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Thursday, March 30, 2017

Twiqbal on life support?

On a Twiqbal question on the preliminary exam in Civ Pro, no fewer than three students wrote that the rules require more than a "threadbare resuscitation of the elements."

Posted by Howard Wasserman on March 30, 2017 at 12:21 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Wednesday, March 29, 2017

Checks and Balances From Across the Street

One of the primary purposes of the separation of powers is to constrain federal power in order better to protect individual liberty.  Part of my book on decentralizing federal power examines whether locating so many important officials of the federal government in the same metropolitan area facilitates or undermines these ambitions to constrain.  As I wrote in a recent essay, co-location “narrows” federal power, and that narrowing can complicate the Madisonian ambition to have “opposite and rival interests” controlling the different branches. 

Let’s divide this up into epistemic and transaction costs dimensions.  First, co-locating multiple branches of the federal government can undermine the motive (the Madisonian “ambition” in Federalist 51) to constrain another branch of government.  Officials within the same metropolitan area across the branches tend to converge on issues as they are exposed to the same argument pools.  Even when that convergence does not transpire as a substantive matter, the personal and professional networks that are constructed within the same metropolitan area and across the branches can generate convergence motivated by reputational concerns.  This does not mean that every federal official in the same metropolitan area thinks the same way, regardless of partisan or ideological priors.  It does mean that there are fewer constituencies with motivations to constrain than when federal power is decentralized.  There are some examples of institutional design accounting for and trying to correct this.  When Congress worries that its decision will be dominated by insider interests shaping the executive and legislative branches (e.g. in closing military bases after the Cold War), it will sometimes relocate many of its legislative deliberations outside of Washington.

Second, transaction costs to collude are lower within the same metropolitan area.  The opportunity to subvert the separation of powers can be undermined by co-location.  Transportation costs for tangible goods have decreased substantially relative to transportation of human beings.  I can send you an electronic message in a second, but it still might take me 30 minutes to drive across Washington to meet you about it.  The result is that individuals still tend to meet more easily, more often, and more effectively from across the street than across the country.  The branches that are meant to be separated are located quite close to one another, making it easier for their officials to arrange meetings and share information.  When branches or offices are meant to be independent—like an Inspector General or federal court—it is even harder for them to be when they are across the street.

If one questions whether these mechanisms are present, consider the saga of Devin Nunes, the Republican in the House of Representatives chairing the House Intelligence Committee.  In a world of separation of parties, not powers, his motivation to constrain President Trump as a fellow Republican is decreased.  That motivation is decreased even more by the fact that he is a Republican going to the same events, talking to the same people, and building close personal relationships as the Trump White House—and indeed building these personal and professional relationships with those in the Trump White House.  His opportunity to subvert the separation of powers is even greater because he only needs to walk 2.1 miles to get to the White House to see what the Trump White House wants him to see, rather than having to travel across the country.

Posted by David Fontana on March 29, 2017 at 12:26 PM | Permalink | Comments (1)

Tuesday, March 28, 2017

Naming in Judicial Nominations

I participated in a fantastic symposium in October at the University of Wisconsin Law School on “Modern Federal Judicial Selection.” A nearly final draft of my essay for the Wisconsin Law Review from that symposium is available here.  My essay addresses the tactical errors of the Obama Administration in acting largely cooperatively on judicial nominations during uncooperative political times.  I want to use some of the ideas I introduced there and apply them to the Gorsuch hearings.

One of the arguments that I make is that judicial nominations are a unique opportunity for “naming.”  By naming, I mean applying a label or frame to a particular jurisprudential perspective.  Because the stakes in judicial nominations are large, nominations can serve as a political coordination device allowing stakeholders to discuss and reach agreement on a name.  The attention generated by a nomination generates a political microphone allowing that nominee and the Administration that selected them to broadcast that frame more broadly. 

Think, therefore, how much of last Thursday’s Gorsuch hearings were dominated by the name originalism.  The debate among Trump Administration officials and supporters before last week week consolidated and communicated to one another their support for originalism.  Gorsuch talked about originalism during the week, and many expert witnesses testified about originalism on Thursday.  Senators expressed their support, apprehension and/or opposition to originalism. 

Contrast, that, for instance, with the nomination of Sonia Sotomayor in 2009.  While the Trump Administration named originalism and associated Gorsuch with it, the Obama Administration did something very different.  The process leading to her nomination did not feature the meetings and the discussions about what name would be featured in the nominee’s jurisprudence and by the nominee’s performance at confirmation hearings.  While President Barack Obama mentioned he wanted “empathy,” that name was quickly disavowed by President Obama’s supporters.  During the hearings, Sotomayor did not mention any name for what her jurisprudence represented, and the day of witnesses (like Thursday for Gorsuch) did not feature any consistent vision of the law.  An opportunity to consolidate a progressive jurisprudential vision and communicate that vision were lost.

Posted by David Fontana on March 28, 2017 at 03:03 PM | Permalink | Comments (8)

Institutional Loyalties in Constitutional Law

My latest article, with Aziz Huq, is now available on SSRN.  It is entitled “Institutional Loyalties in Constitutional Law.”  Given what is happening in Washington in the first period of the Trump Administration, the question of when we want officials to be loyal to their institution and how to generate that loyalty is of immense importance.  Here is the abstract:

In Federalist 51, James Madison offered what has become the canonical account of how the separation of powers would pit branch against branch for the greater good. The officials of an institution would and must act on behalf of their institution for the Constitution to function properly. In Madison’s account, ensuring the presence of the right amount of institutional loyalties would serve as a durable and plausible mechanism enforcing institutional boundaries and ensuring a stable constitutional order. But modern scholars take a more skeptical view of his theory. Faced with forces or figures that threaten basic institutions of the constitutional system, their energies have primarily been devoted to predicting that the Constitution will prove fragile because institutional loyalties are rare in practice, and, additionally, difficult to create as a matter of institutional design. This Article aims to re-establish institutional loyalty as an object of serious analysis for constitutional scholars and jurists. Its core thesis is that institutional loyalty can be identified, evaluated and generated as a central feature of contemporary American constitutional law. We provide a definition of institutional loyalty, and situate the concept in the American constitutional past and present. We further marshal evidence that institutional loyalty can be decisive to contemporary inter-branch dynamics, even if its effects are inconstant and often asymmetrical. We further argue that it is a mistake to view institutional loyalties as a constitutional end in themselves. It is true, as Madison predicted, that such loyalty can at times contribute to widely shared constitutional goals in some instances. But, contra Madison, we show that institutional loyalty can also undermine structural goals at other moments. Calibrating the appropriate mix of such loyalties across the branches therefore presents a considerable, if unavoidable, array of challenges. To that end, the Article offers a comprehensive taxonomy of causal mechanisms by which institutional loyalty can be generated within each of the three branches. Working branch-by-branch, we identify examples of institutional reforms capable of modifying institutional loyalty in ways that promote widely shared constitutional ends.

Posted by David Fontana on March 28, 2017 at 06:20 AM | Permalink | Comments (0)

Monday, March 27, 2017

Monday Morning with Larry (Alexander)

This morning was fun.  Classes were prepared, in-box was manageable, meetings were cancelled.  So, I spent a few hours with a stack of papers that Larry Alexander had sent a little while back.  I don't know how Larry manages to write so much so well, but he does.  Check out, e.g., "Is Wrongful Discrimination Really Wrong?" (here); "Brexit and the Future of Liberal Democracy" (here); "Hard Incompatibilism, and the Rejection of Moral Responsibility:  A Skeptical Look at an Optimistic Account" (here);  and "Against Equality" (here).

Posted by Rick Garnett on March 27, 2017 at 01:12 PM in Rick Garnett | Permalink | Comments (0)

Ornstein on election do-overs

In The Atlantic, Norm Ornstein proposes the creation of a mechanism for special presidential and vice-presidential election in "extraordinary circumstances," covering not only a terrorist attack or other catastrophic event, but also attacks on the electoral process itself, as well as "foreign interference in the election combined with a winning party’s involvement in or reinforcement of the interference." Ornstein's basic point is that if a cloud if illegitimacy hangs over the President and Vice President, everyone who might replace him within the line of succession sits under that same cloud. (This is the converse to the logic of having cabinet officers as primary successors--they enjoy what Akhil Amar calls "apostolic democratic legitimacy" should they be elevated to acting president, by virtue of having been appointed by the legitimate President. But if that President is not legitimate, then no one enjoys apostolic legitimacy).

Norm knows more about presidential succession than just about anyone alive. I had the privilege of working with him a bit on the Continuity of Government Commission, an effort he co-chaired in the years after 9/11 to alter the rules of presidential succession to respond to a mass-destruction event aimed at Washington (recall that Flight 93 was headed to the Capitol). Those efforts went nowhere, as the political urgency subsided. His point now is that a different political urgency has presented itself.

Posted by Howard Wasserman on March 27, 2017 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Separation of Powers From Across the Street

I have been writing about decentralizing federal power for a few years now, both as a tool of comparative constitutional design and as a topic of American constitutional design expanding how federal power would be exercised across the parts of the federal government and across American constitutional history.  With Congress now debating related ideas, and Ross Douthat mentioning them briefly in The New York Times, I wanted to start to preview parts of my article and book on these issues.  My plan is to work through what decentralizing federal power means for many different debates in constitutional design, starting with the separation of powers.  My question is simple: can power ever truly be separated if it is across the street?

In the economic geography literature, as David Schleicher has so compellingly demonstrated, the scholarship largely focuses on co-location as inducing a form of economic convergence.  Because of a variety of mechanisms, living and working near others makes us learn from them and otherwise become more like them.  In the context of constitutional design, though, convergence can be complicated.  Do we want convergence for every part of the federal government? Is it important that the place of federal power sometimes be singular as opposed to plural? Is the way to make Washington work to create more of them?

James Madison wrote in Federalist 51 of the need for “opposite and rival interests” to control the different branches of the federal government.  Only if and when these rivalrous interests control different branches would these branches ensure that “[a]mbition . . . be made to counteract ambition.” Ensuring that branches are selected differently and granted different powers are two different design tools that constitutional law uses to ensure these rivalrous branches.  These selection effects and treatment effects, though, can sometimes underpower separation if the branches are located across the street (or across town) from one another.  The same metropolitan area will narrow the types of people who come to work in these branches, and the types of incentives they face once working in these branches.

A long but lost part of our constitutional history has involved leaders realizing this design complication, and trying to respond—even if rarely so.  In drafting the Residence Act of 1790, many debated whether the goal should be to federal officials only seasonally in Washington, and whether Washington itself could function as a decentralized location for power because it was an underdeveloped location.  Congressional leaders have over history attempted to ensure that members spend a certain portion of their office budgets on staff employment and activities in their district or in their state.  The creation of the regional reserve banks within the Federal Reserve was motivated in part by a desire to have these banks exist outside of the narrowing effects of Washington. As Jessica Bulman-Pozen, Yishai Blank and Issachar Rosen-Zvi have recently written, federal administrative law has tried to find ways to create a regulatory unit known as the “federal region” that exists between the units of the state and the federal.  The debate surrounding the expansion of the lower federal courts preceding the Evarts Act of 1891 likewise featured reasons—and rules—related to distributing federal judicial power outside of Washington.

In later posts, I will expand on what limiting the “difference of powers” at the federal level means for the “multiplicity of constitutional values” that Aziz Huq and Jon Michaels have noted are behind the separation of powers.  I will also more to say about what decentralizing federal power means for other constitutional design goals.  Finally, I will have a few things to say about considering this idea when the idea has been appropriated in Donald Trump’s Washington by those without the same underlying motivations—or the same goals to consider this idea incrementally rather than radically—that led me to start writing about this.

Posted by David Fontana on March 27, 2017 at 06:11 AM | Permalink | Comments (0)

Will There Ever Be A Warren Court Moment for Progressives?

It has become a statement of conventional wisdom—even though it is one without extensive reliable empirical evidence—that the electoral base of the Republican Party cares more about judicial nominations than does the electoral base of the Democratic Party.  Propositional citations for this include candidate for President George W. Bush referencing by name Justices Antonin Scalia and Clarence Thomas as his models for a Supreme Court Justice, and President Donald J. Trump suggesting that part of the reason he won was that conservative voters were concerned about the future of the Supreme Court.  My article with Donald Braman from a few years ago suggests that Democratic Party voters are more loyal to the Supreme Court, and are less likely to turn against the Court in response to a Court decision they dislike.  What could convince the electoral base of the Democratic Party to care about judicial nominations?

One of the mechanisms identified in the psychology literature is a “critical moment” that directs the attention of groups to an issue, and with a frame that causes them to reevaluate how they think about the issue.  The conventional account has been that the Warren Court was the (prolonged) critical moment for conservative voters, a period that directed them to care about judicial nominations.  We can even combine this with the endowment effect, and argue that conservative voters were particularly upset about the Warren Court because we are most alerted by critical moments that threaten to deliver a loss than those that promise to deliver a gain.

Will a Senate filibuster of the Neil Gorsuch nomination be a critical moment for the Democratic Party, causing their base to care about judicial nominations? The failed nomination of Merrick Garland could have been such a moment.  Leaders within the legal and political establishment of the Democratic Party remain upset about how the Senate treated Garland.  The polling evidence I have seen thus far, though, suggests that the salience of Garland’s nomination is not pervasive among the Democratic Party base.  A Pew poll found that Republicans actually cared more about the Garland nomination than Democrats did.

This is part of why the nomination of Gorsuch to the Supreme Court matters politically so much even after Donald J. Trump leaves office—and matters as what appears to be a lost opportunity for a Warren Court moment.  The hearings have generated little focused energy among many Democrats, particularly given other issues that have energized them more in Trump’s chaotic and overstimulated Washington.  The absence of sustained interest within the Democratic Party on judicial nominations for the next generation seems to be likely, that that absence will be due to the lack of a Warren Court moment now.

Posted by David Fontana on March 27, 2017 at 05:34 AM | Permalink | Comments (9)

Sunday, March 26, 2017

Welcome to Max Stearns and "Blindspot"

Max Stearns (Maryland) has joined the law professor blogosphere with Blindspot, which he describes here. Posts so far have covered the Gorsuch hearings, coffee, the TV show "Rectify" (whose final season I need to watch), and ideological blindspots of both political parties.

Definitely worth adding to your regular blog stops.

Posted by Howard Wasserman on March 26, 2017 at 10:50 AM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Thursday, March 23, 2017

JOTWELL: Campos on Glover on claims as property

The new Courts Law essay is from Sergio Campos, reviewing J. Maria Glover's A Regulatory Theory of Legal Claims (Vand. L. Rev.), which considers the implications of understanding legal claims as property.

Posted by Howard Wasserman on March 23, 2017 at 10:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, March 22, 2017

Judging Judge Gorsuch on the Separation of Powers

Judge Gorsuch's views on the Chevron doctrine, which directs reviewing courts to defer to agency constructions of ambiguous statutes, have received a lot of attention, and for good reason:  They are well-articulated, interesting, and controversial.  "There's an elephant in the room with us today," Judge Gorsuch quipped in his concurring opinion in Gutierrez-Brizuela v. Lynch, and he seems ready to play the elephant hunter on behalf of the separation of powers.

The separation of powers, however, is much more than the Chevron standard of review.  As my colleague Leah Litman points out at Take Care, Judge Gorsuch's views on agency structure are also a measure of his understanding of the separation of powers.  For example, she asks, will Judge Gorsuch respect the existing conventions of agency independence?  There's reason to think, Litman explains, that Gorsuch might increase presidential power on that score.

Also worth considering, I'd briefly add, are Judge Gorsuch's views on access to courts.  Does the separation of powers mean, for instance, that standing doctrine should restrict regulatory beneficiaries' access to judicial review of administrative action?   On the question of constitutional litigation's role in our polity in general, Gorsuch has been forthright.  In "Liberals'N'Lawsuits," Gorsuch wrote that "overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary," while also noting "that constitutional lawsuits have secured critical civil-rights victories."  He echoed the latter sentiment during his confirmation hearing, also adding that "[t]he problem lies on both sides of the aisle."  It's safe to assume that the Supreme Court's pattern of tightening up access to courts would persist with a Justice Gorsuch on the bench.   

But it's not easy to pin down his views on doctrines like standing to challenge agency action, as the Electronic Privacy Information Center has pointed out.  In Hydro Resources v. EPA, Judge Gorsuch opened a small window onto that subject, stating: "Federal courts do not wield plenary jurisdiction over every slight or suit.  Instead, our authority is restricted in ways small and large by constitutional and statutory design.  Because of this, the task of ensuring ourselves of our own subject matter jurisdiction 'is not a mere nicety of legal metaphysics,' but essential to the rule of law . . . ."  Following Justice Scalia's opinion for the Court in Lujan v. Defenders of Wildlife, Judge Gorsuch went to discuss standing as an "essential" limit on federal jurisdiction.  Against that backdrop, Judge Gorsuch held that a regulated party had suffered a judicially cognizable injury in fact based upon its "'out-of-pocket cost'" in obeying a government regulation, "'whether or not [there may be] pecuniary loss' associated with the new rule."  That's not a surprising holding, as regulated parties tend to have an easier road to establishing a justiciable injury in fact under current standing doctrine.

There aren't enough tea leaves to offer a bold prediction about the future of standing doctrine or Gorsuch's potential role in that future.  But there's enough to point that judging Judge Gorsuch on the separation of powers doesn't stop with Chevron.  Denying court access is another way of deferring to executive discretion.         

 

Posted by Seth Davis on March 22, 2017 at 03:15 PM | Permalink | Comments (0)

Priming Public Opinion on the Federal Courts

I wanted to pull up a chair to the blog posts last month by Richard Primus and Rick Hills about the decreasing public regard for the federal courts reported in a recent poll.  I do not question these results, but I want to explain them a little.  If it is indeed true that these findings are unprecedented, my hypothesis would be that it is more of a change on the supply side of public opinion than the demand side of public opinion.  Americans were always willing to distrust their federal courts, they just needed someone to prime them to do so. 

Public support for the federal courts has always been taken as too durable and inevitable and not contextual and fragile enough by law professors.  Just like public attitudes towards other issues, attitudes towards the federal courts can be primed by elite political actors perceived as otherwise sympathetic to one’s worldview.  Donald Braman and I have written of our skepticism that the political science data always does demonstrate meaningful support for the federal courts because so much of that data has no prime or signal affixing practical stakes to judicial actions.  There are many good empirical articles on this, led by this one by Tom S. Clark and Jonathan C. Kastellec, this one by Stephen P. Nicholson and Thomas G. Hansford, and this one by Stephen P. Nicholson.  The gist is that citizens are particularly ill-informed about the federal courts, and thus particularly susceptible to change their sentiments based on cues from sources they trust, like elite co-partisans.

The results demonstrating so-called “diffuse support” for the Supreme Court are often (not always, it is important to note) therefore a manifestation of the presence of social desirability bias and the absence of a countervailing source cue. Many respondents think they should like the federal courts and think they should believe that courts should be powerful.  When asked questions about their support for the federal courts, they will report deep support (although even this support has dropped recently).  When an elite co-partisan steps in to prime them to think otherwise, then social desirability bias is overwhelmed by a reliable signal directing them how to think about federal courts. 

What the mountains of evidence of support for the Court could demonstrate, then, is simply a version of what Frederick Schauer wrote twelve years ago: no one cares that much about what the Supreme Court is deciding, and so therefore (extending Schauer’s point) why would any prominent political figure bother spending scarce political time to make constant and prominent attacks on the Court? President Trump might be spending more time making more aggressive and salient attacks on the federal courts than any other major political figure in some time, which primes his supporters to dislike the federal courts.  Given their general response to primes, they might have always been this easily persuaded by someone so prominent willing to say so much negative about the federal courts.  But no one did so until now, and that is why these numbers have started to appear.

Posted by David Fontana on March 22, 2017 at 12:58 AM | Permalink | Comments (2)

Tuesday, March 21, 2017

Journalism, law, and asking questions

This piece, arguing that reporters undermine their checking function by asking complex, multi-part questions or burying a single question in a long lead-up, is spot-on. And the comparison to what we try to do in law school and law is apt. Effective cross-examination involves single, pointed questions. The same for effective questioning during oral argument--part of why Justice Breyer's questions are so incomprehensible and impossible to wade through is all the crap surrounding the question--which is usually just "respond to what I just rambled about for 3 transcript pages." It also what effective classroom teachers do, guiding the discussion with singular pointed and precise questions.

The result in journalism and law is the same: If the question is memorable because so beautifully and intricately phrased, the answer will not be memorable--because it will not have gotten a meaningful answer or even any answer, at the least not the one the questioner was hoping for.

Update: Needless to say, this also would make confirmation hearings far more bearable.

Posted by Howard Wasserman on March 21, 2017 at 04:14 PM in Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (1)

Whose money is it, anyway?

A manager's amendment to AHCA was submitted on Monday, containing several changes designed to get conservative and Freedom Caucus members on board. Under the new legislation, people will not be able to roll unused tax credits into health savings accounts. This change was made as a sop to anti-choice activists, who argued (as far as I can tell) that allowing tax credits to be placed in individual's HSAs would be for government funds to, potentially, be used for abortions. This is on top of a provision that prohibits tax credits from being used to purchase insurance plans that cover abortion.

But in Arizona Christian School Tuition Org. v. Winn, the Court rejected Establishment Clause taxpayer standing in a challenge to a state scheme of giving tax credits to individuals in the precise amount of their contributions to organizations that gave scholarships to students attending religious private schools. The linchpin of the Court's analysis was that the tax credit was not an expenditure of government funds, because the money never passed into government hands--it was money that the government never collected because it lowered that individual's tax bill (for whatever reason). There was no Flast standing to challenge what amounted to charitable expenditures by private individuals.

But doesn't it follow that these restrictions on the use of tax credits are imposing restrictions on the use of private funds (in a way that arguably constitutes an undue burden). The government is lowering the tax bill for individuals, but then limiting how that individual can spend their own money.

What am I missing?

Posted by Howard Wasserman on March 21, 2017 at 10:57 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Conservative Credentialism

One of the questions that the conservative legal movement faced several decades ago—like any opposition movement does at first—is whether to use exit, voice and/or loyalty to obtain power.  Professional movements that operate in opposition face a unique version of this question.  Credentials communicating technical merit are crucial in public discourse in evaluating the merits of professionals. Steven Teles’s fantastic book on the conservative legal movement puts the question as one of fight or flight: should conservative lawyers seek to generate credentials for their messages and messengers within the existing professional framework, or should they seek to create an alternative framework to credential their messages and messengers?

It is certainly the case that the flight option has been important to understanding the direction of the conservative legal movement.  Organizations like the Olin Foundation and the Federalist Society attempted to create an alternative credentialing mechanism—but still very much operate within the existing structure of the legal profession.  These organizations supported scholarship, for instance, that was not being supported as much or at all before, but it is still largely scholarship by law professors for law reviews.

One reason why the nomination of the Neil Gorsuch is interesting to me is how dramatically he represents the promise of the fight option.  The fight option permits those in the minority within a profession—in this case conservatives within a liberal-dominated elite legal profession—to persuade opponents over the course of a career by building networks with many high-status ideological opponents.  Gorsuch is the product of a private school in the Washington metropolitan area, Columbia, Oxford, Harvard law school, and then a relatively bipartisan Washington law firm (certainly one not as ideologically identified as other law firms).  At each stop, he built relationships with prominent progressive voices.  These friends and colleagues then vouched for him in prominent ways.  Their support—contrary to ideological type, a rarity these days—has become a major means of legitimating the technical (as opposed to, say, ideological) excellence of Gorsuch.  Many Trump Administration officials (including Vice President Mike Pence) and Gorsuch supporters have been citing the support of “even Democratic lawyers” as a means of proving Gorsuch’s technical legal aptitude.  Gorsuch was introduced by former Obama Administration Acting Solicitor General Neal Katyal at today’s hearings, and was supported by many prominent progressive Supreme Court lawyers and law professors.

Something similar has happened politically, as I wrote a few years ago in The New Republic, now that some Republican candidates for political office advertise their Ivy League background as a reason to vote for them.  These candidates for political office use their networks within the Democratic Party elite to identify and promote allies on the other side of the ideological spectrum.  These cross-ideological allies can then campaign for their Republican friend, providing powerful “against type” support for the Republican candidate.  Cross-ideological allies who are not willing publicly to be identified with the Republican candidate can at least introduce them to friends and organizations that can financially support their campaign.  Political candidates do not try to prove their technical merits in the same way that nominees to the Supreme Court do, but political candidates do try to prove that they are competent in some ways—and the fight strategy therefore has similar payoffs.

Posted by David Fontana on March 21, 2017 at 04:59 AM | Permalink | Comments (9)

Monday, March 20, 2017

The Legal Academy Becomes More Like the Rest of the Academy, Part XVIIII

Via TaxProf Blog and the ABA Journal comes the news that the ABA's Council of the Section of Legal Education and Admissions to the Bar has proposed a rule change to the current ABA standard requiring that more than half of all credit hours offered by accredited law schools be taught by full-time, and hence generally "academic," faculty. The proposal would reduce the required number to one third. Some observations:

1) Interesting! We can expect some good healthy debate and controversy on this one, as well as a fair number of extremely flowery and high-minded statements.

2) None of the sources cited or linked to above offer a discussion of the reasons for the change. Perhaps there was lengthy and thoughtful policy discussion. It seems to me, however, that the reality is that whatever discussions took place were ultimately secondary to the pressure of events on the ground. This is a proposal driven by real or perceived economic necessity, and a desire to legitimate changes that either are already happening--or that might need to happen if law schools are to remain afloat while cutting to the bone. (Whether they should all remain afloat is a separate question.) 

3) On the whole and as an initial matter, I favor the proposal. In a now-ancient book review of Brian Tamanaha's Failing Law Schools, I wrote approvingly of Tamanaha's proposal that we "pare down ABA accreditation requirements that force law schools into a single educational model," so that some schools can maintain the traditional and more "elite" model while others offer a "cheaper and more practically oriented model." Under this approach, "[s]tudents interested in the latter model [would] not be forced to pay for the former," in the sense of having to meet the requirements of, and thus pay for, the elite model whether they want to or not. I noted the high-minded statements that appeared then opposing such a change, and doubtless will reappear in the current discussion, but disagreed with them. For reasons of institutional diversity, among others, I favor the possibility of different models and am not much disturbed by the objection--I would call it a description, really, instead of an objection--that it would lead to a "two-tiered" system. Among other things, I wrote that the objections gave insufficient recognition to "the reality that we already have a two-tier system, albeit one whose pretenses of uniformity drive up the costs across the board." Nor was it clear to me why "a less academically driven legal education would be a 'second-rate' one," as the opponents of such a change argued. For many students and schools, it might be the better education. 

I am still so minded. The usual tendency, at least until 2008 and still to a substantial extent, is for every school to want to be and look like Yale or Harvard, no matter how little sense that makes for particular schools in particular places. (I am reminded of Tom Wolfe's description of Yale architecture students puckishly drawing illustrations of the then-chic "Yale box" appearing on the moon, on the farm, and in other unusual and inapt places.) This is partly a function of law schools' absurd credentialism, lack of imagination, and hierarchy-reproducing tendencies when it comes to hiring and the highly limited backgrounds and cultures from which most law professors spring, and partly a function of their attention to US News rankings and general desire for elite status (for the schools and, just as important, for the faculty themselves). As I wrote then, whatever their deepest wishes, many law schools have already bowed to reality and departed from some of these norms. The proposed rule change gives them more liberty to do so, without requiring it. If some law schools adopt a more practice-driven approach and rely more on practitioners to achieve it, while others are or can afford to emulate the model of a few elite schools, so much the better for institutional diversity and student choice.

4) Schools that take advantage of this model and adopt a more adjunct/practitioner-oriented faculty model, with a smaller academic faculty core and a larger store of adjuncts, will still face the need to do what too few have done: to think creatively and comprehensively about how to turn this congeries of commuters into an actual law school community. They must think about ways to bring those commuters into the school more often, make them a larger part of the intellectual and daily life of the school rather than an afterthought, include them in faculty life and discussion and decision-making, and give them a sense of being members and stakeholders of the law school community. It's a difficult but necessary task to undertake. One assumes that there are various ways to achieve this, and they need not all look the same. 

5) In at least some ways, what happens in the law schools follows what happens in the larger academy, but at a distance--sometimes a great distance. Thus, years after the standard graduate-school model of generating future faculty became the norm for most academic departments, in the past ten or more years law schools have drawn increasingly, when hiring, on fellows and fellowships, which are essentially an echo of or proxy for the graduate-school model. This model creates and seeks out a store of future faculty who are professionalized and acculturated as academics rather than practitioners or amateurs, and who have long since signaled their willingness to forego legal-professional status and income in favor of becoming academics. (We still see arguments that law faculty are foregoing what would otherwise be high-income jobs that would readily be accessible to them. That might be true at the outset of their legal careers, after they have graduated and clerked and perhaps spent a couple of years in practice. By the time they have devoted years to academic study and status, however, they have long since made it more difficult to move into the world of practice, for better and worse. This might justify lower salaries for academic law school faculty members, although that's a question for the market to answer, not for abstract and non-empirical arguments about what these individuals "could" do if they wished.) That makes them surer hiring bets, at least as "academic" faculty, for multiple reasons: they have already published, they already talk the talk of the academy, and they have already made clear their long-term intentions to remain faculty members rather than abandoning the academy for professional work or retiring from practice without contributing greatly to "academic" work.  

This new proposal similarly recapitulates the larger changes that have been written about  and debated so much in the wider academy: namely, the part-timing or adjunctification of the university. Some of the rea$on$ for doing so are no doubt the same, and we can expect some of the same arguments--very real ones, I should acknowledge--to arise here: arguments about the potential for abuse and mistreatment, lack of quality control, corporatization of the university, and so on. I think we should think of this as a partial recapitulation of what has happened elsewhere in the university. But we should not treat the two phenomena as identical, by any means. There is a difference between relying heavily on adjuncts with Ph.D's to teach, say, English Literature, and relying heavily on practicing physicians to provide clinical and practical education to medical students. An adjunct literature professor is generally just a literature professor without job protection; a practicing physician serving as a clinical professor of medicine has another job and set of skills that both maintain his or her independence and provide something distinctive of value to the medical school and its students. Law practitioner adjuncts are closer to the latter analogy than to the former. Not all of the arguments against the mass use of adjuncts elsewhere in the academy will fit in the law school context, and they should not just be parroted here thoughtlessly. But of course we should discuss and think through the implications of changing our model.

* * * 

I should note that I am surely an "academic" faculty member, and some of what I say above is hardly in my own interests. I am happy to try to maintain my own salary and other perquisites, and--although slowed recently and to my own profound guilt by illness--I like being an "academic" academic, want to contribute to the academic and scholarly life of my school and the larger community, and think this life has intellectual value and the capacity to contribute to our intellectual tradition, although I resist making overblown arguments about its immediate or "real-world" value. (I am not averse to changing things up, however, and certainly think there ought to be room for rethinking how each faculty member shapes his or her career. Perhaps sabbaticals should be given more frequently but with the caveat that every other sabbatical must be spent volunteering or practicing as a lawyer; or perhaps the obligation to do something of the kind could be tied to the reduced course loads most of us enjoy. No matter how ethereal some of us have become in our work, we might find work as clerks or runners or junior assistants to state legislators; even spending every day for a year sitting in a courtroom and watching arraignments and pleas would be of some value in enriching our perspective.) I just don't think my own interests, or those of other "academic" legal faculty, are especially important factors or relevant to the analysis.   

        

Posted by Paul Horwitz on March 20, 2017 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

New Poll on the Supreme Court

C-SPAN and PBS have posted the results of their poll on the Supreme Court.  Rather than just an update of old numbers about support for the Supreme Court (more on that in another post), this poll has some interesting new questions too.

  • Donald Braman and I have written about the limitations of polling that asks questions about the Supreme Court without practical stakes of Court decisions attached to those questions. This poll does what almost every poll about the Supreme Court does: ask generic questions without stakes attached.  There is a social desirability bias leading respondents to state that they follow what the government is doing and that it matters, but there are reasons to doubt whether people actually follow the Supreme Court.  While asking a question about President Donald J. Trump and then telling respondents about his immigration actions might not change the results that much, asking a question about the Supreme Court and telling respondents about recent decisions could change results.  Some examples from this poll: 65 percent of respondents report that “very often” or “somewhat often” they follow news stories about the Court.  90 percent say the Court has “an impact on my everyday life as a citizen.” These numbers seem hard to believe, particularly given other results within the poll (only 43 percent can identify a Justice).
  • I wrote an essay for a symposium hosted by The Yale Law Journal to mark the fifth anniversary of Justice Sonia Sotomayor’s confirmation to the Supreme Court. I wrote about Justice Sotomayor as “The People’s Justice,” a Justice with the unique ability to—and desire to—communicate to a broader cross-section of the public.  Based on her public appearances, others seemed to agree that Justice Sotomayor was doing this.  In the three years since then, the “Notorious R.B.G.” has emerged as a major meme of public discussion about the Supreme Court.  Justice Ginsburg now appears to be more well-known than Justice Sotomayor (and more well-known than Justice Clarence Thomas, always as well-known as any other member of the Court).
  • We tend to name a Supreme Court by its Chief Justice. There is the Warren Court, the Burger Court, the Rehnquist Court and the Roberts Court.  Implied in that is an assumption that Chief Justices will come to be associated prominently and publicly with that Court.  Think of the “impeach Earl Warren” signs around the country during the heyday of the Warren Court.  John Roberts, though, has been generally less widely known than many of his colleagues on the Court.  In a previous poll from a few years ago, he was somewhere in the middle of the nine Justices in terms of how widely known he was.  In this new poll, he is now second.  Is that the result of his vote in the health care case?
  • Fred Schauer’s marvelous Harvard Law Review foreword from 2005 argued that the Supreme Court is largely outside of the public eye because it is deciding issues not at the top of the agenda of the country. Lee Epstein and others have tried to measure how salient Supreme Court cases are, using various measures (newspaper coverage being one of the leading measures).  Tom Clark, Jeffrey Station and Douglas Rice have an interesting new paper addressing these measures.  This poll asks a very basic question that can also probe how important the Supreme Court is to Americans: among those who have visited Washington, it asks “[w]hen you visited Washington D.C. do you recall seeing any of the following places,” with the Court as one of those places.  While 74 percent recalled visiting Congress and 81 percent recalled visiting the White House, only 35 percent recalled visiting the Supreme Court.

Posted by David Fontana on March 20, 2017 at 06:21 AM | Permalink | Comments (0)

Saturday, March 18, 2017

Can Federal Protection from Takings Endanger Property Rights? The Right to Subdivide in Murr v. Wisconsin

On Monday, the U.S. Supreme Court will hear arguments in Murr v. Wisconsin, a beautifully crisp "denominator" case. The Murr children inherited adjacent lots next to the St. Croix River. One lot had a small cabin near the waterfront; the other was vacant. The Murrs would like to build on the vacant lot, but the county imposed a minimum lot size on the area in 1976 rendering the lot unbuildable. Is this minimum-lot size a deprivation of all beneficial use of the property under Lucas. Or is the "property" in question defined by the two lots combined, one of which contains a cabin?

The Cato Institute's brief argues that "[t]he Court should adopt a bright-line rule against aggregating separate parcels under common ownership," because "[s]uch a rule would add much-needed clarity to the Penn Central test by simplifying the analysis." Wisconsin by contrast argues that the Murr kids' property rights are qualified by Wisconsin's lot merger rule, which provides that adjacent lots forfeit their rights to be developed as non-conforming uses when they are brought under common ownership. The Murrs' parents transferred both of the lots to their children in the 1990s, thereby losing their non-conforming use. The Murr case, therefore, elegantly presents an instance of the central theme of takings doctrine: Which aspects of state law ought to define "property" under the Fifth Amendment? Plenty of people have written on the legal merits of this question. (Ilya Somin has, for instance, written a sharp amicus brief ).

I want to focus on another issue entirely: Do the Murr's, Ilya's and the Cato Institute's positions actually undermine the security of private property? By elevating one aspect of state property law -- lot lines -- over all others, their broad reading of Takings doctrine would give state and local governments enormous incentives to make subdivision of large parcels very difficult. After all, one risks a Lucas taking by allowing a farmer to split up a lot that later turns out to have wetlands or erosion-prone areas on it. The predictable reaction of state and local governments, therefore, will be to make lot splits even more difficult than they already are -- perhaps forbidding them altogether. If this is the upshot of the Murrs' victory, few property owners will thank them.


One might think it fanciful that states would limit the right to split lots in response to a doctrine that elevates lot lines to the status of an automatically compensable property right. State law, however, already severely impedes the right to split lots. In Michigan, for instance, each parcel is permitted only a limited number of splits over various defined time periods. In many states, subdivision requires the posting of bonds and the installation of infrastructure. The reason for these sorts of condition on subdivision is the fear of "zombie plats" -- large parcels of land containing many formally separate lots that lack the requisites for development that could be sold off to unsuspecting vacation-home purchasers, retirees, and other investors a la Glengarry Glen Ross.

The Cato Institute's proposed doctrine gives local governments just one more reason to make lot splits even more difficult: Each of those invisible lines on a plat map might become financial liabilities when the laws change and make some legally defined square, hitherto never believed to convey a right to build, into a buildable lot. One can imagine county attorneys and state legislators calling for the amendment of subdivision codes to put a moratorium on all subdivision until they can figure out the financial liabilities incurred by allowing splits. Of course, any such limit on splits would trigger no takings liability: There is no federally protected right to build on a small rather than large parcel of land. Farmers stuck with unsplittable half-sections will not line up to congratulate the Cato Institute in gratitude for their "bright-line rule" that adds "clarity" -- but little else -- to their property rights.

That's how the hydraulic pressure of Takings Doctrine works to render futile most federal protection of property rights. Since only narrow aspects of state property law are ever federalized as constitutional "property," subnational lawmakers can always evade the doctrine by simply relying on other, non-federalized aspects.

Posted by Rick Hills on March 18, 2017 at 07:24 PM | Permalink | Comments (1)

Friday, March 17, 2017

Legislative Underwrites

My newest paper with Jim Brudney on when legislatures undertake to endorse rather than reject statutory interpretation decisions in the courts is now available for download from SSRN.  It is forthcoming in the Virginia Law Review.  An abstract follows:

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine; they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

More specifically, the article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels. It also examines certain vulnerabilities to the practice that may limit the scope and meaning of underwrites as applied by “downstream” statutory interpreters. Finally, the article explores the interplay between underwrites and key interpretive doctrines that invoke legislative silence—notably, statutory stare decisis and the re-enactment rule. In that connection, it suggests certain doctrinal and institutional settings in which underwrites may be especially valuable.

Posted by Ethan Leib on March 17, 2017 at 02:46 PM | Permalink | Comments (0)

Thursday, March 16, 2017

A Teachable Moment

Thank you to Howard and to the PrawfsBlawg community for the opportunity to blog this month.  This semester I'm teaching Administrative Law in what amounts to an ongoing teachable moment for that subject. 

My fellow blogger, David Fontana, recently discussed the topic of law professor neutrality in our political moment.  I'd like to ask a related, but different, question:  What are techniques to bring this teachable moment into the classroom?  For some, I recognize, this question may seem the wrong one to ask.  For instance, bringing the day's headlines into class will raise the questions about neutrality that David posed.  It also raises questions about responsibility to students, some of whom may be directly affected by the latest action of the Administration.

Still, I've seen several benefits this semester from teaching Administrative Law through the lens of our teachable moment.  First, it helps students connect with difficult and sometimes abstract material.  Second, it helps students understand not only the promise of the rule of (administrative) law, but also its limits.  Third, it responds to students' own demands.  Fourth - and this last point is focused on Administrative Law - it has helped me tell a story that focuses students on presidential administration, a story that might not otherwise be apparent from many of the canonical cases. 

There are, it seems to me, several ways to bring this teachable moment into class, at least for an Administrative Law class.

Perhaps the lowest cost approach is to work real-world examples into Socratic questioning or lecture.  At the beginning of the semester, I did a fair bit of that during the opening of class.  For the most part, it seemed to work well.  And by that I mean, it helped students get some sense of the stakes of the administrative law we planned to discuss, such as due process.     

Another option is to pull problems from the headlines for intensive focus during class.  I use problem-based teaching frequently.  Creating in-class problems based on the latest action from the Trump Administration helps students see the material as relevant, which can be difficult in administrative law.  At the same time, there are risks.  For example, there's a temptation to wrestle with any given class session's material even if it does not fit well with the latest headlines.  Avoiding that temptation, I've found, isn't always easy, particularly if students are eager to connect the law they're learning with what the Administration's doing.  For those who, like me, used problem-based teaching, this option may work well, though it requires generating new problems as the semester goes along.

The most interesting option - at least for me, and I hope for students - is to allow the students to put what they're learning to work.  This semester, my students are each writing a comment on a proposed agency action.  (Some students did not find a real-world proposal that interested them, and therefore worked with me to predict an action that the Trump Administration might take in the future as the basis for the written assignment.)  I just finished grading the students' outlines of their comments, which reflected careful thought and genuine passion for the issue(s) they discussed.    

There's much more that could be said, of course, including the questions that David posed about teaching during the Trump Administration.  I'm interested in what others have done and think about the pedagogical benefits and costs of connecting class with this teachable moment.

 

Posted by Seth Davis on March 16, 2017 at 06:48 PM | Permalink | Comments (5)

Blaming Dissents in Gant and Lightfoot

The Supreme Court sometimes abandons longstanding or widespread readings of its own precedents by blaming a dissenting opinion. “Our previous majority was fairly clear,” the Court effectively says, “except that the dissent in the relevant case cast a spell over readers, leading them astray.” This practice of blaming dissents is both interesting and consequential, appearing for example in Gant as well as the recent decision in Lightfoot.

Here’s the Gant majority opinion:

[O]ur opinion [in Belton] has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan's dissent in Belton, in which he characterized the Court's holding as resting on the "fiction ... that the interior of a car is always within the immediate control of an arrestee who has recently been in the car." Under the majority's approach, he argued, "the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car" before conducting the search.

And here’s the Lightfoot majority:

True enough, the dissent thought Red Cross established a broad rule. See 505 U. S., at 271-272 (opinion of Scalia, J.) (describing Red Cross as announcing a "rule ... that any grant of a general capacity to sue with mention of federal courts will suffice to confer jurisdiction" (emphasis deleted)). The certainty of the dissent may explain the lower court decisions adopting a broader reading of Red Cross. But Red Cross itself establishes no such rule.

These passages raise complex questions about how precedent does and should operate. There are at least four different actors: (i) the precedent dissenters, (ii) the precedent majority, (iii) lower courts, and (iv) the later Court. Let’s take each in turn.

1. Are dissenting opinions reliable when it comes to the meaning of majority opinions?

At a minimum, dissents afford some useful interpretive evidence, in that they tell us what one or more talented, knowledgeable lawyers thought that the Court was saying. Yet dissenters are not exactly disinterested when it comes to reading the majority.

On the one hand, the dissenters have reason to exaggerate: painting the majority as a sweeping ruling can make it an easier target for criticism. And the dissent’s authors, justice and clerks, might just be so worked up that they get carried away.

On the other hand, dissenters frequently—even usually—have strategic reasons for erring on the side of narrowing readings, precisely to discourage broader ones. So a dissent’s broad characterization of the majority could be viewed as a statement against self-interest, stemming either from candor or a lapse of strategic self-control.

2. By considering the majority’s role, and not just the static views of the dissenters, we can view these questions somewhat more dynamically.

Precisely because dissenting opinions inevitably influence later readers, majority-opinion authors have an interest in responding to inaccurate statements in dissenting opinions—and frequently endeavor to do so. Some readers might therefore infer that the authors of majority opinions implicitly agree with unanswered statements in dissents. This inference often underlies reliance on dissents: if the dissent had said something inaccurate about the majority, wouldn’t the majority have spoken up?

But, here as elsewhere, it’s hard to infer consent. Perhaps the majority found the dissent’s characterization to be so obviously wrong as to be undeserving of a response. Or maybe the dissent’s characterization was added at the last minute, or just stayed in the circulated draft, unchanged, even after the majority believed it had made sufficient effort to clarify the issue. Some justices also seem stylistically or temperamentally averse to responding to dissents. So in any given case, it’s generally hard to do anything other than speculate.

Should we adopt a formal practice of giving a dissent’s unanswered characterizations of the majority some force in shaping our reading of the majority? Such a rule would give majorities greater reason to respond with clarity when a dissent rears its head. So overall precedential ambiguity might decline, to the relief of parties and lower courts.

But there are often benefits to precedential ambiguity, such as when greater specificity would prevent a majority from forming at all, or when the majority wants to leave itself or lower courts precedential room to experiment in the future. There is also something more than odd about effectively empowering dissents to establish precedent on topics that even the majority has not clearly addressed. This idea may even be in tension with Article III.

3. How should lower courts figure into this picture?

Given the perils of relying on dissents, one could argue for an exclusionary rule that prohibits lower courts from publishing opinions that rely on Supreme Court dissents.

Perhaps dissenting opinions are so unreliable when it comes to characterizing majority opinions, and lower courts are so unduly influenced by those dissents, that lower court decision-making would be more accurate if judges had to justify their holdings without citing or drawing inferences from the dissents.

But, of course, lower courts would still read and so know about the higher-court dissents, so the viability of this approach depends on how much judicial outcomes are linked to constraints on formal judicial reasoning.

Notably, Gant and Lightfoot do not themselves throw cold water on the idea that lower courts should consider what dissenting opinions say. In other words, Gant and Lightfoot blame the dissents, but leave open the possibility that lower courts were right—or are generally right—to view dissents as a proper source of precedential guidance.

There is a broader point here. The very idea of blaming dissents for lower court decisions suggests that dissenting jurists do in fact have a role in altering lower-court behavior and, thus, in creating de facto precedent. And the more that lower courts consider dissents, the more power the dissenting justices have.

4. What about Court’s behavior in Gant and Lightfoot?

Gant and Lightfoot were trying to justify their readings of precedent by explaining how so many judges could have arrived at contrary readings. The dissent is introduced as a kind of responsible party, even a scapegoat: if only the dissent hadn’t sown so much confusion, more judges would have adopted what Gant and Lightfoot viewed as the correct reading of precedent.

Blaming dissents is thus a means of facilitating doctrinal change. Whether viewed as a rhetorical trope or an emerging doctrinal principle, placing responsibility on dissenting opinions helps to create room for new majorities to undo the doctrinal consequences of their predecessors’ decisions. The previous decision is altered, perhaps through narrowing or extending, and contrary lower court decisions are overridden.

But the “blaming dissents” rationale is at risk of being a bit too convenient, as well as circular. Some lower court judges surely believed that they had adopted the best reading of the relevant Court precedents irrespective of any dissents. Even judges who cited the dissents might have done so simply as additional support or confirmation. Further, whether the dissents in these cases sowed confusion depends on whether the dissents were wrong—and that is the very point that Gant and Lightfoot seek to establish.

Interestingly, an effective instance of blaming dissents might make the dissenters themselves quite happy. True, being labeled as wrong is nobody’s first choice. Dissenters would much rather be vindicated not only on their view of the law but also on their reading of precedent. But neither beggars nor dissenters can be choosers. By setting themselves up to take the blame for broad readings of majority opinions, dissenters might make it more likely that the broad reading is eventually abandoned, as happened in Gant and Lightfoot. So dissenters could win some vindication if the Court eventually blames them for wrongheadedness, thereby moving the law in the dissenters’ preferred direction.

Of course, there are many situations where dissents broadly read or extend majority opinions and don’t get blamed. A plausible recent example concerns same-sex marriage: after Scalia’s Windsor dissent cast the majority as a broad ruling, lower courts promptly followed suit, often emphasizing Scalia’s statements. The Court didn’t respond by condemning lower-court reliance on dissenting opinions; in fact, the Court seemed to draw support from the lower-court decisions, as Neil Siegel has argued. But imagine if Obergefell had come out the other way—would the Court then have been tempted to blame the dissent?

Posted by Richard M. Re on March 16, 2017 at 01:35 PM | Permalink | Comments (9)

Entry Level Hiring: The 2017 Report - Call for Information

Time once again for the entry level hiring report.

I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information we will be aggregating.

Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

I will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.

Clarifications:

The list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.

The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)

Other links:

This report follows in the tradition of Larry Solum's excellent work over many years.

2016 initial post, 2016 spreadsheet, 2016 report (with graphs). 

2015 initial post, 2015 spreadsheet, 2015 report (with graphs).

2014 initial post, 2014 spreadsheet, 2014 report (with graphs).

2013 initial post, 2013 spreadsheet, 2013 report (with graphs).

2012 initial post, 2012 spreadsheet, 2012 report (with graphs).

2011 initial post, 2011 spreadsheet, 2011 report (with graphs).

All PrawfsBlawg entry level hiring report tagged posts.

Originally posted 3/16/17.

 

Posted by Sarah Lawsky on March 16, 2017 at 12:30 PM in Entry Level Hiring Report | Permalink | Comments (34)

Wednesday, March 15, 2017

Law Professor Neutrality in the Age of Trump

So much of what law professors do is cloaked in the language of neutrality.  It is not just Herbert Wechsler who was and is looking for neutral principles, but law professors in their pedagogical and scholarly roles.  But is this performative neutrality merely a function of the usual stakes of law professing and law being relatively low? The presidency of Donald J. Trump certainly raises the stakes of both, and calls for revisiting the role morality of the law professor, on at least two dimensions:

(1) Should we be teaching differently? My desire has always been to maintain as much of my pedagogical neutrality in my first-year constitutional law class as possible.  Other professors are different, revealing their priors and/or their perspectives more often and more vocally.  Should law professors be more willing to reveal their priors in their teaching? Is pretending to stay neutral a form of legitimation of Trump? By simply introducing an action of the Trump Administration, and presenting with a straight face their constitutional arguments defending it, are we legitimating these arguments as “on the wall” in a way that we should not to law students?

(2) Should we be writing differently? So much of legal scholarship is written as if an idea should be evaluated based on its universal and longitudinal merits.  Scholars tend—there are exceptions—not to describe their approach to originalism or living constitutionalism, for instance, as being justified primarily or exclusively because it helps or hurts conservatives or liberals, abortion or gun rights, and so on.  Along those lines, the concerns addressed in scholarship tend (again, there are exceptions) to be less immediate and more longitudinal.  An article is less often about how one case before the Supreme Court now should be decided, but rather more about how the Court should be deciding cases more generally.  The result is that current event proper nouns (e.g. Obama, Trump) are rarely foregrounded in legal scholarship.  Should this be different now, in at least three potential ways: (a) Should a criterion of any argument be whether it helps or hurts the Trump Presidency? Arguments for constraining power tend to wax and wane in the law reviews based on how much law professors like or dislike the president in office.  Should this be made more explicit? The newest idea to constrain power, in other words, is not just evaluated by looking at Federalist 51 but also by mentioning in the text of the article what it means for Trump in 2017.  (b) Is it more acceptable to state the priors of the scholar first because those priors might be under particular threat (“for progressives, this Article is appealing because”)?  (c) Given that basic principles are now being debated and challenged, is it important to state priors regarding basic principles because an argument that used to be universally appealing might now be presumed to be controversial (e.g. “for scholars who believe in the power of courts”)?

Posted by David Fontana on March 15, 2017 at 01:34 PM | Permalink | Comments (23)

Monday, March 13, 2017

Crowding Out Progressive Constitutional Law

The election of Donald J. Trump was devastating for any progressive vision of the Constitution.  With a conservative majority in place after Neil Gorsuch is (almost certainly) confirmed, the losses could mount for decades to come.  It was almost one year ago that Mark Tushnet posted about “defensive crouch” liberal constitutionalism, a crouch featuring “every liberal position asserted nervously.”  My argument in this post is that progressives have gone too far back into that crouch too quickly.  Being in political and/or judicial opposition does not mean one has to only play defense.  Opposition can entail offense too.

Constitutional law is dominated by Court-chasing scholarship, and that tends to be majority-chasing scholarship.  Scholars tend to write for or against a decision or approach adopted by a majority of the Court.  With the rise and rise of the powerful executive branch, scholars now are executive branch-chasing, writing for or against some new assertion of executive power made by the executive branch.  Again, the result is the same: the scholarly frame is what majorities are doing, and the opposition agenda is more focused on critique of majorities and only incidental introduction of alternatives.

Writing about what those in power do is an important thing to do.  Indeed, it might be the most important thing we do right now.  However, the focus on the majority in power is not usually so intense as to crowd out proposals for and consideration affirmative alternatives.  Major jurisprudential transformations are often developed when in the political and legal minority.

The question that I wish to ask is whether it is different now that Trump is President.  The intensity of the focus on the majority can be proportionate to the damage the majority threatens to do.  When those in power are particularly threatening, it might make it all the more sense to focus intellectual energies on disputing what majorities are doing.  Why is it worthwhile to argue what courts should do if courts might not meaningfully exist anymore? Isn’t it better to direct all energies towards playing defense against the really bad things the majority could do, rather than taking time to argue for something quite different?

I do not mean to question this as a topic, but instead to suggest that a major and neglected opportunity cost comes along with that focus: scholarship in opposition.  I have written before of “government in opposition,” the idea (common overseas) that those in opposition should have the ability to develop their own agenda even while in opposition and not merely respond to those in power.  Scholars need to have the same priorities.  While in opposition, some scholars should write about what their perspective would mean if they had power to propose and not just power to oppose.  Oppositional scholarship of this form would not only talk about what a conservative Court did wrong, but also (or instead) how a liberal Court would have proceeded quite differently.

Consider, for instance, when I graduated from law school, nearly twelve years ago now.  Popular constitutionalism was the trendy constitutional theory.  Being in the minority in the judicial branch for many scholars did not even mean dismissing the arguments of judicial majorities, but meant retreating from the judicial branch altogether.  Important scholarly debates were generated about constitutional law outside of the courts—but opportunity costs come along with these debates.  No new alternative vision of what a progressive Constitution should look like was articulated often enough or loudly enough.  As I wrote in Slate, any “heroic vision of our courts” was fading.  To continue with the sports analogy (perhaps too far!): the question for many progressives was how many points to give up in court (pun intended), rather than how to start scoring points on their own. 

Consider, by contrast, a progressive student graduating from law school last spring.  They went to law school when a progressive former professor of constitutional law was in the White House and nominated two new Justices to the Supreme Court.  Some of their fellow students might even have gone to work for that President.  They might have read attempts to supply the Court with a progressive theory—whether it is Jack Balkin’s living originalism, David Strauss’s common-law constitutionalism, or the combination of essays produced by the American Constitution Society for Law and Public Policy.   The law student of today was present at the creation of a progressive agenda created by a progressive majority.

What of the first-year law student in two or four years? Will they be reading critiques of the Trump Court only, or proposals for what the Booker or Cuomo Court should do too?

Posted by David Fontana on March 13, 2017 at 03:10 PM | Permalink | Comments (7)

When Gorsuch Promises “Equal Right to the Poor”

When he accepted the President’s nomination to Supreme Court, Judge Neil Gorsuch went out of his way to praise other judges for adhering to “their judicial oaths to administer justice equally, to rich and poor alike.”  Gorsuch’s understanding of that same oath could shape decades of precedent on everything from access to courts to the imposition of criminal fines. So, during his confirmation hearings, the Senate should ask Gorsuch what he understands his oath to mean—particularly the part about doing “equal right to the poor and to the rich.”

In a forthcoming article, I discuss the history of the judicial oath's “equal right” principle, including its role in recent confirmation hearings. For instance, when then-Judge John Roberts was nominated to the Court, Senator Richard Durbin asked about the relationship between being a Justice and doing justice: should a federal judge “take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system?” Roberts enthusiastically agreed, adding that “the judicial oath talks about doing justice without regard to persons, to rich and to poor.” 

Federal courts have sometimes embraced that view. For example, several federal trial courts have recently had to decide whether wealthy criminal defendants who are denied bail should have the option to construct and staff personal detention facilities in their homes, rather than staying in jail. Judges have rejected those proposals while citing their oaths. The poor and the rich don’t receive equal justice when only the latter avoid jail time. More broadly, courts throughout history have tried to account for the disadvantages of poverty, such as by appointing attorneys or generously reading uncounseled filings.

At other times, however, the oath has been viewed as a prohibition on accommodating the poor or disadvantaged. When then-Judge Sonia Sotomayor was nominated to the Supreme Court, for instance, there was debate about whether “empathy,” including for the poor, should inform judicial decisions. Jeff Sessions, then a Senator and now Attorney General, argued that, “whatever else empathy might be, it is not law.” Sessions further argued that “empathy as a standard” is “contrary to the judicial oath.” And, about thirty years ago, the Supreme Court itself cited the oath as a reason not to give special solicitude to civil rights claimants.

The “equal right” principle's history leaves its meaning open to debate. For centuries, all federal judges and Justices have been required to swear or affirm, among other things, that they will do “equal right to the poor and to the rich.” When the First Congress originally enacted the federal judicial oath, the word “right” was commonly defined to encompass “justice.” And the oath also echoes grand biblical principles, such as Leviticus’s injunction that “thou shalt not respect the person of the poor, nor honour the person of the mighty.” But there has never been consensus on exactly what it means to do “equal right to the poor.”  

That’s why Gorsuch’s confirmation hearings will be so important. In general, confirmation hearings offer a public forum where judicial nominees can specify the oath's meaning by undertaking commitments not just to senators, but to the American people. In that spirit, here are three questions that the Senate might ask Judge Gorsuch:

  • Can you tell us about a time when one of your judicial decisions was influenced by your oath to “do equal right to the poor and to the rich”?
  • When federal judges have discretion to impose criminal fines, does the oath require consideration of whether the defendant is poor or rich?   
  • Do federal judges have an obligation to think about whether both the poor and the rich can access federal courts to obtain “equal right”?  

These are not “gotcha” questions, and I doubt that Gorsuch would stumble in answering any of them. The point of asking these questions is instead to prompt public reflection on legal issues regarding economic equality. Greater attention to these issues would have implications not just for individual nominees, but also for the overall judicial selection process.

The Senate will likely ask many questions about cases, votes, and litmus tests during the upcoming confirmation process. But amid all the sound and fury is a simple statement that every federal judge must swear or affirm. That solemn promise focuses the mind—and, by discussing it, the Senate can help the public understand what Justice Gorsuch would mean when he promises to do "equal right to the poor."

Posted by Richard M. Re on March 13, 2017 at 08:35 AM | Permalink | Comments (3)

Friday, March 10, 2017

The forgotten police shooting?

The latest episode of NPR's Embedded explores the shooting of Jonathan Ferrell by a Charlotte police officer in 2013. This was the prototype for  the many "officer-involved shootings" around which Black Lives Matter has grown: Part of the encounter (not the actual shots, though) was captured on dashcam; the officer described fear of an unarmed black man impervious to weapons with "holograms" for eyes; the jury hung (8-4 in favor of acquittal, split roughly along racial lines) based on seeing different things in the video and the state did not retry; the officer resigned; and the city settled (for about $ 2.5 million).

First, the show explores the ambiguity of video evidence and the fact that different people see different things in the video. It notes the demographic correlations, but no more than that. The producers did not talk to Dan Kahan or about his studies of how people view and understand video evidence and the demographic connections. They instead let everything stand on one person's comments that "people see what they want to see," which is a simplistic way of describing a complicated process of perception and cognition that Kahan has tried to explain.

Second, Ferrell has somewhat become the forgotten police-shooting victim. In writing about police shootings and video the past few years, my paradigms are always the post-Ferguson victims--Eric Garner, Laquan McDonald, Walter Scott. I had not thought about the Ferrell case until I heard the program.

Third, I wonder what we should make of Ferrell settling for $ 2.5 million in 2015, whereas McDonald's settled for $ 5 million and Scott's and Garner's families settled for more than $ 6. Why the difference? Has the post-Ferguson environment created a settlement premium in these cases?

Posted by Howard Wasserman on March 10, 2017 at 03:17 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, March 09, 2017

Lawyer Economic Insecurity in Perspective

Hadfield and Susskinds[posted by Bill Henderson]  This is my last post on two very important new books.

The core thesis of Richard and Daniel Susskind’s book The Future of the Professions is that technology is reducing barriers to specialized information, which in turn reduces the role of various professionals as intermediaries and problem-solvers.  As the Susskinds ably show, this process is well underway and will only accelerate in the years to come.

It is virtually impossible for most lawyers, law students or legal educators to hear this message and not involuntarily, reflexively worry about our own economic security.  The topic of lawyer fear and anxiety over the future is not explicitly taken up by the Susskinds; it’s just a side effect of their core message that we’d be foolish to ignore.  The one piece of good news for lawyers is broad swath of similarly situated professionals -- it’s akin to the old banking proverb, “Owe the bank thousands, and you’ve got a problem; owe the bank billions, and the bank has a problem.”  

This is true on two levels: 

  1. Society [or the current end-users of professional services] are going to need a lot of professional help to replace professionals with high-quality, low-cost technological substitutes.  Before lawyers go away or are heavily marginalized, a subset of lawyers will profit handsomely.  
  2. What technology can, in theory, do today is much bigger than society's ability to absorb technology’s putative benefits. Why? Because someone must first bear the cost of building an effective change infrastructure—i.e., creating working prototypes, educating the target audience on the benefits of new technology, overcoming objections to change, threading the pricing needle, closing sales before cash runs out, and, finally, turning a profit.  In the case of replacing professional know-how with something like artificial intelligence, the interdependencies are so complex that first movers have a high risk of getting slaughtered. And until these new tech-enabled business models get proven out, there are no fast followers. 

Thus, do I fear disruption in the legal services market? No, not at all. As the Susskinds and Hadfield point out, law is underserving its intended beneficiaries.  Quantum leaps in productivity are needed to close this gap.  We are in the early stages of transitioning from one-to-one consultative legal services – an entrenched archetype that is familiar to all buyers of legal services  – to one-to-many platforms that, as yet, seem like science fiction but are definitely taking shape. What is feared by lawyers, law students, and legal educators are the switching costs -- that they exist, that they have to be paid, and that riskless options have evaporated.  Yet, outside the bubble of the legal profession, that looks a lot like business.  That's the real paradigm shift for law.

What I think far more troubling than change in the legal services delivery model is the growing angst in society that more and more workers, including those with professional degrees, are at risk of technological obsolescence.  As this risk becomes near universal, the price of entry to professional employment—in the form of educational debt—is also going up.   

There is a very significant connection between the economic insecurity for knowledge workers that is the unavoidable subtext of the Susskinds' The Future of the Profession and the legal infrastructure described by Gillian Hadfield in Rules for a Flat World

PostitThis connection came to light a couple of weeks ago when these two books caused me to recall an incident from a few years ago.  A recently graduated student who was at the Law School studying for the bar slipped a copy of an op-ed under my office door.   On a yellow post-it note, my student wrote, “Isn’t this a terrible article?”

The op-ed was titled "The Start-up of You," and was written by Thomas Friedman, the author of the best-seller The World is Flat, which inspired Hadfield's title.  Friedman was giving a preview Reid Hoffman's book The Start-up of You (Hoffman is co-founder of LinkedIn): 

Hoffman argues that professionals need an entirely new mind-set and skill set to compete. “The old paradigm of climb up a stable career ladder is dead and gone,” he said to me. “No career is a sure thing anymore. The uncertain, rapidly changing conditions in which entrepreneurs start companies is what it’s now like for all of us fashioning a career. Therefore you should approach career strategy the same way an entrepreneur approaches starting a business.”

My former student wasn’t quibbling with its logic – rather, she was terrified with the insecurity it portended, as the job market was terrible and, notwithstanding a lot educational debt, her professional degree was no longer a safe harbor.

Chapter 4 of Hadfield’s book describes the well-developed complex of rules and norms that enables an America entrepreneur to navigate the risk and uncertainty of starting a business.  Hadfield compares this legal infrastructure to our physical infrastructure of roads, bridges, airports, and power grids. But for the physical infrastructure, which is so easy to take for granted, economic activity and innovation would substantially grind to a halt.  Hadfield persuasively makes the case that our legal infrastructure is an equally crucial to the dynamism of the U.S. economy.

It is this legal infrastructure that enables entrepreneurs, venture capitalist, and private equity moguls to obtain financing for ventures that seek to replace humans with machines and algorithms. Friedman continues:

[W]hat is most striking when you talk to employers today is how many of them have used the pressure of the recession to become even more productive by deploying more automation technologies, software, outsourcing, robotics — anything they can use to make better products with reduced head count and health care and pension liabilities. That is not going to change. And while many of them are hiring, they are increasingly picky. They are all looking for the same kind of people — people who not only have the critical thinking skills to do the value-adding jobs that technology can’t, but also people who can invent, adapt and reinvent their jobs every day, in a market that changes faster than ever.

Who is choosing this future of perpetual competition and insecurity?  Certainly not the college students who were showing up at Bernie Sander rallies in the summer of 2016, nor the white working class that supported Trump.  Unfortunately, we lack an intellectual frame and vocabulary to honestly discuss these anxieties and worries.  This is a difficult, messy job.  I suspect that legal educators feel ill-equipped to take it on; but if not us, then who?

In the early 1970s, the deans of law schools carried on a robust dialogue about “law school as leader school,” largely because of the social upheaval of the late 60s and early 70s. That rhetoric largely went dormant in the 80s, 90s, and 2000s.  In 2014, I concluded that after nearly a century of relative calm and prosperity, the legal profession has headed into a period of tumult and change.  Thus, reasoning that law students and professors alike needed a deeper knowledge of leadership for the challenges that lie ahead, I created a course at Indiana University called Deliberative Leadership.  (I'm happy to share the course proposal and syllabus. One caveat—the students largely run the class, and that is a very good thing.)

Now in my 3rd year of Deliberative Leadership, each class with exactly 20 students, I can say with confidence that Millennial law students – at Indiana Law, but likely elsewhere – are more than ready to have substantive, non-ideological discussions about the future.  And those discussions are, week after week, very energizing. To my mind, having these conversations is no less pressing to law students than a class on Artificial Intelligence and the Law.

BopLikewise, I am equally confident that law school alumni, particularly the tens of the thousands of Baby Boom lawyers who are about to retire healthy and relatively wealthy, would love to be invited back into the law school community to focus on the challenges identified by Hadfield – particularly the 4 billion people who live at the “bottom of the pyramid” due to the lack of a legal infrastructure. 

Two weeks ago, I was fortunate enough to have breakfast with Dean Gordon Smith of BYU Law and a group of his alumni.  Somehow I managed to steer the conversation toward Hadfield’s Rules for a Flat World.  I then made the case to Dean Smith that BYU Law was uniquely positioned to focus on these problems: 

  • Such an undertaking is consistent with the Mormon faith and mission
  • Mormon lawyers are often connected to the emerging and developing world through foreign missions done during their college years – nearly half of BYU undergraduates have been on missions abroad. Many of those grads went on to law school at BYU and elsewhere.
  • To support foreign missions, BYU has a staggeringly deep language program – over 100 languages taught; three-quarters of BYU grads are proficient in a second language.
  • Building a legal infrastructure that spans the first and third world is an audacious goal that would capture the imagination of every generation of lawyer.

I honestly believe this to be true.  And Dean Smith is a person of great intelligence, conviction, and character who could potentially pull it off.  The problems identified by the Susskinds and Hadfield are nothing less than our opportunity.  Dozens of other law schools have good hands to play.

I want to think Dan Rodriguez, who gave me the perfect excuse to timely read and think through two terrific books, and the PrawfsBlawg editors for giving me access to such a large audience of fellow law professors.

Posted by Bill Henderson on March 9, 2017 at 10:28 AM in Symposium | Permalink | Comments (0)

The Place of Power

I am completing a book manuscript that I started a few years ago and now a related article (to be posted on SSRN soon) about how the location of federal power shapes how that power is exercised.  I love titles featuring a double entrende, so my working title for the book has been The Place of Power: A Government By, For, and Near the People.  I have previewed some parts of the argument in symposium essays here and here. 

The question whether to centralize or decentralize national power has been a question permeating our constitutional history, from Abraham Lincoln’s proposal to create a “Western” federal government to the expansion by the Evarts Act of 1891 of regionally distributed lower federal courts to the creation by the Federal Reserve Act of 1913 of regional banks.  The question whether to centralize national power has also long permeated comparative constitutional debates as well, with it playing a particularly prominent role in the creation of the Basic Law in West Germany after World War II and the post-apartheid constitution in South Africa.  Scholars in different disciplines have started to engage with dimensions of this question as well, with a recent contribution by Dave Owen about its relevance to debates about administrative federalism deserving particular attention.

It is therefore worth mentioning that this issue is now being considered by Congress.  This is not a time when Congress has been particularly serious about debating policy merits, nor has it been bipartisan in its approach to anything.  I have started to speak with some on Capitol Hill about this issue.  Given the serious and bipartisan history of this issue, though, my desire—even if not my hope given the current political climate—is that Congress can be persuaded to engage in a substantive way with this question.

Posted by David Fontana on March 9, 2017 at 07:13 AM | Permalink | Comments (1)

Wednesday, March 08, 2017

Complexity Mitigation Strategies for Law-Law Land (and Beyond) and Some Other Thoughts on Hadfield / Susskind^2

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Thanks to Dan Rodriguez and the members of this blog for organizing this conversation. I enjoyed both books (i.e. Rules for a Flat World + The Future of the Professions) and think each offers a significant contribution to the overall legal innovation agenda. In the coming years, I plan to assign portions of both books to students in my courses.  

I am a bit late to the conversation so I will just add a few discontinuous thoughts. This post will be devoted mostly to the Hadfield book. I have lots of information already online surrounding the ideas explored by Susskind^2. See the following – {a.i. + law: a primer}, {machine learning as a service #MLaaS}, {the three forms of legal prediction: experts, crowds + algorithms}. However, both as a person who helps run a technology company in this space and as an academic who does technical work on these questions – the idea that automation is only going to reach low level work is nothing more than wishful thinking. While the industry will still remain, the nature of the work and skill sets required are likely to change (and let’s be clear, the change will be in a technical direction). The only real question -- as I see it -- is the time-scale.

(1) Some General Comments on the Hadfield Book

There is both a scientific agenda as well as an implementation agenda but from where I sit -- law can learn quite a bit from other areas of human endeavor that have confronted complexity in one form or another and have responded in turn with some form of mitigation effort. In fairness, it is very hard to mark all boxes in one book. However, particularly on the implementation aspects of what might be called the ‘complexity problem’, I feel the Hadfield book is somewhat underdeveloped. So I thought I might sketch a few efforts that are being undertaken in furtherance of legal complexity mitigation.

(2) Three Complexity Mitigation Strategies

(a) Lean / Six Sigma For (Legal) Processes:  Law (plus government, more generally) is in real need of a rigorous focus upon implementation / service delivery. We need legal professionals who can deliver a higher quality, lower cost, and more consistent service offering to clients across the economic spectrum, from the Fortune 500 General Counsel all the way down to the low income individual seeking access to justice. Particularly for the most complex of problems, this requires some level of professional skill in system redesign / reengineering.

The application of process improvement methods such as lean and/or six sigma have brought significant increases in both efficiency and quality in a wide variety of fields. Here in law-law-land, however, there has been very little in the way of serious work in this direction (aside from a few notable exceptions).

As noted in this recent report from the magic circle firm Clifford Chance, "almost any task that has a beginning, a middle and an end can be construed as a process, including the practice of law."  Legal processes can be recursively decomposed into a series of sub-processes down to some base layer / primitives. After such processes are mapped, they can be streamlined by some combination of reengineering and waste removal (muda).  While law is not automobile manufacturing, the applications of these ideas has reached far beyond manufacturing to medicine, accounting, financial services, etc.

When one encounters service delivery examples across a range of public and private contexts, the hallmarks of processes which have undergone such process engineering are obvious to the end user / customer / client. So even though the market for legal services is sticky and at times even downright dysfunctional, there is good reason to believe those who embrace process improvement will ultimately win out.

At the Law Lab @ Illinois Tech - Chicago Kent College of Law, I am very excited to teach a combined course in legal project management and legal process improvement with the team from Seyfarth Lean Consulting (Kim Craig, Larisa Kruzel, Kyle Hoover and others from the team). For those who are not familiar, Seyfarth Shaw is one of leading law firms applying lean principles to reengineer the delivery of legal services (for more see here, here, and here). Students who complete all of the requirements (including the certification test) receive a Lean Yellow Belt. 

(b) Design Thinking for Lawyers:  There are important overlaps between process engineering and design thinking but design thinking is a separate discipline with its own useful lessons for law. Design thinking is quite the rage in the broader business world (e.g., as the WSJ says, d school is the new b school).

Law is largely still a service business but we are beginning to see much more productization in law, including the legal tech startups and ongoing innovation efforts within the traditional provider ecosystem. So particularly as applied to the productization in law, implementing lessons from the discipline of user centered design will prove to be particularly useful.

Notable examples within law include Margaret Hagan (bridging Stanford d School and Stanford Law School) and Josh Kubicki (Chief Strategy Officer at Seyfarth Shaw). Under the leadership of my colleague Ron Staudt, my institution - Illinois Institute of Technology - has also had a long tradition of integrating design thinking and law. A2J Author - a platform which has helped deliver Access to Justice (A2J) to more than 3 million+ users - grew out of a collaboration between CALI, Chicago Kent College of Law and the Institute of Design @ Illinois Tech. The goal is to make a range of legal processes less opaque for low-income users.

(c) User Interfaces for Law:  One final complexity mitigation idea that J.B. Ruhl and I have discussed in multiple outlets is the idea of developing a range of user interfaces for law. While some complexity in law is simply the byproduct of political economy or improperly drafting, some of the complexity in law serves other important goals such as allowing for particularization of the law in a range of differentiable contexts. In other words, the challenge with the Simple Rules thesis is that complexity is a feature, not a bug.

So rather than engage in a frontal assault on legal complexity, an alternative approach to reduce complexity experienced by the end user is to build user interfaces (UI). As J.B. Ruhl and I discuss in a recent paper, “Complexity in the underlying object may or may not project into complexity as experienced by the relevant end user. TurboTax and other competing products offer a technology layer sandwiched between the Code and the experience of the end user. In a very serious sense, this software is a legal user interface. Much like internet browsers shield (many) users from the underlying coding language (e.g., HTML and Java) and processes, tax preparation software shields users from the underlying complexity in the Tax Code.”

The open and non-trivial question is how we might extend those ideas to other contexts.

(3) Some Broader Thoughts on The Scientific Study of Legal Systems as Complex Systems

Law is a complex adaptive system (a fairly obvious substantive proposition; for more on this proposition see here, here, here, here, etc.). This proposition has significant implications for how we understand efforts at policy making, how our students counsel their clients, and how one might develop technology to help mitigate the law’s complexity.

Mike Bommarito and I recently presented some of our work on this topic at the Conference on Law + Complexity at the University of Michigan Center for the Study of Complex Systems (see full deck here). The conference was focused on law and complexity across a range of sub-topics (see the full conference agenda here). As I was an IGERT Fellow at the University of Michigan CSCS during graduate school and wrote a dissertation on this topic, this was a particularly cool thing to see come to life.

Now, I know these ideas might not be super familiar to legal scholars, so let me give a wider introduction. The early foundations of the field of complex systems were developed at the Santa Fe Institute with folks such as Ken Arrow, Murray Gell-Mann, Brian Arthur, John Holland, et al. The general idea is that equilibrium analysis (closed form analytical representations via a differential equation) are at best a first order representation of the system that they hope to characterize. (See this George Box quote). While they happen to be a pretty good first order representation -- when they break down it can be pretty consequential. Increasing returns, bubbles, cascades, positive feedback loops, and out of equilibrium models etc. are typically difficult or impossible to characterize using closed form analytical solutions.

The science of complex systems is sometimes characterized as a form of post-modernism (but a rigorous version thereof). Anyway, this is a much larger topic but throughout the Hadfield book there are a number of references to and broader descriptions of law and societal complexity and the future of law in a modern global world. Thus, it is worth noting researchers are beginning to apply theoretical and empirical tools of complexity science to better understand how to measure, monitor, and manage the legal system as a CAS. My hope is the Hadfield book (among other works on this topic) will bring additional theoretical and empirical attention to complexity science and how it might be a useful approach to understand and engineer the legal system.

Posted by Daniel Katz on March 8, 2017 at 11:03 PM in Symposium | Permalink | Comments (0)

JOTWELL: Malveaux on Selmi and Tsakos on the effects of Wal-Mart v. Dukes

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes (Akron L. Rev.), which argues that Wal-Mart has not been the feared death knell for employment-discrimination class actions.

Posted by Howard Wasserman on March 8, 2017 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 07, 2017

Some Suggestions for Dean Emperor Caron and the Buzzworthy New Regime at Pepperdine

As Brian Leiter enthusiastically announces, tax-law-blogger and blog-impresario Paul Caron, nicknamed in Frank Herbert fashion "Blog Emperor Caron," is about to become "Dean Emperor Caron" at Pepperdine Law School. Before taking a puckish turn with this post, let me say that of course I add my congratulations. I have found Paul lovely to talk with in person and via the occasional email and such. Among his many posts at TaxProf Blog over the years, a great number of them have evidenced his warm and caring relationship with his students and his abiding concern for them. I don't doubt he'll bring that same sensibility to his job as dean. Best wishes, Paul! 

The thought did strike me upon his announcement as dean: Given the blog empire he has long been associated with, what if Pepperdine under his administration decided to deemphasize US News Rankings as a major metric, and focus instead on things like page hits and buzzworthiness? To that end, may I suggest that we offer as a gift to the incoming dean some possible "buzzworthier" titles for courses in the standard law school curriculum. I'll start the ball rolling with two suggestions:

Contracts: Henceforth to be renamed in the Pepperdine curriculum and course catalog "Will This Fantastic New Medical Treatment Keep Your Hands Looking Young and Lovely for Life?" 

Civil Procedure: "86 Ways to Triumph in Court. You Won't Believe Number 56!"

 

Posted by Paul Horwitz on March 7, 2017 at 01:22 PM in Paul Horwitz | Permalink | Comments (5)

Monday, March 06, 2017

Farewell and a Final Word on the USPTO Director

I'd like to thank Howard and the Prawfs community for having me as a guest blogger this past month.  I always appreciate the opportunity. 

Since the change in administration, there has been a good deal of confusion about the Director of the U.S. Patent & Trademark Office.  It was initially reported by The Hill and Politico that Michelle Lee, who has been at the helm since 2014, would remain as Under Secretary of Commerce for Intellectual Property in the Trump administration.  Because Lee was at Google before being tapped to head the PTO by President Obama, this was seen as a major victory for the high tech industry. 

Yet, more than six weeks later, the Commerce Department’s website continues to indicate that the PTO Director position is vacant.  The PTO has also delayed responding to a FOIA request seeking information about Lee’s status as Director (the response is now due March 10).  In the meantime, others have been lobbying for her job, namely, the former Chief Judge of the Federal Circuit, Randall Rader, who claims he will “Make Patents Great Again.”

But the tides seemed to shift last week after Wilbur Ross was sworn in as Secretary of Commerce.  Lee subsequently appeared at two public meetings, including the Patent Trial and Appeal Board Bar Association Inaugural Conference, where she delivered a keynote address and was introduced as Director of the PTO.  Let’s hope this week brings further clarity on the matter, so the PTO can focus on its important work, including responding to the Supreme Court’s recent request for input on whether to review Oil States Energy Servs. v. Greene’s Energy Group—a case challenging the PTO’s ability to cancel issued patents on constitutional grounds.

Posted by Megan La Belle on March 6, 2017 at 11:29 AM | Permalink | Comments (0)

Sponsored Post: The weekend MPRE

The following post is by Leah Christensen (Thomas Jefferson) and is sponsored by West Academic.

Have your students been asking you about the MPRE lately? It’s offered just a few times a year—and it’s just around the corner on March 18th.

“Hey Professor, what materials do you recommend to prepare for the MPRE—and oh by the way, it’s only two weeks away!” I have heard that question so many times over the years that I finally took the time to develop a program that would meet students’ needs for a content-rich MPRE study program that is both concise and efficient.

I developed The Weekend MPRE: Complete Preparation for the MPRE in Only A Weekend’s Time (Print & Video Bundle) knowing that students usually don’t begin to study for the MPRE until a couple of weeks before the exam. I’ve taught Professional Responsibility (PR) for years—but I realized that the MPRE exam requires very different study materials than a traditional PR course. The MPRE’s exam questions are specialized and very different than typical PR multiple-choice questions. You can’t simply rely upon your “gut” reaction to answer MPRE questions correctly. That’s why very smart law students fail the MPRE every year!

There are other MPRE programs out there—usually associated with bar programs. The content of these programs is good, but the materials never go far enough to truly prepare students for the MPRE.

The Weekend MPRE offers short lectures on each of the key subjects tested by the MPRE, quizzes, outlines and two full, simulated MPRE exams (with answer explanations). I wanted the program to be a “one-stop shop” for busy law students who wanted all the materials they needed to prepare for the MPRE in one place.

The materials are grounded in learning theory—using 20 minute lectures with a full study plan so that students can truly prepare in one weekend.

And because I teach PR, I developed this course to work in conjunction with any PR course as well.

So when your students ask: “What should I do to prepare for the MPRE?” Have them check out The Weekend MPRE which I developed for the busy law student (or law school professor). I wanted the program to maximize law student success so students only have to take the MPRE one time!

Posted by Howard Wasserman on March 6, 2017 at 09:31 AM in Sponsored Announcements | Permalink | Comments (0)

Saturday, March 04, 2017

Maybe it is seniority

Early in last week's argument in Packingham v. North Carolina, the Chief "called on" Justice Ginsburg over Justice Kagan. It does appear that the answer to who gets precedence is seniority. Which makes sense, given how everything else runs in that institution.

Posted by Howard Wasserman on March 4, 2017 at 10:50 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thanks -- and Predicting the End of One Marijuana Prohibition

Thanks to Howard and the other Prawfs for hosting me! I’ve enjoyed writing about a few of the legal topics now confronting state marijuana reforms.

Marijuana legalization has been one of the most notable law reform movements of the past two decades. The chart below, reprinted from Chapter 1 of my Marijuana Law, Policy, and Authority casebook, displays the proliferation of three types of state legalization from 1996 to 2016.

Chart

In this final post, I want to hazard a (new) guess as to when medical marijuana will be legal in all fifty states. I say “new” guess because a few years ago, using data from 1996-2013, I boldly(?!) predicted that medical marijuana would be legal in all 50 states by  . . . 2039. Based on the quickening pace of reforms, I now predict that medical marijuana will be legal in all states by . . . 2032, or roughly 46 years after California got the ball rolling. (To put that timeline in historical perspective, it took about 40 years for all of the states to repeal their prohibitions on alcohol.) 

Posted by Robert Mikos on March 4, 2017 at 01:08 AM in Criminal Law, Law and Politics | Permalink | Comments (0)

Thursday, March 02, 2017

Sponsored Post: Real Property for the Real World: Experiential Education Made Easy

The following post is by Heather K. Way (Texas), Lucille D. Wood (Texas), and Tanya Marsh (Wake Forest) and is sponsored by West Academic.

Have you been thinking lately about bringing experiential education opportunities into your classroom? Not sure about how much or how little you can do with the 1Ls?

Your timing really couldn’t be better. Students are clamoring for more “experiential education,” and new “skills-building” curricular requirements abound. We are three practicing attorneys who really enjoy teaching property concepts through our casework. In our new book, Real Property for the Real World, we have drawn from our practice experiences to share with you eight accessible and interesting case studies that will engage your 1Ls in property law—their new favorite first-year subject.

This book has its origins in our desire to teach our cases, because the cases deal with contemporary “hot button” issues that we care about, and because we have found that students care about these issues too. Two of us have legal aid backgrounds and have worked intensively in low-income communities. One of us is now a tenured doctrinal property law prof. We wanted to bring the excitement students often have in clinical settings into the very first semester of law school. To do that, we set out to introduce students to property through complicated situations in which our former clients’ homes and livelihoods were on the line. We think these kinds of cases allow 1Ls to see quickly how property law is never boring.

In short, Real Property for the Real World is a one-stop experiential ed shop for property law professors where you can get what you need to bring in skills-building while reinforcing property doctrine through low-dose or high-impact experiences, right down to detailed tables that show the number of minutes in prep and class time you should expect to use for each case study.

Posted by Howard Wasserman on March 2, 2017 at 09:31 AM in Sponsored Announcements | Permalink | Comments (3)

Wednesday, March 01, 2017

Of Aliens and Sedition

In his Empire of Liberty, historian Gordon Wood wrote,

Except for the Civil War, the last several year of the 18th century were the most politically contentious in United States history. … As the Federalist and Republican parties furiously attacked each other as enemies of the Constitution, party loyalties became more intense and began to override personal ties. People who had known each other their whole lives now crossed the street to avoid confrontation. … By 1798 public passions and partisanship had increase to the point where armed conflict among the states and the American people seemed likely. By the end of the decade, in the opinion of the British foreign secretary, the ‘whole system of American Government’ seemed to be “tottering to its foundations.”

I’m not ready to claim that things have gotten quite that bad in the here and now, but it is true there we might draw some interesting parallels.   Perhaps most alarming is the recollection that it was this troubled period that gave us the infamous Alien and Sedition Acts. These were four laws pushed through the Federalist Congress in 1798, born from fears that military tensions with the French abroad might spark Republican led uprisings at home.   Traitorous French sympathizers in our midst, the Federalists worried, might terrorize and undermine our political institutions from within. This maybe starts to sound a little bit familiar.

The Naturalization Act nearly tripled (from 5 to 14 years) the residency period before immigrants could apply for naturalized citizenship, while the Alien Friends and Alien Enemies Acts authorized President Adams to imprison and/or deport noncitizens he deemed dangerous, or whose mother country was hostile to the United States.   These statutes were designed to root out French operatives and sympathizers that the Federalists feared might foment unrest and opposition—in effect bringing the French Revolution across the Atlantic.

The Republicans, led by Francophile Thomas Jefferson, had long championed the French spirit in opposition to the monarchical British sentiments they saw at work in the Federalist party. Indeed, Republican partisans sometimes took to wearing the French tricolored cockades in public. And, by 1798, the Republicans had developed a much, much stronger “ground game” of independent newspaper and pamphlet presses around the country.   No paper symbolized the powerful Republican press more than Benjamin Franklin Bache’s Philadelphia Aurora, which frequently took on Adams and the Federalists in vitriolic terms. It was thus the Aurora and papers like it that Congress targeted with the Sedition Act, which criminalized the utterance of false statements critical of the government.

Franklin Bache was only one of several publishers indicted under the Act, though he died before he could stand trial. David Brown of Massachusetts received the harshest sentence, 18 months in prison, because he refused to name his accomplices in setting up a satirical "liberty pole". Despite Federalist claims that the Sedition Act merely codified (and, in fact, liberalized by allowing truth as a defense) the common law offense of seditious libel, the Republican backlash was intense and forceful. Jefferson and James Madison argued (anonymously) that the Acts were unconstitutional in the Kentucky and Virginia Resolution, and threatened to dissolve the Union.   And the Acts’ unpopularity undoubtedly helped sweep Jefferson and the Republicans into power in the election of 1800. Within a decade the Sedition Act, at least, had settled into the constitutional anti-canon (as perhaps now have Jefferson and Madison’s resolutions?).

The Alien Enemies Act, however, remains on the books, and has in fact been recodified. Indeed, it serves as at least as a partial justification for President Trump’s executive order banning immigrants from seven majority Muslim nations. And I suspect that, if he could, he would reenact the Sedition Act to punish those pesky “fake news” purveyors. Again it seems that, in some minds, the aliens and the un-American lurking among us pose a grave, indeed an existential, threat to American democracy. We live in interesting times. And as a sign off (thank Prawfs for tolerating me again), I would just pause to remember that, in fact, it was the Alien and Sedition Acts—not the French or the Republican press—that actually threatened our vulnerable constitutional culture back in 1798. Here’s to hoping that, 219 years later, that culture is strong enough to withstand another storm.

Posted by Ian Bartrum on March 1, 2017 at 04:11 PM | Permalink | Comments (3)

Thanks, and More on Interdependent Courts

Thanks to Howard and the gang for letting me blog here this month.  For those who are interested, I’ll be continuing my discussion of court organization, structure, and strategy at a newly launched blog, The Interdependent Third Branch.  After you peruse Prawfsblawg, I hope you’ll take a moment to check it out!

Posted by Jordan Singer on March 1, 2017 at 02:16 PM in Blogging, Judicial Process | Permalink | Comments (1)

Rotations

Thanks to our February visitors, who may be sticking around for a few more days. Thanks especially to our symposium participants, who definitely will be around for a few more days. That seems to have worked well and we look forward to doing more things like this in the future.

Welcome to our March visitors: Seth Cavis (UC-Irvine), David Fontana (George Washington), Jack Harrison (Northern Kentucky-Chase), and Brad Snyder (Wisconsin).

Posted by Howard Wasserman on March 1, 2017 at 01:42 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

The Federal Circuit and "Patent Exceptionalism": Part III

As discussed in Parts I and II, legal doctrines developed by the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure.  At the end of this month, the Supreme Court will hear TC Heartland v. Kraft Foods—a case concerning venue in patent cases which, at first glance, seems to fit that mold.  However, as Paul Gugliuzza (Boston University) and I have argued in a recent article and discussed elsewhere, venue is one area of Federal Circuit procedural law that is not, in fact, exceptional.  Rather, the Federal Circuit’s understanding of the patent venue statute—i.e., that it allows corporate defendants to be sued in any district where they are subject to personal jurisdiction—is completely consistent with venue in other federal civil cases.   

The question in TC Heartland is whether the patent venue statute, 28 U.S.C. § 1400(b), is supplemented by the general venue statute, 28 U.S.C. § 1391.  Section 1400(b) provides that patent infringement actions may be brought “where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” While § 1400(b) does not define the term “resides,” the general venue statute does.  Specifically, § 1391(c) says that corporate defendants reside in districts where they are subject to personal jurisdiction.  For more than twenty-five years, the Federal Circuit has held that the term “resides” in the patent venue statute should be defined according to § 1391(c).        

So, why has the Supreme Court decided to weigh in on this issue now?  First, the petitioner in TC Heartland argues that the Supreme Court decided this precise question in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222 (1957), and that the Federal Circuit has failed to follow that decision.  It is true Fourco held that the general venue statute—as it read at the time—did not supplement the patent venue statute.  But over the past sixty years, the general venue statute has been amended several times, and the plain language now makes clear that § 1391(c)’s residency definition applies to the patent venue statute.  Second, and perhaps more importantly, the Supreme Court has taken up this issue for policy reasons.  Today, roughly 40% of all patent cases are filed in the Eastern District of Texas. In East Texas, plaintiff discretion over forum selection has incentivized judges to adopt rules and practices favorable to patent holders in an effort to attract cases, and it has encouraged litigants to engage in unseemly tactics to influence prospective jurors. Rather than resorting to a tortured interpretation of the venue statute, however, any reform to forum choice in patent cases should come from Congress.    

Posted by Megan La Belle on March 1, 2017 at 11:39 AM | Permalink | Comments (0)

PrawfsFest! 2017

The following is posted on behalf of Jake Linford at FSU (jlinford@law.fsu.edu), who is hosting the first PrawfsFest! since Dan's death.

I am among the many beneficiaries of that most Markelian (Markelish?) of workshops, the Prawfsfest! It has been too long since the last Prawfsfest, and so I will be hosting a new session at Florida State University College of Law in Funky Tallahassee. The plan is to gather on April 27-28, during FSU’s exam period, but before the weather turns too hot.

The point of the gathering is to be an incubator for half-baked scholarship and early works-in-progress (pre-submission, pre-SSRN).  Each participant is expected to produce of a draft of no more than 10,000 words.  The author does not present the paper, but instead we spend an hour on constructive criticism of each paper, which everyone will have read.

I have 6 available slots, open to any former or current PrawfsBlawgger, which will be distributed first come, first served. Each participant must cover their own travel expenses and hotel accommodations, but FSU will pick up meals. Historically, the conversation and feedback have justified the cost. I'm hoping to finalize the list of attendees as soon as possible, so please let me know (jlinford@law.fsu.edu) if you plan to attend by March 15, 2017.

Posted by Howard Wasserman on March 1, 2017 at 09:31 AM in Blogging, Teaching Law | Permalink | Comments (0)