such a change.
The Ringer's Bryan Curtis has a great piece describing the evolution of sportswriting into a liberal profession and sportswriters into a group of liberal professionals. I have thought about this in connection with athlete speech and political activism. If you go back to what many regard as the heyday of athlete activism, especially black athlete activism (the mid-'60s through early '70s, with Ali, Flood, Brown, Carlos, Smith, etc.), the opinions of sportswriters ran overwhelmingly and angrily against the athletes. Perhaps to a greater degree than Curtis describes in the piece. Worth a read
Thursday, February 16, 2017
Acosta nominated as Secretary of Labor
Alexander Acosta, my dean at FIU College of Law since 2009, has been nominated (and will almost certainly be confirmed, possibly overwhelmingly) as Secretary of Labor. When we hired Alex, I predicted out loud that we would have him until a Republican was next in the White House. Turns out, I was right. I predicted/hoped that it would be 2021 rather than 2017. And I predicted/expected we would lose him to DOJ as Attorney General or to the federal bench; Labor never crossed my mind, despite his time at the NLRB.
Alex had what I believe should be regarded as a very successful deanship. The quality and success of our students has improved dramatically; we are ranked in the mid-50s on US News (yeah, I know) for student quality and job placement and we have topped Florida in bar passage the past three cycles. (Scholarly reputation is nearly immovable, although he supported programs to help on that front). He managed us through the financial and application drop--our applications have been up or down less than national averages most years. The only thing I predicted back in 2009 that he might do, but has not, was find a naming-rights donor. But those do not grow on trees.
I was skeptical of hiring a non-academic dean at the beginning. It turned out we were on the leading edge of a trend that numerous similar schools followed. He brought a unique skill set (notably the ability to recruit and support students) that is not easy to find or replicate and it did wonders for the school.
He will be missed, but I wish him all the best.
Whittington on Trump and the courts
This Balkinization piece by Keith Whittington. I have been trying to figure out why Trump's comments about the judiciary have rankled, especially given my (newfound) adherence to departmentalism. Keith's answer is that they are content-free and rest on a rejection of judicial authority (and an attempt to scapegoat judges for whatever might happen in the future), rather than a substantive critique of why the judiciary, while authorized, was wrong.
Wednesday, February 15, 2017
The Immigration Ban and the Establishment Clause
On Monday, the Hon. Leonie Brinkema of the Federal District Court for Eastern Virginia became the first judge to undertake more than a cursory analysis of the Establishment Clause questions surrounding President Trump’s travel ban. Rather than constrain herself to the four corners of the EO—as the Government urged—Brinkema rested her conclusion on “the highly particular ‘sequence of events’ leading to this EO and the dearth of evidence indicating a national security purpose.”
To justify this approach, she looked to McCreary v. UCLA, in which the Supreme Court self-consciously looked to the particular purpose and history of Ten Commandments displays in courthouses and public schools:
'[T]he world is not made brand new every morning.’ … Limiting the temporal scope of the inquiry ‘bucks common sense: reasonable observers have reasonable memories, and Supreme Court precedents sensibly forbid an observer to turn a blind eye to the context in which the policy arose.
With this in mind, Brinkema did a full inventory of the President’s campaign rhetoric, and concluded that the sequence of events leading up to the travel ban made it likely that the plaintiffs would succeed on the merits of their Establishment Clause challenge.
There is, of course, a threshold question here—which has undoubtedly given other courts pause in addressing the Establishment issue in detail: Does the First Amendment even constrain Congress and the President as they make immigration decisions? Brinkema says yes, pointing to language in Zadyvas v. Davis to the effect that “even in the context of immigration law, congressional and executive power ‘is subject to important constitutional limitations.’” Thus, she goes on, “[m]aximum power does not mean absolute power. Every presidential action must still comply with … the constraints of the Constitution, including the Bill of Rights.”
I would just say, as an initial matter, that I’m not quite as optimistic as Judge Brinkema regarding either of these conclusions.
On the threshold question, Zadyvas created only a narrow procedural qualification on plenary power, such that the “ the government “must choose 'a constitutionally permissive means of implementing” that power. That is, it must ensure that proper procedural safeguards exist during the deportation process. That, I’m afraid, is a long way from concluding that the Bill of Rights constrains the government’s authority to establish substantive immigration policy.
And I have doubts about her Establishment Clause analysis, too. First of all, I’m not entirely sure that the so-called Endorsement Test—which governed McCreary is still the law of the land. We might need to do a head count in Town of Greece v. Galloway, and then prognosticate Justice Gorsuch’s leanings before we reach that conclusion. Second, even assuming Endorsement, this is not at all like the Ten Commandments on a courthouse wall, where one has to squint hard to find a conceivable secular purpose. Here, despite Brinkema’s dismissal of the government’s evidence, there is at least a quite substantial national security interest in play. With this in mind, I think it hard to say that Trump’s “primary purpose” in the EO was to disadvantage a particular religion.
But leave all of that aside for a moment. What puzzles me about this (and earlier) orders is the complete lack of attention given to Sec. 5(e) of the EO, which expressly grants:
[T]he Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest -- including when the person is a religious minority in his country of nationality facing religious persecution.
To me, the Establishment Clause is therefore as simple as this: Does the EO establish that person’s religion is a factor used to determine their legal status or rights? I think that a stated national interest in or preference for any religion when making “case-by-case” immigration decisions means that religious identity matters for purposes of the EO, and thus for folks individual rights. If I’m right, I suggest the order fails even the most deferential formulations of Establishment doctrine.
Now, or course, all the problems around the threshold inquiry into plenary power remain--and this may explain the lack of attention given to this language. After all, it applies to refugees, not even the visa holders that Brinkema addressed in her order. But if the First Amendment does constrain this order, I think this is where it should do its work.
Tuesday, February 14, 2017
Could Jeff Sessions Stifle State Marijuana Reforms?
Proponents of state marijuana reforms are concerned about Jeff Sessions’ confirmation as Attorney General. Sessions has spoken critically of those state reforms. For example, in April of 2016, he was quoted as saying that “We need grown-ups in Washington to say that marijuana is not the kind of thing that ought to be legalized . . . ., that it's in fact a very real danger.” The chief fear among reform proponents is that Sessions will renew enforcement of the federal marijuana ban in reform states, for example, by initiating federal prosecutions of state licensed marijuana suppliers. Federal laws criminalizing the behavior of these suppliers remain on the books, even if the DOJ refrained from enforcing them vigorously under the Obama Administration. (He might also challenge state reforms as preempted, but as I've argued elsewhere, I think a challenge to most reforms would clearly fail.)
However, I want to suggest that the risk Sessions poses to state marijuana reforms is quite limited, for at least three reasons.First, since 2014, Congress has barred the DOJ from using appropriated funds “to prevent . . . States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The quoted language has been inserted in riders to omnibus spending bills for the last couple of budget cycles. Although the rider language is not terribly clear, the Ninth Circuit has interpreted it as barring the DOJ from prosecuting anyone for actions that comport with state medical marijuana laws. This means that, at least until the current rider expires later this year, the DOJ probably couldn’t initiate legal action against state licensed medical marijuana suppliers. Even recreational marijuana suppliers might be off limits under the Ninth Circuit ruling if they also serve the medical market (as they do in several states) -- though that's an untested proposition.
Second, even if AG Sessions demands a crackdown on marijuana, it’s not clear that the 93 United States Attorneys – i.e., the ones who can actually bring prosecutions – will necessarily oblige him. For the time being, many of those USAs are holdovers from the Obama Administration, and they might not share Sessions’ antipathy toward marijuana. But even after Trump has a chance to replace them, there is no guarantee that his USAs would necessarily heed Sessions’ demands regarding marijuana enforcement. USAs have a degree of independence from the AG and central DOJ. And if asked to do something that is locally unpopular – like crack down on the marijuana industry in a legalization state – some USAs might balk, either because they believe it's the right thing to do or because they aspire to local political office and fear alienating large local constituencies who support state reforms.
Third, the DOJ has very limited resources. The DEA, the unit within the DOJ that has primary responsibility for enforcing federal drug laws, has only about 5,500 agents total – and they’re responsible for policing all drugs (licit and illicit), worldwide. As I have written elsewhere, even before the Obama Administration first adopted a deferential enforcement policy toward marijuana in 2009, the DOJ couldn't take on all of the marijuana cases that had previously been handled by reform states. The task facing the DOJ has not gotten any easier in the intervening years. There are now 44 states (including DC) that have legalized some form of marijuana, including 29 that have full-fledged medical marijuana laws (and 9 of those have recreational marijuana laws). That’s an awful lot of ground for the DOJ to cover with only limited resources, especially when the agency is also attempting to crack down on various other offenses (immigration, etc.). To be sure, the DOJ could (eventually) make life difficult for some marijuana suppliers. But I think the number of prosecutions (and other legal actions) the agency could undertake would be too small to make much of a dent in the state legalized marijuana market (even given harsh sanctions).
Ultimately, AG Sessions might be able to forestall reforms at the federal level –– assuming he has some clout in Congress. For example, he might be able to block or at least delay passage of federal legislation that would enable banking with the marijuana industry. However, I don’t think Sessions will be able to stifle state marijuana reforms.
Hadfield’s Institutional Innovation Agenda and the Administrative State
In Rules for a Flat World, Gillian Hadfield takes an ambitious looks at the rise of and the role of the rule of law. Motivating her argument is the observation, now accepted as received wisdom in the technology world, that we are moving from a world of hierarchies to one of networks. For Hadfield, Boeing’s experience with the 787 Dreamliner provides a case in point: “What Boeing needed from its contracts,” she explains on p. 136, was a means of supporting “a more networked approach to innovation and production.” As she explains, it was not a smooth transition.
The transition from hierarchies to networks continues to challenge how institutions built in the 20th century adapt to a 21st century economy. In commenting on Hadfield’s argument, I will focus on this challenge as it applies to the modern administrative state, as my most recent project focuses squarely on the need for entrepreneurial administration. In that context, it is not Boeing’s Dreamliner contract, but the building of the healthcare.gov website that is a notable case in point. The original website, created using the traditional government procurement model of “waterfall” development, was a disaster. By contrast, version 2.0, built using agile and lean-startup techniques, was a notable success. This success paved the way for the United States Digital Service, which develops professionals who can “hack the technology, as well as people who can hack the bureaucracy.”
Hadfield’s call for institutional innovation and a commitment to developing new models for regulatory oversight is essential in a world where regulatory regimes governing everything from food safety to energy efficient buildings must take account of globalization and technological change. Unfortunately, as Hadfield notes, there are powerful forces that hem in entrepreneurially minded public servants who face incentives “to avoid scandal” rather than experiment with new approaches. Stated differently, the ethos of “fail fast,” which is a core lesson in the technology world, is not tolerated in government. For leaders of agencies in a twenty-first century economy, failure must not be viewed as a scandal—at least if born through competent experimentation. Rather, failure provides data on what does not work and enables institutional designers to iterate and create a better system.
Hadfield sees great institutional promise in private regulatory systems overseen by governmental agencies. I share her interest in such systems and have written about how some of them do or could operate in the telecommunications arena, aiding resolution of network neutrality disputes, spectrum matters, and Internet governance more generally. In encouraging the use of such systems, I must underscore a point she adds about their promise: “private regulators have to fear losing their approval status” for any such system to operate effectively. This means that the governmental agencies who certify such bodies must remain vigilant and able to monitor private bodies operating under their oversight.
For Hadfield’s vision of institutional innovation to be realized, we need entrepreneurial leaders like former Civil Aeronautics Board Chair Fred Kahn to drive experimentation in the development and administration of regulatory regimes. For leaders open to such approaches, there are a range of models, including private regulatory authorities, that can provide more adaptable and effective regulatory regimes. And contrary to the impression left by much of modern administrative law scholarship, the practice of governmental administration is not defined by notice-and-comment rulemaking, let alone by public sector actors. Consequently, in line with Hadfield’s encouragement, regulators would be well served by a scholarly discourse informed by studies of regulatory regimes in practice, creative designs for how regulatory solutions can be developed, and suggestions on how to develop entrepreneurial leaders who can oversee such institutions.
Monday, February 13, 2017
CFP: 2d Annual Ad Law New Scholarship Roundtable
The Ohio State University Moritz College of Law is pleased to host the Second Annual Administrative Law New Scholarship Roundtable on June 27-28, 2017, in Columbus, Ohio.
The Roundtable is the creation of four schools—Michigan State University, University of Michigan, Ohio State University, and University of Wisconsin—each of which has committed to hosting the Roundtable during one of the first four years of the Roundtable.
The Roundtable will bring together a mix of emerging and established scholars to present new work on Administrative Law. Participants will present their papers in small panel sessions designed to foster rich discussions with experts in the field and contribute to a vibrant Administrative Law community. Each panel will be led by a distinguished scholar who will facilitate the discussion. Confirmed commentators currently include Emily Hammond (George Washington), Lisa Heinzerling (Georgetown), Jon Michaels (UCLA), Nick Parrillo (Yale), Peter Shane (Ohio State), Cathy Sharkey (NYU), and Glen Staszewski (Michigan State). In addition to the paper panels, a lunch program will address current issues in Administrative Law and institutional resources for empirical research projects.
Scholars wishing to participate in the Roundtable and present a paper must submit a one-to-two-page abstract by Friday, March 17, 2017. Applicants should include their title, institutional affiliation, and number of years teaching in the academy. Preference will be given to those who have been teaching nine years or less in a tenure-track position. Abstracts should be sent to Chris Walker at [email protected]. You may also contact Chris Walker or Peter Shane with any questions you may have about the Roundtable.
The Roundtable will provide meals for all participants. Participants must cover their own travel and lodging costs. We will reserve a block of reasonably priced rooms at a local hotel in advance of the Roundtable.
Administrative Law New Scholarship Roundtable Host Committee
- Nicholas Bagley, University of Michigan
- Michael Sant’Ambrogio, Michigan State University
- Miriam Seifter, University of Wisconsin
- Peter Shane, The Ohio State University
- Glen Staszewski, Michigan State University
- Christopher Walker, The Ohio State University
Friday, February 10, 2017
Do immigrants benefit from lack of due process? The pro-immigrant case for anti-immigrant procedures
Is the lack of procedural due process a bad thing for immigrants? Not necessarily: The more back-end process we afford to immigrants, the more reluctant Congress may become to authorize front-end admission. If it becomes too difficult to deport, or to deny re-entry to, a particular type of visa holder, then Congress may simply issue far fewer visas, leaving immigrants worse off. As Adam Cox and Eric Posner have argued, the American immigration system can be understood as essentially probationary: Congress lets a relatively large number of people into the United States on the theory that the President enjoys enormous discretion to kick them out or deny re-entry at the back-end. By a kind of political hydraulic pressure, the courts' imposing elaborate procedures at the back-end could induce Congress to increase enforcement resources ("build the Wall") or cut back on categories of visas, making more process an uncertain boon. In a thoughtful comment to one of my earlier posts, Chris Enloe, a former foreign service officer, made this case for expedited decisions: "...there is no way embassies and consulates are staffed for [elaborate hearings on visas]. And [such process] would result long term in [our] issuing many fewer visas in the first place....".
Enloe's point about ex ante effects is one reason why I remain agnostic about the value of judicially imposing a lot of procedures, let alone substantive limits, to protect immigrants from executive action. Fortunately, I do not believe that this worry about ex ante effects has much application to the Ninth Circuit's decision in Washington v. Trump. My reasons also go a ways toward answering some objections raised by Jonathan Adler and others to my earlier posts.
1. How a non-delegation canon and procedural due process limit the President's power under 8 U.S.C. Section 1182(f)
Although the Ninth Circuit's opinion rested mostly on procedural due process rights of aliens, its argument was difficult to follow because, despite DOJ's citation and discussion of Bimetallic on page 9 of their Reply brief, the Ninth Circuit ignored Bi-Metallic v Bd of Equalization and never explained how any individual could have a due process interest in participating in a legislative decision. Obviously, individual visa holders do not have some sort of procedural right to visit the White House and consult with President Trump before he issued his EO. As Jonathan Adler noted in response to my earlier post, the President is not an "agency" under APA section 551(1), and Bi-Metallic eliminates any constitutional right to participate in the making of such a legislative decision.
Moreover, if the process by which the EO itself was issued is constitutionally valid insofar as procedural due process is concerned, then individual aliens cannot complain that they are denied an individual hearing before CBP officers at the ports of entry. Jonathan is plainly correct that, under Heckler v Campbell, agencies need not provide hearings to re-litigate causal connections already determined by a prior legislative decision. Trump's EO states that, in order to prevent domestic violence, honor killings, and terrorist attacks, it is barring aliens from seven named nations from entering the United States. If President Trump was indeed authorized to draw such a causal connection by 8 U.S.C. Section 1182(f), then individuals cannot re-litigate the connection before an individual CBP officer at a port of entry. The only fact relevant to the application of Trump's EO is the alien's nationality, a fact that can be readily determined by the officer's inspection of documents.
So how can a general legislative rule like an EO deprive anyone of procedural due process? The argument that might sustain the Ninth Circuit's conclusion rests on the Non-Delegation Doctrine -- or rather the canon of statutory interpretation that bears its name. Under decisions such as Kent v. Dulles and the Benzene Case, broad congressional delegations to executive officers should be construed narrowly not to authorize those officers to impose extraordinary and possibly unconstitutional burdens. 8 U.S.C. Section 1182(f) on its face gives the President sweeping power to suspend the entry of aliens into the United States "[w]henever [he] 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." If read literally, this power allows the President to sweep away visa holders'entry rights, protected by a dense network of complex statutory and regulatory procedures, at the stroke of a pen. If those aliens have a liberty interest in such statutory rights, then any congressional delegation allowing the President to toss aside such interests should, under Kent and Benzene, be narrowly construed. The President's EO, irrebuttably presumes that all aliens from a few countries are sufficiently prone to committing domestic abuse, terrorism, or honor killings that all visa holders from such nations can be barred from entering the United States. One can plausibly argue that such a burden on the liberty interests of such aliens is so dramatic that a court might find that some (judicially inferred) limit on the section 1182(f) delegation has been crossed. Such a decision is indeed "legislative" under Bi-Metallic -- too "legislative," because it comes up against the outer limits of the sort of power that Congress can constitutionally give away.
I will not repeat my arguments from earlier posts that statutes and rules defining substantive and procedural rights for visa holders create some sort of liberty interest. Landon v. Plasencia held as much for green-card holders, and I see no bright-line distinction between permanent residents and those visa holders who have been authorized by statute to make their home here for definite periods of months or years. Bracketing that question, it seems to me not a huge stretch to argue that, if non-immigrant visa holders have such a liberty interest, then EOs that trash their statutory rights need a special dose of justification under Kent v. Dulles and Benzene. If Congress should be presumed not to give OSHA the power to burden petroleum companies with a lot of costly safety precautions that produce small health benefits, then Congress equally should not be presumed to confer on the President a blank check to sweep aside visa holders' access to their jobs, homes, families, and schools, when such access has been elaborately defined by procedures and standards ratified by Congress itself. That network of process and standards creates expectations that we should presume Congress wanted to safeguard even as they gave the President otherwise apparently unlimited power over entry.
2. Why limiting the President's section 1182(f) powers with visa holders' procedural rights will not likely induce Congress to limit visas
This brings me back to the point with which I began the post: Will limiting section 1182(f) with these sorts of procedural rights cause Congress to cut back on the issuance of visas to compensate for the extra processes that the court is imposing on the executive?
The big advantage of such procedural limits is that they do not spook Congress into limiting the issuance of visas by disturbing the statutory status quo. Congress has already created a system conferring enormous discretion on CBP officers to review visas and deny entry to visa holders suspected of violating their visa's terms. (Ask any student holding an F-1 visa who has shivered in a port of entry's conference room waiting for "secondary inspection"). There is no reason to believe that Congress applauds Trump's trampling through this network of rules and customs like a T-Rex trampling through Jurassic Park: Congress has never relied on any history of Presidents' using EOs to sweep aside hundreds of thousands of existing visa holders' statutory rights. Protecting visa holders' procedural rights likewise sidesteps tougher questions about (for instance) Article I habeas rights of immigrants who lack prior connection to the United States By limiting the President's section 1182(f) powers with merely procedural rights, the courts would also preserve the President use crude proxies -- even nationality-based proxies -- just so long as the EO preserved some opportunity for the visa holder to make an individualized case that their entry does not present any of the risks that the EO was intended to address.
The procedural due process argument defended here is, in short, is a perhaps disappointingly minimal entitlement. Call it a "defensive crouch" of an immigration libertarian in honor of Mark Tushnet. Given Congress' power practically to eliminate any more robust entitlement, however, a defensive crouch might be precisely the right posture for courts to assume.
Managing the Vacancy Crisis: An Example of Resource Dependence in Federal Courts
One of the fundamental premises of modern organizational theory is that most organizations are resource-dependent; that is, they rely on the external environment for goods, labor, financing, or other resources necessary to complete their mission. Factories require raw materials, nonprofits require sources of funding, and government agencies require taxpayer dollars and at least some modicum of public support.
Court systems are heavily resource-dependent in their own right, perhaps unusually so. To serve their mission (which, we’ll stipulate for now, is the resolution of legal disputes brought before them), courts require a wide range of both tangible and intangible resources: funding, staffing, physical space, constitutional and statutory authorization to conduct their business, a regular flow of cases into the system, public participation (in the form of jurors), and public support (in the form of legitimacy). If any one of these resources dries up, a court’s ability to perform its mission is compromised.
Perhaps no resource dependency is as striking as judicial staffing. Many organizations depend on others for the resources or permission to hire key employees, but typically they have some say in who actually gets hired. Courts, by contrast, are at the mercy of the public and/or the other branches of government when it comes to adding or replacing their own members. In most state court systems, periodic judicial elections (whether contestable or of the retention variety) at least provide the judicial branch with some regularity as to the timing of replacing judges, although elections can also create massive turnover on the bench.
In federal courts, where a sustained vacancy crisis has led to nearly 120 unfilled Article III judgeships as of this writing, the deficiency is especially pronounced. Barack Obama showed little interest in quickly filling lower court judgeships during the first year of his presidency, and Donald Trump has not indicated much greater interest in the early weeks of his administration.
Still, the courts are expected to do their job. And over the years, the federal courts as an organization has developed a variety of ways—some public and direct, others more private and subtle—for managing inconsistent periods of this particular resource flow.
A few examples, from most direct to most subtle:
Lobbying Congress. The Judicial Conference of the United States has formally lobbied Congress for additional resources, including more judges, since at the least the 1950s. Other forms of lobbying may be less formal but no less obvious: the Chief Justice, for example, dedicated his 2008 Year-End Report to describing the resource deficiencies in the federal judiciary.
Lobbying may seem an straightforward strategy, but it must be attempted carefully. First, any lobbying must be done so as not to compromise the courts’ public legitimacy. Legitimacy is the single most important resource for all courts (as it is for many organizations; more on that in a later post), and if courts are viewed as too demanding, greedy, or insensitive to public needs, asking for additional resources may backfire. As a result, a typical strategy for the courts is to argue that they are already working at peak efficiency given the circumstances, and are simply requesting the minimum additional resources necessary for them to serve the public adequately. But the “we are doing more with less” argument itself must be carefully tailored. It is not enough to show efficiency; it must be the kind of efficiency that Congress approves of. Demonstrating, for example, that the federal courts guided lawsuits challenging federal legislation to trial at record speed probably won’t impress Congress or encourage it to allocate more resources to the judiciary.
Internal allocation of existing resources. The courts have developed a number of strategies for reallocating judicial resources internally when judgeships remain unfilled. They rely extensively on judges with senior status to handle cases. They increasingly ask magistrate judges or special masters to handle particular pretrial matters or ADR, freeing up district judge time for dispositive issues and trial. Some district judges (or even appellate judges) sit as visitors in other districts, often handling matters by telephone and videoconference. Internal procedures to consolidate cases or create MDL actions also permit the courts to shuffle cases to the judges equipped to hear them quickly.
Cooptation. Resource Dependence Theory, one of the branches of modern organizational theory, predicts that organizations will take on additional tasks outside of their core mission if doing so allows them influence and regularize the flow of needed resources. These additional tasks are known as buffering and bridging strategies. One such strategy is cooptation: the focal organization invites key members of outside groups to participate in its decision-making process in order to invest those outside groups in the organization’s survival. In the private or nonprofit sector, this may take the form of interlocking boards of directors or shared consultancies. Courts cannot adopt this particular framework (although Chief Justice Burger unsuccessfully floated the idea of a judiciary council with members from all three branches in the 1970s), but the federal courts have included representatives from Congress and the Department of Justice on various Judicial Conference committees, either through formal membership or regular observer status. Similarly, the courts’ relationship with the ABA and other groups can translate into explicit advocacy for more judicial resources, even without the courts explicitly requesting it.
Rulemaking. Organizational buffering activities cannot dictate the flow of resources by themselves, but they can flatten the impact of variations in resource flow. Another example of a buffering practice (and the topic of my current research) is court-controlled rulemaking. Procedural rules can be used as a docket control technique in times of high judicial vacancies, especially to the extent they allow the court to dismiss, resolve, or otherwise hand off the case without a significant investment of judicial resources. Federal Rules of Civil Procedure that increase judicial discretion in case management, discovery, and referral to alternative dispute resolution all give judges more flexibility to control their dockets; the structure of the Rules Enabling Act largely assures that the judiciary itself can drive the amendment process as needed.
To be clear, I am not suggesting that docket control is the sole (or even primary) motivation for rules amendments—the rules committees and Judicial Conference surely have all users of the civil justice system in mind when they propose amendments to existing rules. But the power to promulgate procedural rules should be recognized as giving the federal courts a rare outlet for docket management that is predominantly within their control.
This is already long for a blog post, but I could go on. The more general point is that uncertainty surrounding a single resource—active Article III judges—leads to a robust set of organizational responses. These responses all aim to increase certainty in the environment in which the courts operate, either by obtaining more resources or by creating mechanisms for coping with the inconsistent flow of those resources.
Next: What organizational theory teaches about the pressures on courts to conform to each others’ practices.
The Federal Circuit and "Patent Exceptionalism": Part I
The U.S. Court of Appeals for the Federal Circuit, the appellate court with exclusive jurisdiction over patent cases, is often criticized for treating such cases as “exceptional.” Over the past decade or so, the U.S. Supreme Court has issued a number of opinions, which, as Peter Lee recently wrote, “reflect a project of eliminating ‘patent exceptionalism’ and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles).” This is the first in a series of posts that will discuss the Federal Circuit and exceptionalism.
One fundamental way in which the Federal Circuit treats patent cases as exceptional relates to a choice of law question that arises frequently in patent litigation. When Congress created the Federal Circuit in 1982, it clearly intended for Federal Circuit law to govern substantive issues of patent law like infringement and obviousness. What Congress failed to consider, however, was whether procedural questions in patent cases should be controlled by Federal Circuit or regional circuit law. The Federal Circuit was forced to decide this question soon after its creation, and held that regional circuit law generally applies unless the procedural question is “unique to patent issues” or “intimately involved with the substance of patent laws,” in which case Federal Circuit law applies. Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564 (Fed. Cir. 1984). Since Panduit, the Federal Circuit has articulated this choice-of-law test inconsistently, creating confusion and difficulty for litigants and lower courts.
Although scholars have discussed this issue over the years and proposed various solutions (see, e.g., here, here, and here), neither the Supreme Court nor Congress has weighed in on this question. There’s a good argument that specialized courts like the Federal Circuit would benefit from a generalist perspective, so perhaps the Federal Circuit should apply regional circuit law on all procedural matters. The problem with that approach is that often procedural questions arise that are unique to patent cases, so there is no regional circuit law for the Federal Circuit to apply. On the flip side, the position that the Federal Circuit should simply apply its own law to all procedural questions like other Article III appellate courts is also persuasive. What’s clear to me is that the current framework—which leaves parties guessing at what procedural matters are “unique to” or “intimately involved with” patent law—is flawed and should be fixed.
The process of challenging the travel order
The litigation in Washington v. Trump has become politically confused following Thursday's decision by the Ninth Circuit.
The district court issued a Temporary Restraining Order; while it was entered following an adversary hearing, it was on light briefing and without an evidentiary hearing. It was designed to maintain the status quo until there could be briefing and a an evidentiary hearing on a preliminary injunction, although the briefing schedule was set so that the TRO would last more than the 14 days allowed by FRCP 65(b)(2), although not substantially more than that. The order was, as many have noted, bare-bones and conclusory in the constitutional analysis, as befits a TRO.
The United States appealed, although it was not clear what or how. TROs are not subject to immediate appeal, although preliminary injunctions are. The purpose of the appeal appears to have been to get the Ninth Circuit to stay the district court order.
The Ninth Circuit panel recast the TRO as a PI (pursuant to Ninth Circuit precedent allowing the court of appeals to look through the label), granting it appellate jurisdiction, then denied the stay pending appeal. The Ninth Circuit has set a briefing schedule for the appeal (running into March), so we are done at the district court, at least at the preliminary injunction stage. At the same time, the panel left open the possibility that the merits panel could revisit the issue, decide this is really a TRO and that there is no appellate jurisdiction, kicking it back to the district court for the evidentiary hearing it was trying to hold. There also is the possibility that the Ninth Circuit panel will decide that it cannot review the decision without an evidentiary record and remand for that hearing.So consider where this leaves us: The case is in the Ninth Circuit to review a bare-bones order, entered without an evidentiary hearing and without giving an opportunity for an evidentiary hearing. This means, as described by one professor on the Civ Pro Listserv, the appeal will be nothing more than a replay of the stay motion with longer and more drawn-out briefing (and with the burden of persuasion shifted to the State), but with nothing more in the record to review. This reflects an insight Samuel Bray has made in his work criticizing nationwide injunctions--if the courts see their role as deciding whether to "strike down" a statute, then the narrow, party-specific work in the district court becomes less important. And litigants may view it that way, as well.
It did not have to proceed this way. The United States could have instead sought a Writ of Mandamus, which would have allowed the Ninth Circuit to look at the TRO to determine whether it was egregiously wrong, without being a run-of-the-mill appeal. And it could have done that without having to manufacture appellate jurisdiction, review a cursory order entered without a full record, or waste time remanding to obtain that full record. But the U.S. seemed so anxious to be able to enforce the E.O. pendent lite that it blew through many of these details.
A nice question to consider: Where did the decision to pursue the appeal in this way come from? At the time, there was no AG and no SG. So did the instructions and oversight come from the White House?
Thursday, February 09, 2017
Procedural Due Process in the Ninth Circuit's Immigration Order Decision
The Ninth Circuit's decision upholding judge Robart's TRO on President Trump's Immigration Executive Order focused on the procedural due process rights of lawful permanent residents, citing Landon v. Plasencia and noting that "[t]he Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens." The Court brushed aside the ad hoc efforts of White House Counsel to exclude LPRs from the scope of the EO, noting that "[t]he Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order" and that, "in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings."
More interestingly, the Court went beyond LPRs to recognize the potential procedural due process rights of other aliens, including nonimmigrant visa holders:
Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972).
As I noted in an earlier blog post, I believe that procedural due process forms the best hope of overturning this EO. Beyond the fate of this particular EO, however, the courts' recognition that holders of nonimmigrant visas have protected liberty interests in those visas would be an enormous triumph for bringing constitutional doctrine in line with practical reality and justice. If Trump's EO succeeds in extracting such recognition from the judiciary, it would be a lovely irony.
Submission Angsting Spring 2017
We are going old school with the angsting thread -- back to its beginnings, when Redyip, the great bird of the gods of Zarcon, first alighted into the sky to signal the beginning of the law review submission season. I'm not sure if Redyip has provided the signal to Orin yet; we await further enlightenment. But ye may gather here, on this angsting thread, to provide such news: have journals awakened from their winter slumber to renew their manifold judgments? Hark, traveler! -- do I see the winged colossus?
Two cheers for corruption: Avoiding Sino-American Conflict with Conflicts of Interest
The New York Times reports that the Trump Administration/Family (is there a difference?) is backing away from its confrontational attitude towards China by sending a friendly letter to President Xi Jinping calling for a "constructive relationship." As another story in the Times notes, Trump's letter follows on the heels of Ivanka's visiting the Chinese embassy for a Lunar New Year party, Trump's granddaughter's singing a song in Mandarin on Instagram (viewed by many Chinese), and (most important) Jared Kushner's enter into talks with the Chinese ambassador. The Times also notes that Kushner has important business dealings with Wu Xiaohui, a Chinese billionaire who owns Anbang Insurance Company, one of China's largest insurers, and who has close ties to the Chinese Communist Party. Wu and Anbang also have close business ties with Stephen Schwarzman, the Blackstone Group billionaire and chair of Trump's business council. (Schwarzman has created a scholarship program, college, and Institute at Tsinghua University, the university with the closest ties to the highest elites of the CCP).
Some might view this byzantine network of familial and financial ties as just another skein of Emolument-laden corruption tying the Trumps to power and money across the globe. To which I say: Praise the Lord. It is precisely such ties that might prevent global catastrophe during the next four years. I am admittedly biased in favor of Sino-American stability over Trumpian integrity: Far better to be governed through billionaires' global guanxi than the paranoid nationalist fantasies of Bannon, Flynn, and Navarro. There are uncanny parallels between August 1914 and 2016. The race for naval supremacy between an incumbent superpower (British Empire/USA) and a rising land-based monarchy (Wilhelmine Germany/PRC) is one such parallel; the shadow-boxing between Great Powers over the independence of small nations bordering the land-based monarchy (Serbia/Taiwan) is another. Jingoistic mass publics on both sides of the Pacific (愤青 in China, Trumpistas here) provide ample tinder if one of Trump's rash moves lights a spark. If Wu, Schwarzman, and Kushner's deal-making saves us from war, then I am happy to say "to Hell with the Foreign Emoluments clause."
Of course, my worries about war and my hopes that economic ties can avert it might both be overblown. (Norman Angell, in his Great Illusion predicted in 1910 that war between the Great Powers was made impossible by their economic and social ties). But I nevertheless breathe a sigh of relief every time Anbang makes another investment in Kushner's buildings. 新年快乐和最好祝的和平愿望!
Predicting the Future of Legal Services
Thanks to Dan Rodriguez for organizing this symposium and inviting me to participate. As a long-time reader of Prawfsblawg, I’m especially delighted to join the conversation.
It wasn’t easy to decide how to contribute to the discussion about two terrific books. They both raise so many important issues and make so many provocative points that it is hard to engage with the ideas adequately in a few posts. I ultimately decided to focus my comments primarily on Richard and Daniel Susskind’s The Future of the Professions: How Technology Will Transform the Work of Human Experts. In this admittedly lengthy post, I explain why we should take the Susskinds’ predictions seriously. In two subsequent posts, I’ll explore the implications of the predictions for legal education and legal services regulation, when I also hope to touch on Gillian Hadfield’s book, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy.
My views on the future of legal services have been informed by Richard Susskind’s earlier books and my own work on projects where “futures” discussions have been front and center. For example, I recently completed service as the vice chair of the ABA Commission on the Future of Legal Services, which produced a report describing many “legal futures” issues in great detail. And I am now the chair of the governing council of the just-launched ABA Center for Innovation. Before becoming a dean, I was fortunate to serve as Suffolk Law’s inaugural director of our Institute on Law Practice Technology & Innovation and the related concentration in the area.
These experiences lead me to believe that we are going to see more significant changes over the next couple of decades than we have seen over the last twenty years (and those recent changes already have been considerable). That’s a long way of disclosing that I read the Susskinds' book expecting to find myself largely in agreement with their predictions. I wasn’t disappointed.
The Essence of the Susskinds’ Forecast
The Susskinds’ predictions turn in no small part on an important narrative about how people have developed and shared their expertise during different periods of human history. Namely, we have seen an evolution from strictly oral communications, to written work, to modern printing, and (most recently) to a digital age where knowledge is acquired and shared with great ease (pp. 147-53).
The Susskinds observe that, before the current digital age, information was difficult to obtain, giving professionals an important role and advantage. People could not easily find the information they needed about a topic, such as medicine, law, or accounting, so the public had little choice but to consult experts (e.g., doctors, lawyers, accountants, etc.) to answer even routine questions.
The Internet is now leveling that playing field, making the dissemination of expert knowledge considerably easier. (This online symposium is an example.) When combined with technological advances that have facilitated the automated delivery of that knowledge and related services – think the Mayo Clinic or WebMD (for medicine), LegalZoom (for legal services), TurboTax (for accounting), and Khan Academy (for education) – the Susskinds argue that we are beginning to see Clayton Christenson-like changes to the professions (though the Susskinds prefer to avoid the language of “disruption”). (pp. 109-10). The Internet is not only making it easier for non-experts to gain access to the information they need; it is driving a gradual expansion of automation from low-cost, routine professional services to more bespoke services, especially as artificial intelligence (AI) becomes more sophisticated (e.g., IBM Watson’s applications to the healthcare and legal industries).
The Susskinds do not argue that human-based bespoke services will necessarily disappear (pp. 192, 199), but they contend that we will see a continued transformation of how professional services are delivered and related changes to the basic skillset that future professionals will need. In a nutshell, they conclude that professionals will have to partner with the “machines” rather than try to beat them.
This is a greatly simplified account of a nuanced and well-researched book, but for those of you who have not read it, this is the gist of it.
My experience has been that some lawyers either do not agree with this forecast or have not given the subject a great deal of thought, so in the remainder of this post, I’m going to explain why I believe that we need to take the Susskinds’ forecasts seriously. (If you’re already convinced that the Susskinds’ have painted a reasonably accurate picture of the future of the professions, you can safely stop reading here.)
Is the Prediction Right?
The quotable baseball manager Yogi Berra once said that “[i]t's tough to make predictions, especially about the future.” Tough, indeed, but not impossible. Richard Susskind’s predictions about the future of legal services have been prescient for decades. Although Richard hasn’t always been on the mark, he’s been right often enough that his ideas deserve careful attention.
One of the primary reasons that I’m convinced that the Susskinds’ forecasts are reasonably accurate is that the predicted future is already taking shape. As with just about any prediction, the odds of getting it right improve considerably with additional data. Take, for example, a prediction that autonomous cars are going to transform transportation within our lifetimes. Twenty years ago, that prediction would have been quite speculative, because the technology needed for such a development was not yet available. But given the technology that now exists, we can predict with a much higher degree of confidence that driverless cars will become ubiquitous and transformative within a couple of decades or so, perhaps considerably sooner.
The analogy between self-driving cars and legal services innovation is not perfect, but it is instructive. Like predictions about the coming ubiquity of self-driving cars, predictions about the likely transformation of professional services are drawn from existing data and technology, not a speculative forecast about future capabilities.
Consider some recent developments in the legal industry. In the context of dispute resolution, online platforms (online dispute resolution, or ODR), led by Modria, now resolve approximately as many disputes as the entire U.S. court system combined. The technology is now moving into courthouses. Court-annexed ODR platforms are emerging, and more are likely to appear in the near future. Even when disputes are resolved in courts using traditional procedures, technology is changing the landscape. When I started practicing 20 years ago, discovery required associates (and paralegals) to engage in page-by-page reviews of paper documents; today, technology-driven ediscovery is performed by outside vendors. And technology is informing how lawyers do their work. For example, companies like Lex Machina (now owned by LexisNexis) and Premonition are using data analytics to give lawyers valuable insights about opposing counsel, courts, etc. to craft better arguments and assess the value of cases. One company offers to scan your opponent's briefs and suggest possible cases to cite in response.
In the context of transactions, LegalZoom now automates the creation of a wide range of basic legal documents and has served millions of consumers. Numerous other companies and organizations offer similar services, either directly to the public or for law firms, legal departments, courts, and legal services organizations. Due diligence and contract management are often outsourced to legal process outsourcers (LPOs), as are a range of other services.
Law firms and in-house legal departments are responding to these changes in various ways. In addition to making greater use of document automation, they are using expert system tools, creating legal project management departments, hiring legal solutions architects to design new ways of delivering legal services, and establishing research and development departments (e.g., Dentons’ NextLaw Labs, Davis Wright Tremaine’s De Novo, Seyfarth Shaw’s Seyfarth Lean, and Littler Mendelson’s Service Solutions). Law firms are also diversifying their revenue sources by creating ancillary businesses, such as e-discovery services or data analytics. In-house counsel are placing a greater emphasis on legal operations (e.g., the Corporate Legal Operations Consortium (CLOC)), and they are making greater use of LPOs and unconventional lawyer-staffing solutions that include new technology solutions as well.
Bar associations are responding too. The ABA recently issued a report on these developments and has established a Center for Innovation. State bar associations are examining futures issues, and other associations around the world are engaging in similar efforts (e.g., the U.K.’s Law Society and the Canadian Bar Association).
This is all just a sampling. New legal tech and innovation startups are appearing everywhere and delivering a growing range of services. Venture capitalists are taking notice as well and increasing their investments into innovative solutions for the legal industry.
At the same time, the available tools are getting more sophisticated, especially as AI itself becomes more capable. There are increasing efforts to apply AI to law (e.g., ROSS), a development that fits nicely into the Susskinds’ predictions that the changes already underway will continue to transform legal services, even at the most sophisticated levels of the industry.
A Caveat: “The future is already here — it's just not very evenly distributed.”
This quote is often attributed to author William Gibson, and it offers a pretty good summary of what is happening with professional services. Innovations are transforming those services, but the changes are (and likely will continue to be) uneven.
To be sure, the Susskinds concede this point. They believe that there will not be a “big-bang revolution.” Rather they predict “incremental transformation,” or a “staggered series of steps and bounds.” Nevertheless, the Susskinds conclude that “the eventual impact will be radical and pervasive.” (p. 231)
Here is where I may part ways just a bit from the Susskinds. I agree that technology-driven changes to the delivery of professional services will take the form of “incremental transformation,” but I think that the extent and especially the timing of the changes are likely to vary much more than the Susskinds imply. The transformational changes that they predict will vary from one profession to the next (and vary among professional practice areas) by considerable periods of time, perhaps decades. Some practice areas within some professions, including the legal profession, are sufficiently bespoke that the AI necessary to replicate the services or substantially transform how they are delivered is still entirely speculative (much like self-driving cars were twenty years ago). That’s not to say that transformational changes will not eventually emerge in these resistant fields; it is just that the technology necessary to bring about those changes does not yet exist and may not for quite a bit more time.
This is a variant of the objection that the Susskinds confront in their book: “this may be true of everyone else’s practice area, but not mine.” (p. 232) My objection is a little bit different. I’m not suggesting that any particular profession (or practice area within a profession) is immune from these changes. I’m arguing that the changes are likely to be more uneven and difficult to predict in terms of scope and timing than the Susskinds suggest. In other words, nobody is immune from the changes, but some are likely to be more resistant than others.
Consider a recent McKinsey report (related New York Times story here), which concludes that automation of industries (including the professions) will vary depending on technical feasibility, the cost of developing and deploying the solutions, labor market dynamics, economic benefits, and regulatory and social acceptance. Assuming these factors are the right ones (and they seem right to me), the pace of change is likely to vary depending on the industry and the specialty. Indeed, the report suggests that the “professions” themselves have among the lowest automation potential of the types of employment surveyed. (See Exhibit E4.) Although I think that claim may underestimate the automation potential in many parts of the legal profession, the point is that the extent and timing of the transformation of professional services is not easy to predict. The report explains that “[o]ur scenarios suggest that half of today’s work activities could be automated by 2055, but this could happen up to 20 years earlier or later depending on the various factors, in addition to other wider economic conditions.” That’s quite a broad window, and it reflects the uncertainties that necessarily exist when venturing predictions across industries, professions, and specialties.
To be clear, I’m not suggesting that the Susskinds’ forecast is wrong. I’m just a bit less confident in the general applicability of their forecast than I am about (say) predicting the coming ubiquity of self-driving cars.
Assuming you’re convinced (as I am) that the Susskinds’ vision of the future is roughly close to the mark, what should we do about it? In my next two posts, I’ll explore what this all means for legal education and legal services regulation.
Wednesday, February 08, 2017
Must Police Return Wrongfully Seized Marijuana?
Imagine the following scenario. P is a local police officer who stops D for speeding. In the course of a consensual search of D’s car, P finds a small bag of marijuana. State law bans the simple possession of marijuana by most people, so P seizes the drug. However, D subsequently convinces a judge that he was allowed by state law to possess the marijuana (say, because he’s a qualified patient under the state’s medical marijuana law). Following the judge’s ruling, D asks P to return the marijuana. Must P do so?
Many states explicitly require the police to return marijuana they have wrongfully (as a matter of state law) seized from individuals like D. But the police sometimes refuse to obey such requirements. The police claim that the act of returning marijuana constitutes a drug distribution offense under 21 U.S.C. Section 841, since federal law defines “distribution” as any transfer of a banned substance. Hence, a state law requiring police to return marijuana poses a direct conflict with and is thereby preempted by federal law.
Ah, but there is a twist. 21 U.S.C. section 885(d) expressly immunizes state police from “civil or criminal liability” under federal drug laws if they are “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” The provision was likely adopted to shield police from liability for participating in sting operations. But marijuana users have claimed that Section 885(d) also applies to other scenarios, including the return of marijuana, and thereby resolves any conflict between state and federal law.Who is right? There are at least four possible ways of resolving these disputes, none of which is entirely satisfactory:
- Adopt a purposivist interpretation of Section 885(d) and side with the police. Just last month, for example, the Colorado Supreme Court found that Section 885(d) would not immunize state police for returning seized marijuana; thus, state police could ignore a state law that required them to do so. Colorado v. Crouse. This interpretation is arguably consistent with the purpose of Section 885(d), but it is difficult to reconcile with the provision’s text. The Crouse court, for example, suggested that a police officer would not be “lawfully engaged in the enforcement” of state law if she violated federal law—i.e., by distributing marijuana. But the same could be said of the undercover police officer who sells marijuana during a sting operation.
- Adopt a literal interpretation of Section 885(d) and side with users. In one case, for example, a California appellate court found that Section 885(d) plainly shielded state police from federal criminal liability for returning marijuana to a medical marijuana patient. City of Garden Grove v. Kha. The Kha court reasoned that Section 885(d) “makes law enforcement personnel immune from any civil or criminal liability arising out of their handling of controlled substances as part of their official duties. . . . There can be little question the [City] police would be acting pursuant to their official duties, were they to comply with the trial court’s order to return [the citizen’s] marijuana to him.” This interpretation arguably comports with the text of Section 885(d) (and prevents state agents from undermining state marijuana reforms). But it difficult to reconcile with the text of another provision of the Controlled Substances Act. 21 U.S.C. Section 903 expressly preempts any state law that poses a “positive conflict” with the CSA. To be sure, Congress might not care if state police return marijuana to the same person from whom they seized it. But interpreted literally, Section 885(d) might block preemption of other, more controversial state actions. Imagine, for example, that a state orders its agents to produce and sell marijuana. Indeed, in the early 2000s, the City of Oakland, California, thought it could immunize a local medical marijuana dispensary by deputizing its owner (Ed Rosenthal) and ordering him to supply the needs of the City's medical marijuana patients. When Rosenthal was later prosecuted by the federal government, the district court rejected his assertion of Section 885(d) immunity, though in so doing, it (like the Crouse court) had to rely on a questionable reading of Section 885(d). United States v. Rosenthal.
- Find that the anti-commandeering rule empowers state agents to return marijuana. The idea is that if Congress can’t force state police to seize marijuana in the first instance, it also shouldn’t be allowed to force them to retain the drug if they no longer wish to hold it. To be sure, Congress can preempt some state actions that violate federal law – say, growing marijuana at a state-run farm. But there has to be some limit to preemption if the anti-commandeering rule is to do any work. Otherwise, as I’ve argued elsewhere (p. 1446-49), Congress could prevent states from voting to repeal their marijuana bans, releasing prisoners held on marijuana charges, etc. (both of which entail actions of some sort). So as long as state police do no more than restore the proverbial state of nature (say, by returning marijuana to its original owner), Congress may not be able to stop them. (I sketched this argument in the article above (p. 1459-60).) If a court followed this approach, it could sidestep the 885(d) issue and users would win.
- Find that the police lack standing to challenge state duties as preempted. The likelihood that any police officer would actually be prosecuted for returning marijuana is almost zero (because of DOJ enforcement memoranda, congressional spending restrictions, etc.). In other words, the threatened injury to the police is too speculative to satisfy federal standing requirements. If a court followed this approach, it again wouldn’t have to reach the merits of the Section 885(d) issue and users would presumably win. However, even if this standing argument would work in federal court, it wouldn’t necessarily work in state court (where most of these claims have been raised ). That’s because state courts don’t necessarily apply the same restrictive standing rules as their federal counterparts.
As I noted above, none of these approaches is entirely satisfactory to me. But I’m interested to hear what others think – and whether there might be another solution to the puzzle.
Law's New Frontiers: An On-line Symposium
Among the gaggle of recent books on law schools and the challenges to the legal profession, two 2016 books, both from Oxford University Press, stand out for what they teach us about the emerging frontier of law, technology, and professional regulation. Richard & Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts and Gillian K. Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy.
They point to an interesting future -- dynamic, unstable, and conspicuously multidisciplinary -- and make the none-too-subtle point that professional education must adapt to a new landscape.
Over the next three weeks, a group of commentators, from the U.S. and abroad, will offer their reflections on the themes animate in the Susskind and Hadfield books. (You'll note that Phil Weiser (former dean, Colorado) happily jumped the gun, with his interesting post from late last week). I hope that these posts, and the comments they generate, will help advance this very important conversation about how we can move constructively forward as lawyers and legal educators into a world in which technology and the shifting infrastructure of information and expertise propel adaptation (or even failure).
Tuesday, February 07, 2017
The Organizational Character of Courts
In the last few years, there has been a miniature explosion in legal scholarship concerning how courts operate as organizations. I say “miniature” because this recent literature, to date, has largely been limited to a few interesting studies, mostly by Israeli scholars. I say “explosion” because this sort of concerted effort to situate courts within a larger framework of organizational theory hasn’t been attempted in earnest since the 1980s.
If these new studies signal a coming renaissance in court organization scholarship, it would be a welcome development. The studies of the late 1970s and 1980s primarily centered on lessons for court administration—the degree to which state court systems should be centralized, for instance, or how trial courts could be structured to reduce delay in case processing. That work was important for its time, but it was also narrowly focused. Broader investigations into how court systems operate as organizations, and how they structure their interactions with other organizations, still have not been conducted on any significant scale.
It is also an opportune time to reopen court organization scholarship because theories of organizational behavior have advanced markedly in the last thirty years.
American scholarship on organizational theory began in earnest after World War II, originally embracing the rational bureaucratic model described by Max Weber. But by the 1970s, it had become clear that much organizational behavior (whether applied to the private sector, nonprofits, or government entities) was not fully rational, and instead was heavily influenced by each organization’s external environment. This “open systems” view suggested that organizations must interact with other people and entities in order to survive and accomplish their goals. The external environment can provide resources, marketplaces, and information, and can be the source of political, economic, or cultural forces that affect the organization’s ability to achieve its mission.
In the late 1970s, open systems theory and the fertile intellectual soil of Stanford Business School gave rise to a variety of related but distinct approaches to organizational behavior, among them resource dependence theory, population ecology, and neoinstitutionalism. While disagreeing on certain key points, these theories did agree on two general aspects of the open system perspective. First, nearly all organizations are resource-dependent, meaning that they rely on their external environment for some combination of raw materials, labor, funding, networks, or legitimacy. Second, resource dependency affects an organization’s behavior and strategy. Organizations tailor their interactions and behaviors (ranging from aggressive interaction to pure acquiescence, depending on the circumstances) to reduce uncertainty and continue their mission.
The early court organization studies of the 1970s and 1980s borrowed some of these ideas, particularly resource dependence and the importance of securing and maintaining legitimacy. Court structure and case processing efficiency were accordingly couched as ways in which courts could more wisely use their limited resources, and secure more resources by appearing legitimate in the eyes of external audiences.
Since the 1980s, however, these emerging theories have been much more rigorously tested, and repeatedly refined. Many of their fundamental assumptions have held up to empirical scrutiny. Other assumptions have not held up as well, or have been shown to apply primarily to the private sector. The modern iterations of these theories invite a reassessment of how they might be applied to courts, and what lessons we might draw about the behavior of courts and court systems as they interact with other government entities, the legal profession, and the public.
In the coming days, I will offer some concrete examples of how modern organizational theory might explain (at least in part) certain court behaviors, ranging from the inclusion/exclusion of cameras in the courtroom to Chief Justice Roberts’s history lessons in his Year-End Reports. More generally, I hope to make the case for viewing courts as protagonist organizations, actively working to secure key resources, build and maintain legitimacy, protect their core mission, and ultimately ensure their survival.
Monday, February 06, 2017
Thoughts on the Johnson Amendment
My first encounter with the Johnson Amendment came back in 2010, while I was teaching at Drake Law School. You might recall that the Iowa Supreme Court had just struck down the state statute defining marriage as between “one man and one woman," and three of the Justices were up for a retention vote. In the midst of the wild politicking and spending in the lead up to that vote, the Reverend Cary Gordon, of Cornerstone World Outreach, sent out over 1,000 church pamphlets urging his followers to vote against retention. Indeed, he issued an open challenge to the federal government, publicly asking God to “allow the IRS to attack my church, so I can take them all the way to the U.S. Supreme Court.” The national Liberty Institute quickly offered free to provide free legal services should Gordon’s prayer be answered. It was not, however, and—as you probably know—Iowa lost three talented and dedicated jurists.
Over the last six months, the Johnson Amendment has been in the news again, as candidate Trump pledged to do away with the language that limits 501(c)(3) tax exempt status to certain non-profit organizations, so long as they don't advocate for or against political candidates. And, again, last week, President Trump vowed to “destroy” the provision, which got me wondering how mainstream church leaders actually feel about the disincentive on politicking from the pulpit.
I should say, first of all, that I don’t believe the Johnson Amendment raises any substantial constitutional issues either way. It’s history as matter of policy is a bit interesting: in 1954 LBJ, then a freshman Senator, introduced it on the floor because he faced a difficult reelection campaign, and several McCarthyist non-profits were working to oppose his bid. But I generally agree with those Courts that have said that losing a government subsidy is not a burden for First Amendment or RFRA purposes, and the fact that the exemption benefits religious and secular 501(c)(3)’s alike undermines the Establishment Clause claim. Nor, for largely the same reasons, does the Constitution require that tax exemptions to religious groups must come with an anti-politicking caveat. Indeed, 501(c)(4)’s are subject to no such restriction—though, of course, their donors don’t get a tax deduction.
So, in my world at least, the Johnson Amendment is a simple matter of policy choice. It could be that Trump objects to it for the same reasons that LBJ wanted it—he welcomes non-profit politicking while Johnson feared it. That seems like pretty contingent reasoning, however, because the ACLU may soon be just as free as the Cornerstone Church to voice its political opinions. Instead, I think Trump is just playing to his evangelical crowd, which honestly believes the IRS has been trying to silence it for the last half-century. This, in other words, is just more showmanship.
With that said, though, I began by saying that I wondered how other churches might feel about the issue. And so I was interested to read the Baptist Joint Committee’s statement in opposition:
Politicizing churches does them no favors. The promised repeal is an attack on the integrity of both our charitable organizations and campaign finance system. Inviting churches to intervene in campaigns with tax-deductible offerings would fundamentally change our houses of worship. It would usher our partisan divisions into the pews and harm the church’s ability to provide refuge. To change the law would hinder the church’s prophetic witness, threatening to turn pulpit prophets into political puppets.
All alliteration aside, I have say that I sort of expect many mainstream churches to feel something similar. I wouldn’t dare inflict my student note on you, but I explored something like this same issue in the context of the Charitable Choice initiative. I can think of a lot of potential responses both ways on this, but I think I’ll turn that over to the comments, if there are any…
Lewis & Clark Law Review on "Law and Religion in an Increasingly Polarized Society"
The Lewis & Clark Law Review, under the supervision of some superb student editors and Prof. Jim Oleske, has just published a superb symposium issue on "Law and Religion in an Increasingly Polarized Society."* The contents are below and can be found here. The writers include Kathleen Brady, Kent Greenawalt, my colleague Ron Krotoszynski, Marc DeGirolami, Robin Fretwell Wilson, and others. I haven't read all of them yet, but what I have read has been very interesting.
In my rather rough and general opinion, the symposium is highly and obviously timely, and yet comes at a particularly difficult time for those who would attempt to predict the course of law and religion jurisprudence right now, precisely because of both increased polarization (at least in some sectors of the population) and the ways in which the nature and subjects of that polarization have altered dramatically in the past few months. If Hillary Clinton had won the election and depending on the composition of Congress and of political power in the states, we might have expected a more or less linear or steady progression in the kinds of issues and the sorts of debates that had been occurring in the past few years. It's less clear to me that that continues to be true. I agree with those who argue that current events and political outcomes are a continuation of rather than a break with the culture wars; and I think that even if events were taken to mean that the "losers" in that war were suddenly winning and vice versa, but without much else having changed, it would be more or less possible for the discussion to continue along a similar path to the one it had taken. I'm far less certain that that is currently, clearly the case. One needn't conclude that that is either a good or a bad thing, except insofar as unpredictability is itself a major problem. But the issues may change, the intensity and focus may shift from one area to another, and the ability to frame those issues within some kind of "culture war" might need to wait for a clearer picture of where and how that war is being conducted.
My general sense is that even prior to the last few months, there has been some enervation in the field. Law and religion scholars' responses to this enervation have varied. Some have focused their attention on other subjects altogether, outside of law and religion. Some have focused more narrowly on doctrinal questions, sometimes as a way of fighting the legal battle as tenured partisans and sometimes because doctrinalism in such cases can be a way of addressing interesting and pressing "little" questions while avoiding the big questions. (Query how much it is possible to say about the "little" questions if it is the "big" questions that are driving them.) Some may continue writing in the field but shift their attention to other areas, such as standard, good-old-fashioned Establishment Clause questions. (Vouchers!) Some may refocus on larger theoretical questions, abstracting away from particular controversies; I rather hope they do. I think those (and I would characterize some of my recent work in this way) who have tried to stand outside the actual combat and think about the cultural and sociological context of these controversies must perforce remain in a holding pattern on that kind of work until the ground becomes clearer again; at least I think that's the appropriately modest and sensible thing to do, if you're interested in those specific questions. (That said, I have a review essay coming out that at least tries to evaluate where we stand right now and the relationship between recent upsets in the culture wars and law and religion. Like any piece on these issues written between October 2016 and January 2017, it is even more uncertain in its conclusions than usual.)
All this is by way of context and some general observations on the state of the field. To say it's an uncertain time for the field is not to detract from the symposium itself, which contains some excellent contributions and is well worth taking a look at. Congratulations to Lewis & Clark and the journal editors, as well as the contributors, for this fine collection.
Here are the contents:
Kathleen A. Brady
20 Lewis & Clark L. Rev. 1093 (2017)
Marc O. DeGirolami
20 Lewis & Clark L. Rev. 1127 (2017)
Religion and Polarization: Various Relations and How to Contribute Positively Rather than Negatively
20 Lewis & Clark L. Rev. 1157 (2017)
B. Jessie Hill
20 Lewis & Clark L. Rev. 1177 (2017)
20 Lewis & Clark L. Rev. 1201 (2017)
Agora, Dignity, and Discrimination: on the Constitutional Shortcomings of “Conscience” Laws that Promote Inequality in the Public Marketplace
Ronald J. Krotoszynski, Jr.
20 Lewis & Clark L. Rev. 1221 (2017)
Ira C. Lupu & Robert W. Tuttle
20 Lewis & Clark L. Rev. 1265 (2017)
A Regrettable Invitation to “Constitutional Resistance,” Renewed Confusion over Religious Exemptions, and the Future of Free Exercise
James M. Oleske, Jr.
20 Lewis & Clark L. Rev. 1317 (2017)
The Nonsense About Bathrooms: How Purported Concerns Over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns
Robin Fretwell Wilson
20 Lewis & Clark L. Rev. 1373 (2017)
* A personal and embarrassed note, which is sincerely meant as the opposite of a #humblebrag. I was asked to contribute to the symposium, and ended up repaying the editors' kindness and generosity with...nothing. Doubtless recovering from surgery didn't help, and certainly some of the questions of uncertainty that I discussed above contributed to my wavering, but I am still embarrassed at my failure to contribute, aside from my regret at not joining such distinguished company. Surely if there is a personal lesson, it is that it is better to say "no" to an attractive invitation than to say yes and then vacillate. Clearly, judging by the contents of the symposium, I would not have added perceptibly to what is already a very good and broad collection of articles.
Should states always have standing to sue the President? Texas, Washington State, and Standing to Enforce (or Fight) National Immigration Law
In a delicious irony (or at least"turn about as fair play") Washington State is now playing the role against President Trump's Immigration EO that Texas played against President Obama's Deferred Action policies: Both states presumed to enforce federal law against the President's immigration policy. One might ask why state attorneys general have standing to bring such claims in federal court. Indeed, the Department of Justice asked this question at length in its motion for an emergency stay, citing old cases like Mellon v. Massachusetts for the proposition that states lack parens patriae standing to protect the interests of their residents (in Washington's case, its state universities' and private firms' interests in retaining profs, students, and employees with nonimmigrant visa).
Massachusetts v. Mellon is, however, so ...1920s. We have a new Massachusetts case -- Massachusetts v. EPA -- as well as the Fifth Circuit's decision in Texas v. United States. If Massachusetts can litigate to hold back the rising tides of water from its coasts, can Washington State sue to keep open its coasts open to the ebb and flow of immigrants? Judge Robarts pressed Michelle Bennett from DOJ to distinguish Texas v. United States: If Texas suffers an injury from the threat of having to subsidize drivers' licenses for unlawfully present persons, why does not Washington State suffer an Article III injury from the loss of tuition-paying students at the University of Washington University? (The transcript is attached to DOJ's motion, with Judge Robarts' questions at pages 23-24). Bennett responded that state universities' losses were "speculative": The students could apply for a waiver from DHS. Judge Robarts, however, could easily have answered that Texas's injuries were even more speculative: Texas could have simply charged more for licenses or stopped handing them out to unlawfully present persons. (As Chief Justice Roberts noted during oral argument, the feds might have sued on preemption grounds in the latter case -- but it was surely speculative about whether the feds would have won that suit).
In short, looking past hair-splitting of Scholastic proportions, nowadays there always seems to be a plausible argument available for state government standing to enforce, or contest, federal statutes. As Michael Greve noted in a brilliant essay, we live in an age of polarized, presidential federalism: Contests between the President and Congress have been replaced by fights between the President and State AGs from the opposite political party. Is that a bad thing? Or a second-best thing -- the closest way to approximate what old-fashioned Madisonian separation of powers would look like if Congress were not mired in gridlock or smothered by one-party control of both branches?
The answer to the question depends, I suppose, on your preferred model of federalism. If you are attracted by Jessica Bulman-Pozen's model of "partisan federalism," then enlisting state AGs to be regional arms of the national parties will seem desirable, or at least inevitable. If you fear that state governments will be consumed by our national partisan frenzy and ignore distinctively subnational issues that could be a source of Blue-Red compromise, then you will try to discourage state officials from plunging into the national fray.
As I have noted in an earlier post responding to Heather Gerken, I am in the latter camp. State politicians' turning the crank on the national partisan noise machine reduces the tolerance-inducing power of subnational politcs. If every state official is responsive only to interest groups driven by national partisan fights about national law, then, David Schleicher has shown, state elections become "second-order elections" that ruin state politics as a refuge from the national screaming contest. Federalism in such a world merely creates local franchises for the national echo chambers of the Democratic and Republican Parties, because voters will vote for subnational officials based purely on their assessment of national parties. Subnational government presents some great opportunities for Blue-Red cooperation on infrastructure, zoning, municipal services, and even education, but only if state officials can resist the sirens luring them to dive into the abyss of national partisan conflict. Maybe judge-imposed limits on state standing can force those state officials free themselves from an unhealthy obsession with national issues.
One might try to argue, as does Tara Leigh Grove, that there is a distinction between Texas's suing to enforce federal immigration statutes and Washington State's suing to resist them, because the latter'[s resistance might be safeguarding state law. Even if one believed that Grove's distinction bears normative weight (I am undecided), it seems inapplicable here, as none of Washington's distinctively "public" laws or policies seem threatened by Trump's E.O. Of course, Washington's state universities work hard to secure visas for foreign employees and students -- but such interests, indistinguishable from analogous private interests, causes Grove's limit on state standing to disappear, since every federal law will protect some sort of interest that state officials might want to preserve (for instance, fewer people and their drivers' licenses).
In short, my inclinations on state standing cut against my immigration libertarianism, inviting an institutional flip-flop. Thankfully, as an academic with no decision-making power, I am spared that gymnastic indignity.
Criticizing v. Threatening--wither the line?
Where is the line between criticizing the judiciary and engaging in threats that potentially undermine the independence of the judiciary? That is the question following Donald Trump's tweets over the challenge to the travel order--where he first referred to District Judge James Robart as a "so-called judge," then said Robart and the judicial system had put the country in peril and would be to blame if there were a terrorist attack while enforcement of the order is enjoined. Will Baude, Eric Posner, and profs on various listservs have decried this as a genuine threat--undermining judicial independence and possibly inciting mob violence against judges should anything happen.*
[*] Threats aside, the comments also rest on a false premise--that there has been a dramatic increase in travel to the United States since the TRO was entered or that the TRO prohibits all vetting and discretion in issuing visas or accepting refugees.
I agree that this is a wrong and intemperate way to criticize a court, a judge, and a judicial ruling and a wiser President would tone it down, focusing on the correctness of the decision rather than whether the judge was acting as a judge and thus had the power to render that decision (Will's point). But I am not convinced this reflects a threat or a shot across the bow of an independent judiciary. Nor am I convinced by how bound up the comments are with whether Trump might disobey or disregard a judicial order. Trump could disobey the order without verbally attacking the judge. These tweets perhaps prime the public to support and accept his disobedience, because they have been primed to understand the decision as non-judicial and thus not entitled to obedience. But they are not a necessary condition for a presidential showdown with the courts, should Trump choose to have one.
On the other hand, I worry that in seeing the President's tweets as so much noise that should not be taken seriously, I am falling into the very trap that a would-be authoritarian President needs--missing efforts to undermine the judiciary before it is too late.
Sunday, February 05, 2017
Focusing on temporary visas as protected "liberty interests" in the challenges to Trump's Immigration EO
The indefatigable Josh Blackman has a post on the "statutory legality" of President Trump's Trump's Executive Order on immigration. Josh focuses on whether 8 U.S.C. section 1182(f) authorizes the E.O., setting aside questions of the E.O.'s constitutionality. Unsurprisingly, he finds that section 1182(f) authorizes the E.O.'s denial of entry: As I noted in an earlier blog post, section 1182(f), a sweeping McCarthy-Era delegation of power to the President, pretty much authorizes everything by its plain terms. My only cavil with Josh's analysis is that the question of statutory interpretation here really cannot be separated from doubts about constitutionality. Such doubts can lead a court, Kent v. Dulles-style, to impose an upper limit on section 1182(f)'s blank check of power, "construing" it narrowly in light of non-delegation doctrine norms.
In order to analyze that hybrid constitutional/statutory question, however, one needs to focus on the most legally plausible constitutional interest at stake that would counsel for a narrow construction of the President's power. In my view, the EO's point of greatest vulnerability is its depriving long-term U.S. residents with non-immigrant visas of their interest in entering the United States and returning to their homes, families, workplaces, and schools. By contrast, the claim that the EO violates equal protection faces a steeply uphill battle. Disparate impacts on Muslims are not sufficient to trigger strict scrutiny (although the smoking gun of Trump's campaign speeches as well as Giuliani's boasting about creating a "Muslim ban" might suffice to shift the burden of proof). Moreover, nationality-based discrimination is still deeply embedded in our immigration system, despite the 1965 move away from national quotas. The Hart-Celler Act of 1965 still maintains per-country limits on immigration, and, more recently, national categories similar to those in Trump's EO were used to exclude immigrants from the visa waiver program in the Terrorist Travel Prevention Act. I do not see federal judges eager to overturn all such nationality-based distinctions in immigration law in the name of equal protection.
After the jump, I offer some thoughts about how and why the procedural due process angle, despite being the most effective argument against Trump's EO, has gotten short shrift from activists and lawyers. The current legal challenges to Trump's EO give higher priority to the equal protection argument, but the PDP argument deserves better billing: The latter provides our best opportunity to shift the constitutional status of nonimmigrant visa holders closer to the reality of their lives. The visa holders excluded by Trump's order are our neighbors and members of our community, not strangers bidding for admission to the USA for the first time. Lawsuits challenging this EO should hammer home that central point, seeking from the courts an unequivocal statement, never before given to my knowledge, that holders of temporary nonimmigrant visas have a protected liberty interest in entry back to their (temporary) homes, schools, and workplaces.
1. How and why the current challenges to Trump's EO shortchange the procedural due process argument
Most of the rhetoric against Trump's EO has zeroed in on its point of least vulnerability -- its disparate impact on aliens from majority-Muslim nations. This near-obsessive focus on discrimination is reflected in texts ranging in sophistication from the hashtag "#MuslimBan" to Washington State's motion for a TRO. That motion devoted a relatively paltry five pages (pages 14-19) to the procedural due process argument, focusing the balance of its 27 pages on the E.O.'s alleged nationality- and religion-based discrimination.
Why the relative neglect of the procedural due process angle? I am not an expert in immigration law, so this is not a rhetorical question: Readers should feel free to challenge the premise or offer alternative answers. I tentatively suggest, however, three reasons for the reluctance to focus on the liberty interest created by a nonimmigrant visa: 1) complexity of immigration law, 2) loose language in some SCOTUS opinions about limitless executive discretion, and 3) an ambition to challenge every aspect of Trump's EO rather than just its application to current visa holders.
First, the complexity of immigration law drives out serious generalizing about what it means to hold a nonimmigrant visa. There are dozens of types of visas, and the alphabet soup of names ranging from the familiar (e.g., F-1 student visas, H-1B visas) to the exotic (J visas for au pairs, "Australian professional specialty" E-3 visas, NAFTA visas, NATO visas, and the like) tends to drive away all but the specialists. Small wonder, then, that we are tempted to throw up our hands when asked to bestow a general constitutional status on all such "aliens."
Second, there is a lot of loose talk in judicial opinions about "aliens'" admission to the USA being a "privilege," not a "right." The DOJ brief quotes the usual suspects: Knauff v. Shaughnessy's statement, for instance, that “[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”
Third, an argument that current holders of non-immigrant visas have a liberty interest in such visas will do nothing to protect applicants for admission, from refugees to those applying for asylum. If one wants to challenge these other applications of Trump's EO, one will need some sort of anti-discrimination theory.
2. Why and how a procedural due process argument on behalf of non-immigrant visa holders is viable and worth making
These three reasons are not, however, powerful arguments for short-changing a procedural due process argument.
Consider, first, how immigration law, despite its complexity and judicial rhetoric about executive discretion, has evolved to be more like any other area of statutory law. As Kevin Johnson notes in an outstanding article, the most recent round of SCOTUS decisions seems to point to a new era of immigration law unexceptionalism. SCOTUS lately treats immigration statutes pretty much like any other statute: Agencies have to give reasoned explanations (Judulang), retroactive application is disfavored (Vartelas), grounds for removal are construed based on plain language without deference to the agency (Carachuri-Rosendo), and statutory limits on judicial review are strictly construed (Kucana).
As the interpretation of immigration law converges with interpretation of other statutes, it becomes more natural to regard immigration entitlements as just another form of statutory entitlement, protected in more or less the same way as food stamps or housing vouchers. As Dick Stewart and Cass Sunstein argued a quarter-century ago, statutory entitlements can generally create constitutionally protected liberty interests if they are defined by reasonably specific standards and resemble private causes of action. Why, then, should not the visa entitlements created by immigration statutes be any different than the various entitlements to money, land, or licenses created by other laws?
Second, all of that rhetoric about "aliens" is a bit too over-general to bake any legal bread. As the Trump Administration's hasty retreat on lawful permanent residents indicates, at least some aliens have some sort of liberty interest in non-exclusion: Since Landon v. Plasencia, "green card" holders have been entitled to some sort of procedural due process before they are barred from re-entry after a short absence. If LPRs may not be subject to such a blanket exclusion, then why should others be so excluded when they also have have been lawfully admitted, resided here on the basis of a visa to engage in some substantial activity within the United States? David Martin made the case for a graduated system of membership fifteen years ago, noting that, with the 1996 transformation of the immigration laws, the distinction between "exclusion" and "deportation" is no longer the way that the law divides aliens between those who are community members and those who are not. Martin suggested that simple slogans about aliens' having no protected interest in entry no longer make sense. he is right: This EO litigation could be the moment to set the judicial rhetoric straight and recognize multiple degrees of attachment requiring multiple degrees of constitutional protection.
Finally, there is a huge benefit to officially recognizing the vast number of "aliens" who are, in fact, part of our community in reality. Formally "aliens," they are, in fact, our friends, employees, students, and neighbors. They have legitimate expectations to fair treatment; they have created homes, jobs, and families here in reasonable reliance on our laws inviting them to join our community. Litigation over this EO provides an excellent opportunity to nudge the courts into officially recognizing what has become unofficial reality: Broad generalizations tolerating the lawless treatment of "aliens" through pure executive discretion really are at odds with our social practices and increasingly even with SCOTUS decisions.
3. But what about section 1182(f)?
There remains, of course, that blanket delegation of power in 8 U.S.C. section 1182(f) 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." Why does this provision not give President Trump the blank check he needs to exclude every sort of alien by EO?
Here is where statutory interpretation meets the Constitution. It is plain that this language cannot be taken literally, or else the Trump Administration's retreat on excluding green card holders would not have occurred. Precisely because such a blanket delegation would plainly intrude on some important liberty interests, it needs to be qualified. The obvious analogy is Kent v. Dulles, in which the SCOTUS qualified an equally broad delegation to the Secretary of State to withhold passports. As I noted in my earlier post, it is no favor to executive power to treat every vague emanation from the White House as if it were a carefully deliberated policy, especially when the Emanator-in-Chief is a guy like Trump, assisted by Bannon as his Rasputin. Instead, courts would be wise to remember that the non-delegation doctrine exists as a canon of construction that can be used to trim back delegations when they are used in ways patently inconsistent with the national interest.
Without overthrowing any useful presidential discretion, a court could hold that section 1182(f) cannot authorize the President to sweep away the protected liberty interests of admitted aliens who hold visas unless the President makes some minimal effort to explain why the affected class of excluded aliens creates some distinctive risk to the nation. Under even the most deferential review, Trump's EO is likely to fail such a test. It makes no sense to say that aliens who normally reside here permanently as our classmates, co-employees, and neighbors but who happen to be abroad on short visits to perfectly stable nations like the UK or Canada should suddenly be excluded simply because the nation from which they originally hailed but did not visit is either a failed or terrorism-sponsoring state. The under-inclusiveness of this EO is a sure sign, therefore, that it is more a fulfillment of a campaign threat than an effort to prevent some imminent harm. If there really were some difficult-to-detect and imminent threat arising from the presence of Yemenis, Libyans, and so forth, within U.S. borders, then surely the Trump Administration would be making some more dramatic effort to round up and interrogate the medical students, grandmothers, NBA stars, and a host of other aliens who decided not to go on a winter holiday vacation.
The lack of any new information about risks is another key sign that this EO's claim to protect against imminent harm is a fraud. Past presidents have invoked their section 1182(f) power to respond to new facts or deal with specific crises -- say, a build-up of Cuban refugees at Guantanamo Bay. Trump can point to nothing whatsoever suggesting that a blanket ban on nonimmigrant visa holders is needed now -- no new internet chatter that F-1 student visa holders from Syria are plotting to make a dirty bomb, no sign that H-1B visa holders from Iraq are somehow moonlighting as ISIS operatives. The completely blank factual record, beyond campaign slogans, indicates that this EO is Bannon's trolling of liberals and Trump's fantasy of playing the role of a lawlessly decisive George Patton. Indeed, even Trump's campaign rhetoric never suggested that persons currently residing in the country on temporary visas should be thrown out: He talked only about walling out "aliens," not kicking out immigrants. This EO's effect on visa holders who happen fortuitously to be on a visit outside the USA, therefore, lacks even an electoral mandate.
I do not suggest that the process due to visa holders will be very extensive. If Kennedy's concurrence in Kerry v. Din is any indication, such process can be remarkably truncated. We can dicker over the details of such process in the years to come. For now, it is essential finally to get the courts on board with the simple proposition that, absent some minimally plausible account of an emergency, some sort of individualized process is due. Trump and Bannon have given no such minimally plausible account, so the way is clear for the Ninth Circuit and SCOTUS to establish the idea of visas as a protected liberty interest without overthrowing any deep tradition of executive discretion in controlling immigration.
Allergies and the Airlines
Thanks to Howard and PrawfsBlawg for inviting me back as a guest for February. Because I teach and research in the areas of patent law and procedure, most of my posts will focus on those topics. I wanted to start, however, by discussing an issue that has caught my attention primarily because I am the parent of a child with severe food allergies.
As the New York Times and others have reported, American Airlines (AA) has recently come under attack based on its policies regarding customers with peanut allergies. Specifically, unlike other airlines (e.g. Alaska Airlines, JetBlue, and British Airways), AA does not “allow passengers to pre-board to wipe down seats and tray tables” in an attempt to reduce the possibility of exposure to nut residue. Last month, Food Allergy Research and Education (FARE) filed a complaint with the U.S. Department of Transportation (DOT) challenging this policy. FARE argues that by refusing to allow allergy sufferers to pre-board, AA is in violation of the Air Carrier Access Act of 1986, which prohibits discrimination by air carriers on the basis of a “physical or mental impairment that substantially limits one or more major life activities.” According to DOT regulations, “major life activities” include breathing. Thus, FARE argues, allergy sufferers are physically impaired due to their limited ability to breathe. DOT regulations further provide that airline carriers “must offer preboarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated.”
This will not be the first time DOT has considered how to handle the situation of peanut allergy sufferers and air travel. In 1998 and 2010, the agency proposed restrictions on airlines serving in-flight peanuts, but those efforts failed due, at least in part, to opposition from the peanut industry. So, today, individual carriers have wide discretion in deciding how to treat passengers with peanut allergies. Some airlines have taken steps to protect peanut allergy sufferers—e.g., by not serving peanuts, creating “buffer zones, ” making announcements when someone on board has a severe nut allergy, or allowing allergy sufferers to pre-board to wipe down their seats. But other carriers have not made such efforts, and currently are not required to do so. While I realize that a complete ban on peanuts is probably unrealistic, I hope that FARE’s complaint will make air travel safer and more predictable for those who suffer from life-threatening food allergies.