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.)
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 to include another school on the list.]
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@example.com. 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.
Saturday, February 04, 2017
Nationwide TRO bars enforcement of immigration order (Updated)
A judge on the Western District of Washington has issued a nationwide Temporary Restraining Order barring enforcement of the main provisions of President Trump's immigration executive order. The order is short (7 pages) and cursory and lasts only until the parties can brief the preliminary injunction, which presumably will receive fuller analysis. Josh Blackman has a quick analysis, with which I basically agree. At the same time, a judge in the District of Massachusetts refused to extend the TRO issued on an emergency basis last weekend.
Some quick highlights:
The lawsuit was brought by the states of Washington and Minnesota. The court seemingly accorded them parens patriae standing, although courts generally do not allow states to assert their citizens' rights--Virginia tried unsuccessfully to use it to challenge the Affordable Care Act). The court also finds harm to the state itself, through its public universities, tax bases, operations, and public funds.
Standing to one side, I cannot see how the EO violates the rights of either State. The constitutional defects in the EO are that it violates the First and Fifth Amendment rights of those who would be kept out of the country. So this must be third-party standing on behalf of residents, although I do not yet see the connection between either state and the rights-holders (apart from through parens patriae). As with the other TROs that have issued, the focus is far more on irreparable harm and far less on the merits. Maybe in the early days that is appropriate. But the success of these lawsuits seems to rest on courts finding that the government's power over immigration is less than it was 100 years ago, because rights of equality and religious freedom are greater than they were then. Perhaps they are. But there needs to be more discussion of this following a fuller hearing and more time.
The judge made the order nationwide (more accurately, universal), rejecting the government's argument that the order should be limited only to the two states, citing Texas v. US and the need for uniform immigration rules. The politics of who is seeking and defending these universal injunctions to one side, the need for uniformity cannot justify such orders. Disuniformity pendent lite is an inevitable, perhaps even intended, consequence of dividing the lower courts regionally. Different lower courts might disagree on the same issues, producing momentarily different law in different places. Uniformity arrives at the end of the day from SCOTUS, which is why the Framers mandated that Court at the top. If one regional district court (or one regional court of appeals reviewing that regional district court) has the power to resolve the issue for the entire country, there would be no need for SCOTUS; uniformity would come from whichever court got there (and ruled against the government) first. While this does create some possible confusion and uncertainty in the interim, which would look bad to the public, I do not see how you avoid that problem without altering the nature of regional courts and judicial remedies.
For what it is worth, I am less troubled than Josh is by Washington arguing for a universal injunction, when it explicitly argued against that in the Texas DACA litigation. This is why we have presumptively transsubstantive rules--so repeat players who might find themselves on either side of a dispute cannot sit on rules favoring one side or another.
As expected, the White House responded in its usual reasoned and even-handed way. A WH statement decried the "outrageous" order, although quickly re-issued the statement without the adjective. The President himself was not so reserved--he tweeted (and did not delete) about the "so-called judge" issuing the "ridiculous" opinion. Ah, the new "conversation among the branches." [Update: The President also cannot understand why the lawyers are not "looking at and using" the order from the District of Massachusetts. I assume Bannon or Miller will calmly explain binding v. persuasive authority to our fearless leader.]
Josh reports that the government is working on an appeal to the Ninth Circuit and SCOTUS. Note that this is not an appeal of the TRO itself (which is not subject to immediate review), but seeking a stay of the TRO. The analysis is similar, but not the same.
Update: The United States has appealed. It appears the argument is that this is a de facto preliminary injunction, even though designated as a TRO. Ninth Circuit precedent allows the court of appeals to look below the label, especially where the order lasts more than 14 days. Alternatively, the government may try to turn the appeal into a petition for writ of mandamus, a frequent end-run for interlocutors appeals. It appears that no stay was sought.
Update: The Ninth Circuit treated the appeal as a request for stay of the TRO. It denied the request for an immediate administrative stay, then ordered briefing by Monday of the request for a stay pending appeal. Beyond the stay request, it is not yet clear how the court of appeals is characterizing the district court's order and how that affects appellate jurisdiction.
Friday, February 03, 2017
What a law school world without U.S. News might look like
First, many thanks to Howard Wasserman for inviting me to guest blog. It has been a terrific experience.
Many people in legal education criticize the U.S. News rankings in a variety of ways. I don't want to revisit those criticisms. The question I want to discuss is not whether USN could be better, but whether law schools would be better off without USN. Many people pine for a world in which USN's rankings did not exist at all.
USN rankings are important to schools primarily because they're used by prospective students and employers (including judges), and to a lesser extent by other constituencies such as alumni/ae and prospective faculty members. It is no secret that many schools make operational and strategic decisions based at least in part on the likely effect on the school's USN ranking. As a school's USN ranking declines, its costs go up because its admissions yield usually declines and its tuition discount usually goes up.
USN is, among other things, a proxy for law school prestige. In many other disciplines, prestige is measured more directly by scholarly productivity or, especially in STEM areas, by grant money received. If USN rankings disappeared, there would likely still be a prestige hierarchy of law school. My guess is that most knowledgeable people in legal education would sort law schools by prestige into perhaps four groups: a handful of super elites; another 15 or 20 elite schools; probably 20 to 30 schools regarded as marginal; and the remaining 150 or so deemed middling. My guess also is that there would be relative agreement about that sorting, with the occasional hotly contested bubble school. So, what might the law school world look like if USN's rankings disappeared?
Dental schools actually beat back USN's attempt to rank them. The dental school deans simply and concertedly refused to provide USN with the data that would allow it to create a rankings system. Moreover, dental schools, which tend to have low prestige within their universities, typically do not bring in much research money and their scholarly productivity lags behind that of other disciplines.
Thus, there are no rankings and very little differentiating of dental schools by prestige. When dental schools' admissions collapsed, what did the lack of rankings and prestige mean for the schools?
Roughly 80% of dentists go into solo practice or enter into office-sharing arrangements with other dentists. The prestige or ranking of a new dentist's dental school had no effect on most students' employment prospects. Prospective students choosing a dental school understood that a school's prestige or lack thereof would neither help nor hurt their employment chances.
Prospective dental students cared primarily about tuition cost and the school's location, generally preferring a school close to their current home or one in a location in which they wanted to practice. Dental schools within the same geographic market thus competed largely on price. Employment prospects were seen to be mostly a function of school location and the quality of education was perceived as being essentially comparable across schools.
But lack of prestige and the absence of a ranking system hurt dental schools at universities that were or wanted to be prestigious. Over half of the dental school closings were attributed in part to the dental school's lack of prestige and therefore lack of mission fit.
If USN disappeared, many law schools would be in the same situation as the dental schools. Most acutely, the vast majority of schools (those other than the 20 or 25 that likely would retain some prestige independent of USN) would likely have to compete for students on price and location, as many or most of the currently unranked law schools do now. Schools in desirable locations would compete well compared to those in less desirable places, but would still have to compete mostly on price with comparably located schools. Competing on price is always difficult to sustain because other schools can usually lower their prices, as well.
Moreover, for law schools at a university that cares about prestige, an increase in USN ranking is a salient demonstration to the central university that the school is being run consistently with the university's values. That consonance is a key factor in whether a school is likely to get more resources from its university and, as dental schools can attest, can be important in universities' decisions on whether to close a school.
Moving up in USN, then, may be a game worth winning, even if it is not a game worth playing. Schools that win are likely to attract more and better (by traditional measures) students and to get higher net tuition per student. They're also more likely to gain more resources from their university. A law school world without USN might not be the ideal world many think it would be.
I discuss the importance of U.S. News and prestige on pages 70-76 here.
More on Eight is Enough--the Appointments Process
Some further thoughts on Eric Segall's proposal for an eight-person, even-partisan-divided Supreme Court. I believe it produces a functioning Supreme Court, so the objections that it cannot work--that it will create disuniformity and uncertainty in federal law--are overstated. But it does not resolve problems in the appointments process, leaving in place gamesmanship and perverse incentives that may create more. I alluded to these in my JOTWELL essay and want to flesh them out further.
Broadly speaking, Eric's proposal has four pieces (put aside how to codify this): Eight Justices; no more than four Justices from either major party and each seat must be filled by a member of that same party; 2/3 supermajority to appoint an independent or someone who refuses to disclose her party affiliation (to leave open the possibility of a highly qualified independent); approval by a majority of members on the Senate Judiciary Committee from the nominee's party.
One goal of the plan is to fix the appointments process. The theory is that because no appointment shifts the Court's ideological balance, the stakes are not as high. A Justice of one party always will be replaced by a Justice of the same party, with only a difference of degree depending on the party of the appointing President. Segall also hopes it will produce less ideological Justices--as a President of one party will seek out a moderate from the other.
The problem is that an ideological balance remains at stake with the appointment, just in reverse--while a seat is vacant, there is a 4-3 Court, tilted to one side ideologically. And that may affect the desire to appoint or confirm anyone at all or how willing an actor in the appointments process is to negotiate over a Justice from the opposite party.
After the jump, thoughts on how the game might play out in four situations, all with a President from Party A. The game changes depending on four variables. The result might not be what we expect.Situation I: Senate Majority A, Justice A: This is the situation of maximum political control. The A's can appoint whoever they want and probably will look for an extremely A Justice. The only check is a B filibuster, but I do not expect the filibuster to survive the Gorsuch nomination. Franky, this is the only situation in which confirmation is possible anymore. Segall's proposal might not change that.
Situation II: Senate Majority A, Justice B. This is the situation that theoretically produces more-moderate, less-ideological nominees, as the President and Senate Majority look for the least B-ish/most A-ish B Justice they can find (a BINO--B In Name Only--if you will). The requirement that a majority of the B members of the Judiciary Committee approve the nominee tempers this somewhat, producing someone within the B mainstream.
But another perverse incentive arises here. As long as that B seat remains empty, there is a 4-3 Court with an A majority. President A (and Senate A) probably like that status quo and would be happy to maintain it as long as possible. This gives them an incentive to delay--or avoid altogether--any nomination or confirmation. It also gives them incentive to play hardball with the B members of the Judiciary Committee--accept our BINO or we are happy to leave the seat open and retain the partisan advantage.
Situation III: Senate Majority B, Justice A. Now the President and Senate majority at odds, with the B-majority Senate happy to keep the seat open, prompting the President to nominate a less A-ish Justice who is acceptable to the B Senate. This reflects the current system in periods of divided government, with Presidents often nominating a less-preferred choice to appease the opposing party in the Senate (think Anthony Kennedy or, perhaps, Merrick Garland--we do not know what Obama was thinking there). But the Senate holds greater power, because it benefits more from the vacancy in this new scheme than under the current system. It can and might hold out for an especially less-A-ish Justice on threat of not confirming anyone, preferring the partisan status quo to the evenly divided norm. (Of course, that threat has always been present with divided government--but 2016 showed that the threat is real).
Situation IV: Senate Majority B, Justice B. This is the flip of III, with the President lacking real incentive to fill the vacancy, happy to retain the 4-3 A Court. This gives him greater power to appoint a less-B-ish Justice., again with the take-it-or-leave-it position of not needing the vacancy filled if the B-majority Senate will not yield to his preferences.
So where does this leave us? In periods of divided government, power rests with any actor (President or Senate) from the opposite party of the seat to be filled, because he/they have no incentive to fill it. They can hold out for the least opposite-party Justice they can get, knowing that the vacancy status-quo favors their preferences. Or they can decide not to fill the vacancy at all by refusing to confirm anyone. In periods of unified government, actors will always be able to get the most their-party Justice, because nothing other than a filibuster will stop them. And they can get the least other-party Justice, because their lack of incentive to fill the vacancy allows them to overbear the limited check granted the other-party minority. In all, the new system either leaves existing or creates new perverse incentives that might break the appointments process further.
Power to limit such gamesmanship comes from the Court itself, in two ways. First, a retiring Justice can make her retirement effective on confirmation of a successor. This prevents that 4-3 split, even temporarily. But this is impossible if the vacancy is an unexpected one due to death, illness, or disability.
Second, the Court could limit by internal rule the decisions and judgments it will render in the event of a vacancy. For example: "In the event of a vacancy, the Court only can render judgment if five Justices [the number necessary to decide on an eight-person Court] agree; otherwise, the Court will DIG the case or hold it until back to full eight-Justice strength." The result is that no party benefits ideologically from a vacancy, because there can be no 4-3 purely partisan decisions. So both parties have incentive to make an appointment as expeditiously as possible, subject to (normal) negotiations over how A-ish or B-ish the Justice will be. It levels the bargaining positions between the President and Senate majority in times of divided government and between the President and the opposite-party Judiciary Committee members on an opposite-party appointment.
Unfortunately, such a rule would require the Court to take a position on a political controversy, something the Court (particularly this Chief) has been reluctant to do.
JOTWELL: Wasserman on Segall on Eight is Enough
I have the new Courts Law essay, reviewing Eric Segall's Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court, which proposes codifying the current eight-Justice/even partisan divide on the Court.
We moved up publication on this piece to time it with the Gorsuch nomination, which either spells the death knell for the proposal or gives it life. I remain unsure whether I am sold on Segall's plan as a normatively best design or whether it just looks good compared with the political alternative. But it has some genuine merit. Iwill have more to say in a second post.
Constitutional Limits on Delaying or Denying a Hearing and Up-or-Down Vote on the Gorsuch Nomination?
My view during the Garland nomination was that the Republican refusal to grant a reasonably timely hearing and an up-or-down vote on that nominee was deplorable but not unconstitutional, and that such arguments as they provided to justify it were rationalizations, not good reasons.* I think that Democratic refusal to grant a timely hearing and up-or-down vote to Neil Gorsuch is also not unconstitutional, while setting aside for the moment whether it is deplorable or not. On the whole I think it is dangerous, although I understand the arguments that it is justified by the prior conduct. Many constitutionalists agree with me both that the obstruction of the Garland nomination was bad but constitutional, and that obstruction of the Gorsuch nomination would also be constitutional (and possibly bad, although there will be greater variation in views on that question).
But it is striking, in going back through the Garland debate, to see just how many law professors (and others) argued that the refusal to grant a hearing and straight vote to Garland was not just deplorable but unconstitutional; not just unconstitutional but clearly unconstitutional; and not just clearly unconstitutional, but clearly and unequivocally unconstitutional, which is to say admitting of no clear exceptions, or no exceptions at all.
Here are only a few examples. 1) A letter by around 350 law professors publicized by the Alliance for Justice asserted that there was a "constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote." "The Senate’s obligation in this circumstance is clear," the correspondents argued. "The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty. The Senate Judiciary Committee should hold a prompt and fair hearing and the full Senate should hold a timely vote on the president’s nominee." The writers included some highly qualified and respected constitutional law scholars, including Laurence Tribe, Kenji Yoshino, Erwin Chemerinsky, Rebecca Brown, and Linda McClain. 2) Also under the AFJ, a letter from some 58 Indiana law professors argued that "an outright refusal to even consider his nomination runs counter to the Senate’s obligation, under Article II of the Constitution, to provide 'advice and consent.'" Its conclusion stated: "Chief Judge Garland is an eminently qualified nominee who deserves fair consideration of his nomination. Refusing to do so is an abdication of the Senate’s constitutional duty to provide advice and consent." The writers included a former head of OLC. 3) The AFJ publicized a similar letter from a similar number of Ohio law professors. Its language mostly tracked the Indiana letter. It concluded: "The Senate must perform its constitutional duty and deliberate over Judge Garland's suitability as a Supreme Court nominee. Holding a hearing and an up-or-down vote on his nomination are how the Senate does its job. Refusing to consider the Garland nomination on its merits would be an abdication of the Senate’s constitutional duty to provide advice and consent." 4) A letter from 43 current and former law school deans was, in fairness, cloudier in its arguments, but suggested the belief that there is a "constitutional duty to ensure a fully functioning Supreme Court," that this includes a constitutional duty of "holding hearings and providing an up-or-down vote on [a] nominee," at least where there is an eight-member Court. It added more straightforwardly that Article II, section 2 of the Constitution operates "without qualification." 5) In the Chicago Tribune, Professor Geoffrey Stone wrote that "it is [Senators'] constitutional obligation to have a fair and open hearing and to vote to confirm Garland." Note that Stone went further than his colleagues, arguing not just that there is a constitutional duty to provide hearings and an up-or-down vote but that, depending on how you read his op-ed, either as a matter of well-established practice or as a matter of "well-established constitutional tradition," the Senate must confirm any "well-qualified and reasonably moderate" Supreme Court nominee.
No doubt others could find more, and still more emphatic, examples. Although it's an obvious point, it's worth stating that no one put a gun to anyone's head and insisted these writers sign on to a constitutional argument of this sort. They could have said nothing, or argued on non-constitutional grounds, including grounds of traditional or optimal Senate custom and practice. They didn't. The fairest and most respectful reading of their action, therefore, is that they considered what the letters said before signing them and believed what they said, and that they should be treated as such.
Given what they wrote, I find it difficult as a matter of constitutional law (on their understanding, not mine) to conclude that there is not an identical constitutional duty in this case to provide a fair and timely hearing to Neil Gorsuch and an up-or-down vote on his nomination. (Possibly, on Stone's view, there is also an obligation to confirm him, although the "well-qualfied and reasonably moderate" language allows for some wiggle room, albeit one assumes it should not be used disingenuously). Of those several hundred signers, one would expect at least a few of them to say so equally publicly, and none of them to contradict their earlier reading without persuasive and sincere reasons to do so.
To be clear, I am not making--am frankly not interested in--charges of "hypocrisy," a move I generally find overused and under-important and try to avoid, and one for which I would have no grounds unless there was clear evidence that they were ignoring or contradicting their earlier-stated views. I am, instead, interested in the fact that this was a large group of law professors voluntarily making a constitutional argument; interested in the obvious implications of this boldly and broadly stated argument in the current case; and interested in whether they will follow through on their own presumably sincere professional constitutional views.
There are a couple of possibilities for action and a couple of colorable, although I think not plausible, counter-arguments. The writers are not obliged to say anything at all about the Gorsuch nomination, or to make any arguments in particular about whether Democrats can delay, resist, or deny a timely hearing and up-or-down vote on Gorsuch. They could write about other aspects of the nomination, or write only about the Garland debacle, or remain silent altogether. Given how strongly they asserted a broad and relevant constitutional principle, this would be unfortunate and suggestive of an unwillingness to speak truth to power. But it is an available option: the best option they have, I think, and the one most consistent with scholarly consistency if not integrity.
Then there are the usual "this case is different" arguments,* and the argument that delay or denial of a hearing or up-or-down vote in this case would be constitutional as a "remedy" to the earlier constitutional violation. I find neither line of argument especially plausible given the earlier assertions. Those arguments, on my reading and I think on any clear reading, were that Senators have a clear constitutional duty to provide a hearing and up-or-down vote to Supreme Court nominees, that the obligation is unequivocal, and that there is no right to ignore it, let alone to do so because you don't like the party in power or the nominee. Of course, one can argue that the Senators should fulfill their duty and then vote against the nominee. (Stone may be barred from making this argument, as we saw, depending on how he uses his wiggle room. Again, I think that wiggle room must be used with integrity.) But I think any fair reading of their earlier statements makes clear that they must believe the same duty applies here. Language like "admits of no qualifications" suggests that simply arguing that obstruction here would be justified in light of the prior obstruction is impossible to square with their apparent constitutional views.
And there are multiple problems with the "remedy" argument. For one thing, most of the time, constitutional lawyers argue, rightly or otherwise, that constitutional "remedies" must not themselves violate clear constitutional rules and duties, and people will go to some lengths to argue that an apparent constitutional violation for remedial purposes is actually consistent with a fair reading of the constitutional text. For whatever reason, constitutionalists generally avoid arguing that some action violates the Constitution but is justified nonetheless. Arguments in anti-discrimination and affirmative action law, for example (and with a good deal of generalization), generally assert that when race-conscious government action is employed for remedial purposes, it is constitutional where the remedy is aimed at addressing identified discrimination that continues to affect individual rights and is closely linked to ongoing governmental actions and effects. That is not an argument that the race-conscious remedy is unconstitutional but justified, but that it is not unconstitutional in that particularized context. It does not apply to this context clearly, if at all. It would certainly be a miracle if all of the several hundred letter and op-ed writers concluded otherwise. Moreover, it is much fairer to call any obstruction of Gorsuch a response to the Garland situation, not a remedy.
One could argue--at least one writer on the constitutional law listserv has done so--that obstruction in this case would be unconstitutional, and that advocates of responsive or "remedial" obstruction in the Gorsuch case should say so in clear terms and argue for it just the same. This has the virtue of transparency and consistency, of forcing its advocates to think about the circumstances in which the Constitution can or should be violated as opposed to massaged or reread, and of being willing to convince fewer people that the "justified violation of the Constitution" argument is right--and risking the possibility that some readers will draw the conclusion that any violation of the alleged constitutional duty of a hearing and up-or-down vote with respect to Gorsuch is just that, and cannot be justified. It would sacrifice political effectiveness for candor. I might not agree with such an argument, but I would welcome having that view aired clearly and publicly.
And, of course, if nothing else, there is a forward-looking possibility, which is that we should--once again--rethink our duties and obligations with respect to signing letters, writing op-eds, and making other public arguments. We could confine ourselves only to those arguments we are sure are right, refuse to sign letters or (especially) write op-eds where we are uncertain their arguments are right, use the narrowest possible arguments we are convinced are correct, and then hold ourselves to those views or clearly and publicly explain why we have sincerely changed our minds.
Again, I make no accusations of hypocrisy or, more important to me, of a failure to make arguments in this case that are consistent with one's clearly stated constitutional views, which is important not for what it says about hypocrisy but for what it says about constitutional and scholarly integrity. To so do, I would have to wait and see how the Senate acted, and then examine every writer's publicly stated views in this case to see whether they followed their earlier views, skirted them, remained silent about those specific issues or about the Gorsuch confirmation process altogether, or offered sincere and persuasive justifications for a change in view. I have seen a couple of Twitter feeds from prominent figures who signed at least one of the documents listed above in which the new statements seem to be in tension with their earlier views. But they may yet qualify their positions, offer sincere and persuasive justifications for any alterations, recant their earlier or newer statements, or even come out in favor of timely hearings and an up-or-down vote on Gorsuch's nomination as a matter of constitutional duty. I do think, however, that what they wrote earlier must be treated as meaning what it said and as a statement of their own sincerely held constitutional views; that any fair reading of those views suggests that, absent some very good reasons, they must urge, or at a minimum not oppose, a hearing and up-or-down vote for Gorsuch; and that any direct contradiction of those freely, voluntarily offered views would raise fair questions about their constitutional views, constitutional and scholarly integrity, or reliability as experts and public commentators.
* As a relevant aside, among the epistemic and rhetorical battles we fight these days, about "fake news," "alternative facts," and the like, there is another problem that I think is both more significant and widespread and much less discussed. That is the profusion of the kinds of arguments, rationalizations, justifications, and rhetorical tactics that are characteristic of both some lawyering and much forensic debate. The problem is not that they are valueless, but that they are much less valuable and much less genuinely respectful of serious attachment to either facts or reasoned elaboration than they appear to be, much more susceptible to "bullshitting," and in the end, in my view, more damaging than some fake story on Facebook to serious discourse or an attachment to integrity and seriousness in thinking and argument. Political argument is not or needn't be legal argument, and legal argument is itself often highly problematic. Once again, although the classic adage is that we are all Legal Realists now, and a few people argue that critical legal theory has not died but been absorbed into general legal thought, I find on the whole that lawyers and law professors at least appear to have internalized very little of the lessons of Legal Realism or CLS, and retain in thought and deed a surprising attachment to the appearance of "reasoned elaboration." Perhaps it ill-behooves a lawyer and law professor to say so, but I think this is a dangerous mistake, especially when this kind of approach to argument increasingly emigrates from the courts and colonizes public and political discussion and debate.
Thursday, February 02, 2017
What Susskind Can Teach Law School Educators
To be a law school leader today, one needs to listen to what Richard Susskind has to say. When he talked about the impact that email would have on legal counseling in the 1990s, many professionals failed to listen. When he talked about the impact of outsourcing of legal work in the 2000s, many professionals still failed to listen. Today, all leaders in law are on warning that what Susskind has to say is worth listening to.
The payoff for law school leaders from reading The Future of the Professions comes both from its discussion of the future of the legal profession and its examination of the future of education. In short, legal education is the crosshairs of disruptive changes to both the profession it serves and to the basic model of higher education. As Susskind explains, both educators and lawyers need to reconsider the historic emphasis placed on expertise and knowledge.
In legal education, the legacy model was focused on knowledge transmission and the goal of teaching students to “think like a lawyer.” The Socratic method and large classrooms for lectures, with a “sage on a stage,” were the norm. in the 1990s, smaller classes, including legal clinics began to develop a range of competencies beyond those developed in larger lecture classes. And even some traditional larger lecture classes introduced “non-traditional” competencies and sought to broaden the skill set developed by the Socratic method.
The revolution in legal education now starting to take root is to identify and develop competencies beyond the traditional focus on legal doctrine, critical thinking, and practical skills. For an increasing number of businesses, the approach from first principles--“to what problem are the professions the solution?” is how Susskind puts it--is the starting place. At Google, for example, the focus is not on traditional academic qualifications. A few law firms are starting to get the memo as well, focusing on competencies other than traditional academic performance on exams and evaluating whether prospective lawyers bring strong “professional skills,” which includes entrepreneurial initiative and a creative problem solving attitude. And for those lawyers who build a broader skillset, including how to analyze data sets and read a balance sheet as well as industry-specific knowledge (like the geology of oil and gas extraction for those working in that indsutry), they can bring the important skill “of thinking like a client” to their work. This mindset, as Cisco General Counsel Mark Chandler explained to Gillian Hadfield in Rules for A Flat World, enables lawyers to see the larger context for any particular legal issue (say, the public relations impact of a pre-trial motion).
For legal educators, the challenge of moving the ship to recognize other sets of competencies is a formidable one. The ABA has offered a helpful nudge, asking law schools to identify and detail the learning outcomes they value and how they are assessed. Similarly, the Educating Tomorrow’s Lawyers effort has documented the increasing re-assessment of what competencies matter, publishing a report on The Whole Lawyer on the Character Quotient. The headline of this report is that professional skills, including emotional intelligence, matter a lot. In the language of Susskind, it is those skills—beyond knowledge of legal doctrine, critical thinking, and practical skills—that cannot be easily outsourced or replaced.
Law schools can thrive in Susskind’s New Normal. They must, however, as I explained in a recent piece, teach more than “law” to do so. At our best, lawyers are able to take the initiative, be creative problem solvers, collaborate effectively, and adapt over time through lifelong learning. To develop these skills, legal education would be wise to study the model outlined by Gallup, whose “Big Six” experiences for higher education apply to law school, calling for learning outside the traditional classroom and engaged mentorship.
A number of law schools are starting to taking on the challenge of redesigning the law school experience, investing in project-based learning, taking the opportunity of a “flipped classroom” seriously, and preparing its students for a world of rapid change. But for most law schools, the crisis following the Great Recession left them trying to hold on to the legacy model, albeit in a scaled down form. For those hoping that is change enough, Susskind’s message could not be more clear—the future of the legal profession will change more over the next two decades than it has over the last two centuries. If the traditional model of legal experience is kept largely in place, students will be left on their own to develop the competencies they need to adapt, survive, and thrive in a changing world.
Teaching and Writing About Marijuana Law
Greetings, y’all, and thanks for having me! In the coming weeks, I’ll be blogging about one of my core areas of interest: marijuana law. In this first post, I want to share just a couple of the reasons why I find this is such a fascinating and worthwhile field of study.
For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.
Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.All of these people need help navigating a thicket of complicated and oftentimes conflicting laws governing marijuana. Colorado, for example, has promulgated more than 200 pages of regulations to govern its $1 billion a year licensed marijuana industry. Among many other things, Colorado’s regulations require suppliers to carefully track their inventories, test and label their products, and limit where and how they advertise. These regulations are complicated enough but doubts about their enforceability (highlighted in the questions above) only add to the confusion and the need for informed legal advice.
This short intro should give you a sense of why I now regularly teach a course on Marijuana Law and Policy at Vanderbilt, and why I have spent a large part of the last two years completing a first-of-its-kind textbook with Aspen on Marijuana Law, Policy, and Authority. The link provides more details on the casebook, which will be published in May of this year—i.e., in plenty of time for summer or fall 2017 classes! And if you are interested in teaching a course in any aspect of marijuana law, contact me – robert<dot>mikos<at>vanderbilt<dot>edu -- I would be happy to chat.
That’s it for now. In the coming days, I’ll write about several of the questions posed above.
Posted by Robert Mikos on February 2, 2017 at 09:54 PM in Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2)
Supreme Court Litigation Behind the Veil
We hosted Ted Olson today as part of the law school’s speaker series, and listening to him lament the intense politicization of the Supreme Court, I was reminded that I have a paper deadline upcoming. In early April, Pepperdine Law School is hosting a symposium focused on these issues, and, like Eric Segall and others, I have proposed a possible structural reform.
Article III imposes no numerical constraints on the makeup of the Court. Neither does it specify how many Justices must hear or vote on any particular case, nor how those Justices must be assigned. Thus, the original Judiciary Act of 1789 provided for six Justices, which number was reduced to five in the infamous Midnight Judges Act, and each Justice regularly “rode Circuit” to help decide lower appeals cases until 1891. There is, in other words, no constitutional magic in the current structure of Supreme Court decision-making.
With this in mind, I propose a change to the longstanding practice whereby every non-recused Justice participates in every case. I suggest that cases could be heard and decided by panels consisting of some smaller number of Justices—say, for now, three—and that the particular makeup of these panels could be the product of some version of fair division theory protocol. In other words, if the requisite 4 Justices vote to grant certiorari in Case X, then a mathematical mechanism would assign three Justices to the X panel. These three Justices would hear arguments and then cast votes in much the same way that Federal Circuit Court Judges now do. Unlike the Circuit Courts, however, there would be no appeal for a hearing en banc. Or perhaps this would require a unanimous vote.
My thought is that such a system would place potential Supreme Court litigants behind a metaphorical “veil of ignorance,” where they would be risk averse in making strategic decisions. I suggest that this would discourage both the parties and certiorari granting Justices from viewing the Court as a potential policy driver on closely contested issues. For example, uncertainty about whether a controversial abortion case will come before Justices Roberts, Thomas, and Breyer—or before Justices Kagan, Kennedy, and Sotomayor—will likely dissuade parties (or Justices) averse to the risk of an unfavorable precedent.
This, in turn, suggests a smaller number of petitions (and certiorari grants) in controversial or ideologized cases—and a corresponding increase in non-politicized Circuit splits and other more “judicial” kinds of questions. This would not, of course, do much to ameliorate the politicization of the appointment or confirmation process—politicians would still want to maximize their chances on the bench, but it would, I suggest, curb the growing practice of treating the Court as a political shortcut.
One of the virtues of my approach is that, unlike other structural proposals, it does not (I don’t think) require a constitutional amendment. The Court could either adopt an internal change to its practices, or Congress could act pursuant to Article III authority to impose “regulations” on the Court’s appellate jurisdiction. While perhaps still a difficult political sell, this would be much easier to accomplish then an Article V amendment.
This is still a very, very rough sketch and proposal, and I’m sure there are a lot of things wrong with it. As ever, I’d be grateful for thoughts or suggestions on how to improve it.
Wednesday, February 01, 2017
Framing the coming debate on the Gorsuch nomination
Neil Gorsuch will be on the Supreme Court. Nevertheless, speaking purely as a political partisan, I would like to see Democrats filibuster the nomination and force Republicans to own the decision to eliminate the procedure. Or that both sides agree to end the arms race and adopt Eric Segall's plan to hold the Court at eight.
But the framing of the strategy is going to be essential. It is too easy to say (as the press already is saying) that a filibuster is extraordinary and unprecedented and this would be only the second time it has happened. Forget that the filibuster of Fortas's nomination as Chief was bi-partisan and done when the filibuster was an extraordinary step (as in the then-fresh filibuster of the Civil Rights Act of 1964), rather than a routine part of Senate business producing a de facto super-majority requirement. The year 1968 was the dark ages for Supreme Court confirmations and filibusters, no longer a meaningful historical analogue.
Similarly, the argument has to be more than that the seat was "stolen" from President Obama and Merrick Garland. Senate Republicans did not merely deny Garland a hearing, but did so for a purported principle--a President should not fill a SCOTUS vacancy in an election year/in the final year of his term (although I have never been clear whether that was the final year of a term or only in the final only of a second term).*
[*] That was the stated principle; I am not saying I believe it. Mitch McConnell would have led the Republicans to do the same thing had Scalia died on December 13, 2015 or August 13, 2015 (when the Republicans were already holding primary debates). Or, frankly, anytime after the 2014 mid-terms.
So the Democrats need to find their own principle beyond tit-for-tat.One principle is that, given longevity, the central role of the Supreme Court in the legal and political scheme, and the increasing polarization in society, Justices must command super-majority support to be confirmed. True, this principle is not found in Article III or history and the lone example of a filibuster shows it has not been used in this context. But the "no election-year confirmations" principle also had no basis in Article III and ignored a history of election-year appointments (including 100 years prior, the confirmation of Louis Brandeis). The (new) rules of the game do not appear to estop a Senate caucus from adhering to new principles; the only question is whether the principle sticks, as the GOP's move did, or not, as will happen when Senate Republicans eliminate the filibuster for SCOTUS nominations.
I would add that this principle flies less in the face of text than McConnell's. The idea of no appointments in the final year disregards that a President serves for four years (January 20, Year 1-January 20, Year 5) and that vested in him for the entire four years is the executive power, including the power to make appointments. McConnell's principle essentially says that power runs out sometime earlier, although it is not clear when (again, I expect it would be Election Day of Year 2).
Alternatively, Mark Tushnet suggests a principle of no appointments by a President who lost the popular vote. It last happened 1893, when lame-duck Republican Benjamin Harrison appointed a Democrat a month before newly (re-) elected Democrat Grover Cleveland took office. Again, however, we have had other election-year appointments in our history (and most more recently than 1893), all of which Republicans ignored last year.
Ultimately, the principle I believe we end with* is this: No one will be appointed to the Supreme Court except where the President and Senate majority are of the same political party. I do not necessarily believe that is a normatively good principle. But it is functionally where we now found ourselves in the current political circumstance.
[*] This assumes the Democrats decline to filibuster to save it for another day, which would be politically stupid. But then, Senate Democrats . . .
Update: But see Richard Primus' argument that the real threat is Donald Trump, not a judicial nominee who might have come from any Republican President.
When articles began to pop up about Neil Gorsuch's mother, the late Anne Gorsuch Burford, I thought "that's interesting." Stories about political families are always interesting. Anne Gorsuch Burford's career at the EPA was interesting as was her her 1986 take-no-prisoners book on her experiences in D.C. I am not, however, among the group that thinks that the most telling thing about Neil Gorsuch's parentage is that Anne Gorsuch Burford was an extremely controversial EPA head.
Actually, the most interesting thing I wonder about Neil Gorsuch's experiences as his mother's son (one of two sons among three siblings) is whether the experience of his mother's death from cancer in 2004 helps to explain some differences between the chapters in his 2009 book The Future of Assisted Suicide and Euthanasia that appear to have been written specifically for the volume and those that were essentially reprints of earlier articles on these topics.
I know nothing about Ann Gorsuch Burford's death but that she died too young, at the age of 62, and that she died from cancer. Although there are those who say that "dying of cancer is the best death, " there is another school of thought that notes many cancer patients die in "excruciating pain and fear." At any rate, we sequester the dying so successfully in our society that it may not be until a very close friend or family member dies from cancer that we knowingly look a cancer death in the face.
Ann Gorsuch Burford's obituary reports she died in Aurora, Colorado while her son Neil Gorsuch resided in Vienna, Virginia. I do not know if Neil Gorsuch was able to participate in caring for his mother at the end of her life when he himself was only 37 years old. What I do know is that the experience of hands on caregiving and on-the-spot decision making for someone leaving this world in the face of great physical and/or psychic pain can be life transforming. Interestingly, we see this transformative experience studied more in the shifts in perspective some hospice and palliative care providers make over a career of caring for the dying than in the re-working and re-thinking of beliefs related to death and dying in the lives of lay people or even bio-ethicists who pass through this experience.
I am interested in whether and how lay people and family caregivers who actively care for those approaching an untimely and painful death also have to square up their lived experience with their theoretical understanding on all sorts of issues, including assisted suicide or medically assisted death. Some of those lay people are bio-ethicists, which I find even more interesting.
How an earlier in life experience with death and dying can draw a scholar or a practitioner first close and then even closer to work in the area of death and dying might be seen as a kind of history of the present. From this perspective, we are all still re-considering, in our lives and in our work, our earlier experiences with death and dying each time we confront the mortality of those close to us.
The work of philosopher John Finnis appears to have been a powerful influence on our latest Supreme Court nominee. It might be argued that John Finnis is the intellectual parent to this son. But I still have to wonder if Neil Gorsuch personally walked those last hands-on miles with his mother.
Thanks to Prawfsblawg for the opportunity to visit here this month.
In Praise of Geographic Diversity on the Supreme Court
Much ink will be spilled in the coming days, I am sure, on President Trump’s nomination of Tenth Circuit Judge Neil Gorsuch to the Supreme Court. Here I want to weigh in on one oft-neglected but important part of Judge Gorsuch's resume: the geographic diversity he would bring to the Court. Gorsuch is a Colorado native, and his address last night repeatedly invoked those western roots. By contrast, most of the current Justices hail from within the so-called Acela Corridor, stretching from Boston to Washington, D.C.
It was not always this way. Twenty-five years ago, the nine members of the Court had spent their formative years in locales all across the country: California (Kennedy), Arizona (O’Connor), Colorado (White), Illinois (Stevens), Wisconsin (Rehnquist), Minnesota (Blackmun), Massachusetts/New Hampshire (Souter), New York (Scalia), and Georgia (Thomas). The distribution was a bit heavy on the Great Lakes states, perhaps, and a bit light on the south-central part of the country, but widely representative nonetheless.
There are several reasons to believe that geographic diversity on the Court makes a positive difference. More after the jump.
First, geographic diversity can raise the Court’s legitimacy with the public by increasing regional buy-in. The November election made clear that much of the country believes that federal institutions are dominated by coastal elites. Appointing a Justice from far outside the range of the Delta/American shuttle can strengthen public belief that the Court has a national perspective. Regional pride plays a role as well: the left-leaning Denver Post strongly endorsed Judge Gorsuch for the Supreme Court opening last week, despite his conservative credentials, noting among other things that “we like his ties to Colorado.” Just as the gender, race, religion, and philosophy of a Supreme Court nominee can drive acceptance among certain segments of the public, so too can geography create the sense that “one of our own is looking out for us.”
Second, Supreme Court appointees from different parts of the country are likely to bring specialized knowledge of certain areas of law. The Tenth Circuit, for example, encompasses states in which the law concerning water rights, oil and gas, minerals and natural resources, skiing and winter recreation, the management of federal lands, and the state-federal relationship is both prominent and very strongly developed. Many of these issues are likely to come before the Supreme Court at least sporadically in the coming years. Assuming no basis for recusal, a Justice with familiarity in these areas would be a welcome addition. The same would obviously apply for other areas of the country.
Finally, childhood and adolescent experiences—and the location of those experiences—can matter to adult decision-making. No less than any other cultural influence, childhood geography can instill certain understandings about the world that remain with you as an adult. As the 2007 Scott v. Harris case notoriously demonstrated, perspectives on what constitutes reckless driving may be influenced by whether one grew up in a community reliant on subways and buses or pickup trucks and rural roads. Similarly, one’s perspective on issues related to labor, immigration, business and financial regulation, criminal justice, and so on might be affected by whether one grew up in view of factories or farms, skyscrapers or suburban malls. Or just go ask a westerner about water – water rights, water use, water conservation. While we would never expect or demand a Justice to vote a certain way based solely on geographic background, the ability to add a different perspective at least increases the chance that the Court will take it into account.
The geographic background of a Supreme Court nominee should not be the primary basis for his or her appointment to the Court, any more than the candidate’s gender, race or religion should be. But it does carry both symbolic and practical value, and it’s good to see geographic balance coming back into play.
Welcome to February.
Thanks to our January guests, who may stick around for a few extra days. For February, our month-long guests will be Ian Bartrum (UNLV), Megan LaBelle (Catholic), Robert Mikos (Vanderbilt), and Jordy Singer (New England).
In addition, February will include an on-line symposium, something we have done in the past and hope to do more of in the future. Organized by Dan Rodriguez, this month will be Law's New Frontiers, a discussion sparked by Richard and Daniel Suskind's The Future of the Professions and Gillian Hadfield's Rules for a Flat World. Participants will be: Daniel Rodriguez (Northwestern), Daniel Katz (Chicago-Kent), Daniel Sokol (Florida), Phil Weiser (Colorado), William Henderson (Indiana-Bloomington), Renee Knake (Houston), Andrew Perlman (Suffolk), Stephen Denver (Law Society of England & Wales), and Javier de la Cendra (IE-Madrid). Dan (Rodriguez) will have more when it is about to begin.